I 108th CONGRESS 2d Session H. R. 3715 IN THE HOUSE OF REPRESENTATIVES January 21, 2004 Ms. DeLauro (for herself, Mr. Frost, and Mr. Owens) introduced the following bill; which was referred to the Committee on Transportation and Infrastructure, and in addition to the Committees on Financial Services, and Ways and Means, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned A BILL To facilitate efficient investments and financing of infrastructure projects and new job creation through the establishment of a National Infrastructure Development Corporation, and for other purposes.

1.

Short title

This Act may be cited as the &short-title1;.

2.

Findings

Congress hereby finds the following: (1) According to the American Society of Civil Engineers, the condition of our nation's roads, bridges, drinking water systems, and other public works are facing a shortfall of $1,600,000,000,000 investment to bring conditions to acceptable levels. (2)Highway vehicle miles traveled increased 600,000,000,000 over the past decade from 2,150,000,000,000 to 2,750,000,000,000. According to the American Association of State Highway and Transportation Officials, highway vehicle miles traveled is expected to grow by another 600,000,000,000 over the next 10 years, an annual highway vehicle miles traveled growth rate of 2.2 percent. (3)According to the American Public Transit Association, public transportation ridership has increased 22 percent since 1998—the highest level in 40 years. (4)Airport capacity had increased only 1 percent from 1991 to 2001, yet air traffic had increased 35 percent during that same time period. (5)As of 2000, 27.5 percent of the nation’s bridges (162,000 bridges) were structurally deficient or functionally obsolete. (6)According to recent estimates by the Environmental Protection Agency, as much as $390,000,000,000 will be needed over the next 2 decades to rebuild, repair, and upgrade the Nation's wastewater treatment plants. (7)According to the Federal Highway Administration’s “2003 Conditions and Performance Report”, traffic congestion costs the economy $67,500,000,000 annually in lost productivity and wasted fuel. (8)Every billion dollars of Federal highway investment generates 47,500 jobs; for every billion dollars in transit investment, job generation is virtually the same. (9)11.3 million Americans—one in 11—are employed in transportation occupations. (10)As expressed in Executive Order No. 12893 of January 26, 1994, which sets out guiding principles for Federal infrastructure investments, a well functioning infrastructure is vital to sustained economic growth, to the quality of life of our communities, and to the protection of our environment and natural resources. (11)Although grant programs of the Federal Government must continue to play a central role in financing the infrastructure needs of the Nation, current and foreseeable demands on existing Federal, State, and local funding for infrastructure expansion and replacement exceed the resources to support these programs by margins wide enough to prompt serious concerns about the Nation’s ability to sustain long-term economic development, productivity, and international competitiveness. (12)The private capital markets, including the trillions in capital held by institutional investors, such as pension funds, have a growing interest in public-private infrastructure investment opportunities that can produce competitive risk-adjusted rates of return.

3.

Purposes

The purposes of this Act are as follows: (1)To establish the National Infrastructure Development Corporation for the purpose of making new sources of financing available for the development of infrastructure facilities, and to facilitate the use and issuance of public benefit bonds. (2)To establish a subsidiary of the Corporation, the National Infrastructure Insurance Corporation, to issue insurance, reinsurance and related undertakings in respect of the issuance of obligations related to the development of infrastructure facilities. (3)To establish a category of financial instrument to be known as public benefit bonds designed to help facilitate pension plan investment in the development of infrastructure facilities.

4.

Definitions

The following definitions shall apply for purposes of this Act unless the context requires otherwise: (1)

Corporation

The term Corporation means the National Infrastructure Development Corporation established under section 5(a). (2)

Development

The terms development and develop mean, with respect to an infrastructure facility, any— (A)preconstruction planning, feasibility review, permitting and design work and other preconstruction activities; (B)construction, reconstruction, rehabilitation, replacement, or expansion; and (C)operation and maintenance. (3)

Entity

The term entity means an individual, corporation, partnership, joint venture, trust or governmental entity or instrumentality. (4)

Infrastructure facility

The term infrastructure facility means a road, highway, bridge, tunnel, airport, mass transportation vehicle or system, passenger or freight rail vehicle or system, intermodal transportation facility, waterway, commercial port, drinking or waste water treatment facility, solid waste disposal facility, pollution control system, hazardous waste facility, federally designated national information highway facility, school, and any ancillary facility which forms a part of any such facility or is reasonably related to such facility, whether owned, leased or operated by a public entity or a private entity or by a combination of such entities, and the financing or refinancing of the development of which is, or will be, supported in whole or in part by user fees or other dedicated revenue sources. (5)

Insurance Corporation

The term Insurance Corporation means the National Infrastructure Insurance Corporation established pursuant to section 5(b). (6)

NIC

The term NIC means the Corporation and all subsidiaries of the Corporation. (7)

Pension plan

The term pension plan means a pension plan as defined in section 3(2) of the Employee Retirement Income Security Act of 1974 (29 U.S.C. 1001 et seq.), including any public pension plan. (8)

Public benefit bond

The term public benefit bond means a bond or other indebtedness meeting the requirements of section 72(w) of the Internal Revenue Code of 1986. (9)

Public-private partnership

The term public-private partnership means any entity— (A)which is undertaking the development of all or part of any infrastructure facility— (i)pursuant to requirements established in 1 or more contracts between such entity and a State or an instrumentality of a State; or (ii)the activities of which with respect to such facility are subject to regulation by a State or any instrumentality of a State; and (B)which owns, leases, or operates, or will own, lease, or operate, such infrastructure facility in whole or in part, and at least 1 of the participants in such entity is a nongovernmental entity. (10)

Revolving fund

The term revolving fund means a fund or program established by a State or a political subdivision or instrumentality of a State, the principal activity of which is to make loans, commitments, or other financial accommodation available for the development of 1 or more categories of infrastructure facilities. (11)

Secretary

The term Secretary means the Secretary of the Treasury or the designee of the Secretary. (12)

State

The term State includes the District of Columbia, Puerto Rico, Guam, American Samoa, the Trust Territories of the Pacific Islands, the Virgin Islands, the Northern Mariana Islands, and any territory of the United States. (13)

Transition date

The term transition date means the date on which the voting common stock of the Corporation owned by the Secretary is fully repurchased or converted in accordance with section 13 and the transition of the Corporation to a government-sponsored enterprise in accordance with such section is completed.

5.

Establishment of NIC

(a)

Establishment of National Infrastructure Development Corporation

The National Infrastructure Development Corporation is hereby established as a wholly owned Government corporation subject to chapter 91 of title 31, United States Code (commonly referred to as the Government Corporation Control Act), except as otherwise provided in this Act. (b)

Establishment of National Infrastructure Insurance Corporation

The National Infrastructure Insurance Corporation is hereby established as a subsidiary of the Corporation and as a wholly owned Government corporation subject to chapter 91 of title 31, United States Code, except as otherwise provided in this Act. (c)

Self-supporting entities

The Corporation and the Insurance Corporation shall each conduct their respective businesses as self-supporting entities.

6.

Corporation’s powers and limitations

(a)

General powers

In order to carry out the purposes of the Corporation as set forth in this Act, the Corporation shall have the following powers: (1)To make senior and subordinated loans and purchase senior and subordinated debt securities (both taxable and tax exempt) and equity securities, and enter into a binding commitment to make any such loan or purchase any such security, on such terms as the Corporation may determine, in the Corporation’s discretion, to be appropriate, the proceeds of which are to be used to finance or refinance the development of 1 or more infrastructure facilities, and subject to the provisions of paragraph (8) of subsection (b), provide preconstruction phase assistance in accordance with section 8(f). (2)To issue and sell debt securities and voting and nonvoting equity securities of the Corporation on such terms as the board of directors of the Corporation may determine, subject to the provisions of paragraphs (2), (3), and (4) of subsection (b), to be appropriate and to pay such dividends on any outstanding stock as the board of directors shall determine from time to time. (3)To make the determinations with respect to public benefit bonds pursuant to section 72(w) of the Internal Revenue Code of 1986. (4)To make agreements and contracts with any entity in furtherance of the business of the Corporation. (5)To make use of the services, facilities, and property of any Federal agency or instrumentality, with the approval of such agency or instrumentality and on a reimbursable basis, in carrying out the purposes of this Act. (6)To acquire, lease, pledge, exchange, and dispose of real and personal property and otherwise exercise all the usual incidents of ownership of property to the extent the exercise of such powers are appropriate to and consistent with the purposes of the Corporation. (7)To sue and be sued in the Corporation’s corporate capacity in any court of competent jurisdiction, except that no attachment, injunction, or similar process, mesne or final, may be issued against the property of the Corporation or against the Corporation with respect to such property. (8)To indemnify the directors and officers of the Corporation for liabilities arising out of the actions of the directors and officers in such capacity, in accordance with, and subject to the limitations contained in, the bylaws of the Corporation. (9)To exercise all other lawful powers which are necessary or appropriate to carry out, and are consistent with, the purposes of the Corporation, including the powers conferred upon a corporation by the District of Columbia Business Corporation Act. (b)

Limitations on the Corporation

(1)

Actions Consistent with self-supporting entity status

The Corporation shall conduct its business in a manner consistent with the requirement of section 5(c). (2)

Condition on debt issuance

The Corporation shall not issue any debt security under subsection (a)(2) unless, at the time of the issuance thereof, such security is rated by a nationally recognized statistical rating organization at 1 of the 3 highest ratings of such organization. (3)

Limitation and condition on issuance of debt and nonvoting equity securities

(A)

In general

Before the transition date, the Corporation shall not issue any debt security or nonvoting equity security under subsection (a)(2) without the prior consent of the Secretary. (B)

Approval of Secretary for debt security after transition date

On and after the transition date, the Corporation shall not issue any debt security under subsection (a)(2) without the prior consent of the Secretary. (4)

Condition on voting equity issuance

Before the transition date, the Corporation shall not issue any voting security to any entity other than the Secretary, and, on and after the transition date, the issuance of any such security shall be subject to the provisions of section 13. (5)

Sale of voting securities of the Insurance Corporation

Before the transition date, voting securities of the Insurance Corporation purchased by the Corporation may not be sold or otherwise transferred by the Corporation. (6)

Investments Consistent with purposes of Corporation

In order to achieve the Corporation’s purpose of effectively leveraging limited Federal resources with other public and private sources of capital, the Corporation shall seek to maintain a significant proportion of the Corporation’s infrastructure investments in— (A)subordinated securities; and (B)securities issued with respect to infrastructure facilities developed by public-private partnerships. (7)

Coordination with State and local regulatory authority

The provision of financial assistance by the Corporation pursuant to this Act shall not be construed as— (A)limiting the right of any State or local authority to approve or regulate rates of return on private equity invested in a project; or (B)otherwise superseding any State law or regulation applicable to a project. (8)

Limitation on preconstruction assistance

The Corporation shall provide assistance in connection with the development of any infrastructure facility during the facility’s preconstruction phase only in accordance with section 8(f).

7.

Insurance corporation’s powers and limitations

(a)

General powers

In order to carry out the purposes of the Insurance Corporation as set forth in this Act, the Insurance Corporation shall have the following powers: (1)To insure and reinsure bonds, debentures, notes, debt instruments, loans, and any interest in any such obligation or loan, the proceeds of which are to be used to finance or refinance the development of 1 or more infrastructure facilities. (2)To insure leases of personal, real, or mixed property with respect to infrastructure facilities. (3)To issue letters of credit and undertake such obligations and commitments as the Insurance Corporation deems necessary to carry out the purposes described in paragraphs (1) and (2). (4)To issue and sell voting and nonvoting equity securities on such terms as the board of directors of the Insurance Corporation may determine, subject to the provisions of paragraphs (5) and (6) of subsection (b), to be appropriate and to pay dividends on any outstanding stock as the board of directors of the Insurance Corporation shall determine from time to time. (5)To make agreements and contracts with any entity in furtherance of the business of the Insurance Corporation. (6)To make use of the services, facilities, and property of any Federal agency or instrumentality, with the approval of such agency or instrumentality and on a reimbursable basis, in carrying out the purposes of this Act. (7)To acquire, lease, pledge, exchange, and dispose of real and personal property and otherwise exercise all the usual incidents of ownership of property to the extent the exercise of such powers are appropriate to and consistent with the purposes of the Insurance Corporation. (8)To sue and be sued in the Insurance Corporation’s corporate capacity in any court of competent jurisdiction, except that no attachment, injunction, or similar process, mesne or final, may be issued against the property of the Insurance Corporation or against the Insurance Corporation with respect to such property. (9)To indemnify the directors and officers of the Insurance Corporation for liabilities arising out of the actions of the directors and officers in such capacity, in accordance with, and subject to the limitations contained in, the bylaws of the Insurance Corporation. (10)To exercise all other lawful powers which are necessary or appropriate to carry out, and are consistent with, the purposes of the Insurance Corporation, including the powers conferred upon a corporation by the District of Columbia Business Corporation Act. (b)

Limitations on the Insurance Corporation

(1)

Actions Consistent with self-supporting entity status

The Insurance Corporation shall conduct its business in a manner consistent with the requirement of section 5(c). (2)

Insurance Corporation rating requirement

The Insurance Corporation shall not issue any primary insurance or letter of credit with respect to 1 or more infrastructure facilities unless, at the time of such issuance, the Insurance Corporation’s claims-paying ability is then rated by a nationally recognized statistical rating organization at the highest rating of such organization. (3)

Limitation on reinsurance

The Insurance Corporation may write reinsurance in respect of all or a portion of a primary insurance policy with respect to 1 or more infrastructure facilities issued by a bond insurer if the claims-paying ability of such insurer is rated, at the time of issuance of such reinsurance, by a nationally recognized statistical rating organization at the highest rating of such organization. (4)

Limitation on insurance and other activities

The Insurance Corporation may issue primary insurance or a letter of credit with respect to 1 or more infrastructure facilities, except that not less than 75 percent of the principal amount of all obligations so insured or subject of a letter of credit shall be obligations which are, or based on a published or indicative rating would be, without such insurance or letter of credit, rated by a nationally recognized statistical rating organization in the fourth or fifth rating categories of such organization (BBB and BB; Baa and Ba, or their equivalents). (5)

Prior consent of Secretary

Before the transition date, the Insurance Corporation shall not issue any nonvoting equity security under subsection (a)(4) without the prior consent of the Secretary. (6)

Condition on voting equity issuance

Before the transition date, the Insurance Corporation shall not issue any voting security to any entity other than the Corporation. (7)

Coordination with State and local regulatory authority

The provision of financial assistance by the Insurance Corporation pursuant to this Act shall not be construed as— (A)limiting the right of any State or local authority to approve or regulate rates of return on private equity invested in a project; or (B)otherwise superseding any State law or regulation applicable to a project.

8.

Eligibility criteria for assistance from the Corporation and the Insurance Corporation

(a)

General

No financial assistance shall be available under this Act from the Corporation or the Insurance Corporation unless the applicant for such assistance has demonstrated to the satisfaction of the Corporation or the Insurance Corporation, as the case may be, that the project for which such assistance is being sought meets— (1)the requirements of this Act; and (2)any criteria established in accordance with this Act by the board of directors of the Corporation or the Insurance Corporation, as the case may be. (b)

Establishment of project criteria

(1)

In general

Consistent with the requirements of subsections (c) and (d), the boards of directors of the Corporation and the Insurance Corporation shall each establish— (A)criteria for determining eligibility for financial assistance under this Act; (B)disclosure and application procedures to be followed by States, revolving funds, and other entities to nominate projects for assistance under this Act; and (C)such other criteria as the board of directors of the Corporation or the Insurance Corporation may consider to be appropriate for purposes of carrying out this Act. (2)

Factors to be taken into account

The criteria established pursuant to paragraph (1)(A) shall provide for the consideration of the following factors in considering eligibility for financial assistance under this Act: (A)The extent to which provision of assistance by the Corporation or the Insurance Corporation will further the objectives for infrastructure investments established in Executive Order No. 12893 of January 26, 1994, including the stated objective of providing opportunities for innovative public-private initiatives. (B)The means by which development of the infrastructure facility under consideration is being financed, including— (i)the terms and conditions and financial structure of the proposed financing; (ii)the financial assumptions and projections on which the project is based; and (iii)based on consideration of clauses (i) and (ii), whether the infrastructure facility will have the capacity to be self-supporting. (C)The likelihood that the provision of assistance by the Corporation or the Insurance Corporation will cause such development to proceed more promptly and with lower costs for financing to the public and private entities engaged in developing such infrastructure facility than would be the case without such assistance. (D)The extent to which the provision of assistance by the Corporation or the Insurance Corporation maximizes the level of private investment in such infrastructure facility. (3)

Limitation on conditions

The Corporation and the Insurance Corporation shall not condition the approval of financial assistance for the development of any infrastructure facility on a requirement that a pension plan of a State or political subdivision of a State make an investment in such facility. (c)

Submission of project proposals

(1)

Acceptance of proposals

The Corporation and the Insurance Corporation shall accept, for consideration, project proposals relating to the development of infrastructure facilities submitted by a State, a revolving fund, or another entity, subject to subsection (d), which meet the requirements of subsection (b). (2)

List of projects under consideration for assistance

Project proposals accepted pursuant to paragraph (1) and approved in principle shall be placed on a list of projects being considered for financial assistance under this Act. (3)

Eligibility for preconstruction assistance

Projects on the list established pursuant to paragraph (2) shall be eligible to apply for preconstruction assistance in accordance with subsection (f). (4)

Subsequent approvals

Notwithstanding the receipt of any preconstruction assistance for any project, no additional financial assistance under this Act for such project may be provided without the specific approval by the Corporation or the Insurance Corporation, as the case may be, for such additional assistance. (5)

Fees

A fee may be charged for the review of any project proposal in such amount as may be deemed appropriate by the Corporation or the Insurance Corporation to cover the cost of such review. (d)

State eligibility

(1)

In general

After the end of the 3-year period beginning on the date of the enactment of this Act, no financial assistance may be provided by the Corporation or the Insurance Corporation for the development of any infrastructure facility proposed for assistance by a State, or a revolving fund in a State, unless such State has in place— (A)an evaluation process which is certified by the Secretary, in accordance with regulations which the Secretary shall prescribe before the end of the 6-month period beginning on such date of enactment, as being designed to ascertain the extent to which major work with respect to infrastructure facilities within the State can be financed by relying on any revenue reasonably obtainable from such facilities and other dedicated revenue sources; and (B)a program which is certified by the Secretary, in accordance with regulations which the Secretary shall prescribe before the end of such 6-month period, as being reasonably designed to promote the objective set forth in Executive Order No. 12893 of January 26, 1994, of affording the opportunity for innovative public-private initiatives with respect to major work, consistent with the public interest. (2)

Activities with nonstate entities

After the end of the 3-year period beginning on the date of the enactment of this Act, the Corporation and the Insurance Corporation each may continue to undertake activities with respect to projects within a State relating to the development of infrastructure facilities which have been submitted by entities other than such State or a revolving fund in such State, including municipalities, regional authorities, and private-public partnerships, if the infrastructure facilities meet the criteria for assistance established pursuant to subsection (b), and the State or States in which such facility or facilities are to be located have not met the conditions of subsection (d)(1). (3)

Major work defined

For purposes of paragraph (1), the term major work means the construction of a new infrastructure facility, or the reconstruction, rehabilitation, replacement, or expansion of an existing infrastructure facility, involving the expenditure of more than $10,000,000. (e)

Initial targeting of ready-to-go projects

During the 3-year period beginning on the date of the enactment of this Act, the Corporation and the Insurance Corporation shall each seek to provide assistance to projects involving the development of infrastructure facilities which— (1)the Corporation or the Insurance Corporation, as the case may be, determines are ready to move forward promptly; and (2)meet all other requirements of this Act. (f)

Development risk insurance

(1)

In general

Any project on the list established pursuant to subsection (c)(2) shall be eligible to apply to the Corporation for development risk insurance in accordance with this subsection to insure against the risk of loss that would result if a project does not proceed within a specified time frame as the result of the failure to secure relevant permits or specified Federal, State, or local approvals. (2)

Terms and scope of coverage

Development risk insurance provided under this subsection shall— (A)contain such limitations, deductibles, exclusions, and exceptions as the Corporation shall establish; and (B)apply only to developmental costs incurred after the date of the approval of the application for such insurance. (3)

Maximum on insurance of preconstruction risk

The Corporation shall not insure more than 50 percent of the preconstruction phase development risk of any project, as determined by the Corporation. (4)

Additional conditions

The Corporation may impose such other conditions and requirements in connection with any insurance provided under this subsection as the Corporation may determine to be appropriate, including requirements for audits of costs and other matters. (5)

Fees for insurance

The Corporation may charge such fees and obtain such other compensation for providing insurance coverage under this subsection as the Corporation, in the Corporation’s discretion, shall determine to be appropriate. (6)

Maximum exposure of Corporation

The total outstanding exposure of the Corporation with respect to insurance provided under this subsection may not exceed the amount which is equal to 5 percent of the sum of the capital, surplus, and retained earnings of the Corporation, as measured at the time any such insurance is provided. (g)

Discretion of Corporation and insurance Corporation

Consistent with other provisions of this Act, any determination of the Corporation or the Insurance Corporation to provide assistance to any project, and the manner in which such assistance is provided, including the terms, conditions, fees and charges in respect thereof, shall be at the sole discretion of the Corporation or the Insurance Corporation, as the case may be. (h)

Independent investment committee

Any final decision to provide or not provide assistance under this Act by the Corporation or the Insurance Corporation with respect to any specific proposal shall be made by an investment committee, of the respective corporation, which shall be comprised of senior officers of the Corporation and the Insurance Corporation, as the case may be, appointed to such committee by the respective board of directors, which committees shall not have any nonofficer director members. (i)

State and local permits required

The provision of assistance by the Corporation or the Insurance Corporation in accordance with this section shall not be deemed to relieve any recipient of assistance or the related project of any obligation to obtain required State and local permits and approvals. (j)

Annual report

A State, revolving fund, or other entity receiving assistance from the Corporation or the Insurance Corporation shall make annual reports to the Corporation or the Insurance Corporation, as the case may be, on the use of any such assistance, compliance with the criteria set forth in this section, and a disclosure of all entities with a development, ownership, or operational interest in a project assisted or proposed to be assisted pursuant to this Act. (k)

Cooperation

While the Corporation and Insurance Corporation each has sole discretion, the Corporation and Insurance Corporation shall cooperate with State, local, and regional officials.

9.

Capitalization and organization of the Corporation and the Insurance Corporation

(a)

Capitalization

(1)

Capitalization of the Corporation

(A)

Voting common stock

Effective for any fiscal year only to such extent and in such amounts as are provided in advance in appropriation Acts, the Secretary shall subscribe for and purchase, in each of the 3 years following the date of enactment of this Act, voting common stock of the Corporation having an aggregate purchase price in each year of $3,000,000,000, except that no such purchase shall occur after the transition date. (B)

Limitation on sale of securities by Secretary

Securities purchased by the Secretary may not be sold or otherwise transferred by the Secretary unless such sale or transfer is effected pursuant to section 13 or is explicitly authorized by an Act of Congress. (2)

Capitalization of the Insurance Corporation

(A)

In general

The Corporation may subscribe for and purchase voting common stock of the Insurance Corporation in such amounts and at such times as the board of directors of the Corporation shall from time to time consider appropriate. (B)

Limitation on investment by Corporation

Not more than 25 percent of the capital, surplus, and retained earnings of the Corporation may be invested by the Corporation in the Insurance Corporation without the consent of the Secretary, measured at the time of any such investment. (3)

Repurchase of outstanding obligations

The Corporation and the Insurance Corporation may purchase in the open market any of their respective outstanding obligations at any time and at any price. (b)

Place of business and governing law

(1)

Corporation

(A)

Principal office

The Corporation shall maintain its principal office in the District of Columbia, and shall be deemed, for purposes of venue in civil actions, to be a resident of the District of Columbia. (B)

Applicability of District of Columbia Business Corporation Act

To the extent not inconsistent with this Act, the Corporation shall be subject to the District of Columbia Business Corporation Act. (2)

Insurance Corporation

(A)

Place of business

The Insurance Corporation shall maintain its principal office in the District of Columbia, and shall be deemed, for purposes of venue in civil actions, to be a resident thereof. (B)

Applicability of District of Columbia Business Corporation Act

To the extent not inconsistent with this Act, the Insurance Corporation shall be subject to the District of Columbia Business Corporation Act. (3)

Applicability of State insurance laws

Before the transition date, the Corporation and the Insurance Corporation shall not be subject to the provisions of the law of any State or political subdivision of any State regulating the ownership or conduct of an insurance or surety business in any jurisdiction. (4)

Exemption from taxation

(A)

On and before transition date

On and before the transition date, the Corporation, the Insurance Corporation, and any other subsidiary of the Corporation, including the franchise, capital, reserves, surplus, securities holdings, and income of the Corporation, the Insurance Corporation, or any such subsidiary shall be exempt from taxation now or hereafter imposed by the United States, any State, or any county, municipality, or local taxing authority. (B)

After transition date

After the transition date, the Corporation, the Insurance Corporation, and any other subsidiary of the Corporation, including the franchise, capital, reserves, surplus, securities holdings, and income of the Corporation, the Insurance Corporation, or any such subsidiary shall be exempt from all taxation now or hereafter imposed by the United States, any State, or any county, municipality, or local taxing authority in any State, provided that the Corporation, the Insurance Corporation and any other subsidiary of the Corporation shall be subject to Federal income taxation.

10.

Management of the Corporation

(a)

Board of directors

(1)

Number and appointment

Subject to the provisions of section 13, the Corporation shall have a board of directors consisting of 12 members, 9 of whom shall be appointed by the President. (2)

Required expertise

The President shall appoint individuals to the board of directors of the Corporation with a demonstrated experience and expertise in the general field of infrastructure project development, finance, or related disciplines. (3)

Additional selection criteria

The President shall ensure that, of the nonofficer directors appointed to the board of directors, a minimum of 6 shall be selected from among representatives of the private sector, of which— (A)2 shall be representatives of organized labor; and (B)2 shall be individuals involved in the field of public-private infrastructure finance and related disciplines. (4)

Consultation with the national governors’ conference

The President shall select 2 of the nonofficer directors to be appointed to the board of directors after consulting with and considering the recommendations of the National Governors’ Conference. (5)

Appointment of officers to the board

A majority of the nonofficer members of the board shall appoint the president of the Corporation who shall serve on the board of directors. The president of the Corporation shall select 2 executive officers to be appointed to the board, subject to confirmation by a majority of the board. (6)

Terms

(A)

Presidential appointees

Each director appointed by the President shall be appointed for a term of 4 years, except as provided in subparagraph (B). (B)

Initial presidential appointees

As designated by the President, of the directors first appointed by the President— (i)1/3 shall be appointed for a term of 2 years; (ii)1/3 shall be appointed for a term of 3 years; and (iii)1/3 shall be appointed for a term of 4 years. (C)

Officer directors

Officer directors of the Corporation shall serve for a period of 1 year or until they cease to be an officer of the Corporation. (D)

Interim appointments

Any director appointed to fill a vacancy occurring before the expiration of the term for which the director’s predecessor was appointed shall be appointed only for the remainder of that term. (E)

Continuation of service

A director may serve after the expiration of that director’s term until a successor has taken office. (7)

Vacancies

A vacancy in the board of directors shall be filled in the manner in which the original appointment was made. (8)

Reappointment

(A)

Presidential appointees

Members of the board of directors appointed by the President may be reappointed by the President, consistent with the requirements of this section. (B)

Officer directors

The president of the Corporation shall be reappointed to the board by the nonofficer directors for so long as such individual continues to serve as president of the Corporation. Officer directors of the board selected by the president of the Corporation may be reappointed by the president of the Corporation, consistent with the requirements of this section. (9)

Removal

(A)

Presidential appointees

A director appointed by the President shall be subject to removal only for cause. (B)

Officer directors

Officer directors of the Corporation shall be subject to removal from the board in the discretion of a majority of the board, except that the president of the Corporation shall continue to serve on the board for so long as he or she serves as president of the Corporation. (10)

Quorum

7 directors shall constitute a quorum. (11)

Chairperson

The chairperson of the board of directors shall be selected by a majority of the board from among the nonofficer directors of the board, and shall serve for a period of 1 year, or until a new chairperson is selected. (12)

Status and compensation of board members

(A)

Nonofficer directors

Members of the board of directors who are not officers of the Corporation shall serve on a part-time basis and shall receive a per diem, when engaged in the actual performance of Corporation business, plus reasonable reimbursement for travel, subsistence and other necessary expenses incurred in the performance of their duties. (B)

Officer directors

Members of the board of directors who are officers of the Corporation shall not be entitled to receive any salary or other compensation for services as a director of the Corporation, but may receive reasonable reimbursement for travel, subsistence and other necessary expenses incurred in the performance of their duties as directors of the Corporation. (13)

Conflicts of interest

(A)

In general

Nonofficer directors shall have no responsibility for, and shall not seek to influence, any decision of the independent investment committee established pursuant to section 8(h). (B)

Consultation

Notwithstanding subparagraph (A), the investment committee may, in the committee’s discretion and on the committee’s own initiative, consult with the board of directors as the committee sees fit. (C)

Limitation on consultation

No nonofficer director of the Corporation who has, or is affiliated with a person who has, an interest in any project under consideration for assistance under this Act shall participate in any consultation under subparagraph (B) with respect to such project. (14)

Meetings

The board of directors shall meet at any time pursuant to the call of the chairperson or a majority of the directors and as provided by the bylaws of the Corporation, but not less than once each calendar quarter. (15)

Duties

In addition to any duties established under this Act and the bylaws of the Corporation, the board of directors shall determine the general policies which shall govern the operations of the Corporation in accordance with this Act. (16)

Delegation of authority

The board of directors may delegate duties and powers of the board to such committees of the board as the board may determine to be appropriate. (b)

Officers of the Corporation

(1)

President of the Corporation

The president of the Corporation shall be the chief executive officer of the Corporation, with such executive functions, powers, and duties as may be prescribed by this Act, the bylaws, or the board of directors. (2)

Appointment of officers

The president of the Corporation shall, with the approval of a majority of the board, appoint qualified individuals to such executive officer positions as may be provided for in the bylaws of the Corporation, and shall define their duties. The president may appoint, remove, fix the compensation of, and define the duties of other officers as provided in the bylaws. (3)

Compensation

The compensation of the president and the executive officers of the Corporation shall be determined by the board of directors of the Corporation, in the discretion of the board of directors. (4)

Conflicts of interest

Officers of the Corporation shall not participate in any review or decision affecting a project under consideration for assistance under this Act if such officer has, or is affiliated with a person who has, an interest in such project. (5)

Removal

Any executive officer of the Corporation may be removed in the discretion of a majority of the board of directors.

11.

Management of the Insurance Corporation

(a)

Board of directors

(1)

Number and election

Subject to the provisions of section 13, the Insurance Corporation shall have a board of directors consisting of 12 members elected by the stockholders of the Insurance Corporation. (2)

Initial appointment of directors

The initial directors of the Insurance Corporation shall be appointed by the board of directors of the Corporation. (3)

Required expertise

The board shall be comprised of individuals who have a demonstrated expertise and experience in the field of credit enhancement or insurance and related disciplines, a minimum of 9 of whom shall be selected from among representatives of the private sector. (4)

Terms

(A)

In general

Each director shall be elected or appointed for a term of 2 years, except as provided in subparagraph (B). (B)

Interim appointments

Any director elected or appointed to fill a vacancy occurring before the expiration of the term for which the director’s predecessor was appointed shall be elected or appointed only for the remainder of that term. (C)

Continuation of service

A director may serve after the expiration of that director’s term until a successor has taken office. (5)

Vacancies

A vacancy in the board of directors shall be filled in the manner in which the original appointment was made, except that the bylaws may provide for the appointment by the board of directors of a director to fill a vacancy occurring before the expiration of the term for which the director’s predecessor was elected or appointed. (6)

Quorum

7 directors shall constitute a quorum. (7)

Chairperson

(A)

Election

The chairperson of the board of directors shall be elected by the board of directors from among the directors on the board. (B)

Term

The term of office of the chairperson shall be 1 year or until a new chairperson is elected. (8)

Status and compensation of board members

Members of the board of directors shall serve on a part-time basis and shall receive a per diem, when engaged in the actual performance of Insurance Corporation business, plus reasonable reimbursement for travel, subsistence and other necessary expenses incurred in the performance of their duties. (9)

Conflicts of interest

(A)

In general

Nonofficer directors shall have no responsibility for, and shall not seek to influence, any decision of the independent investment committee established pursuant to section 8(h). (B)

Consultation

Notwithstanding subparagraph (A), the investment committee may, in the committee’s discretion and on the committee’s own initiative, consult with the board of directors as the committee sees fit. (C)

Limitation on consultation

No director who has, or is affiliated with any person who has, an interest in any project under consideration for assistance under this Act shall participate in any such consultation with respect to such project. (10)

Meetings

The board of directors shall meet at any time pursuant to the call of the chairperson or a majority of the directors and as provided by the bylaws of the Insurance Corporation, but not less than once each calendar quarter. (11)

Duties

In addition to any duties established under this Act or the bylaws of the Insurance Corporation, the board of directors shall determine the general policies which shall govern the operations of the Insurance Corporation in accordance with this Act. (12)

Delegation of authority

The board of directors may delegate duties and powers of the board to such committees of the board as the board may determine to be appropriate. (b)

Officers of the Insurance Corporation

(1)

President of the Insurance Corporation

There shall be a position of president of the Insurance Corporation who shall be the chief executive officer of the Insurance Corporation, with such executive functions, powers, and duties as may be prescribed by the bylaws or by the board of directors. (2)

Appointment of officers

The chairperson of the board of directors of the Insurance Corporation shall, with the approval of a majority of the board, appoint a qualified individual to the position of president of the Insurance Corporation. The president of the Insurance Corporation shall, with the approval of a majority of the board, appoint qualified individuals to such executive officer positions as may be provided for in the bylaws of the Insurance Corporation, and shall define their duties. The president may appoint, remove, fix the compensation of, and define the duties of other officers as provided in the bylaws. (3)

Compensation

The compensation of the president and the executive officers of the Insurance Corporation shall be determined by the board of directors of the Insurance Corporation, in the discretion of the board of directors. (4)

Conflicts of interest

Officers of the Insurance Corporation shall not participate in any review or decision affecting a project under consideration for assistance under this Act if such officer has, or is affiliated with a person who has, an interest in such project. (5)

Removal

Any executive officer of the Insurance Corporation may be removed in the discretion of a majority of the board of directors.

12.

Board of director meetings open to public

(a)

General

All meetings of the full board of directors held to conduct the business of the Corporation or the Insurance Corporation shall be open to the public, and shall be preceded by reasonable notice. (b)

Closed meetings

Pursuant to such rules as the Corporation and the Insurance Corporation may establish through their bylaws, the respective board of directors may close a meeting of the board if at the meeting there is likely to be disclosed information which could adversely affect or lead to speculation relating to an infrastructure project under consideration for assistance under this Act, or in financial or securities or commodities markets or institutions, utilities, or real estate. The determination to close any meeting of either board of directors shall be made in a meeting of such board, open to the public, and preceded by reasonable notice. The respective board of directors shall prepare minutes of any meeting which is closed to the public and make such minutes available as soon as the considerations necessitating closing such meeting no longer apply.

13.

Transition to government-sponsored enterprise

(a)

General

Within 5 years after the date of the enactment of this Act, the Corporation shall prepare a strategic plan for the transition of NIC to a government-sponsored enterprise (as defined in section 3(8) of the Congressional Budget and Impoundment Control Act of 1974 (2 U.S.C. 622(8)) and for the sale or transfer to investors other than the Federal Government, as set forth in subsection (b), of the voting securities of the Corporation. The Corporation shall revise such transition plan as needed. (b)

Plan; pension plan participation

(1)

In general

The strategic plan shall include consideration of alternative means for effecting such transition through a broad distribution to long-term investors, including by a public offering of stock or convertible stock or debt. (2)

Pension plan participation

The strategic plan shall include provisions that specify that the initial purchasers of voting securities of the Corporation or of nonvoting securities which are convertible to such voting securities on the transition date (disregarding any underwriters of such securities) shall be pension plans. (c)

Means of transfer

(1)

In general

The strategic plan may call for a phased transfer of ownership or for complete transfer at a single point in time. (2)

Rules applicable in the case of a phased transition

If the plan calls for phased transfer of ownership— (A)such transition shall be deemed to occur when 100 percent of the voting securities of the Corporation have been transferred to or are held by investors other than the Federal Government, and the investment of the Federal Government in the Corporation has been repaid or converted as provided in subsection (h); (B)before the transition date, all equity securities of the Corporation held by investors other than the Federal Government (or any equity security into which any other security is convertible) shall be nonvoting securities; and (C)on and after the transition date, nonvoting equity securities of the Corporation held by investors other than the Federal Government (or into which other securities are convertible) may, in accordance with the terms of such securities, be converted or become convertible into voting securities. (d)

Requirement of presidential approval

The Corporation may not implement the transition plan without the approval of the President, and shall seek reapproval if the plan is materially altered. (e)

Notification of Congress

(1)

In general

The Corporation shall notify the Congress of— (A)the Corporation’s intent to implement the transition plan; and (B)any material alteration of a transition plan previously submitted to the Congress. (2)

Report

Within 30 days of any notification of the Congress under paragraph (1), the Comptroller General of the United States shall submit a report to Congress evaluating the extent to which— (A)the transition plan (as then modified) would result in ongoing obligations (other than contemplated by subsection (h)) or undue cost to the Federal Government; and (B)the cash proceeds (or projected range thereof) to be provided to the Federal Government, or the securities proposed to be received in exchange for the investment of the Federal Government in the Corporation or portion thereof, represents the full recoupment of such investment (after taking into account any dividends paid to the Federal Government). (f)

Congressional review

The Corporation may implement the plan not less than 60 days after notification of the Congress, if the approval of the President referred to in subsection (d) has been received. (g)

Deposit of proceeds

Any cash proceeds receivable by the Federal Government pursuant to this section shall be deposited in the general fund of the Treasury. (h)

Conversion of Federal Government investment

Upon the implementation of the transition plan, the voting equity securities of the Corporation held by the Federal Government or, in the case of a phased transition, that portion of the voting equity securities which are subject to such phase shall be repurchased by the Corporation or converted to long-term subordinated debt securities having a par amount not less than the amounts appropriated pursuant to section 19 and subject to such phase, or a combination thereof, as contemplated by such plan. (i)

Board of directors

(1)

Corporation

(A)

Initial board

Before the end of the 120-day period beginning on the transition date, a special meeting of the stockholders of the Corporation shall be held, at which all directors of the Corporation shall be elected to serve a 1-year term or until any such director’s successor has been elected. (B)

Nomination; selection criteria

The candidates for election to the board of directors under paragraph (1) shall be nominated by the existing board of directors and 4 of such candidates shall be nominated in accordance with the selection criteria set out in section 10(a)(3). (C)

Subsequent boards

After the 1st election of a board of directors pursuant to subparagraph (A), the directors shall be elected and subject to removal by the stockholders of the Corporation, as provided in the District of Columbia Business Corporation Act, except that the nomination of candidates for each election of the board of directors shall continue to reflect the requirements of section 10(a)(3). (2)

Insurance Corporation

(A)

Initial board

Promptly following the special meeting of the stockholders of the Corporation pursuant to paragraph (1), a special meeting of the stockholders of the Insurance Corporation shall be held, at which all directors or the Insurance Corporation shall be elected to serve a 1-year term or until any such director’s successor has been elected. (B)

Subsequent boards

After the 1st election of a board of directors pursuant to subparagraph (A), the directors shall be elected and subject to removal by the stockholders of the Insurance Corporation, as provided in the District of Columbia Business Corporation Act. (j)

Transmittal of final plan after completion

The Corporation shall transmit copies of the final strategic plan for transition to the President and the Congress upon completion of such transition.

14.

Status and applicability of certain Federal laws

(a)

Before the transition date

Before the transition date, the Corporation, the Insurance Corporation, and any other subsidiary of the Corporation, shall— (1)not be agencies of the United States; and (2)comply with all Federal laws regulating the budgetary and auditing practices of a government corporation, except as otherwise provided in this Act. (b)

Subsequent to the transition date

On and after the transition date, the Corporation, the Insurance Corporation, and any other subsidiary of the Corporation shall not be considered to be an agency, instrumentality, or establishment of the United States Government or a government corporation or a government-controlled corporation, for purposes of any Federal law, except as otherwise provided in this Act. (c)

Authorized investments and security

All obligations issued by the Corporation shall be authorized investments for any person created under the laws of the United States or any State to the same extent that the person may hold or invest in obligations issued by or guaranteed as to principal or interest by the United States or any agency or instrumentality of the United States. (d)

Effect of and exemptions from other laws

(1)

Exempt securities

All equity and debt securities and other obligations issued by the Corporation or the Insurance Corporation pursuant to this Act shall be deemed to be exempt securities within the meaning of laws administered by the Securities and Exchange Commission to the same extent as securities which are direct obligations of, or obligations fully guaranteed as to principal or interest by, the United States. (2)

Open market operations and State tax exempt status

The obligations of the Corporation shall be deemed to be obligations of the United States for the purposes of the provision designated as (b)(2) of the 2nd undesignated paragraph of section 14 of the Federal Reserve Act and section 3124 of title 31, United States Code. (3)

No priority as a Federal claim

The priority established in favor of the United States by section 3713 of title 31, United States Code, shall not apply with respect to any indebtedness of the Corporation or the Insurance Corporation. (e)

Federal reserve banks as depositaries, custodians, and fiscal agents

The Federal reserve banks may act as depositaries for, or custodians or fiscal agents of, the Corporation and the Insurance Corporation. (f)

Access to book-entry system

The Secretary may authorize the Corporation and the Insurance Corporation to use the book-entry system of the Federal reserve system.

15.

Compliance with Davis-Bacon Act

NIC shall take such action as may be necessary to ensure that projects assisted in whole or in part under the provisions of this Act shall incorporate a provision requiring in any contract relating to any construction, reconstruction, rehabilitation, replacement, or expansion of such project, that not less than the wages prevailing in the locality, as predetermined by the Secretary of Labor pursuant to the Act of March 3, 1931, commonly referred to as the Davis-Bacon Act (40 U.S.C. 276a), shall be paid to all laborers and mechanics employed to perform such contracts.

16.

Obligations not federally guaranteed; State laws

(a)

Status of securities

(1)

No full faith and credit of the u.s

Obligations of the Corporation or the Insurance Corporation, and obligations insured by any such corporation shall not be obligations of, or guaranteed as to principal or interest by, the United States or any agency of the United States and the obligations shall so plainly state. (2)

Financing not treated as U.S. guarantee

The provision of assistance of any kind or nature from NIC shall not be treated as a direct or indirect guarantee of any payment of principal or interest on any security by the United States for purposes of section 149(b) of the Internal Revenue Code of 1986 or any other law. (b)

State laws

The receipt by any entity of any assistance under this Act, directly or indirectly, and any financial assistance provided by any governmental entity in connection with such assistance under this Act shall be valid and lawful notwithstanding any State or local restrictions regarding extensions of credit or other benefits to private persons or entities, or other similar restrictions.

17.

Audits; reports to the President and the Congress

(a)

Accounting

The books of account of NIC shall be maintained in accordance with generally accepted accounting principles and shall be subject to an annual audit by independent public accountants of nationally recognized standing. (b)

Reports

NIC shall submit to the President and the Congress, within 90 days after the end of each fiscal year, a complete and detailed report with respect to the preceding fiscal year, setting forth— (1)a summary of NIC’s operations, for such preceding fiscal year; (2)NIC’s financial statements and the opinion with respect thereto prepared by the independent public accountant reviewing such statements and a copy of any report made on an audit conducted under subsection (a) of this section; (3)a schedule of NIC’s obligations and capital securities outstanding at the end of such fiscal year, with a statement of the amounts issued and redeemed or paid during such fiscal year; and (4)the status of projects receiving funding or other assistance pursuant to this Act, including disclosure of all entities with a development, ownership, or operational interest in such projects. (c)

Books and records

(1)

In general

NIC shall maintain adequate books and records to support the financial transactions of the Corporation, the Insurance Corporation, and subsidiaries of such corporations. (2)

Audits by the Secretary and gao

The books and records of NIC shall be maintained in accordance with recommended accounting practices and shall be open to inspection by the Secretary and the Comptroller General of the United States.

18.

Tax treatment of distributions from qualified retirement plans investing in public benefit bonds

(a)

In general

Section 72 of the Internal Revenue Code of 1986 (relating to annuities; certain proceeds of endowment and life insurance contracts) is amended by redesignating subsection (w) as subsection (x) and by inserting after subsection (v) the following new subsection: (w)

Treatment of distribution from qualified retirement plans investing in public benefit bonds

(1)

In general

In the case of any qualified retirement plan which receives directly or indirectly any interest on any public benefit bond (including any payments in respect thereof made by a surety or guarantor) for purposes of applying this section to any distribution from such plan, the distributee’s investment in the contract shall be treated as including such distributee’s allocable share of such interest under the terms of the qualified retirement plan, and any such distribution shall be treated as a distribution described in subsection (e)(2)(B) in which the distribution is allocable first to the investment in the contract attributable to such interest. (2)

Treatment of installments

In the case of a distribution to be made over more than one calendar year, the amount of public benefit bond interest to be taken into account with respect to a given calendar year shall be the aggregate amount of such interest allocable to the distributee as of the end of the prior calendar year. With respect to the final calendar year, the amount of public benefit bond interest to be taken into account shall include the amount of such interest received by the plan during such year that is allocable to the plan participant with respect to whom the distribution is made. (3)

Public benefit bond

For purposes of this subsection, the term public benefit bond means any obligation issued after the date of the enactment of this subsection if— (A)95 percent or more of the net proceeds of such obligation are used in connection with the financing or refinancing of 1 or more infrastructure facilities, (B)such obligation has received a published rating, and (C)the development of such infrastructure facilities have been or will be undertaken by a governmental entity or public-private partnership,as such terms are defined in section 4 of the National Infrastructure Development Act of 2004. (4)

Certification of infrastructure facilities

An issuer of an obligation of which 95 percent or more of the net proceeds are to be used in connection with the financing or refinancing of 1 or more facilities may apply to the National Infrastructure Development Corporation, in accordance with such procedures as such corporation may establish, for certification that any such facility is an infrastructure facility (as defined in section 4 of the National Infrastructure Development Act of 2004). Certification by the Corporation shall create a presumption of such status, but shall not be binding on the Secretary. (5)

Legend required

No obligation shall be a public benefit bond for purposes of this subsection unless it is designated as intended to be a public benefit bond on the date of issuance and bears a legend to such effect. (6)

Qualified retirement plan

For purposes of this subsection, the term qualified retirement plan means— (A)a qualified retirement plan (as defined in section 4974(c)), and (B)an eligible deferred compensation plan (as defined in section 457(b)). (7)

Treatment of dividends from mutual funds

(A)

In general

For purposes of this subsection, in the case of any dividend (other than a dividend described in section 854(a)) received from a regulated investment company which meets the requirements of section 852 for the taxable year in which it paid the dividend— (i)the entire amount of such dividend shall be treated as interest on a public benefit bond if the aggregate interest on such bonds received by such company during the taxable year equals or exceeds 75 percent of its gross income, or (ii)if clause (i) does not apply, a portion of such dividend shall be treated as interest on a public benefit bond based on the portion of the company’s gross income which consists of such interest. (B)

Notice to shareholders

The amount of any distribution by a regulated investment company which may be taken into account as interest on a public benefit bond for purposes of this section shall not exceed the amount so designated by the company in a written notice to its shareholders mailed not later than 45 days after the close of its taxable year. (C)

Gross income

For purposes of this section, the term gross income does not include gain from the sale or other disposition of stock or securities.. (b)

Effective date

The amendment made this section shall apply to distributions after the date of the enactment of this Act.

19.

Authorizations

(a)

Appropriations authorized for establishment

There are hereby authorized to be appropriated to the Secretary $30,000,000 for the purpose of facilitating the NIC’s initial operations. (b)

Appropriations authorized for conduct of business of NIC

There are authorized to be appropriated to the Secretary $3,000,000,000 for each of the fiscal years 2005 through 2008 to make the capital contributions in accordance with section 9(a)(1)(A) for the purpose of carrying out this Act. (c)

Establishment of NIC account

Before the transition date, the funds appropriated under subsection (b) shall be deposited in an account to be established in the Treasury of the United States to be known as the National Infrastructure Development Corporation Account, which shall be available to the Corporation, without need for further appropriation and without fiscal year limitation, for carrying out its purposes, functions and powers, including the investment and reinvestment of these funds as permitted in this Act, and which shall not be subject to apportionment under subchapter II of chapter 15 of title 31, United States Code. The Secretary of the Treasury, in consultation with the board of directors of the Corporation, shall invest amounts in the account in public debt securities with maturities suitable to the needs of the account and bearing interest at rates determined by the Secretary, taking into consideration current market yields on outstanding marketable obligations of the United States of comparable maturities.

20.

Prohibition on additional Federal assistance

Except as otherwise specifically provided by sections 13 and 19, NIC shall receive no appropriations, loans, or other financial assistance from the Federal Government.