Measures for the procedure for formulating regulations on environmental protection

Subject: ENVIRONMENTAL PROTECTION Order of the State Environmental ProtectionAdministration (No. 25) The Measures for the Procedure for FormulatingRegulations on Environmental Protection, which were deliberated and adopted atthe executive meeting of the State Environmental Protection Administration onApril 11, 2005, are hereby promulgated and shall come into force as of June 1,2005. The Measures for the Administration of Regulatory Documents of the StateEnvironmental Protection Administration, which were promulgated by the StateEnvironmental Protection Administration on March 12, 1990, shall besimultaneously abolished. Director General of the State EnvironmentalProtection Administration XieZhenhua April 25, 2005 Measures for the Procedure for FormulatingRegulations on Environmental Protection Chapter I General Provisions Article 1 The present Measures are formulatedin accordance with the Legislation Law of the People's Republic of China, the Regulationon the Procedure for Formulating Administrative Regulations, the Regulations onthe Procedure for Formulating Ministerial Rules, the Regulations on Recordingthe Ministerial Rules of the Department of Regulations and the ImplementationOutline for Overall Pushing Forward Administration by Law in order to regulatethe procedures for formulating regulations on environmental protection andensure the quality of legislation. Article 2 The term "regulations onenvironmental protection" as mentioned in the present Measures refers to thefollowing regulatory documents as formulated by the State EnvironmentalProtection Administration (hereinafter referred to as the Administration)according to the entrustment of the relevant organs of the National People'sCongress or according to the authorization of any law or administrativeregulation or according to the duties and powers: (1) Any draft of laws on environmental protection as drawn up on behalfthat is entrusted by the relevant organs of the National People's Congress; (2) Any draft of laws or administrative regulations on environmentalprotection that is to be reported to the State Council for review; and (3) Ministerial rules of environmental protection departments. Article 3 The proposal, drafting,examination, submitting for review of any law or administrative regulation onenvironmental protection and the proposal, drafting, examination, adoption, publication,archival filing and interpretation of the ministerial rules of environmentalprotection departments shall be governed by the present Measures. The procedure for handling thoseopinion-solicitation draft on the relevant laws, regulations or ministerialrules that are sent by any other state organ or department to theAdministration for solicitation shall be governed by the relevant provisions ofthe present Measures. Chapter II Proposal Article 4 The Administration shall formulate an annual legislative schedule for the current year at the beginning of each year. The legislative projects concerning laws or administrative regulations on environmental protection that are adopted in the annual legislative schedule fall into categories of the first category, thesecond category and the third category of legislative projects: (1) Those projects as included into the legislative schedule of the Standing Committee of the National People's Congress or of the State Council that the Administration shall, within the year, report or shall have reported to the National People's Congress or to the relevant legislative institutions of the State Council for examination in collaboration shall fall into the first category of legislative projects; (2) Those legislative projects as reported within the year through the best efforts of the Administration, in which the legislative basis is well- established, the legislative thought is clear, the solution of problems therein is urgently demanded by the administrative work of environmental protection, the major institution and measures as suggested for adoption is feasible shall fall into the second category of legislative projects; and (3) Those legislative projects that require studies, demonstration or drafting shall fall into the third category of legislative projects. Article 5 Any legislative project concerning the ministerial rules of environmental protection departments shall be decided according to the actual requirements of work at an appropriate time, without any legislative schedule. For any project, on which studies on environmental legislation are required to be conducted by the direction of a leader of the State Council, the Administration shall carry out the relevant work in a timely manner. Article 6 Except those legislative projects that have been included into the legislative schedule of the Standing Committee of the National People's Congress or the annual legislative schedule of the State Council, where the relevant department (office, bureau) of the Administration deems that it's necessary to formulate any regulation on environmental protection, it shall make a proposal before the end of January of each year. For the proposal as put forward, an application form of proposal shall be filled out (see Attachment I for the form),written materials on explanation of the legislation necessity, the major problems to be solved and the major institution and measures to be formulated shall be submitted where reference materials concerning legislation both homeand abroad may be attached. Article 7 The department of regulations shall summarize and conduct researches on the proposals, put forward a suggestion on the annual legislation schedule of the Administration and report it to the executive meeting of the Administration for deliberation and decision. Article 8 The annual legislation schedule as adopted by deliberation at the executive meeting of the Administration is the working basis of the legislation of the Administration at the current year. Chapter III Drafting Article 9 The department (office, bureau) that takes the specific charge of drafting laws or regulations on environmental protection shall organize the relevant legislative personnel, personnel in charge of specific work, experts and scholars to carry out the drafting. The department of regulations shall participate in the drafting of laws and regulations on environmental protection at appropriate time. Article 10 In the process of drafting any law or regulation on environmental protection, materials shall be collected on a wide-ranging base, in-depth investigations and researches shall be carried out, and the opinions of relevant organs, organizations and citizens shall be solicited on a wide-ranging base. Forms of holding discussion meetings, export demonstration meetings, department coordination meetings, enterprise representative seminars and hearings, etc. may be adopted for opinion solicitation. Article 11 The department (office, bureau)in charge of drafting shall, where the first draft of any law or regulation on environmental protection is completed thereby, solicit opinions of the other relevant departments (offices, bureaus) and the relevant instrumentalities under direct administration of the Administration, and, according to the opinion as fed back there from, revise the first draft so as to form an opinion-solicitation draft of the law or regulation on environmental protection, which shall, on the strength of the signature of the person-in-charge of the drafting department (office, bureau), be reported to the general director's meeting for a special subject of the Administration for deliberation. The focus of the director's meeting for a special subject of the Administration shall be put on the deliberation of the necessity and feasibility of the major legal institution and measures and the suitableness and legality of the establishment of administrative licensing and administrative sanction, etc. as involved in the opinion-solicitation draft of laws and regulations on environmental protection. Article 12 The department (office, bureau)in charge of drafting shall, according to the opinion as concluded by the deliberation at the director's meeting for a special subject of the Administration, revise the opinion-solicitation draft so as to form the opinion-solicitation document of laws and regulations on environmental protection and the statement thereof, which shall be sent to the environmental protection departments at the provincial level and the relevant departments of the State Council to solicit opinions in the form of an Administration Letter. The department (office, bureau) in charge of drafting may, according to the range as covered by the opinion-solicitation document of laws and regulations on environmental protection, solicit the opinions of the relevant local people's governments, the environmental protection departments below the provincial level and the representative enterprises and citizens. The statement of the opinion-solicitation document shall include explanations on such major contents as the necessity of legislation and the major institution and measures. Article 13 Where any law or regulation on environmental protection directly involves the interests of a citizen, legal person or any other organization, the opinion-solicitation document may be publicized to the general public to solicit opinions. Where any regulation or rule on environmental protection may have any impact on trade or investment, the opinion-solicitation document shall be publicized through the external circulation procedure in accordance with the relevant provisions of the state. The opinion-solicitation document of laws and regulations on environmental protection may be publicized on such media as the China Environment News and the website of the Administration. Article 14 In the process of drafting anylaw or regulation on environmental protection, where it involves or is closelyrelated to any function of the other departments of the State Council, the department(office, bureau) in charge of drafting shall fully solicit the opinion of theother departments; where there is any different opinion therebetween, asufficient consultation shall be carried out; where no agreement is reachedthrough consultation, the department (office, bureau) in charge of draftingshall illustrate the situations and reasons in the statement of thedraft-for-review of laws and regulations on environmental protection. Article 15 The department (office, bureau)in charge of drafting shall, according to the opinions as solicited, revise theopinion-solicitation document and the statement thereof so as to form thedraft for-review of laws and regulations on environmental protection and thestatement thereof, which shall be transferred to the department of regulationsfor examination with other relevant materials upon the signing of theperson-in-charge of the department (office, bureau) in charge of drafting. The statement of the draft-for-review shallinclude such contents as explanations on the necessity of legislation, theprocess of drafting, the major institution and measures, the solicitation ofopinions and the treatment for those opinions that haven't been adopted. The other relevant materials shall mainlyinclude: the analysis on the present administration and existing problems, thespecial demonstration materials on the necessity and feasibility of the majorinstitution and measures as provided in the draft, a summary form of solicitedopinions and the treatment thereof, explanations on the major differentopinions that haven't been adopted, the relevant reports of researches onlegislation and the other reference materials on legislation both home andabroad including the articles of regulations. Chapter IV Examination Article 16 Where the department (office,bureau) in charge of drafting fails to solicit opinions or prepare the relevant demonstration materials according to Chapter III of the present Measures, the department of regulations may transfer it to the department (office, bureau) in charge of drafting to go through the relevant procedure or supplement the relevant demonstration materials. Article 17 The department of regulations shall, in collaboration with the department (office, bureau) in charge of drafting, examine the draft-for-review of laws and regulations on environmental protection in the following aspects: (1) Whether or not the item of administrative licensing concerning environmental protection complies with the Administrative Licensing Law and any other law, regulation or any provision on administrative licensing of the other regulatory documents of the State Council; (2) Whether or not the administrative sanction of environmental protection complies with the Administrative Sanction Law and any other law, administrative regulation or any provision on administrative sanction of the other regulatory documents of the State Council; (3) Whether or not it is inline with and links up with the relevant regulations and policies of the state;and (4) Whether or not it meets the technical requirements of legislation. Article 18 In the process of examination,where the department of regulations holds that the legal problems as involvedin the draft-for-review of the regulations on environmental protection needfurther studies, the department of regulations may organize a spotinvestigation and hold a seminar or demonstration meeting to solicit opinions. Where the draft-for-review of laws andregulations on environmental protection includes any administrative licensingitem or directly involves the immediate interests of any citizen, legal personor any other organization and the relevant organ, organization or citizen hasany big opinion divergence therein, the department of regulations and thedepartment (office, bureau) in charge of drafting may solicit opinions openlyfrom the general public or may adopt such forms as a hearing to solicit theopinions of the relevant organs, organizations and citizens. Article 19 The department of regulationsshall, in collaboration with the department (office, bureau) in charge ofdrafting, complete the revision of the draft-for-review of the ministerialrules of environmental protection departments within 20 workdays, and completethe revision of draft-for review of laws and administrative regulations onenvironmental protection within 40 workdays so as to form a draft-for-review oflaws and regulations on environmental protection. In the event of an opiniondivergence on a certain issue that requires coordination, the time limit ofexamination may be extended in an appropriate manner but the maximum time limitshall not exceed 60 workdays. The department of regulations shall putforward a signed draft-for-review of regulations on the strength of signatureof the department (office, bureau) in charge of drafting and submit it with thedraft of laws and regulations on environmental protection and the statementthereof and the catalog of special demonstration materials to the executivemeeting of the Administration for deliberation. The statement of drafting shall include thenecessity of legislation, the process of drafting, the explanation on the majorinstitution and measures, the solicitation of opinions and the treatment ofthose opinions that haven't been adopted, etc. The statement of examination shall includethe basis of legislation, the legality of establishment of administrativelicensing or administrative sanction therein, the compliance of the draft oflaws and regulations on environmental protection with the relevant laws andregulations. Article 20 Where the relevant parties haveany big divergence in respect of the administrative system, the majorinstitution or measures as provided by the draft-for-review of laws andregulations on environmental protection, the department of regulations may, incollaboration with the department (office, bureau) in charge of drafting, putforward one or more reserve schedules in the draft of laws and regulations onenvironmental protection and submit it to the director's meeting for a specialsubject for deliberation. Chapter V Submission for Approval, Decisionand Publication Article 21 The draft of laws andregulations on environmental protection shall be deliberated at the executivemeeting of the Administration. Article 22 In the deliberation of the draftof laws and regulations on environmental protection, the department (office,bureau) in charge of drafting shall make a statement for the draft and shalltake charge of making explanations or answers for such special issues as thenecessity and feasibility of the present situation of administration, the majorinstitution and measures of administration. The department of regulations shall make astatement on examination and shall take charge of making explanations oranswers for such legal issues as the legality of establishment ofadministrative licensing or administrative sanction and the link-up between thedraft of laws and regulations on environmental protection and the other lawsand regulations. Article 23 The department of regulationsshall, in collaboration with the department (office, bureau) in charge ofdrafting, revise the draft of ministerial rules of environmental protectiondepartments according to the opinion upon deliberation at the executive meetingof the Administration so as to form the ministerial rules of environmentalprotection departments, which shall be reported to the director-general of theAdministration for signature and an order for promulgation. The department of regulations shall, incollaboration with the department (office, bureau) in charge of drafting,revise the draft of laws or administrative regulations on environmentalprotection so as to form a draft-for-review of laws or administrativeregulations on environmental protection, which shall be reported to the StateCouncil in the form of a document of the Administration. The Administration shall, according to thedraft of laws on environmental protection as entrusted to be drawn out by therelevant organ of the National People's Congress, make a letter report of theAdministration to the entrusting organ. The relevant special demonstrationmaterials shall be attached in the draft-for-review of laws and administrativeregulations on environmental protection and the draft of laws on environmentalprotection as worked out on behalf. Article 24 In the order on publicizing aministerial rule on environmental protection, the serial number, name, date ofadoption, date of implementation, signature of the director-general of theAdministration and date of promulgation thereof shall be indicated. AttachmentII is the publication format for a ministerial rule on environmentalprotection. Any ministerial rule on environmentalprotection as jointly promulgated by the Administration and the State Councilshall be co-signed by the principals of the relevant departments forpublication. Where the Administration is the organ in primary charge, the orderserial number of the Administration shall be used. Article 25 The China Environment News andthe website of the Administration shall publicize ministerial rules onenvironmental protection departments in a timely manner upon the signature andpromulgation. Article 26 The ministerial rules onenvironmental protection as published in the Gazette of the State Council or inthe China Environment News shall be the standard version. Article 27 The ministerial rules ofenvironmental protection departments shall come into force after 30 days as ofthe date of promulgation. Where any delayed implementation upon promulgationmay obstruct the implementation thereof, the relevant ministerial rules shallcome into force as of the date of promulgation. Chapter VI Archival Filing and Explanations Article 28 The department of regulationsshall, according to the provisions of the Legislation Law and the Regulationson Recording the Ministerial Rules of the Department of Regulations, handle thespecific archival filing of the ministerial rules of environmental protectiondepartments within 30 days as of the date of promulgation. Where any ministerial rule of environmentalprotection departments is reported for archival filing, the report of archivalfiling, the text and statement of the ministerial rule shall be submitted,which shall be stitched into books with 10 copies for 1 edition. Attachment IIIis the format for the archival filing of the ministerial rules of environmentalprotection departments. The department of regulations shall, beforeJanuary 31 of each year, report the catalog of the ministerial rules ofenvironmental protection departments as formulated in the previous year to theLegislative Affairs Office of the State Council. Article 29 The power to interpret theministerial rules of environmental protection departments shall remain with theAdministration. The power to interpret those ministerial rules as jointlypromulgated by the Administration and the relevant departments of the StateCouncil shall remain with the Administration and the relevant departments ofthe State Council jointly. Any ministerial rule of environmentalprotection departments that is under any of the following circumstances shallbe subject to the interpretation of the organ with the power thereof accordingto the provisions of the preceding paragraph: (1) Where the provisions of any ministerial rule of environmentalprotection departments require further clarification of specific meanings; or (2) Where there arises any new circumstance that requires clarificationof the application basis after the formulation of the ministerial rules ofenvironmental protection departments. The procedure for conducting theinterpretation of the ministerial rules of environmental protection departmentsshall be governed by the relevant provisions of the Measures for theAdministration of the Interpretation to Laws and Regulations on EnvironmentalProtection. The interpretation to the ministerial rulesof environmental protection departments shall have the same force as that ofthe ministerial rules of environmental protection departments. Article 30 The interpretation in thespecific applicable process of any law or administrative regulation onenvironmental protection shall be governed by the relevant provisions of theDecision of the Standing Committee of the National People's Congress onIntensifying the Interpretation of Laws, the Circular of the General Office ofthe State Council on the Power Limit and Procedure for InterpretingAdministrative Regulations and the Measures for the Administration of theInterpretation to Laws and Regulations on Environmental Protection. Chapter VII Treatment of theOpinion-solicitation Documents of Other Departments Article 31Any law, administrativeregulation or ministerial rule as drafted by any other state organ or ministrythat is submitted to the Administration to solicit opinions shall be put underthe administration of the department of regulations and shall be respectivelysent to the relevant departments (offices, bureaus) for solicitation accordingto the content it involves. Article 32 The relevant departments(offices, bureaus) shall put forward their opinions and send them to thedepartment of regulations within the prescribed time limit. The department of regulations shall,according to the principles of compliance and link-up among laws,administrative regulations and ministerial rules, take charge of the collectionand researches and draft a letter reply of the relevant opinions. Article 33 Where there is any comparativelybig divergence among the departments (offices, bureaus) of the Administrationon an opinion-solicitation document of laws, administrative regulations orministerial regulations as drafted by any other state organ or ministry, thedepartment of regulations shall take charge of the coordination. Where anagreement cannot be reached through consultation, the divergence shall bereported to the director's meeting for a special subject for deliberation andnegotiation. Article 34 Where there is any bigcontradiction or intersection between the administrative system, majorinstitution or measures as suggested to be established in theopinion-solicitation document of any law, administrative regulation orministerial rule that is drafted by any other state organ or ministry and anylaw, administrative regulation and ministerial rule on environmentalprotection, or the administrative system, major institution or measures as suggestedto be established in the opinion-solicitation document of any law,administrative regulation or ministerial rule may has any impact on thesupervision and administration work of environmental protection departments,the department of regulations may, in collaboration with the relevantdepartments (offices, bureaus), put forward opinions and suggestions whichshall be reported to the director's meeting for a special subject or theexecutive meeting of the Administration for deliberation. Chapter VIII Supplementary Provisions Article 35 Where any ministerial rule ofenvironmental protection departments may have an impact on trade or investment,an English edition of the rule shall be rendered upon promulgation according tothe relevant provisions and shall be publicized according to the prescribedprocedure. For any law or administrative regulation onenvironmental protection that is drafted by the Administration, the Englishedition thereof shall be rendered upon promulgation according to the relevantprovisions. For the English edition of any law orregulation on environmental protection, the first draft shall be produced bythe international department of the Administration and, upon the examination ofthe relevant department (office, bureau) in charge of drafting, it shall bepublicized according to the relevant provisions or shall be reported to therelevant state organ for examination. The rendition of regulations onenvironmental protection into languages of ethic minorities shall be carriedout according to the relevant provisions of the state. Article 36 The Administration shallstraighten out the ministerial rules of environmental protection departments ona frequent base. Where any of the said rules fails to be in compliance with orhas any contradiction with any law, administrative regulation or any othersuperior law or where any of the said rules fails to adapt to a new situation,it shall be revised or abolished in a timely manner. The procedure for revising or abolishing theministerial rules of environmental protection departments shall be carried outaccording to the relevant provisions of the present Measures. Article 37 The editing and publication ofthe compilation of laws and regulations on environmental protection shall becarried out by the department of regulations according to the provisions of theProvisions on the Administration of the Editing and Publication of theCompilation of Laws and Regulations. Article 38 The present Measures shall comeinto force as of June 1, 2005. The Measures for the Administration ofRegulatory Documents of the State Environmental Protection Administration aspromulgated by the State Environmental Protection Administration on March 12,1990 shall be simultaneously abolished. Attachments: I.Application Form for Proposal II Format for the Publication of MinisterialRules III Format for the Archival Filingof Ministerial Rules IV Chart of the Procedure Flowfor the Formulation of Laws and Regulations on Environmental Protection (omitted) Attachment IApplication Form for Proposal Department Name ofRegulation Law/ AdministrativeRegulation Time asScheduled for Report by the Administration Time for Transferringit to the Department of Regulations for Examination SpecificUndertaker of the Project Person-in-chargeof the Project Basis of Legislation Purpose ofLegislation Major LegalInstitution and Measures AdministrativeLicensing as Established PresentProgress of Drafting Notes Signatureof the Department Chief: Signature of the Department: Attachment II Format for the Publication of Ministerial Rules Order ofthe State Environmental Protection Administration Order No.X 《 》which were adopted at the X th executive meeting of theAdministration of Environmental Administration on X(Month) X(Date), X(Year), arehereby promulgated and shall come into force as of X(Month) X(Date), X(Year). DirectorGeneral of the State Environmental Protection Administration: (Signature) X(Month)X(Date), X(Year) AttachmentIII Format for the Archival Filing of MinisterialRules StateEnvironmental Protection Administration No.X ofarchival filing ArchivalReport for XXX The StateCouncil: Please put onarchive the XXX as promulgated on X(Month) X(Date), X(Year) by thisAdministration and 10 copies of its statements. (Seal of theState Environmental Protection Administration X(Month) X(Date),X(Year)