Notice of the Department of Ecology and Environment of Guangxi Zhuang Autonomous Region on Printing and Distributing the Discretionary Rules for Administrative Punishment of the Ecological Environment of Guangxi Zhuang Autonomous Region (2023 Edition).
Municipal Bureau of Ecology and Environment:
The "Guangxi Zhuang Autonomous Region Ecological and Environmental Administrative Punishment Discretionary Rules (2023 Edition)" is hereby issued to you, please conscientiously implement it.
Department of Ecology and Environment of Guangxi Zhuang Autonomous Region
July 4, 2023
(This is a public release)
Ecological environment of Guangxi Zhuang Autonomous RegionRules for the Discretion of Administrative Penalties
(2023 Edition)
Article 1 In order to standardize the exercise of the discretionary power of administrative punishment for the ecological environment and protect the legitimate rights and interests of citizens, legal persons and other organizations, these rules are formulated in accordance with the provisions of laws, rules and documents such as the Administrative Punishment Law of the People's Republic of China, the Opinions of the General Office of the State Council on Further Standardizing the Formulation and Management of Administrative Discretionary Standards, the Measures for Administrative Punishment of the Ecological Environment, and the Guiding Opinions on Further Regulating the Application of the Discretionary Power of Environmental Administrative Punishment issued by the Ministry of Ecology and Environment, combined with the actual situation of our region.
Article 2 我区各级生态环境主管部门在行使行政处罚裁量权时，适用本规则及其附件《Ecological environment of Guangxi Zhuang Autonomous Region行政处罚裁量基准》（以下简称裁量基准）。
The competent department of ecology and environment at the districted city level may, in light of local conditions, further refine, quantify, and supplement these Rules and discretionary standards.
Where laws, regulations, or rules have other provisions on the exercise of discretionary power for administrative punishments, follow those provisions.
Article 3 The exercise of discretionary power for ecological and environmental administrative punishment shall follow the principles of legality, reasonableness, proportionality of punishment, openness, fairness and justice.
Article 4 Based on the constituent elements and circumstances of the violation, these Rules set individuality, commonality, and discretionary criteria for revision, and the following factors are comprehensively considered in the setting of discretionary factors:
(1) Environmental pollution, ecological damage, and social impact caused by illegal conduct;
(2) the degree of subjective fault of the parties;
(3) The specific ways or means of the violation;
(4) The duration of the violation;
(5) The specific targets of the harm caused by the illegal conduct;
(6) Whether the party has violated the law for the first time or again;
(7) The attitude of the parties in correcting the illegal conduct and the corrective measures taken and their effects.
Article 5 This rule uses a fixed discretionary formula to calculate the amount of the fine.
When handling cases of specific ecological and environmental violations listed in the Annex to these Rules, the competent departments of ecology and the environment shall calculate the amount of fines based on individuality, commonality, and revised discretionary standards, and when handling other cases of ecological and environmental violations, they shall calculate the amount of fines based on commonality and revised discretionary standards.
Article 6 Calculation of the amount of the fine.
(1) Comprehensively consider the circumstances of the violation, the severity of the consequences, and the characteristics of the violating entity, and determine the value of the discretion level corresponding to the discretionary factor in each discretionary standard, common discretion standard, and revised discretion standard.
Where the illegal conduct has multiple discretionary factors within the same discretionary factor or correction factor at the same time, the value with the highest discretionary level is to be taken.
If it is not possible to determine or correspond to the discretionary factors in the individual discretion standard, the discretion level is not taken or the value is taken according to the lowest discretion level.
All discretionary factors and correction factors in the common discretion standards and revised discretion standards shall determine the value of the discretion level of the discretion factor, and where the discretionary factor that should be taken cannot be determined, the value shall be taken in accordance with the lowest discretion level.
(2) Substitute the values of the discretionary level of the relevant individualized discretionary standards, common discretionary standards, and revised discretionary standards into the discretionary formula, and calculate the amount of punishment that matches the circumstances and consequences of the violation.
The coefficient calculation of the formula is calculated to 3 decimal places according to the "rounding" method, and the discretionary penalty amount calculated by the formula is rounded to "yuan" after rounding off the decimal point.
Where the calculated amount of discretionary punishment exceeds the legally-prescribed penalty range, the value is to be taken in accordance with the upper and lower limits of the legally-prescribed penalty range.
(3) If there are multiple pollution factors exceeding the standard in the "sewage discharge exceeding the standard", the pollution factor with the highest multiple of the excess shall be used for grade discretion, and the "hourly flue gas flow" shall be determined by the highest online hourly flue gas flow on the day of exceedance, and the "daily water discharge" shall be determined by the online wastewater discharge on the day of exceeding the standard.
If the actual hourly flue gas flow and daily discharge volume cannot be determined, the pollutant discharge permit, environmental impact assessment documents, manual monitoring data, pollution source census data and other methods shall be verified in turn.
(4) The total pollutant discharge control index and the actual total amount of pollutant discharge shall be subject to the determination of the departments responsible for the total amount of pollutant discharge at all levels.
(5) Calculation of fixed discretionary formulas
1. Discretionary formula: X=N+(M-N)×[(A-1)/4]×(0.6+B)
X: Discretionary penalty amount
M: Statutory penalty cap
N: the lower limit of the statutory penalty, and the value of the non-lower limit is 0
A: Discretion factor
B: Correction factor
2. Discretion coefficient A
Based on the facts of on-site law enforcement investigation and evidence collection, select the individual discretion benchmark and common discretion benchmark corresponding to the illegal act, and calculate the discretion coefficient A from the value of the discretion level corresponding to the discretion factor:
(1) A = 50% × the average value of the discretion level corresponding to the consequences of the violation in the common discretion standard + 50% × the value of the discretion level of other discretion factors.
(2) If there is the same illegal act within the first two years from the date of occurrence of the illegal act (as determined by the administrative penalty decision issued below), or if the pollutant is illegally discharged by evading supervision, the discretionary coefficient A shall be calculated in accordance with the following method:
A = 50% × the value of the discretion level of the primary factor (the primary factor is the discretion factor with the highest discretion level value) + the average value of the discretion level of 50% × other discretion factors.
3. Correction factor B
The revised discretion criteria include five items: degree of subjective fault, corrective attitude, remedial measures, economic affordability, and type of industrial structure, and the value of the discretion level ranges from -2 to 2.
B = (Sum of the value of the discretion level corresponding to the discretion factor in the revised discretion standard/10) × 40%.
Article 7 The competent departments for ecology and the environment at all levels shall use the relevant information systems developed and constructed by the autonomous region's competent departments for ecology and the environment to achieve efficient, convenient, and accurate discretionary work.
Article 8 On the basis of the macro situation and policy requirements of the national or autonomous region's economic development, optimization of business, and enterprise operations, as well as relevant phased special actions, and performance of compensation for ecological and environmental damages, the competent department of ecology and environment may, after collective deliberation, enforce the results of the calculation of the discretionary formula within 30%, but shall not exceed the statutory penalty range. Except as otherwise provided by law.
Article 9 Where a party corrects the illegal conduct of the ecological environment within the time limit for making a statement and defense as provided for in the notice of prior (hearing) of the administrative punishment, and publicly apologizes in the major media at or above the districted city level, makes a commitment to abide by the law of the ecological environment, and reports in writing to the competent department of ecology and environment, after collective deliberation, the competent department of ecology and environment may, on the basis of the calculation results of the discretionary formula, implement it within 10%, but shall not be less than the minimum amount of fines prescribed by law.
Article 10 当事人同时具备Article 8、第九条规定的从轻处罚条件的，可以同时适用从轻处罚的规定，合并计算下浮比例，但最终的罚款数额不得低于法定最低的罚款数额。
Article 11 In any of the following circumstances, the mitigated punishment provided for in Article 9 does not apply:
(1) Ecological and environmental violations are applicable to the transfer to the judicial organs for criminal responsibility;
(2) Ecological and environmental violations are applicable to administrative detention transferred to the public security organs;
(3) Illegal acts of the ecological environment causing a negative social impact;
(4) Violating prohibitive provisions in drinking water source protection zones;
(5) Refusing or obstructing supervision and inspections by violence, threats, or other means, or engaging in deception when accepting supervision and inspections;
(6) There are two or more ecological and environmental violations at the same time, and one of the ecological environmental violations has any of the circumstances in items 1 through 5 of this article;
(7) Where there is another ecological or environmental violation within two years from the date of the last occurrence of the ecological or environmental violation;
(8) The previous ecological and environmental administrative punishment has not been fully performed;
(9) Where laws, regulations, or rules provide that a lighter punishment must not be applied.
Article 12 In any of the following circumstances, where the parties actively cooperate with the investigation, the illegal acts are minor and corrected in a timely manner, and no harmful consequences are caused, and the parties provide the corresponding materials, the competent department of ecology and environment shall not impose administrative penalties after verification:
（一）建设项目位于《建设项目环境影响评价分类管理名录》Article 3第一项、第二项所规定的环境敏感区之外，建设单位未依法报批或者重新报批建设项目环境影响评价文件，擅自开工建设，尚在建设期间，或者已经建成，但尚未投入生产或者使用，现场检查发现后立即停止建设或者恢复原状的；
(2) The construction unit fails to file the environmental impact registration form of the construction project in accordance with the law, and corrects it within 5 working days after it is discovered;
(3) The construction unit fails to carry out a post-environmental impact assessment in accordance with the law, and carries out a post-environmental impact assessment within one month after discovery;
(4) The construction unit fails to organize the implementation of environmental impact assessment documents and the environmental protection countermeasures proposed in the examination and approval decisions of the examination and approval departments during the construction of the project, does not cause environmental pollution consequences, and is corrected in accordance with the prescribed time limits and requirements after being found by on-site inspections, or has organized the implementation of environmental protection countermeasures that are better than those proposed in the environmental impact assessment documents and the examination and approval decisions of the examination and approval departments;
(5) The environmental impact assessment documents of construction projects (except for hazardous waste utilization and disposal projects) have been approved, and the environmental protection facilities that need to be constructed have been completed and operated normally in accordance with the requirements of the environmental impact assessment documents, and the pollutants are discharged up to standards, but the environmental protection facilities for supporting construction have not been accepted within six months from the date of completion of the environmental protection facilities, and the construction project is put into production or use, and the acceptance is completed within three months after being ordered to make corrections;
(6) Except for Class I pollutants, toxic and harmful substances, radioactive substances, heavy metals, pathogens, and persistent organic pollutants, discharging water pollutants in excess of water pollutant discharge standards, exceeding the standard by no more than 10% (pH value greater than or equal to 5.5 and less than or equal to 9.5), and completing rectification on the day after the on-site inspection points out;
(7) Except for Class I pollutants, toxic and harmful substances, radioactive substances, heavy metals, pathogens, and persistent organic pollutants, air pollutants are discharged in excess of air pollutant discharge standards, and the range of excess is not more than 10%, and rectification is completed on the day after the on-site inspection is pointed out;
(8) Exceeding the noise emission standard for industrial noise emissions, exceeding the standard by no more than 1 decibel, and completing rectification on the next day after the on-site inspection is pointed out;
(9) Where the pollutant discharging unit causes the pollution prevention and control facilities to operate abnormally due to factors such as sudden failures, it shall promptly report within 24 hours of the occurrence of the sudden failure and take measures to stop production or limit production to reduce pollutant discharge, and the daily average value does not exceed the standard;
(10) Key emitting entities fail to pay their carbon emission allowances in full and on time due to force majeure factors such as bank accounts being frozen;
(11) Failing to fill out and operate the hazardous waste transfer form in accordance with the relevant provisions of the State, and promptly correct it after the on-site inspection is pointed out;
(12) The amount of the fine calculated in accordance with the discretionary formula is zero;
(13) Where other illegal conduct is minor and promptly corrected, and no harmful consequences are caused, administrative punishment is not to be given.
ThirteenthArticle In any of the following circumstances, where the parties actively cooperate with the investigation, violate the law for the first time and the harmful consequences are minor and promptly corrected, and the parties provide corresponding materials, the competent department of ecology and environment may not give administrative punishment after verification:
(1) The pollutant discharger fails to establish an environmental management ledger record system, or fails to record in accordance with the provisions of the pollutant discharge permit, and makes corrections within 5 working days after being ordered to make corrections;
(2) The pollutant discharger fails to submit a report on the implementation of the pollutant discharge permit in accordance with the provisions of the pollutant discharge permit, and completes the rectification within 5 working days after it is discovered;
(3) Enterprises, public institutions, and other producers and operators that need to fill in the pollutant discharge registration form fail to fill in the pollutant discharge information in accordance with the regulations, and make corrections within 5 working days after being ordered to make corrections;
(D) engaged in large-scale livestock and poultry breeding is not timely collection, storage, utilization or disposal of livestock and poultry manure and other solid wastes produced in the process of breeding, the solid wastes involved are not toxic and harmful substances, the duration of the violation does not exceed 20 days, after being ordered to make corrections in accordance with the prescribed time limit and requirements to complete the corrections;
(5) Key pollutant discharging units do not disclose or do not truthfully disclose automatic monitoring data, and complete rectification within 5 working days after the on-site inspection is pointed out (excluding fraud in public content);
(6) Units that generate, collect, store, transport, utilize, or dispose of solid wastes fail to promptly disclose information on the prevention and control of environmental pollution by solid wastes in accordance with law, and complete rectification within 5 working days after the on-site inspection is pointed out (excluding fraudulent acts of disclosure content);
(7) The enterprise fails to disclose the energy consumption or the production and discharge of key pollutants in accordance with the regulations, and completes the rectification within 5 working days after the on-site inspection is pointed out (excluding the falsification of the published content);
(8) The construction unit fails to disclose the acceptance report of environmental protection facilities to the public in accordance with the law, and completes the rectification within 5 working days after the on-site inspection is pointed out (excluding the falsification of public content);
(9) The pollutant discharger fails to disclose or does not truthfully disclose the pollutant discharge information in accordance with the provisions of the pollutant discharge permit, and completes the rectification within 5 working days after the on-site inspection is pointed out (excluding the falsification of the disclosed content);
(10) Enterprises and public institutions fail to disclose information related to environmental emergencies in accordance with regulations, and complete rectification within 5 working days after the on-site inspection is pointed out (excluding fraud in public content);
(11) The enterprise does not disclose environmental information, or the environmental information disclosed is untrue or inaccurate, and the rectification is completed within 5 working days after the on-site inspection is pointed out (excluding the falsification of the disclosed content);
(12) The disclosure of environmental information by the enterprise does not meet the requirements of the standards, and the rectification is completed within 5 working days after the on-site inspection is pointed out (excluding the falsification of the disclosure content);
(13) Where the disclosure of environmental information by the enterprise exceeds the prescribed time limit, and the rectification is completed within 5 working days after the on-site inspection is pointed out (excluding the falsification of the disclosed content);
(14) The enterprise fails to upload the environmental information to the enterprise environmental information disclosure system in accordance with the law, and completes the rectification within 5 working days after the on-site inspection is pointed out (excluding the falsification of the disclosure content);
(15) Enterprises and public institutions have formulated emergency plans for environmental emergencies in accordance with regulations, but have not filed the emergency response plans for environmental emergencies in accordance with regulations, and made corrections within 10 working days after the on-site inspection is pointed out;
(16) Enterprises and public institutions have formulated emergency response plans for environmental emergencies in accordance with regulations, but have not carried out emergency training for environmental emergencies in accordance with regulations, truthfully recorded the training situation, and made corrections within 10 working days after the on-site inspection is pointed out;
(17) Unsealed coal, coal gangue, cinder, coal ash, cement, lime, gypsum, sand and other materials that are prone to produce dust, and rectification is completed within 5 working days after the on-site inspection is pointed out;
(18) Failing to set up a tight enclosure of materials that cannot be sealed and prone to generating dust, or failing to take effective coverage measures to prevent and control dust pollution, and completing rectification within 5 working days after the on-site inspection is pointed out;
(19) Loading and unloading materials are not controlled by means such as sealing or spraying, and rectification is completed within 5 working days after the on-site inspection is pointed out;
(20) Wharves, mines, landfills, and disposal sites fail to take effective measures to prevent and control dust pollution, and complete rectification within 5 working days after the on-site inspection is indicated;
(21) Stacking industrial solid waste without authorization, with a stacking area of less than 10 square meters or a stacked quantity of less than 10 tons, and correcting it within 5 working days after being ordered to make corrections;
(22) Failure to set up hazardous waste identification signs in accordance with the provisions and correct them within 5 working days after the on-site inspection is pointed out;
(23) Failing to establish a hazardous waste management ledger in accordance with the relevant provisions of the State and truthfully recording it, but has truthfully declared the type, quantity, flow, storage, disposal and other relevant information of hazardous waste in the solid waste management system as required, and completed the rectification on the next day after the on-site inspection is pointed out;
(24) Where other violations are the first time and the harmful consequences are minor and promptly corrected, administrative punishments may not be given.
Article 14 Where the same illegal conduct violates multiple laws and norms and shall be punished with a fine, punishment is to be given in accordance with the provisions on the higher amount of fines.
The provisions of laws, regulations, and rules at the time of the illegal conduct are to be applied to the implementation of administrative punishments. However, where laws, regulations, or rules have already been revised or repealed at the time of making an administrative punishment decision, and the new provisions are more favorable to the parties, the new provisions apply.
Article 15 In the course of investigating and collecting evidence in cases of environmental violations, the case investigation department shall, on the basis of these Rules and discretionary standards, comprehensively collect evidence of relevant violations and circumstances;
On the basis of these Rules and discretionary standards, the case review department shall conduct a review of the discretionary recommendation for punishment in a specific case, and issue a review opinion. Where the case investigation department does not provide the corresponding evidentiary materials and basis for the discretionary recommendation, or the corresponding evidentiary materials are insufficient, the case review department shall return the case to the case investigation department for supplementation.
Cases that have been collectively deliberated shall be specifically deliberated on the discretion of the case, and the outcome of the deliberation shall be recorded in writing, and archived with the case file.
Article 16 Where the competent department of ecology and environment discovers a case of suspected environmental crime in the course of investigating and handling a case of environmental violations, it shall transfer the case to the public security organ; if no administrative punishment decision is made, it shall, in principle, decide whether to impose an administrative penalty after the public security organ has decided not to file or withdraw the case, the people's procuratorate has made a decision not to prosecute, and the people's court has made a not-guilty verdict or waived criminal punishment.
Article 17 "Adverse social impact" as used in these Rules refers to situations where illegal acts of the ecological environment cause mass incidents and other situations that lead to widespread social impact.
The term "first violation" as used in these Rules refers to the first time that a party has committed a certain kind of ecological or environmental violation in the field of ecology and environment and within the jurisdiction of the competent department of ecology and environment that imposes administrative penalties since its establishment (natural persons have the ability to bear corresponding responsibility).
The terms "above" and "within" in these Rules and Discretionary Standards include this number, and the words "below", "insufficient" and "insufficient" do not include this number.
Article 18 The autonomous region's competent department of ecology and environment may make timely adjustments and amendments to these rules and discretionary benchmarks in accordance with the specific circumstances of administrative law enforcement.
Article 19 These rules shall come into force on July 15, 2023, and the original "Discretionary Rules for Environmental Administrative Penalties in Guangxi Zhuang Autonomous Region" (Guihuan Gui Gui [2020] No. 17) shall be repealed at the same time.
附件：Ecological environment of Guangxi Zhuang Autonomous Region行政处罚裁量基准(2023 Edition)
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