Laws of the People's Republic of China

the Ministry of Communications

Circular of the Ministry of Communications on Clarifying the Relevant Issues concerning the Administration of Port operation

Jiao Shui Fa [2005] No.416

The communications offices (commissions) of all provinces, autonomous regions, and municipalities directly under the Central Government, Shanghai Municipal Port Administration Bureau, and all the administrative departments of port at the localities of the relevant ports:

For the purpose of giving guidance to all regions for the good implementation of the Provisions, the Ministry has successively issued the Circular on Relevant Issues concerning the Implementation of the Provisions on Port operation (Jiao Shui Fa [2004]No.235 ), and the Letter of Reply to the Request of the Port and Shipping Administration of the Communications Office of Zhejiang Province for Clarifying the Relevant Issues concerning Port Administration (Ting Shui Zi [2004]No.307 ) since the implementation of the Provisions on Port operation (hereinafter referred to as the Provisions). Recently, some administrative departments of port have also raised some questions on the administration of port operation. We hereby clarify the relevant issues as follows in order to give guidance to all regions for their doing a good job for the implementation of the Provisions:

I.

On Issues concerning Planning and Construction

1.

On the approval documents for the use of shoreline of a port.

According to the requirements of the Provisions, an applicant for undertaking port operation shall, according to the provisions of Port Law, Maritime Traffic Safety Law and the Regulations on the Administration of Traffic Safety of Inland Waters, and the Announcement on Publicizing the Standards for Shoreline of Ports ([2004] No.5) of the Ministry of Communications, handle and submit the approval documents for the use of shoreline of a port. Where the approval documents are not obtained for the use of the shoreline of an established wharf, the owner of the wharf shall go through the approval formalities in accordance with the relevant provisions.

2.

On the formalities for land use of a port.

Some regions report that the formalities for the use of land and water areas of a port have not been gone through. This issue falls within the purview of other administrative departments, and each administrative department of ports shall coordinate with the relevant departments or ask for instructions of the local people's government to solve it through coordination.

3.

On the issue concerning the inconformity of the existing operating wharfs with the overall planning of ports.

Since there was no overall planning for some ports before, or there was overall planning but it has been revised in recent years, the inconformity of the existing operating wharfs with the current overall planning of ports were resulted in. With regard to these issues, the administrative departments of ports of all regions shall, under the leadership of the local people's government and in accordance with the relevant provisions, properly solve them through appropriate policy support or economic compensation and other methods. The Permit for Port Operation may not, according to law, be granted to any wharf that does not conform to the overall planning and construction of a port.

4.

On the issue concerning the construction of a wharf within the areas that have not been brought into the scope of overall planning of ports.

Article 14 of the Port Law prescribes that "The construction of a port shall conform to the port planning. No port facility may be built against the port planning." Therefore, the construction of all the port facilities shall conform to the overall planning of ports. Where it is necessary to build any port facility within the area that has not been brought into the scope of overall planning of ports, the overall planning of the port in this area must be worked out at first. And after the overall planning of the port is examined and approved according to the prescribed procedures, the construction may be carried on by going through relevant formalities according to the relevant procedures for project construction.

II.

On Issues concerning the License for Port operation

1.

On the power of examination and approval of the Permit for Port Operation

In accordance with the relevant provisions of the Port Law and the Administrative License Law, all the Permits for Port Operation shall be subject to the examination and approval of and issued by the administrative department of ports of the region where the port is located, with the exception that the license for operation of port tally business shall be subject to the examination and approval of the Ministry of Communications and the Permit for Port Operation shall be issued by the said Ministry.

2.

On the issue concerning the link-up of the license for port operation with industrial and commercial registration handled by the administrative department of industry and commerce.

Whether the license for port operation is handled prior to the industrial and commercial registration with the administrative department of industry and commerce or not, each region may, according to the provisions of Article 14 of the Provisions, seek support from the local administrative department of industry and commerce through negotiation. For many years, the license for transport business of the water transport enterprises of our country is issued upon the strength of the approval for establishment and the industrial and commercial documents after the water transport enterprises have obtained the approval of the competent department of industry for the preparation of their establishment, and have gone through registration formalities with the administrative department of industry and commerce. Therefore, each region may also negotiate with the administrative department of industry and commerce about the practice agreed between both sides, and shall do a good job for the link-up.

3.

On the issue concerning the administration of the qualifications of individuals for port business operation.

The individuals undertaking port operation as mentioned in Article 3 of the Provisions refers to the individual operators or partners that engage in port operation activities and have obtained the qualifications for port operation according to law. The Provisions prescribes that an individual may engage in port operation, provided that it complies with and satisfies the qualification conditions as prescribed in the Provisions. The fixed abode of an individual operator or partner may be regarded as the fixed business place in the qualification conditions.

4.

On the issue concerning whether or not the engagement of fishing wharfs or military wharfs in long-term or short-term port operation shall be brought into port administration.

In accordance with the provisions of the Port Law, the planning and management of fishing wharfs at fishing ports or military wharfs at military ports will not be brought into the scope of administration of the administrative department of ports, but the port operation of fishing wharfs or military wharfs, whether long-term or short-term, shall be brought into the scope of port administration. And the fishing wharfs and the military wharfs shall obtain the Permit for Operation of Port and accept the supervision and administration by the administrative department of ports.

5.

On the issue concerning whether or not the official wharf shall handle the Permit for Operation of Port.

The official wharfs of such departments of customs, frontier defense and public security may not engage in port business operations. If, apart from satisfying the need of official function, it is necessary for the said official wharfs to undertake port business activities in actual operation, they shall obtain the Permit for Port Operation and, shall accept the supervision and administration by the administrative department of port.

6.

On the issue concerning whether or not the wharfs of ship repairing yards or shipyards shall be brought into port administration.

The wharfs of a ship repairing yard or shipyard are the facilities built by making use of shoreline resources, and shall be brought into the scope of administration of port planning and construction. If, apart from repairing and building ships, the wharfs of a ship repairing yard or shipyard also undertake the port operation as prescribed in the Provisions, they shall be brought into the scope of port administration, and shall obtain the Permit for Port Operation.

7.

On the issue concerning whether or not the ferries of villages or towns or traffic wharfs of tied islands shall apply for the Permit for Port Operation.

Article 3 of the Port Law prescribes that "The port as mentioned in the Law refers to the areas that consist of water area and land area within a certain scope with such functions as the entering and leaving, anchoring or berthing of vessels, embarking and disembarking of passengers, loading and unloading, lighterage and storage of goods, etc., and the corresponding wharf facilities". In view of the above, the business operation and work safety of the ferries of villages and towns shall be subject to the administration of the administrative department of ports, including administrative license for port operation and the supervision of the work safety of the enterprises, etc.

The wharfs engaging in surface transport between land and island shall be brought into the port administration according to the provisions of the Port Law, and shall obtain the Permit for Port Operation.

8.

On the issue concerning whether or not the operation license shall be obtained for the business operations of enterprise wharfs that are not used as public wharfs.

In accordance with the provisions of the Port Law, any wharf enterprise undertaking the business operation of ports as specified by the Provisions, whether it provides public service to society or not, shall be deemed as port operation activities, and shall obtain the Permit for Port Operation, and accept the supervision and administration of the administrative department of ports.

9.

On the issue concerning the temporary license for port operation.

There is no temporary or long-term license for port operation in the Provisions, the administrative departments of ports at all the regions shall handle it according to Article 17 of the Provisions on the suspension of business operation or shutting up shop of relevant port operators. During the implementation, every region shall establish and bring into practice the routine supervision responsibility system in light of their respective actual situations, grasp the information about the changes of port facilities and operation of port operators, and carry out effective administration.

10.

On the issue concerning the determination of the conditions for the license for port service operation.

Article 3 of the Provisions has clearly and specifically set down prescriptions on the content of port services provided to ships, but the Provisions cannot set down concrete and uniform licensing conditions for the various services due to the difference of the scale of ports and the variety of demands for providing services to ships. Every region shall, in light of the actual situation, determine corresponding conditions according to the business nature. For instance, in the case of provision of shore power supply for vessels, a port shall have the source of power supply and safe and reliable power supply facilities; in the case of provision of fuels and materials supply for vessels, a port shall have oil supply wharfs or vessels and the corresponding facilities and equipments, etc. The principles of ensuring the safety and providing effective service shall be observed with the aim of serving enterprises in determining the access conditions, no unreasonable conditions may be set up.

11.

On the license for supply of vessel fuels and materials.

The General Office of the State Council distributed the Circular Concerning Port Supply to Foreign and Chinese Ocean-going Vessels (Guo Ban Fa [1992] No.2) and the Supplementary Circular Concerning Port Supply to Ocean-going Vessels (Guo Ban Fa [1995] No.7) respectively in 1992 and 1995, which have played an important role in doing a good job for port supply to vessels of our country at that time. Afterwards, the State Council has carried out major reform of the port operation system of our country, and a series of laws and regulations concerning port operation has been enacted. The above-mentioned two documents are obviously at variance with the existing management system and laws and regulations, therefore the existing legal provisions shall prevail. The Port Law and the Provisions lift control over the business of supply of fuels and materials to vessels, any enterprise or individual satisfying the prescribed qualification conditions is allowed to undertake the business of supplying fuels and materials to vessels. In the meantime, administration and regulation shall be intensified to ensure the safety management and operation order of ports. At present, the state implements the franchising of fuel oil supply, and every region shall, when examining the business qualifications for port supply of fuels and materials, examine whether or not the conditions as prescribed in the Provisions are satisfied, and whether or not the franchising license issued by the relevant departments has been obtained.

12.

On the issue concerning the administration of provision of ballasting water, garbage disposal and other port services for vessels.

The provision of ballasting water and collection and disposal of garbage for vessels and other port services belongs to port operation activities and shall be brought into the administration scope of port operation for administration on them, and the license for port operation shall be obtained for undertaking business activities of this kind. Any enterprise or individual that provides port services shall accept the administration of the administrative department of ports for its/his business operation, no matter what department it/he is directly or indirectly subordinated to.

13.

On the issue concerning the issuance of the Permit for Port Operation to old wharfs.

With regard to some old wharfs that cannot meet the licensing conditions for port operation as prescribed in the Provisions because they have been built for a long time, or the fundamental materials of the wharfs or ports for inspection and acceptance have been lost, or some of them even have not undergone the inspection and acceptance, the applicant for port operation shall organize experts or qualified entities to conduct technical detection and assessment. The administrative department of ports shall issue the Permit for Port Operation to the applicants that satisfies the conditions upon the assessment, and may not issue the operation license to those that do not satisfy the conditions. If any applicant has difficulties in organizing technical detection and assessment, it/he may entrust the administrative department of port to organize the assessment in a one-off manner, and shall bear corresponding fees needed.

14.

On the issue concerning the newly added operation facilities and the business scopes of port enterprises.

In the case of addition of any operation facilities without exceeding the approved business scope during the process of its business operation, the port enterprise need not obtain the operation license once again, but shall, according to the provisions of Article 30 of the Provisions, submit to the administrative department of ports the relevant information on the newly added facilities. If it is necessary to expand or alter the business scope after adding new operation facilities, it shall go through alteration formalities in accordance with the provisions of Article 16 of the Provisions.

15.

On the issue concerning the issuance of the Permit for Port Operation to the port that has not separated government functions from enterprise management.

In accordance with the provisions of the Port Law, any port, whether large or small, shall separate government functions from enterprise management. The relevant provincial communications offices shall press the people's government of the region where the port is located to implement the requirements of the relevant documents of the State Council, accelerate the separation of government functions from enterprise management of ports, and clarify which departments shall perform the functions of port administration. As for those ports that have not separated government functions from enterprise management, they have no specific administrative department of ports, and therefore, have no principal part to perform the administrative functions of port operation.

16.

On the issue concerning the punishment against the irregular management and operation.

The Provisions have, according to the Port Law, clarified different types of punishment to the acts of management and operation of port enterprises that violate the regulations, which are measures that can ensure the implementation of laws and regulations, and of which the suspension of the Permit for Port Operation is the most severe punishment. The administrative departments of ports at all regions shall, in strict accordance with the Administrative Punishment Law and the Provisions, give punishment to the concrete violations, and shall, if necessary, formulate concrete administrative measures in light of the actual situation, so as to intensify administration on port operation and supervision over law enforcement.

17.

On the issue concerning the operation license for pilot production or operation of newly built port facilities.

With regard to pilot production of newly built port facilities, the Permit for Port Operation shall be obtained from the administrative department of ports. If any applicant for port operation is unable to provide the reporting documents or materials for inspection and acceptance of port operation facilities, it/he may submit the certification documents regarding pilot production of construction entities at first, and then submit the relevant certificate of inspection and acceptance of the completion of the construction project after the expiration of the pilot production.

III.

On the Issue concerning Port Practicing Personnel's Taking of Posts after Obtaining Qualification Certificates

For the purpose of ensuring the work safety of a port, the port practicing personnel shall have the corresponding qualifications according to the relevant laws and regulations. The work for the training, examination and license issuance of the practicing personnel shall be carried out according to the provisions of relevant laws and regulations. At present, in some regions there exists the problem that the repeated training, examination and license issuance are carried out by various departments, which have imposed excessive economic burden on enterprises. The administrative department of each port shall communicate and coordinate with the relevant local departments, and solve the problem properly. The certificates issued after the training and examination that really comply with the relevant laws and regulations shall be acknowledged.

the Ministry of Communications

September 12, 2005