State Council: Site selection, environmental impact assessment, and land pre-approval are no longer prerequisites for project approval

CEO of Culture and Tourism on June 7, 2017

The State Council recently issued the "Regulations on the Administration of Approval and Filing of Enterprise Investment Projects" (State Council Decree No. 673), which will come into effect on February 1, 2017. The document clearly states that project site selection opinions, environmental impact assessment approvals, land pre-approval opinions, energy conservation review opinions, etc. are no longer prerequisites for project approval ｏｒ filing. Below, we will analyze the differences between the new and old regulations in detail.

Original regulation:

Article 12 of the original Measures for the Administration of Government Approved Investment Projects (Order No. 11 of the Development and Reform Commission) stipulates that when submitting project application reports, project units shall attach the following documents in accordance with national laws and regulations:

（1） The site selection opinion letter issued by the administrative department in charge of urban and rural planning (only referring to projects that provide state-owned land use rights through allocation);

（2） The preliminary review opinion on land use issued by the competent administrative department of land and resources (projects that do not involve new land use and carry out renovation and expansion within the approved construction land scope may not require preliminary review of land use);

（3） The environmental impact assessment approval document issued by the administrative department in charge of environmental protection;

（4） The energy-saving review opinions issued by the energy-saving review authority;

（5） Other documents that should be submitted according to relevant laws and regulations.

It can be seen that the original "Management Measures" clearly stipulate that project site selection opinions, environmental impact assessment approvals, land pre-approval opinions, energy conservation review opinions, etc. are all prerequisites for project approval.

New regulations:

The State Council recently issued the "Regulations on the Administration of Approval and Filing of Enterprise Investment Projects", which stipulate that:

Article 3: Approval management shall be implemented for projects that are related to national security, involve the layout of major productive forces nationwide, strategic resource development, and major public interests. For projects other than those specified in the preceding paragraph, record management shall be implemented.

Article 6: Enterprises shall submit a project application to the approval authority for project approval procedures; Projects approved by the State Council shall submit a project application to the competent investment department of the State Council. The project application shall include the following contents:

（1） Basic information of the enterprise;

（2） Project situation, including project name, construction location, construction scale, construction content, etc;

（3） Analysis of project resource utilization and impact on the ecological environment;

（4） Analysis of the impact of the project on the economy and society.

Article 13: For projects subject to record management, enterprises shall inform the record authority of the following information through an online platform before starting construction:

（1） Basic information of the enterprise;

（2） Project name, construction location, construction scale, and construction content;

（3） Total investment amount of the project;

（4） Declaration that the project complies with industrial policies.

Enterprises shall be responsible for the authenticity of project information recorded.

The filing authority shall be deemed to have filed upon receipt of all the information specified in the first paragraph of this article; If the information provided by the enterprise is incomplete, the filing authority shall guide the enterprise to make corrections.

In this document released by the State Council, it can be seen that whether it is a project implementing approval management ｏｒ a project implementing filing management, project site selection opinions, environmental impact assessment approvals, land pre-approval opinions, and energy conservation review opinions are no longer prerequisites for project approval ｏｒ filing.

And the new regulations make project filing simpler, without the need for any approval documents. The filing authority receives all the information submitted by the enterprise for filing.

At the same time, Article 25 of the new Environmental Impact Assessment Law also clearly stipulates that if the environmental impact assessment documents of a construction project have not been reviewed by the approval department in accordance with the law ｏｒ have not been approved after review, the construction unit shall not commence construction.

That is to say, environmental impact assessment approval is no longer mandatory before project initiation, but must be completed before project commencement.

The full text of the Regulation:

Order of the State Council of the People's Republic of China

No. 673

The Regulations on the Administration of Approval and Filing of Enterprise Investment Projects have been passed at the 149th executive meeting of the State Council on October 8, 2016, and are hereby promulgated. They will come into effect on February 1, 2017.

Premier Li Keqiang

November 30, 2016

Regulations on the Administration of Approval and Filing of Enterprise Investment Projects

Article 1: In order to standardize the government's approval and filing of enterprise investment projects, accelerate the transformation of the government's investment management functions, and implement the autonomy of enterprise investment, this regulation is formulated.

Article 2 The term "enterprise investment projects" (hereinafter referred to as "projects") as mentioned in these Regulations refers to fixed assets investment projects invested and constructed by enterprises in China.

Article 3: Approval management shall be implemented for projects that are related to national security, involve the layout of major productive forces nationwide, strategic resource development, and major public interests. The specific project scope, approval authority, and approval authority shall be executed in accordance with the investment project catalog approved by the government. The list of investment projects approved by the government shall be proposed by the competent investment department of the State Council in conjunction with relevant departments of the State Council, implemented after approval by the State Council, and adjusted in a timely manner. If the State Council has other regulations, they shall be followed.

For projects other than those specified in the preceding paragraph, record management shall be implemented. Unless otherwise stipulated by the State Council, projects subject to record management shall be registered according to the principle of territoriality, and the registration authority and its powers shall be determined by the people's governments of provinces, autonomous regions, municipalities directly under the central government, and cities specifically designated in the state plan.

Article 4: Except for projects involving state secrets, project approval and filing shall be handled through the online project supervision platform established by the state (hereinafter referred to as the online platform).

The approval authority, filing authority, and other relevant departments shall use the project code generated by the online platform to handle relevant procedures uniformly.

The investment regulatory department of the State Council, in conjunction with relevant departments, shall formulate measures for the management of online platforms.

Article 5: The approving and filing authorities shall list industry policies related to the project through online platforms, publicly disclose the process and time limit for project approval, and provide relevant consulting services to enterprises.

Article 6: Enterprises shall submit a project application to the approval authority for project approval procedures; Projects approved by the State Council shall submit a project application to the competent investment department of the State Council. The project application shall include the following contents:

（1） Basic information of the enterprise;

（2） Project situation, including project name, construction location, construction scale, construction content, etc;

（3） Analysis of project resource utilization and impact on the ecological environment;

（4） Analysis of the impact of the project on the economy and society.

Enterprises should be responsible for the authenticity of the content of the project application.

If the relevant procedures are required by laws and administrative regulations as a prerequisite for project approval, the enterprise shall submit proof documents that the relevant procedures have been completed.

Article 7: The project application shall be independently organized and prepared by the enterprise, and no unit ｏｒ individual shall force the enterprise to entrust intermediary service agencies to prepare the project application.

The approving authority shall formulate and publish a model text of the project application, clarifying the requirements for preparing the project application.

Article 8: For projects approved by relevant departments of the State Council, enterprises may forward project application forms through relevant departments of the people's governments of provinces, autonomous regions, municipalities directly under the central government, and cities specifically designated in the state plan where the projects are located (hereinafter referred to as relevant departments of local people's governments). The relevant departments of local people's governments shall forward the project application forms to the approval authority within 5 working days from the date of receipt.

For projects approved by the State Council, if the enterprise transfers the project application through the relevant departments of the local people's government, the relevant departments of the local people's government shall transfer the project application to the competent investment department of the State Council within the time limit specified in the preceding paragraph, and after being reviewed by the competent investment department of the State Council, it shall be submitted to the State Council for approval.

Article 9: The approving authority shall review the project from the following aspects:

（1） Whether it poses a threat to national security such as economic security, social security, and ecological security;

（2） Whether it complies with relevant development and construction plans, technical standards, and industrial policies;

（3） Whether resources are reasonably developed and effectively utilized;

（4） Does it have any adverse impact on significant public interests.

If the project involves the responsibilities of relevant departments ｏｒ the local people's government where the project is located, the approving authority shall solicit their opinions in writing, and the unit consulted shall promptly respond in writing.

If the approving authority entrusts intermediary service agencies to evaluate projects, the evaluation focus should be clearly defined; Except for complex project situations, the evaluation deadline shall not exceed 30 working days. The evaluation fee shall be borne by the approving authority.

Article 10: The approving authority shall make a decision on whether to approve the application within 20 working days from the date of acceptance; If the project situation is complex ｏｒ requires soliciting opinions from relevant units, the approval period may be extended with the approval of the main person in charge of this agency, but the extension period shall not exceed 40 working days. If the approving authority entrusts an intermediary service agency to evaluate the project, the evaluation time shall not be included in the approval period.

If the approving authority approves the project, it shall issue an approval document to the enterprise; If it is not approved, the enterprise shall be notified in writing and the reasons shall be explained. Projects approved by the State Council shall be issued with approval documents ｏｒ written notices of non approval by the investment authority of the State Council to the enterprise in accordance with the decision of the State Council.

Article 11: If an enterprise intends to change the construction location of an approved project, ｏｒ intends to make significant changes to the construction scale, content, etc., it shall submit a change application to the approval authority. The approving authority shall make a written decision on whether to agree to the change within 20 working days from the date of acceptance of the application.

Article 12: If a project fails to commence construction within 2 years from the date of the approval decision ｏｒ consent to change decision by the approval authority and needs to be postponed, the enterprise shall apply for an extension of construction to the approval authority 30 working days before the expiration of the 2-year period. The approving authority shall make a decision on whether to agree to postpone the commencement of construction within 20 working days from the date of acceptance of the application. The commencement of construction can only be postponed once, and the maximum duration shall not exceed one year. If the state has other regulations on delaying the start of construction projects, they shall be followed.

Article 13: For projects subject to record management, enterprises shall inform the record authority of the following information through an online platform before starting construction:

（1） Basic information of the enterprise;

（2） Project name, construction location, construction scale, and construction content;

（3） Total investment amount of the project;

（4） Declaration that the project complies with industrial policies.

Enterprises shall be responsible for the authenticity of project information recorded.

The filing authority shall be deemed to have filed upon receipt of all the information specified in the first paragraph of this article; If the information provided by the enterprise is incomplete, the filing authority shall guide the enterprise to make corrections.

If an enterprise needs a filing certificate, it can request the filing authority to issue it ｏｒ print it on an online platform.

Article 14: If there is a significant change in the information of a registered project, the enterprise shall promptly inform the filing authority.

Article 15: If the filing authority discovers that a registered project is prohibited from investment and construction by industrial policies ｏｒ subject to approval management, it shall promptly inform the enterprise to correct it ｏｒ handle the approval procedures in accordance with the law, and notify the relevant departments.

Article 16: The approval authority, filing authority, and other relevant departments responsible for supervising and managing projects in accordance with the law shall strengthen in-process and post supervision, implement regulatory responsibilities based on the principle of whoever approves, supervises, and supervises, and adopt online monitoring, on-site verification, and other methods to strengthen supervision and inspection of project implementation.

Enterprises should truthfully report basic information on project commencement, construction progress, and completion through online platforms.

Article 17: The approval authority, filing authority, and other relevant departments responsible for supervising and managing projects in accordance with the law shall establish a project information sharing mechanism and achieve information sharing through online platforms.

The illegal activities and their handling information of enterprises during project approval, filing, and implementation shall be publicly disclosed to the society through the National Social Credit Information Platform.

Article 18: For projects subject to approval management, if an enterprise fails to start construction in accordance with the approval procedures stipulated in these Regulations ｏｒ fails to carry out construction in accordance with the approved construction site, scale, content, etc., the approval authority shall order it to stop construction ｏｒ suspend production, and impose a fine of not less than 1 ‰ but not more than 5 ‰ of the total project investment on the enterprise; The directly responsible supervisors and other directly responsible personnel shall be fined between 20000 yuan and 50000 yuan. If they are state employees, they shall be punished according to law.

For those who obtain project approval documents through deception, bribery ｏｒ other improper means and have not yet started construction, the approval authority shall ｒｅｖｏｋｅ the approval documents and impose a fine of not less than 1 ‰ and not more than 5 ‰ of the total project investment; Those who have already started construction shall be punished in accordance with the provisions of the preceding paragraph; Those who commit crimes shall be held criminally responsible in accordance with the law.

Article 19: For projects subject to filing management, if an enterprise fails to inform the filing authority of project information ｏｒ changes in information of already filed projects in accordance with the provisions of this Regulation, ｏｒ provides false information to the filing authority, the filing authority shall order it to make corrections within a specified period of time; Those who fail to make corrections within the prescribed time limit shall be fined not less than 20000 yuan but not more than 50000 yuan.

Article 20: If an enterprise is prohibited from investing in construction projects by industrial policies, the investment department of the people's government at ｏｒ above the county level shall order it to stop construction ｏｒ suspend production and restore the original state, and impose a fine of not less than 5 ‰ but not more than 10 ‰ of the total project investment on the enterprise; The directly responsible supervisors and other directly responsible personnel shall be fined between 50000 yuan and 100000 yuan. If they are state employees, they shall be punished in accordance with the law. If laws and administrative regulations have other provisions, they shall be followed.

Article 21: If the approving authority, the filing authority, and their staff neglect their duties, abuse their power, ｏｒ engage in favoritism and fraud in project approval and filing work, the responsible leaders and directly responsible personnel shall be punished in accordance with the law; Those who commit crimes shall be held criminally responsible in accordance with the law.

Article 22 These Regulations apply to fixed assets investment projects invested and constructed in China by institutions, social organizations and other non enterprise organizations, with the exception of fixed assets investment projects through budgetary arrangements.

Article 23 The administrative measures for the approval and filing of fixed assets investment projects invested and constructed in China by national defense science, technology and industry enterprises shall be formulated separately by the administrative department of national defense science, technology and industry under the State Council in accordance with the principles of these Regulations.

Article 24: This regulation shall come into effect on February 1, 2017.