Provisional Administrative Measures of the Development and Reform Commission of Guangdong Province, on Examining and Approving Foreign Funded Projects

Article 1. For the purpose of regulating administration on examining and approving foreign funded projects, these measures are now stipulated in accordance with Administrative Law of the People’s Republic of China, State Council’s Decisions on Restructuring of Investment, Provisional Administrative Measures on Examining and Approving Foreign Funded Projects (National Development and Reform Commission Decree No.22) and Provincial Government Several Opinions on Going Further to Optimizing Investing Environment and Getting Done with Work of Attracting Investments (No.126, 2004).

Article 2. These measures apply to following projects of joint ventures, foreign enterprises with single proprietorship, foreign investor’s purchase of domestic enterprises as well as increased investment of foreign invested enterprises under the jurisdiction of Guangdong Province (excluding Shenzheng).
(1). Projects of prohibited category in Guiding Catalogue of Foreign Invested Industries;
(2). Projects of encouraged category or permitted category in Guiding Catalogue of Foreign Invested Industries with investment of no less than 100 million U.S dollars.
(3). The provincial development and reform commission will separately release specific catalogue for projects of basic facilities and excavating industry listed in encouraged category or permitted category in Guiding Catalogue of Foreign Invested Industries with investment sum between 30 million and 100 million U.S dollars.

Article 3. In accordance with classifying of Guiding Catalogue of Foreign Invested Industries, provincial development and reform commission will report examined and approved projects of encouraged category and permitted category with total investment (including increased investment) of no less than 100 million as well as projects of prohibited category with total investment of no less than 50 million to National Development and Reform Commission for approval.

In accordance with classifying of Guiding Catalogue of Foreign Invested Industries, the provincial development and reform commissions are responsible for examining and approving applying reports of projects of prohibited category with total investment (including increased investment) of no less than 50 million.

In accordance with classifying of Guiding Catalogue of Foreign Invested Industries, the provincial development and reform commissions are responsible for examining and approving applying reports of projects of basic facilities and excavating industry listed in encouraged category or permitted category in Guiding Catalogue of Foreign Invested Industries with investment sum between 30 million and 100 million U.S dollars.

Article 4. Applying report must cover the following contents:
(1). Title of the project, operating period and background information of the investor;
(2). Building size, major contents and products, main technologies and technics, target markets of the products and employment of the projects;
(3). Location of projects, requirements on resources like soil, water and energies, as well as consumption of major raw materials;
(4). Comments on influence to environment;
(5). Prices related to public products or services;
(6). Total investment, registered capital, capital subscription of all parties, method of capital subscription, financing scheme as well as necessary imported facilities and relevant funds.

Article 5. Following documents are required to be enclosed:
(1). Registration certificates (licenses) of enterprises of all parties of the investment, commercial licenses and latest financial reports (including balance sheets, income statement and statement of cash flow), and capital credit certifications issued by banks of deposit;
(2). Letters of intent of the investment, decisions of the boards on project of capital incensement and purchase;
(3). Letter of intent of financing issued by banks;
(4). Examining and approving opinions on document of environment influence comment issued by administrative departments of environment protection;
(5). Opinion papers on programming and site selection issued by programming departments;
(6). Pre-examination opinions on lands for projects issued by administrative departments of land and resources;
(7). Confirming documents of related departments are required for those of investment by means of state assets and land usufruct;
(8). For those related to administration of other industries, relevant documents are required in line with related laws and regulations.

For projects examined and approved by the National Development and Reform Commission, the provincial or state administrative departments on environment protection will release opinion papers of environment influence comments. State administrative departments of land and resources will release pre-examination opinions on lands for projects while provincial administrative departments of land and resources will pre-examine lands of sporadic construction projects like tower footing of transmission lines, drilling wells and base stations of communication, and report to Ministry of Land and Resources for registration. In addition, opinion papers on programming and site selection issued by provincial administrative departments of programming.

For projects of prohibited category examined and approved by the provincial development and reform commissions, the provincial or state administrative departments on environment protection will release opinion papers of environment influence comments; provincial administrative departments of land and resources will release pre-examination opinions on lands; and provincial administrative departments of programming will release opinion papers on site selection.

For projects of encouraged category and permitted category examined and approved by the provincial development and reform commissions, the opinion papers of environment influence comments will be release by administrative departments on environment protection with examining and approving qualifications in line with related regulations on hierarchy management of environment protection of construction projects; and the pre-examination on lands and woodlands, and city planning will be release by administrative departments on land and resources, forestry and city planning of province or above prefecture level with qualifications of examination and approval.

Article 6. For projects that should be examined and approved, or reported to National Development and Reform Commission by provincial development and reform commissions, projects applying units shall put forward applying reports to provincial development and reform commissions, enclosing examining and approving opinions of departments of development and reform above prefecture level at where the projects are located.

Article 7. If necessary, organs of examination and approval should ask industrial administrations for comments, enclosing related materials at the same time. Related industrial administration should release comments in written forms to organs of examination and approval within 7 working days after receipt of above materials.

Article 8. Provincial development and reform commissions may authorize qualified consultative agencies to evaluate major projects related to public interests that should be reported to organs of examination and approval above provincial level within 5 working days after receipt of applying reports. Comply with other regulations of the sate.
Authorized consultative agencies should submit evaluation report to organs of examination and approval and assume responsibility of the evaluating results.

Article 9. Organs of examination and approval should finish examination on applying reports or submit comments to organs of examination and approval of higher level within 20 working days after receipt of applying reports. With permissions of person in charge of organs of examination and approval, another 10 working days will be prolonged for those who cannot make decision or submit comments, but the applicants should be informed of the reasons.

Approving time limit regulated in above articles does not includes time for evaluation of authorized consultative agencies, however, he applicants should be informed of the time of evaluation in written form.

Article 10. Organs of examination and approval release written approving documents to examined and approved projects, which should clarify major contents of projects such as building size, location of projects, total investment and registered capital as well as expiration date of approving documents. In addition, projects belonged to encouraged category listed in Guiding Catalogue of Foreign Invested Industries should be marked out in the approving documents.

Organs of examination and approval should inform applicants about the unapproved projects, reasons, and their rights to apply for administrative review or put forward administrative litigation.

Approving documents should be transferred to administrations on lands, environment protection, city planning, quality and technical supervision, production security, foreign trade and economic cooperation, labor and social security, industry and commerce, Customs, taxation, foreign exchanges and so on at the same level.

Article 11. Approval conditions:
(1). Comply with related laws and regulations of the state as well as regulations of Guiding Catalogue of Foreign Invested Industries;
(2). Comply with the middle-long term programming of the national economy and social development, industrial programming as well as requirements on policies on industrial restructuring;
(3). Comply with public interests and related regulations on anti-monopoly;
(4). Comply with requirements on programming of land utilization, general city planning and environmental protection;
(5). Comply with requirements on technologies and technics specifications;
(6). Comply with related regulations on management of capital projects and foreign loans.

Article 12. Based on approving documents released by organs of examination and approval, projects applicants may go through formalities of land utilization, city planning, environment protection, quality and technical supervision, production security, resource utilization, enterprises establishing (alteration), management of capital projects, facilities import, tax policies and so on.

Article 13. As from decision of approval of the projects, the duration of the approving documents released by organs of examination and approval is 2 years, according to which applicants can go through formalities listed in article 12 during period of validity; those fail to finish the formalities may apply for prolonging 30 days ahead of the expiration of the approving documents. Documents of prolonging permission are required to go through above formalities since the expiration of the approving documents.

Article 14. The original organs of examination and approval and those of the higher levels keep the right to cancel the approving documents in case applicants have obtained approving documents by illegal means such as splitting projects or providing false materials. The cancelled approving documents must by transferred to administrations on lands, environment protection, city planning, quality and technical supervision, production security, foreign trade and economic cooperation, labor and social security, industry and commerce, Customs, taxation, foreign exchanges and so on at the same level.

Article 16. Provincial development and reform commissions may supervise and examine the implementation of the applicants within jurisdictions.

Article 17. In case of following situations, applicants need to apply to organs of examination and approval for alteration:
(1). Change of building locations;
(2). Changes of investors and stock ownership;
(3). Changes of major constructions and products;
(4). The total investments exceed 20 percent of the original;
(5). Other situations of alterations required by related laws and regulations as well industrial policies.

Article 18. Please take the regulations on projects examination and approval of these Measures as criterion of procedures for alteration examinations and approval.

Article 19. Please follow these Measures to implement the investments of investors from Hang Hong Special Administrative Region, Macao Special Administrative Region and Taiwan District in Guangdong.

Article 20. These Measures take effects as from Jan 1, 2006. Other regulations related to examination and approval of foreign investments that are contrary to the said Measures should take these Measures as criterion.