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TABLE OF CONTENTS CHAPTER I GENERAL PROVISIONS CHAPTER II EXAMINATION AND APPROVAL ORGANS AND LIMIT OF AUTHORITY CHAPTER III PROJECT APPLICATION REPORT CHAPTER IV PROCEDURES OF EXAMINATION AND APPROVAL CHAPTER V EXAMINATION AND APPROVAL CONDITIONS AND EFFECTIVENESS CHAPTER VI ALTERATION AND EXAMINATION AND APPROVAL THEREOF CHAPTER VII SUPPLEMENTARY PROVISIONS CHAPTER I GENERAL PROVISIONS Article 1. The present Measures are formulated according to the Administrative License Law of the People's Republic of China and the Decision of the State Council on Reforming the Investment System for the purpose of regulating the administration of examination and approval of foreign investment projects. Article 2. The present Measures shall be applicable to the examination and approval of such foreign investment projects as Chinese-foreign equity joint, Chinese-foreign contractual joint, foreign-owned enterprises and the merger of domestic enterprises by foreign investors and increase in capital of foreign-owned enterprises. CHAPTER II EXAMINATION AND APPROVAL ORGANS AND LIMIT OF AUTHORITY Article 3. According to the classification of the Catalogue of Industries for Guiding Foreign Investment, the application report of a project of the encouraged and permitted industries with a total investment (including the increased amount of capital, similarly hereinafter) of US$100 million or more or of the restricted industries with a total investment of US$50 million or more shall be subject to the examination and approval of the National Development and Reform Commission, of which the application report of a project of the encouraged and permitted industries with a total investment of US$500 million or more and the restricted industries with a total investment of US$100 million or more shall be subject to the examination and approval of the National Development and Reform Commission, and then be reported to the State Council for verification. Article 4. A project of the encouraged and permitted industries with a total investment of US$100 million or less and of the restricted industries with a total investment of US$50 million or less shall be subject to the examination and approval of a regional development and reform department, while a project of the permitted industries shall be subject to the examination and approval of a regional development and reform department, and the power to examine and approve such projects shall not be transferred to a lower-level department. In case a regional government has enacted other relevant rules for examining and approving projects listed in the preceding paragraph, such rules shall prevail. CHAPTER III PROJECT APPLICATION REPORT Article 5. A project application report submitted to the National Development and Reform Commission shall contain: (1) the name of project, term of operation and fundamental conditions of an investor; (2) the scale of a construction project, main construction projects and products, main technologies and techniques adopted, target market of products and planned number of workers; (3) the construction sites of project, demands of such resources as land, water and energy, and amount of consumption of main raw materials; (4) the evaluation about impacts on the environment; (5) the prices of involved public products or services; and (6) the total investment amount of project, registered capital and amount of contribution of each party, mode of contribution and financing schemes, and equipments which need to be imported and the price thereof. Article 6. A project application report submitted to the National Development and Reform Commission shall be accompanied by: (1) the enterprise registration certificate (business license) of Chinese and foreign parties to the investment project, certificate of commercial registration and the latest financial statements of the enterprise (including balance sheets, profit and loss statements and cash flow statements), and certificate of capital credit issued by the bank of deposit; (2) the letter of intent to invest, and resolution of the board of directors of the company for the project of capital increase or merger; (3) the financing letter of intent issued by a bank; (4) the written evaluation and suggestions about the impacts on environment issued by a provincial or State administrative department in charge of environmental protection; (5) the written suggestions of a provincial planning department regarding the selection of sites; (6) the written suggestions issued by a provincial or State land and resources departments regarding a preliminary examination of land use of the project; and (7) in case the contribution is state-owned assets or right of land use, a confirmation document issued by the competent department in-charge is required. CHAPTER IV PROCEDURES OF EXAMINATION AND APPROVAL Article 7. Where the power to examine and approve projects shall remain with the National Development and Reform Commission and the State Council. A project application report shall be submitted to the provincial development and reform department at the locality of the project by the project applicant, and be reported to the National Development and Reform Commission after being examined and approved by the provincial development and reform department. An enterprise group of the cities directly under state planning and enterprises directly under the Central Government may directly submit the project application report to the National Development and Reform Commission. Article 8. In the examination and approval of project application reports, if it is necessary to solicit the opinions of the department of the State Council in charge of the industry concerned, the National Development and Reform Commission shall solicit opinions from the department, and issue a letter of soliciting opinions, accompanied by relevant materials, to the department in charge of the industry concerned. The department of the State Council in charge of industries concerned shall submit written opinions to the National Development and Reform Commission within 7 working days after acceptance of the said materials. Article 9. The National Development and Reform Commission shall entrust a qualified consultation organization to assess the key issues which need to be evaluated and demonstrated within 5 working days after acceptance of an application report. The entrusted consultation organization shall put forward an appraisal report to the National Development and Reform Commission within the prescribed time limit. Article 10. The National Development and Reform Commission shall, within 20 working days of accepting a project application report, finish the examination and approval of the project application report or report the examination and approval opinions to the State Council. Where it is difficult to make an examination and approval decision or report the examination and approval opinions within 20 working days, the period may be extended for 10 working days, subject to the approval of the principal of the National Development and Reform Commission, and the project applicant shall be notified of the causes for extension. The period specified in the preceding paragraph does not include the period for assessment conducted by an entrusted consulting organization. Article 11. For an approved project, the National Development and Reform Commission shall issue an examination and approval document in written form to the project applicant; for a disapproved project, the National Development and Reform Commission shall, in the form of written decision, notify the project applicant of the causes and of the right to apply for an administrative review or initiate an administrative action. CHAPTER V EXAMINATION AND APPROVAL CONDITIONS AND EFFECTIVENESS Article 12. The conditions for the National Development and Reform Commission to examine and approve a project are that the project must: (1) comply with the laws and regulations of the State and the prescriptions of the Catalogue of Industries for Guiding Foreign Investment and the Catalogue of Priority Industries for Foreign Investment in the Central-Western Region; (2) comply with the requirements of medium- and long-term plans of national economy and social development, industrial plans and policies of adjustment of industrial structure; (3) comply with the public interests and related anti-trust prescriptions of the State; (4) comply with the requirements of plans of land use, general municipal planning and policies of environmental protection; (5) comply with the requirements of technological and technical standards set down by the State; and (6) comply with the related prescriptions of national capital project management and management of foreign debts. Article 13. A project applicant shall, pursuant to examination and approval documents of the National Development and Reform Commission, handle the formalities of land use, municipal planning, quality supervision, work safety, resources utilization, registration (modification) of enterprise, capital project management, import of equipment and application of tax policies. Article 14. An examination and approval document issued by the National Development and Reform Commission shall stipulate its term of effect. Within the valid term, the examination and approval document shall be the basis for the investor to handle corresponding formalities prescribed in Article 13 of the present Measures; after the validity period, an investor shall simultaneously present the documents for permitting the extension issued by the National Development and Reform Commission when he handles the said formalities. Article 15. For an unauthorized foreign investment project, no department of land, municipal planning, quality supervision, supervision of work safety, industry and commerce, customs, tax or foreign exchange regulation may process the pertinent procedures. Article 16. In case a project applicant obtains an examination and approval document by such unjustifiable means as breaking down a project or providing false materials, the National Development and Reform Commission may withdraw the examination and approval document of the project. Article 17. The National Development and Reform Commission may conduct supervision and check over the implementation particulars of the applicant's project and the particulars of examination and approval of an overseas investment project by a regional development and reform department, and dispose the verified problems, if any, according to law. CHAPTER VI ALTERATION AND EXAMINATION AND APPROVAL THEREOF Article 18. The alteration of an approved project by the National Development and Reform Commission shall be applied to the National Development and Reform Commission in case the project is under any of the following circumstances: (1) alteration of construction site; (2) alteration of investors or their equities; (3) alteration of main construction items and main products; (4) the overall investment in excess of 20 per cent or more of the approved investment amount; or (5) other circumstances required to be altered by related laws and regulations and industrial policies. Article 19. The examination and approval procedures of alteration shall be implemented by referring to the prescriptions of Chapter IV of the present Measures. CHAPTER VII SUPPLEMENTARY PROVISIONS Article 20. In order to timely master the examination and approval information of a project, a provincial development and reform department shall submit a copy of the examination and approval documents of a foreign investment project with a total investment amount of more than USD 30 million approved by a regional department to the National Development and Reform Commission within 20 working days computed from the date of examination and approval. Article 21. All provincial development and reform departments shall, pursuant to the prescriptions of the Provisions on Guiding the Direction of Foreign Investments (Order No. 346 of the State Council) and the present Measures, enact the corresponding measures for the administration. Article 22. A project invested in the China's Mainland by an investor from the Hong Kong and Macao Special Administrative Regions and Taiwan shall be implemented by analogy to the present Measures. Article 23. The power to interpret the present Measures shall remain with the National Development and Reform Commission. Article 24. The present Measures shall come into force as of October 9, 2004. In case any of the former rules for the examination and approval of foreign investment projects conflicts with the present Measures, the present Measures shall prevail. |
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