Laws of the People's Republic of China

National Development and Reform Commission of the People's Republic of China

Decree of National Development and Reform Commission of the People's Republic of China

No. 28

Temporary Measures on Management of Loan Investment Project of International Financial Organizations and Foreign Governments were adopted by director's working meeting of National Development and Reform Commission (NDRC) and are hereby promulgated. These Measures are implemented as of March 1, 2005.

Minister of NDRC Ma Kai

February 28, 2005

Temporary Measures on Management of Loan Investment Project of International Financial Organizations and Foreign Governments

Chapter I General Principles

Article 1

For the purposes of enhancing the management of loan investment project of international financial organizations and foreign governments (hereinafter referred to as "foreign loan"), increasing efficacy of using foreign loan, these Measures are formulated in accordance with Decision of the State Council About Investment System Reformation.

Article 2

These Measures apply to the management of loan borrowed from International Bank, Asian Development Bank, International Agricultural Development Foundation and other international financial organizations, foreign governments' loan, grant used together with loan, joint financing and other investment project.

Article 3

All domestic enterprises, organs and organizations may apply for borrowing foreign loan.

Article 4

If foreign loan is subject to foreign debt of state sovereignty, it should be managed according to government invested funds. Foreign loan is mainly used to public good and public basic construction, protecting and improving ecological environment and promoting economic and social development of un-developed areas.

Chapter II Plan of foreign loan selective project

Article 5

Plan of foreign loan selective project is the basis of the project to carry out works with foreign countries. The foreign loan-borrowing project must be brought into line with the plan of foreign loan selective project.

To the projects that are not brought into line with foreign loan selective project, all departments of the State Council, local governments at all levels and project funds-using organizations must not make formal loan application to international financial organizations or foreign governments and other foreign loan organs.

Article 6

Development and Reformation department of the State Council should work out plan of foreign loan selective project in accordance with plans of national economy and social development, industrial policy, foreign debt management and the principles and requirements of using foreign loan.

Plans of loan selective projects of International Bank, Asian Development Bank and Japanese government's Japanese yen should be put forward by development and reformation department of the State Council and reported to the State Council for approval after development and reformation department of the State Council's consultation with financial department of the State Council.

Article 7

Competent industrial department of the State Council, provincial development and reformation departments, enterprise groups specifically designated in the state plan and enterprises under central government apply for selective projects that are brought into the line with foreign loan.

If the counterpart funding of the projects applied for by competent industrial department of the State Council is arranged by local government, and responsibility of loan repayment is undertaken and loan assuring is provided by local government, the comments of provincial development and reformation departments and relevant departments should be provided.

Article 8

The materials that apply for selective projects brought into the line with foreign loan plan include following information:

1.

Brief description of the project;

2.

The necessity of the project construction;

3.

The categories and countries of borrowing foreign loan that is planed to apply for;

4.

Amount and purpose of the loan; and

5.

Responsibility of loan repayment.

Article 9

If the projects that have been brought into the line with the selective project plan of international financial organizations' loan and the loan of Japanese yen of Japanese government need to be adjusted in source of loan or cancel the loan, the adjusted content should be reported to development and reformation department of the State Council in accordance with the procedures stipulated in Article 7 of these Measures.

As for the projects that are brought into line with other loan selective project plans of foreign government, if it needs to adjust the source of loan, the adjusted content should be reported for approval in the period of examination and approval of application report for project funds.

Article 10

If the projects that were approved originally to use other funds plan to apply for using foreign loan, or the projects that have been approved to use foreign loan plan to apply for other funds, they should be reported to development and reformation department of the State Council in accordance with the procedures stipulated in Article 7 of these Measures.

Article 11

Development and reformation department of the State Council and provincial development and reformation departments take part in related works about the projects with foreign countries, guide and urge the implementation of foreign loan plan and annual contracted project plan.

Article 12

The projects brought into line with selective project plan of foreign loan should go through the formalities of examination, approval, verification or record in the light of different conditions:

1.

The projects that the Central government borrows and repays loan centrally should be managed as Central Government's direct investment project. Project suggestion and feasibility report should be approved by development and reformation department of the State Council or submitted to the State Council after the examination by development and reformation department of the State Council.

2.

The projects that the loan is provided and repaid by provincial governments should be managed as provincial governments' direct investment projects. The power of examination and approval of the projects is performed in accordance with relevant regulations of the State Council and the development and reformation department of the State Council. Except the projects that should be reported to the State Council and development and reformation department of the State Council for approval, all feasibility reports of other projects should be examined and approved by provincial development and reformation departments and the power of examination and approval must not be transferred to the lower levels.

3.

The projects that the loan is repaid by funds-using organizations themselves and not be guaranteed by the government should be managed according to Catalogue of Investment Projects Approved by the Government: As for all projects listed in Catalogue of Investment Projects Approved by the Government, their project application reports should be approved separately by provincial development and reformation departments, development and reformation department of the State Council or reported to the State Council for approval after examination of the development and reformation department of the State Council. The projects that are not subject to Catalogue of Investment Projects Approved by the Government should be submitted to the project located provincial development and reformation department for record

Chapter III Application report for project funds

Article 13

After the projects are brought into line with foreign loan selective project plan and the formalities of approval, verification or record are finished, project funds-using organizations should make an application report for project funds to their located provincial development and reformation department.

Application report for project funds should be reported to development and reformation departments of the State Council for approval after preliminary examination of provincial development and reformation departments.

Application reports for project funds of competent industrial department of the State Council, enterprise groups specifically designated in the state plan and the enterprises under Central Government are reported directly to development and reformation department of the State Council for approval.

Article 14

Project feasibility report approved by the State Council and development and reformation department of the State Council should include project funds application, and project funds application report is not approved separately.

Article 15

Project funds application report should include following information:

1.

Brief survey of the project, including the scope and content of the project construction, total investment, capital funds, foreign loan and other funds, project proprietor, project executing organ and term of the project construction;

2.

Source and requirements of foreign loan, including foreign loan organs or countries, repayment term, grace period, interest, commitment fee and etc;

3.

Project progress in working with foreign countries;

4.

Scope of using the loan, including funds arrangement of loan in civil engineering, equipment, materials, consultation and training;

5.

Complete purchasing list and purchasing ways of equipment and materials, including specifications, quantities and unit price of main equipment and materials;

6.

Conclusion of economic analysis and financial review; and

7.

Responsibilities of loan repayment and guarantee, source of repayment funds and repayment plan.

Article 16

Following materials should be attached to application report for project funds:

1.

Project approval document (approval document for project feasibility report, approval document for project application report or project record document).

2.

The loan projects of international financial organizations and Japan Bank for International Cooperation (JBIC) should provide the project evaluation report made by foreign loan organs.

3.

When competent industrial department of the State Council puts forward the application report for project funds, if the project needs local government to arrange counterpart funding and undertake responsibility of loan repayment or provide loan guarantee, the comments of provincial development and reformation department and related departments should be provided. And

4.

Foreign loan projects applying for selective purchasing should provide the comparison report of requirements of foreign loan, proportion of internal and external purchase and the price of the equipment.

Article 17

Development and reformation department of the State Council approves the application report for project funds according to following requirements:

1.

Accord with national policy of utilizing foreign loan and the regulations of using it;

2.

Accord with rules of foreign loan selective project;

3.

The project has gone through the formalities of approval, verification or record in accordance with rules;

4.

The responsibility of foreign loan repayment and guarantee is clear. Source of fund repayment and repayment plan have been implemented; and

5.

Foreign loan organs have made preliminary promise of project loan.

Article 18

After the application report for project funds have been approved, if there are something changes in the content of the project construction, amount of loan and purpose of using loan, the adjustment plan should be reported to development and reformation department of the State Council for approval in accordance with the procedures stipulated in Article 13 of these Measures.

Article 19

The approval documents of the State Council and development and reformation department of the State Council on project feasibility report or funds application report are the basis of negotiating, concluding contract with foreign countries, and handling effective formality of loan conversion, foreign loan registration, bidding purchase and duty free formalities at home.

Article 20

To the projects that feasibility report or funds application report have not been examined and approved by the State Council and development and reformation department of the State Council, related departments and organizations must not conclude loan convention, agreement and contract with foreign countries, the departments of foreign exchange management, taxation, customs and the banks do not handle relevant formalities for them.

Article 21

Within 2 years from the approval day of the application report for project funds, if the project has not concluded the agreement of foreign loan conversion, the approval document loses efficacy automatically.

Chapter IV Management of Project Execution

Article 22

Development and reformation department of the State Council and provincial development and reformation departments guide and coordinate the execution of the projects, supervise bidding activities.

Article 23

If foreign loan project has remaining money, funds-using organizations should handle remaining money cancellation formalities in time, work out plan of using remaining money and report it to development and reformation department of the State Council in accordance with the procedures stipulated in Article 13 of these Measures.

If the remaining money is still used to perfect original project construction, plan of using it should be worked out according to the requirements of project funds application report and reported to development and reformation department of the State Council for approval in accordance with the procedures stipulated in Article 13 of these Measures.

Article 24

Loan conversion organs responsible for foreign loan conversion should convert foreign loan of the project in accordance with the approval documents of the State Council and development and reformation department of the State Council on project feasibility report or funds application report and report the information of foreign loan payment and repayment to development and reformation department of the State Council by the end of June and December every year.

As for the project that foreign loan is repaid or repayment guarantee is provided by the governments at all levels, loan conversion organs should convert the loan in accordance with the loan requirements provided by loan organizations in principle. If above requirements of project loan conversion are readjusted for the purpose of avoiding foreign loan risks, loan conversion organs should seek for the agreement of the development and reformation department of the State Council in advance.

Article 25

Project funds using organizations should perform the responsibility of foreign loan repayment in accordance with laws, register foreign loan in time, improve the management of debt risks of foreign loan. Project funds-using organizations should establish project information feedback system and submit project process report to development and reformation department that approved the project at the end of June and December every year.

Article 26

Development and reformation department of the State Council should supervise and examine the execution of the project and provincial development and reformation departments' approval and management of the project, and put forward comments on how to deal with the un-raveled problems.

Article 27

In order to assure funds repayment and avoid evading debt, funds-using organizations that have not repaid all foreign loan should obtain the written approval of loan conversion organs to arrange the repayment of surplus debt in advance, perform loan repayment responsibility and report related result in writing to development and reformation department of the State Council.

Chapter V Supplementary Articles

Article 28

Provincial development and reformation departments should formulate corresponding management measures in accordance with the provisions of these Measures.

Article 29

The interpretation of these Measures is vested in NDRC.

Article 30

These Measures come into effect as of March 1, 2005. The provisions and other normative documents about management of foreign loan investment project before these Measures that are not consistent with these Measures should take these Measures as criterion.