Measures for Ecological and Environmental Administrative Punishments

Measures for Ecological and Environmental Administrative Punishments

Order of the Ministry of Ecology and Environment of the People's Republic of China
(No. 30)

The Measures for Ecological and Environmental Administrative Punishments, as deliberated and adopted at the 1st Executive Meeting of the Ministry of Ecology and Environment in 2023 on April 13, 2023, are hereby issued and shall come into force on July 1, 2023.

Minister: Huang Runqiu

May 8, 2023

Measures for Ecological and Environmental Administrative Punishments

Chapter I General Provisions

Article 1 These Measures are developed in accordance with the Administrative Punishment Law of the People's Republic of China, the Administrative Compulsion Law of the People's Republic of China, the Environmental Protection Law of the People's Republic of China, and other applicable laws and administrative regulations for the purposes of regulating the imposition of ecological and environmental administrative punishments, supervising and safeguarding the legal imposition of administrative punishments by the departments of ecology and environment, safeguarding the public interest and maintaining the social order, and protecting the lawful rights and interests of citizens, legal persons, or other organizations.

Article 2 Where a citizen, legal person, or any other organization shall be given an administrative punishment due to any violation of law, regulation, or rule on ecological and environmental protection, the punishment shall be imposed in accordance with the procedures prescribed in the Administrative Punishment Law of the People's Republic of China and these Measures.

Article 3 Ecological and environmental administrative punishments shall be imposed and illegal acts shall be corrected by combining education with punishment, and combining services with management, so as to direct and educate citizens, legal persons, or other organizations to consciously abide by the law.

Article 4 In the imposition of ecological and environmental administrative punishments, the lawful rights and interests of citizens, legal persons, and other organizations shall be protected in accordance with the law, and the state secrets, trade secrets, or personal privacy accessed to in the imposition of administrative punishments shall be kept confidential in accordance with the law.

Article 5 The principles of impartiality and openness shall be followed for ecological and environmental administrative punishments.

Article 6 Under any of the following circumstances, a law enforcement officer shall voluntarily apply for withdrawal, and a party shall be entitled to apply for the withdrawal of the law enforcement officer:

(1) The officer is a party to the case or is a close relative of a party to the case.

(2) The officer or a close relative thereof has a direct interest in the case.

(3) The officer has other relations with the case, which may affect impartial law enforcement.

(4) Any other circumstance under which the officer shall withdraw as prescribed by any law, regulation, or rule.

An application for withdrawal shall be accompanied by an explanation of the reasons for withdrawal. The department of ecology and environment shall promptly make a decision on the withdrawal application and notify the applicant.

The withdrawal of the primary person in charge of the department of ecology and environment shall be decided through collective discussion by the person in charge of the department; the withdrawal of any other person in charge of the department of ecology and environment shall be decided by the primary person in charge of the department; and the withdrawal of any other law enforcement officer shall be decided by the person in charge of the department of ecology and environment.

Article 7 A party shall not be subject to the administrative punishment of fines for two or more times due to a same illegal act. If a punishment of fine shall be imposed because the same illegal act violates several laws and regulations, the punishment shall be given according to the provisions on the higher fine.

The imposition of an administrative punishment shall be governed by the provisions of laws, regulations, and rules when the illegal act occurs. However, if the applicable law, regulation, or rule has been amended or repealed when an administrative punishment decision is made and a lighter punishment shall be given or an act is not determined as illegal according to the new provisions, the new provisions shall apply.

Article 8 In accordance with laws and administrative regulations, the types of ecological and environmental administrative punishments include:

(1) warning and circulation of a notice of criticism;

(2) fine, confiscation of illegal income, and confiscation of illegal property;

(3) suspension of a license or permit, lowering of the qualification level, revocation of a license or permit, and prohibition of application for administrative licensing within a certain period;

(4) restriction of production or business, ordered suspension of production for an overhaul, ordered suspension of production or business, ordered closure, restriction of employment, and prohibition of employment;

(5) ordered dismantling within a prescribed time limit;

(6) administrative detention; and

(7) other types of administrative punishments as prescribed by laws and administrative regulations.

Article 9 When executing an administrative punishment, the department of ecology and environment shall order the party to take corrective actions or correct the illegal act within a prescribed time limit.

A decision ordering the correction of the illegal act may be issued separately or together with an administrative punishment decision.

The provisions on administrative punishment procedures shall not apply to ordering corrective actions or corrective actions within a prescribed time limit.

Article 10 The ecological and environmental administrative punishments shall be executed by law enforcement officers qualified for administrative law enforcement. There shall be not less than two law enforcement officers present at the scene, except as otherwise prescribed by any law.

Chapter II Imposition Entities and Jurisdiction

Article 11 The department of ecology and environment shall impose ecological and environmental administrative punishments within the scope of its statutory functions and authority.

The comprehensive administrative law enforcement institution for ecological and environmental protection and other organizations authorized by any law or regulation shall impose ecological and environmental administrative punishments within the scope of statutory authorization.

Article 12 The department of ecology and environment may, within the scope of its statutory authority, entrust in writing an organization that meets the conditions prescribed in Article 21 of the Administrative Punishment Law of the People's Republic of China to impose administrative punishments.

The entrusted organization shall impose administrative punishments in accordance with the relevant provisions of the Administrative Punishment Law of the People's Republic of China and these Measures.

Article 13 The ecological and environmental administrative punishment shall fall under the jurisdiction of the department of ecology and environment with the administrative punishment power at the place where the illegal act occurs. If it is otherwise prescribed by any law or administrative regulation, such provisions shall apply.

Article 14 Where two or more departments of ecology and environment have jurisdiction, the department of ecology and environment that first files the case shall have jurisdiction.

The disputes over jurisdiction shall be resolved through negotiation, and if negotiation fails, a request shall be submitted to the common department of ecology and environment at the next higher level for designation of jurisdiction; or the common department of ecology and environment at the next higher level may also directly designate jurisdiction.

Article 15 Where the department of ecology and environment at a lower level considers that a case under its jurisdiction is major or difficult or it has difficulty in imposing the punishment, it may report the matter to the department of ecology and environment at the next higher level to designate jurisdiction.

If the department of ecology and environment at the next higher level deems it necessary, it may, after notifying the department of ecology and environment at a lower level and the parties, directly exercise jurisdiction over the case under the jurisdiction of the department of ecology and environment at the lower level or designate another department of ecology and environment having jurisdiction to exercise jurisdiction over the case.

The department of ecology and environment at a higher level may transfer a case under its jurisdiction to the department of ecology and environment at a lower level having jurisdiction for the imposition of administrative punishment.

Article 16 The department of ecology and environment shall transfer a case that does not fall within its jurisdiction to the department of ecology and environment having jurisdiction for handling.

If the department of ecology and environment to which the case is transferred has any objection to the jurisdiction, it shall request the common department of ecology and environment at the next higher level to designate jurisdiction and shall not transfer the case on its own.

Article 17 Where the department of ecology and environment finds that a case is not under its jurisdiction, it shall, according to the relevant requirements and within the prescribed time limit, transfer the case to the organ having jurisdiction for handling.

For a case in which the offender is suspected of any violation of law and shall be subject to administrative detention in accordance with the law, the department of ecology and environment shall transfer the case to the public security authority or coast guard agency.

If the illegal act is suspected of constituting a crime, the department of ecology and environment shall transfer the case to the judicial authority in a timely manner. Criminal punishment shall not be exempted due to the imposition of an administrative punishment.

For any case involving any suspected violation of the law and for which the business shall be suspended or closed down by the people's government, the department of ecology and environment shall report it to the people's government with the approval authority.

Section 3 Ordinary Procedure

Section 1 Case Filing

Article 18 The department of ecology and environment shall conduct a preliminary examination of any suspected violation of law, regulation, or rule on ecological and environmental protection and decide whether to file the case or not within 15 days, except that an administrative punishment decision may be made on site in accordance with the law. Under special circumstances, an extension of 15 days may be made with the approval of the person in charge of the department of ecology and environment, except as otherwise prescribed by any law or regulation.

Article 19 Where the following four conditions are met upon examination, a case shall be filed:

(1) There is any prima facie evidence proving the commission of any suspected violation of any law, regulation, or rule on ecological and environmental protection.

(2) An administrative punishment shall be or may be given in accordance with the law.

(3) A case shall be subject to the jurisdiction of this organ.

(4) An illegal act is committed within the accountability period prescribed by the Administrative Punishment Law of the People's Republic of China.

Article 20 Where a case that has been filed no longer meets the conditions for filing a case as prescribed in Article 19 of these Measures according to new circumstances, the case shall be revoked.

Section 2 Investigation and Evidence Collection

Article 21 The department of ecology and environment shall designate people to be responsible for the registered and filed ecological and environmental illegal acts, investigate in a comprehensive, objective, and impartial manner, and collect the relevant evidence.

Article 22 Where the department of ecology and environment needs the assistance of any other department of ecology and environment in investigation and evidence collection when handling an administrative punishment case, it may send a letter of investigation assistance to the relevant organ for that purpose.

If the department of ecology and environment needs the assistance of any other department of ecology and environment in investigation and evidence collection when handling an administrative punishment case, it may send a letter of assistance in investigation. The department of ecology and environment that receives the letter of assistance shall provide assistance for the matters within the scope of its functions and powers in accordance with the law. If it is unable to provide assistance, it shall promptly inform the requesting department of ecology and environment in writing.

Article 23 When conducting investigation or inspection, law enforcement officers shall take the initiative to produce their law enforcement credentials to the party or the relevant person. The party or the relevant person shall have the right to require law enforcement officers to produce their law enforcement credentials. If a law enforcement officer fails to produce law enforcement credentials, the party or the relevant person shall have the right to refuse to accept the investigation or inspection.

The party or relevant person shall truthfully answer questions and assist in the investigation or inspection, and shall not refuse or obstruct the investigation or inspection or practice fraud when accepting the inspection. Transcripts shall be made for the interview or inspection.

Article 24 Law enforcement officers shall have the right to take the following measures:

(1) Entering the relevant places to carry out inspections, surveys, monitoring, audio recording, photographing, and video recording.

(2) Interviewing the party and the relevant personnel, and requiring them to explain the relevant matters and provide the relevant materials.

(3) Consulting and copying production logs, pollutant discharge records, and other relevant materials.

When necessary, the department of ecology and environment may conduct a covert investigation or investigation in any other form. When conducting an investigation or inspection, it may organize monitoring personnel and other technicians to provide technical support.

Article 25 The law enforcement officers shall perform the following duties:

(1) conducting a comprehensive, objective, prompt, and impartial investigation of the basic information of the party, the facts of the violation of law, the adverse consequences, the circumstances of the violation of law, and other circumstances;

(2) collecting evidence related to the case in accordance with the law and shall not collect evidence by force, threat, enticement, fraud, or any other illegal means;

(3) interviewing the party and informing the party of the legal rights thereof; and

(4) attending to the statements and arguments of the party, witness, or other relevant personnel, and truthfully recording them.

Article 26 The evidence on ecological and environmental administrative punishments includes:

(1) documentary evidence;

(2) physical evidence;

(3) audio and video recordings;

(4) electronic data;

(5) witness testimony;

(6) statements of the party concerned;

(7) identification or evaluation opinions; and

(8) survey transcripts and on-site disposition transcripts.

Evidence must be verified to be true before it is taken as the basis for forming the merits of a case.

Illegally obtained evidence may not be taken as the basis for forming the merits of a case.

Article 27 The evidentiary materials legally obtained by the department of ecology and environment before a case is filed may be taken as evidence for the case.

The evidentiary materials legally collected by any other authority according to its functions and powers may be taken as evidence for the case.

Article 28 When inspecting (investigating) the relevant items or places, on-site inspection (investigation) transcripts shall be made, and audio and video recordings may be made according to actual circumstances.

The on-site inspection (investigation) transcripts shall state the duration, time, and place of the on-site inspection, basic information of the law enforcement officers, and basic information of the party or the relevant person concerned. Law enforcement officers shall produce their law enforcement credentials, inform the party or the relevant person concerned of the rights to apply for withdrawal and the obligations to cooperate in investigation, on-site inspection results, and other information, and law enforcement officers, the party, or the relevant person shall affix their signature or seal.

If the party is not present or refuses to affix his or her signature or seal, law enforcement officers shall state the fact in the on-site inspection (investigation) transcripts.

Article 29 During the on-site inspection, the department of ecology and environment may, in accordance with the requirements of relevant technical specifications, collect samples on site, and the obtained monitoring (testing) data may be taken as evidence for forming the merits of the case.

Law enforcement officers shall include the sampling information in the on-site inspection (investigation) transcripts. The sampling information may be recorded by photographing and video recording.

After obtaining the monitoring (testing) report or identification or evaluation opinion, the department of ecology and environment shall inform the party of the monitoring (testing) and identification or evaluation result.

Article 30 A pollutant discharging entity shall be responsible for the veracity and accuracy of the automatic monitoring data in accordance with the law, and shall not falsify or forge such data.

A pollutant discharging entity in an industry that implements the rules for marking automatic monitoring data shall mark the data in accordance with the provisions of the department of ecology and environment of the State Council. The marked automatic monitoring data may be taken as evidence for forming the merits of a case.

If the on-site mon......