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| Regulations for Port Operation Management |
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Chapter 1 General Provisions Article 1 These regulations are formulated in accordance with the Port Law of the People’s Republic of China as well as other relevant laws and rules and regulations in order to standardize the port operation conducts and maintain the port operation order. Article 2 These regulations are applicable to port operation and other related activities. Article 3 For the purpose of these regulations the following words are employed with the meaning set forth below: 1. Port operation refers to such activities as the port operators provides port facilities or services to ships, passenger and cargo within the port area, including, but not limited to, the following items: 1) To provide ships with such facilities as berths, lightening anchorage, buoys etc.; 2) To provide passengers with such facilities and services to wait for, embark and disembark ships; 3) To provide trustors with such services as cargo handling (including lighterage), storage and warehousing, barge transport within port area, storage, stuffing and unstuffing of containers, as well as simple processing of cargo and its packing; 4) To provide ships with such services as pulling and pushing and towage upon entering or leaving the port, berthing or unberthing and shifting berths; 5) To provide trustors with such tally services as counting packages and inspecting apparent conditions of commodities during the process of taking over and handing over; 6) To provide ships with such port ship services as supply of shore power, bunkers, daily necessities, traffic for crew, disposition of garbage, ballast water (including residual oil and polluted water), supply of oil fence, etc.; and 7) To be engaged in leasing, repair and maintenance of port equipment and facilities and harbor machinery. 2. Port operators refer to such organizations or individuals with the qualification in accordance with the law to conduct port operation activities. 3. Port facilities refer to such buildings or structures built or equipped for port operations. Article 4 The Ministry of Communications of the People’s Republic of China shall be the administration in charge of the port operation management in China. The competent transport (port) departments of the people’s government at the level of province, autonomous regions or the municipality directly under the Central Government shall be in charge of the port operation management with their respect jurisdiction. The departments appointed by the people’s government at the level of province, autonomous regions or the municipality directly under the Central Government, or by the people’s government at the municipal or county level where the port is located shall be responsible for the operation management of the port. The department as mentioned in this article shall be exclusively termed as the port administrative department. Article 5 The Central Government encourages multi-operation and fair competition in port productive operations. No port operator is allowed to conduct monopoly in port operation and no organization or department is allowed to conduct local or departmental protection in port operation in any form. Chapter 2 Qualification Administration Article 6 Operators to be engaged in port operations shall apply for and obtain port operation license. Granting of port operation license shall stick to the principle of fairness, justice and openness with no charge collected from the applicants and shall be subject to social supervision. Article 7 Operators to be engaged in port operation (port tally excepted) shall satisfy the following requirements: 1. Having fixed site for port operation; 2. Having port facilities and equipment appropriate to port operating scope and scale, among which: 1) The fixed facilities such as wharves, passenger terminals, storage yards, storage tanks, polluted water disposition devices shall satisfy the requirements of the overall port outlays, the provisions of the relevant law, rules and regulations and the related technical requirements as well; 2) Terminals to provide services for embarking and disembarking of passengers shall be equipped with such facilities as waiting hall, embarking and disembarking devices against winds, rains and snows; 3) Terminals to provide services for international shipping lines (including lightening anchorage, buoys) shall get the qualification of openness to outsiders; or 4) Operators to provide ships with such facilities as berths, lightening anchorage and buoys shall be equipped with such facilities for handling of ship garbage and wastes, and for pollution emergency, including facilities, equipment and devices necessary for this purposes. 3. Having technical and managerial personnel appropriate to port operating scope and scale. Article 8 Operators to be engaged in port tally service shall meet the following requirements: 1. Having organizational structures, managerial personnel and tally clerks appropriate to business operating scope and scale; 2. Having fixed operating site and operating facilities; and 3. Having articles of association and managing systems. Article 9 Operators engaged in cargo handling and warehousing service are not allowed to conduct cargo tally service and operators engaged in cargo tally service are not allowed to conduct cargo handling and warehousing service concurrently. Article 10 Applicants for port operations shall submit the following documents and materials: 1. Application for port operaion; 2. Composition of operational organization and certification of ownership or utilization of office buildings; 3. Certificate (certification) of completion of fixed facilities such as terminal, storage yard, storage tank and pollute water disposition device that have satisfied the relevant national requirements and approval document for utilization of shoreline; 4. Ship certificates for port operation ships in case of harbor ship operation; 5. Training certificates of top managerial personnel in charge of safe production who have succeeded in training of safety production law, rules and regulations; and 6. Other documents and materials in conformity with the provisions as contained in Article 7 of this Regulations. Operators to be engaged in cargo tally service shall submit the documents as provided for in Paragraph 1 and Paragraph 2 of this Article, the list of tally clerks and qualification certificate of such tally clerks. Article 11 Applicants for port operation (port tally excepted) shall submit to the port administrative department the written application form (as attached) and the relevant documents as as provided for in Paragraph 1 of Article 10. The port administrative department shall make decision whether to grant permission or not within 30 working days after receipt of such application. The port administrative department shall issue the Port Operation Permit (as attached) to applicants who have satisfied the requirements and make such occurrence known to the public through internet or newspapers, and for whose applicants who have not satisfied the requirements, the port administrative department shall not grant the Port Operation Permit and shall advice the applicants in written form of such decision and reasons therefore. The Port Operation Permit shall define the port operation scope as permitted. Article 12 Applicants for port tally service shall submit to the Ministry of Communications the written application form and the relevant documents as provided for in Paragraph 2 of Article 10. The Ministry of Communications may, as the case may be, call for comments from the local competent transport (port) department and relevant port administrative department after receipt of such application and relevant documents, and the above-mentioned department shall make feedback to the Ministry within 7 working days. The Ministry of Communications shall, within 20 working days after receipt of such application and documents, make decision whether to grant permission or not. The Ministry of Communications shall issue the Port Operation Permit to applicants who have satisfied the requirements and make such occurrence known to the public through the website of the Ministry or newspapers, and for whose applicants who have not satisfied the requirements, the Ministry shall advice the applicants in written form of such decision and reasons for not granting the permission. The Ministry shall, upon making the decision, advice the relevant port administrative department of such occurrence. Article 13 The Ministry of Communications and the port administrative department shall, upon receipt of application for port operation, make relevant decisions in accordance with the following conditions: 1. For application that not requires administration permission according to the law, advise the applicant of such occurrence; 2. For application that not falls within the administration of the Ministry and the port administrative department, advise the applicant in time of application to the relevant competent authorities; 3. For application that only needs on-the-spot correction, allow the applicant to make on-the-spot correction; 4. For application that is not complete or not in conformity with the legal form, advise the applicant instantly or once within 5 days of the contents to be completed, failing which the application shall be deemed as accepted as from the day of receipt thereof; or 5. For application that falls within the administration of the Ministry and the port administrative department with complete document in the legal form, or for application the applicant has made up the complete materials as requested, the application to be considered as application for business operation license. For acceptance of application or non-acceptance for the operation permit, a written evidence with the exclusive seal of the approving authorities and approving day shall be produced. Article 14 Applicants shall conduct industrial and commercial administration with the industrial and commercial administration department against presentation of the Port Operation Permit issued by the port administrative department or the Ministry of Communications, and may conduct port operation service only after obtaining business license from the industrial and commercial administration department. Article 15 Port operators shall conduct port-operating activities within the business scope as permitted by the port administrative department. Article 16 Port operators shall, in case of alteration of business scope, carry out permission procedures in accordance with the provisions as contained in Article 11 or Article 12 of this Regulations, and shall conduct alteration administration with the industrial and commercial administration department. Port operators shall, in case of alteration of legal representative of business place, file such occurrence with the port administrative department. Article 17 Port operators shall, in case of lockout or suspension of business, advise such occurrence to the original approving department 30 days in advance. The original approving department shall collect back and nullify the Port Operation Permit and make such occurrence known to the public in appropriate manner. Chapter 3 Operation Management Article 18 The port administrative department and other related departments shall ensure soundness and smoothness of the port public infrastructure facilities. Port operators shall use and maintain the port operating equipment and facilities in conformity with their respect designed functions and keep such equipment and facilities in normal conditions. Article 19 Port operators shall, in case of alteration or conversion of fixed operating facilities such as berth, storage yard, warehouse, storage tank, polluted water disposition device etc., carry out corresponding procedures in accordance with the relevant laws, rules and regulations. In case no approval is required by the port administrative department with respect to the alteration or conversion in accordance with the relevant regulations, the port operator shall file such occurrence with the port administrative department. Article 20 Port operators engaged in carriage of passengers shall ensure safe, quick and convenient transport of passengers, ensure supply of daily necessities for the passengers and keep the waiting hall and environment in sound conditions. Article 21 Port operators shall give priority to port operations with respect to materials for emergency, disaster or national defense construction. When the government requires employment of the port facilities in case of emergency, the port operators shall be subject to the administrative command. Where the port operator suffers loss or damages due to such occurrence, the authorities giving such command shall make appropriate reimbursement in accordance with the relevant law. Article 22 Under the emergent condition of heavy delay of passengers or port congestion due to cargo, the port administrative department shall take necessary measures for evacuation. The people government of the municipal or county level where the port is located may, when necessary, take direct measures for evacuation. Entities, individuals, ships and vehicles in the port shall be subject to the command for evacuation. Article 23 The port administrative department shall, in accordance with the law, work out the emergency plan for dangerous goods which might endanger the public social interest, the emergency plan for evacuation and rescue of passenger in case of sever production accident and emergency plan for natural disasters, and shall establish integrated emergency rescue system for sever production accident at the port. The emergency plans made by the port administrative department in accordance with the preceding paragraph shall be made known to the public and filed with the Ministry of Communications and the superior competent transport (port) authorities. Article 24 Port operators shall, in accordance with the relevant laws, regulations and specific rules made by the Ministry with respect to port safe production, strengthen safe production management, improve safe production conditions, and work out rules and regulations relating to safe production responsibility system so as to ensure safe production. Port operators shall, in accordance with the law, work out their own emergency plan for dangerous goods, the emergency plan for evacuation and rescue of passenger in case of sever production accident and emergency plan for natural disasters, and shall implement or procure implementation of the emergency plans. The emergency plans made by the port operators in accordance with the preceding paragraph shall be filed with the port administrative department and the maritime traffic administration within the jurisdiction of which the port is located. Article 25 Port operators engaged in port operation service shall abide by the provisions of relevant laws, regulations and specific rules made by the Ministry, fulfill the obligations under the contract and provide the customers with fair and sincere service. Article 26 Port operators shall follow the regulations of price and charges made by the government with respect to port operation, make known to the public at the operating site the charging items and charging scale, and use the vouchers and invoices provided for by the government for port operation. Article 27 No port operator is allowed to take unfair means, squeeze out the competitors, or restrain or impede fair competition, nor to exercise discrimination against competitors with the same conditions, or to force others through unfair means to accept port services. Article 28 Port operators shall effect payment of port administrative fees in accordance with the relevant rules and regulations. The legitimate rights and interests of the port operators shall be protected by the law and no entity or individual is allowed to apportion or collect illegally expenses from the port operators. Port operators have the right to reject any expenses apportioned or illegally collected. Article 29 The port administrative department shall do well in collection of port administrative fees, ensure collection of the port administrative fees and effect timely payment of the port administrative fees to the relevant authorities. The port administrative fees shall be kept under special custody and control and used for exclusive purpose. Article 30 Port operators shall submit to the por6t administrative department the real and complete port statistics data and information in accordance with the relevant national rules and regulations. The competent transport (port) authorities at all levels and the port administrative department shall, in accordance with the relevant rules and regulations, submit to the Ministry of Communications and superior competent transport (port) authorities the port statistics data and related information, and establish the port management information system in the of the practical conditions of the port. The working staff of the above departments shall keep commercial secret for the port operators. Chapter 4 Supervision and Inspections Article 31 The port administrative department shall, in accordance with the law, exercise supervision and inspections over the port production safety and implementation of these Regulations, and shall make known to the public the result of the inspections. The port administrative department shall make tour inspections for terminals with large volume of passengers or large volume of cargo handling or terminals for special purpose. Where non-conformity is found during the inspections, the enterprise under inspection shall be ordered to make elimination or make rectification within agreed time limits. The competent transport (port) authorities at all levels shall exercise supervision over the implementation of the Port Law of the People’s Republic of China and the provisions of these Regulations, real implementation of the rules of the laws and rectification of illegal conduct in implementation of the administrative laws by the port administrative department. Article 32 The supervisors and inspectors of the port administrative department have the right to consult the relevant persons of the enterprise under inspection, and make access to or make copy of the relevant information during supervision and inspections. The supervisors and inspectors shall keep confidential to the commercial secret known in the inspections. The inspection party shall be made up by at least two persons and inspectors shall produce identification upon inspections. Article 33 Supervisors and inspectors shall make written record of the time, place, contents of inspections, and non-conformities found and comments for disposition, which shall be signed by the inspectors and countersigned by the person in charge of the enterprise under inspection. Where the person in charge of the enterprise under inspection refuses to countersign the written record, the inspectors shall make necessary record to that effect and report such occurrence to the port administrative department. Article 34 Enterprises and personnel under inspection shall accept inspection conducted by the port administrative department in accordance with the law and provide real and correct data and information and no enterprise or individual is allowed to reject inspection nor to conceal or make false data or information. Chapter 5 Legal Responsibilities Article 35 Where the port operator commits any of the following conducts, the port administrative department may order such operator to suspend such illegal operation or confiscate the illegal income. Where the illegal income is over RMB1000,000, a fine of over two times but less than five times of the illegal income shall be imposed, or where the illegal income is less than RMB100,000, a fine of over RMB50,000 but less than RMB2000,000 shall be imposed. 1) Port operation by the port operator without obtaining the Port Operation Permit according to the law; 2) Port tally service by the port operator without obtaining the permit for that purpose according to the law; or 3) Concurrent operation of cargo handling or warehousing by the port tally operator. In case of the conduct as mentioned in subparagraph 3) with severe consequence, the Ministry of Communications may revoke the port tally permit and make such occurrence known to the public. Article 36 Where the port operator has, as approved through inspection or investigation, committed any conduct not in conformity with one or two of conditions as contained in Article 7 and Article 8 of these Regulations after obtaining the operation permit, the port administrative department may order such operator to suspend operation or make rectification within the agreed time limits, and in case of non rectification, the port administrative department make revoke the Port Operation Permit and make such occurrence known to the public through appropriate manner. Article 37 Where the port operator has not given priority to port operation for materials for emergency, disaster or for national defense construction, the port administrative department may order such operator to make rectification, or for cases with severe consequence, revoke the Port Operation Permit and make such occurrence known to the public through appropriate manner. Article 38 Where the port operator has committed any conduct against the previsions with respect to safe production as contained in Article 24, the port administrative department or the department in charge of safe production supervision according to the law may impose appropriate penalty, or for cases with severe consequence, the port administrative department may revoke the Port Operation Permit, or for cases that have committed crime, make investigation for criminal responsibilities. Article 39 Where the port operator has violated the provisions in Article 25 and Article 26, the port administrative department shall conduct investigation and give assistance to the relevant department in disposition of such case. Article 40 Where the port operator has failed to provide the port administrative department with timely and correct port statistics data and information against the provisions of Article 30, the port administrative department may impose appropriate penalty in accordance with the relevant laws and regulations. Article 41 Where the port administrative department fails to conduct responsibilities in accordance with the law and has committed any of the following conducts, administrative penalties may be imposed according to the law over the person in direct charge or person in charge of the case, or where crime has been committed, investigation shall be made for criminal responsibilities: 1) Having granted Port Operation Permit to applicant not in conformity with the legal conditions; 2) Not having revoked the Port Operation Permit where the port operator is found no more to meet the legal conditions; or 3) Having failed to exercise inspection duties according to the law or failed to impose penalties for conduct of port operation without obtaining legal permit, or conduct against the provisions of safe production, or conduct that has endangered port production safety, or any conduct against the provisions of these Regulations. Article 42 Where the port administrative department has interfered against the law in the free operation of the port operator, the superior administrative authorities or the supervision administration may order such department to make rectification. Where the port administrative department is found to have apportioned or collected fees from the port operators against the law, the superior administrative authorities or the supervision administration may order such department to refund the fees, or for cases with severe consequence, impose administrative penalties over the person in direct charge of the department or person in direct charge of the case. Chapter 6 Supplementary Provisions Article 43 The port administrative department shall file the Port Rules made in accordance with the Port Law of the People’s Republic of China with the superior competent transport (port) authorities and the Ministry of Communications upon implementation. Article 44 The ‘Regulations for Ship Pilotage Administration made by the Ministry of Communications shall be applicable to pilotage service in port and the Regulations for Dangerous Goods Administration at port made by the Ministry of Communications shall be concurrently applicable to port operators engaged in port operation for dangerous goods. Article 45 The interpretation of these Regulations shall rest upon the Ministry of Communications. Article 46 These Regulations shall come into force as from the first day of June of 2004. |
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