Notice of the National Development and Reform Commission and the Ministry of Commerce on Issuing a Draft Negative List for Market Access (Trial Version)

· Document Number：No. 442 [2016] of the National Development and Reform Commission

· Area of Law： Industrial and Commercial Management

· Level of Authority： Departmental Regulatory Documents

· Date issued：03-02-2016

· Effective Date：03-02-2016

· Status： Effective

· Issuing Authority： State Development & Reform Commission (incl. former State Development Planning Commission) Ministry of Commerce

Notice of the National Development and Reform Commission and the Ministry of Commerce on Issuing a Draft Negative List for Market Access (Trial Version)
(No. 442 [2016] of the National Development and Reform Commission)
The people's governments of all provinces, autonomous regions, and municipalities directly under the Central Government; all ministries and commissions of the State Council, and all institutions directly under the State Council:
According to the deployment of the Opinions of the State Council on the Implementation of the Market Access Negative List System (No. 55 [2015], State Council, hereinafter referred to as “Opinion”), the National Development and Reform Commission (“NDRC”) and the Ministry of Commerce (“MOC”) have formed a Draft Negative List for Market Access (Trial Version) (hereinafter referred to as the “Draft”) upon summarization and examination jointly with relevant departments, which has been approved by the CPC Central Committee and the State Council and is hereby issued to you for trial implementation in four provinces and municipalities directly under the Central Government, namely, Tianjin, Shanghai, Fujian, and Guangdong. You are hereby notified of relevant issues as follows:
I. The Draft is formed upon summarization and examination according to the principles of the rule of law, safety, gradualness, necessity, and openness as determined in the Opinions, and has initially specified the sectors, fields, and business, among others, where investments and business operations are prohibited or restricted in the territory of the People's Republic of China. The Draft has a total of 328 items, including 96 items in category of prohibited access, and 232 items in category of restricted access.
II. The items listed in the Draft shall be effective by December 31, 2015. Where, from January 1, 2016, the State Council decides to cancel, newly add or adjust any administrative approval item, or decides to revise the Catalogue for Guiding Industrial Restructuring and the Catalogue of Investment Projects Subject to Government Confirmation, or issues new provisions on the sectors, fields, and business, among others, where investments and business operations are prohibited or restricted, the latest provisions shall prevail.
III. The Draft as a trial version shall be adjusted at appropriate time by the NDRC and the MOC jointly with relevant departments according to the principles of the simplification of administrative procedures and delegation of powers to lower levels, the combination of delegation and control, and the optimization of services, in light of the overall progress of reforms, the adjustments in economic structure, the revision of laws and regulations and other circumstances, and under the procedures as prescribed in the Opinions.
IV. A pilot program for this Draft shall be firstly conducted in four provinces and municipalities directly under the Central Government, namely, Tianjin, Shanghai, Fujian, and Guangdong. The provincial people's governments in the regions covered by the pilot program shall, in accordance with the Opinions and the Draft, put forward their plans for the market access negative list system which are to be implemented on a trial basis, and implement their plans with the approval of the State Council. During the implementation of the pilot program, the provincial people's governments in the regions covered by the pilot program shall, according to the progress of the reform and the prominent problems reflected by various market players, offer suggestions on the adjustment of the negative list for market access and improvement of the Draft in a timely manner, and shall, in accordance with the Opinions and the Notice of the General Office of the State Council on Issuing the Special Management Measures (Negative List) for Foreign Investment Access in Pilot Free Trade Zones (No. 23 [2015], General Office of the State Council), properly understand the scope and objects to which the Draft and the negative list of pilot free trade zones apply.
V. During the implementation of the pilot program, all departments shall, in accordance with the requirements of the Opinions, further sort out the market access items administrated and implemented by the departments (systems), and offer suggestions on the review or adjustment of such items. For those involving the revision of laws, regulations and the decisions of the State Council or those involving adjustments to administrative approval items, administrative licensing items and other items, all departments shall take the initiative to effectively conduct the communication and transition thereof, and conduct the work in compliance with the requirements of the relevant procedures, so as to make adjustments to the items listed in the Draft in a timely manner. For “any newly added item which is not prescribed by laws, regulations or the decisions of the State Council but really needs to be included in the negative list for market access” as mentioned in the Opinions, if it really needs to be retained upon testing in the pilot program, a request shall be submitted under legal procedures for the development or revision of the relevant laws, regulations and decisions of the State Council. The NDRC and the MOC shall, jointly with relevant departments, research and demonstrate suggestions offered by the departments on the review or adjustment of the items listed in the Draft under the procedures for the adjustment of the negative list for market access as prescribed in the Opinions, and provide such suggestions in such forms as supplementary notices to the regions covered by the pilot program for exploration and testing in the pilot program.
VI. During the implementation of the pilot program, the relevant regions and departments shall fully listen to the opinions of various market players and the public, conduct necessary interpretation and publicity for policies, establish and improve the third-party assessment mechanism, and report the opinions on the improvement thereof.
VII. This Draft shall come into force on the date when the State Council approves the plan for the pilot program of the reform of the market access negative list system in the regions covered by the pilot program.
Annex: Draft Negative List of Market Access (Trial Version)
National Development and Reform Commission
Ministry of Commerce
March 2, 2016