II 110th CONGRESS 1st Session S. 2349 IN THE SENATE OF THE UNITED STATES November 14, 2007 Mr. Reid (for Mr. Biden (for himself and Mr. Lugar)) introduced the following bill; which was read twice and referred to the Committee on Foreign Relations A BILL To reauthorize the programs of the Overseas Private Investment Corporation, and for other purposes.

1.

Short title

This Act may be cited as the Overseas Private Investment Corporation Reauthorization Act of 2007.

2.

Reauthorization of OPIC programs

Section 235(a)(2) of the Foreign Assistance Act of 1961 (22 U.S.C. 2195(a)(2)) is amended by striking September 30, 2007 and inserting September 30, 2011.

3.

Requirements regarding international worker rights

(a)

Country requirements

Subsection (a) of section 231A of the Foreign Assistance Act of 1961 (22 U.S.C. 2191a(a)) is amended— (1)by amending the subsection heading to read as follows: International Worker Rights; (2)in paragraph (4), by striking (4) In and inserting (4) Additional determination.—In; and (3)by striking paragraphs (1) through (3) and inserting the following: (1)

Limitation on OPIC activities

(A)

In general

The Corporation may insure, reinsure, guarantee, or finance a project only if the country in which the project is to be undertaken is taking steps to adopt and implement laws that extend international worker rights to workers in that country, including in any designated zone, or special administrative region or area, in that country. (B)

Contract language

The Corporation shall also include the following language, in substantially the following form, in all contracts which the Corporation enters into with eligible investors to provide financial support under this title: The investor agrees not to take any actions to obstruct or prevent employees of the foreign enterprise from exercising their international worker rights (as defined in section 238(h) of the Foreign Assistance Act of 1961), and agrees to adhere to the obligations regarding those international worker rights. The investor agrees to the elimination of discrimination with respect to employment and occupation.. (2)

Preference to certain countries

To the extent practicable and consistent with its development objectives, the Corporation shall give preferential consideration to projects in countries that have adopted, maintained, and enforced laws that substantially provide international worker rights, as well as the elimination of discrimination with respect to employment and occupation. (3)

Use of annual reports on international worker rights

The Corporation shall, in carrying out paragraph (1)(A), use, among other sources, the reports submitted to the Congress pursuant to section 504 of the Trade Act of 1974 (19 U.S.C. 2464). The Corporation should also consider other relevant sources, including the observations, reports, and recommendations of the International Labour Organization. . (b)

Definitions

Section 238 of the Foreign Assistance Act of 1961 (22 U.S.C. 2198) is amended— (1)in subsection (f), by striking and after the semicolon; (2)in subsection (g), by striking the period at the end and inserting ;; and (3)by adding at the end the following: (h)the term international worker rights means internationally recognized worker rights, as defined in section 507(4) of the Trade Act of 1974 (19 U.S.C. 2467(4)); and (i)the terms Category A project and Category A extractive industry project mean any project or other activity for which the Corporation proposes to provide insurance, reinsurance, financing, or other support under this title and which is likely to have a significant adverse environmental impact. . (c)

General provisions and powers

Section 239 of the Foreign Assistance Act of 1961 (22 U.S.C. 2199) is amended— (1)in subsection (h), by adding at the end the following: The Corporation shall also consult with relevant stakeholders in developing such criteria.; and (2)in subsection (i), in the first sentence, by inserting (including international worker rights and the elimination of discrimination with respect to employment and occupation) after fundamental freedoms each place it appears.

4.

Environmental assessments

Section 231A(b) of the Foreign Assistance Act of 1961 (22 U.S.C. 2191a(b)) is amended to read as follows: (b)

Environmental impact

The Board of Directors of the Corporation shall not vote in favor of any action proposed to be taken by the Corporation that is likely to have significant adverse environmental impacts, unless for at least 60 days before the date of the vote— (1)an environmental impact assessment, or initial environmental audit, analyzing the environmental impacts of the proposed action and of alternatives to the proposed action has been completed by the project applicant and made available to the Board of Directors; and (2)such assessment or audit has been made available to the public of the United States, locally affected groups in the host country, and nongovernmental organizations in the host country. .

5.

Community support

Section 237 of the Foreign Assistance Act of 1961 (22 U.S.C. 2197) is amended by adding at the end the following new subsection: (p)

Community support

To the maximum extent practicable, the Corporation shall require the applicant for a project that is subject to the requirements of section 231A(b) to obtain broad community support for the project. .

6.

Climate change mitigation action plan

Title IV of chapter 2 of part I of the Foreign Assistance Act of 1961 (22 U.S.C. 2291 et seq.) is amended by inserting after section 234A the following new section:

234B.

Climate change mitigation

(a)

Mitigation action plan

The Corporation shall, not later than 180 days after the date of the enactment of the Overseas Private Investment Corporation Reauthorization Act of 2007, institute a climate change mitigation action plan that includes the following: (1)

Clean technology

(A)

Increasing assistance

The Corporation shall establish a goal of substantially increasing its support of projects that use, develop, or otherwise promote the use of clean energy technologies over the 10-year period beginning on the date of the enactment of the Overseas Private Investment Corporation Reauthorization Act of 2007. (B)

Preferential treatment to projects

The Corporation shall give preferential treatment to the evaluation and awarding of assistance for and provide greater flexibility in supporting projects that use, develop, or otherwise promote the use of clean energy technologies. (2)

Environmental impact assessments

(A)

Greenhouse gas emissions

The Corporation shall, in making an environmental impact assessment for a project under section 231A(b), take into account the degree to which the project contributes to the emission of greenhouse gases. (B)

Other duties not affected

The requirement under subparagraph (A) is in addition to any other requirement, obligation, or duty of the Corporation. (3)

Goals for reducing greenhouse gas emissions

(A)

In general

The Corporation shall continue to maintain— (i)a goal for reducing direct greenhouse gas emissions associated with projects in the Corporation’s portfolio on the date of the enactment of the Overseas Private Investment Corporation Reauthorization Act of 2007 by 20 percent over a 10-year period; and (ii)a goal for limiting annual investments in projects that have significant greenhouse gas emissions after such date of enactment in a manner that reduces greenhouse gas emissions associated with projects in the Corporation’s total portfolio by 20 percent over a 10-year period. (B)

Special rules

(i)

Baseline

For purposes of determining the percentage that greenhouse gas emissions are reduced under subparagraph (A), the Corporation shall use the aggregate estimated greenhouse gas emissions for projects in the Corporation’s portfolio. (ii)

Significant greenhouse gas emissions projects

For purposes of this paragraph, projects that have significant greenhouse gas emissions are projects that result in the emission of more than 100,000 tons of CO2 equivalent each year. (C)

Reporting requirements

The Corporation shall include, in each annual report under section 240A, the following information with respect to the period covered by the report: (i)The annual greenhouse gas emissions attributable to each project in the Corporation’s active portfolio that has significant greenhouse gas emissions. (ii)The estimated greenhouse gas emissions for each new project for which the Corporation provided insurance financing, or reinsurance that has significant greenhouse gas emissions since the last report. (iii)The extent to which the Corporation is meeting the goals described in subparagraph (A) for reducing greenhouse gas emissions. (iv)Each new project for which the Corporation provided insurance, financing, or reinsurance that involves renewable energy and environmentally beneficial products and services, including increased energy efficiency. (4)

Report to congressional committees

The Corporation shall, not later than 180 days after the date of the enactment of the Overseas Private Investment Corporation Reauthorization Act of 2007, submit to the Committees on Foreign Relations and Appropriations of the Senate and the Committees on Foreign Affairs and Appropriations of the House of Representatives a report on the plan developed to carry out paragraph (1)(A). Thereafter, the Corporation shall include in its annual report under section 240A a discussion of such plan and its implementation. (b)

Extraction investments

(1)

Prior notification to congressional committees

The Corporation shall provide notice of consideration to the Committees on Foreign Relations and Appropriations of the Senate and the Committees on Foreign Affairs and Appropriations of the House of Representatives at least 60 days before approval of a Category A extractive industry project (as defined in section 238(i)) or any extractive industry project in which assistance by the Corporation would be valued at $10,000,000 or more (including contingent liability). Nothing in this subsection shall affect the limitations and prohibitions with respect to direct investments described in section 234(c). (2)

Commitment to EITI principles

(A)

In general

Except as provided in subparagraph (B), the Corporation may approve a contract of insurance or reinsurance, or any guaranty, or enter into an agreement to provide financing to an eligible investor for a project that significantly involves an extractive industry only if— (i)the eligible investor has agreed to implement the Extractive Industries Transparency Initiative principles and criteria, or substantially similar principles and criteria related to the specific project to be carried out; and (ii)(I)the host country where the project is to be carried out has committed to the Extractive Industries Transparency Initiative principles and criteria, or substantially similar principles and criteria; or (II)the host country where the project is to be carried out has in place or is taking the necessary steps to establish functioning systems for— (aa)accurately accounting for revenues and expenditures in connection with the extraction and export of the type of natural resource to be extracted or exported; (bb)the independent audit of such revenues and expenditures and the widespread public dissemination of the audit; and (cc)verifying government receipts against company payments, including widespread dissemination of such payment information, and disclosing such documents as Host Government Agreements, Concession Agreements, and bidding documents, allowing in any such dissemination or disclosure for the redaction of, or exceptions for, information that is commercially proprietary or that would create competitive disadvantage. (B)

Exception

If the host country does not meet the requirements of subparagraph (A)(ii) (I) or (II), the Corporation may approve a contract of insurance or reinsurance, or any guaranty, or enter into an agreement to provide financing if the Corporation determines it is in the foreign policy interest of the United States for the Corporation to support the project in the host country and the host country does not prevent an eligible investor from complying with this paragraph. (3)

Preference for certain projects

With respect to all projects that significantly involve an extractive industry, the Corporation, to the extent practicable and consistent with the Corporation's development objectives, shall give preference to a project in which both the eligible investor has agreed to implement the Extractive Industries Transparency Initiative principles and criteria, or substantially similar principles and criteria, and the host country where the project is to be carried out has committed to the Extractive Industries Transparency Initiative principles and criteria, or substantially similar principles and criteria. (4)

Reporting requirement

The Corporation shall include in its annual report required under section 240A a description of its activities to carry out this subsection. (c)

Definitions

In this section: (1)

Clean technology

The term clean energy technology means an energy supply or end-use technology— (A)such as— (i)solar technology; (ii)wind technology; (iii)geothermal technology; (iv)hydroelectric technology; (v)biomass technology; and (vi)carbon capture and storage technology; and (B)that, over its life cycle and compared to a similar technology already in commercial use— (i)results in— (I)reduced emissions of greenhouse gases; (II)increased geological sequestration of greenhouse gases; (III)decreases energy intensity of operation; or (IV)reduces fossil fuel consumption; and (ii)may— (I)substantially lower emissions of air pollutants; or (II)generate substantially smaller and less hazardous quantities of solid or liquid waste. (2)

Greenhouse gas

The term greenhouse gas means— (A)carbon dioxide; (B)methane; (C)nitrous oxide; (D)hydrofluorocarbons; (E)perfluorocarbons; or (F)sulfur hexafluoride. (3)

Extractive industry

The term extractive industry refers to an enterprise engaged in the exploration, development, or extraction of oil and gas reserves, metal ores, gemstones, industrial minerals (except rock used for construction purposes), or coal.

.

7.

Increased transparency

(a)

In general

Section 237 of the Foreign Assistance Act of 1961 (22 U.S.C. 2197), as amended by section 5, is amended by adding at the end the following new subsections: (q)

Availability of project information

Beginning 90 days after the date of the enactment of the Overseas Private Investment Corporation Reauthorization Act of 2007, the Corporation shall make public, and post on its Internet website, summaries of all new projects supported by the Corporation, and other relevant information, except that the Corporation shall not include any confidential business information in the summaries and information made available under this subsection. (r)

Review of methodology

Not later than 180 days after the date of the enactment of the Overseas Private Investment Corporation Reauthorization Act of 2007, the Corporation shall make available to the public the methodology, including relevant regulations, used to assess and monitor the impact of projects supported by the Corporation on— (1)the development of host countries; (2)the environment of host countries; (3)international worker rights (as well as the elimination of discrimination with respect to employment and occupation) in host countries; and (4)United States employment. (s)

Public notice prior to project approval

(1)

Public notice

The Board of Directors of the Corporation may not vote in favor of any action proposed to be taken by the Corporation on any Category A project until at least 60 days after the Corporation— (A)makes available for public comment a summary of the project and relevant information about the project; and (B)makes the summary and information described in subparagraph (A) available to locally affected groups in the area of impact of the proposed project, and to host country nongovernmental organizations. (2)

Limitations on disclosure

The Corporation shall not include any business confidential information in the summary and information made available under of paragraph (1). (3)

Published response

To the extent practicable, the Corporation shall publish responses to the comments received under paragraph (1) and submit the responses to the Board not later than 7 days before a vote is to be taken on any action proposed by the Corporation on the project. . (b)

Office of accountability

Section 237 of the Foreign Assistance Act of 1961 (22 U.S.C. 2197), as amended by subsection (a), is amended by adding at the end the following new subsection: (t)

Office of accountability

The Corporation shall maintain an Office to provide, upon request, problem-solving services for projects supported by the Corporation and, to the maximum extent practicable, review the Corporation's compliance with policies relating to the environment, extractive industries, transparency, human rights, social standards, international worker rights, and the elimination of discrimination with respect to employment and occupation. The Office shall operate in a manner that is fair, objective, and transparent. .

8.

Extension of authority to operate in Iraq

Section 239 of the Foreign Assistance Act of 1961 (22 U.S.C. 2199) is amended by adding at the end the following: (l)

Operations in iraq

Notwithstanding subsections (a) and (b) of section 237, the Corporation is authorized to undertake in Iraq any program authorized by this title. .

9.

Low-income housing

Not later than 1 year after the date of the enactment of this Act, the Corporation shall submit a report to the Committee on Foreign Relations of the Senate and the Committee on Foreign Affairs of the House of Representatives, in consultation with appropriate departments, agencies, and instrumentalities of the United States, as well as private entities, on the feasibility of broadening the assistance the Corporation provides to projects that provide assistance to low-income home buyers. If the Corporation finds such assistance is feasible, the Corporation shall identify and begin to implement steps to proceed to provide such assistance.

10.

Assistance for small businesses and entities

Section 240 of the Foreign Assistance Act of 1961 (22 U.S.C. 2200) is amended by adding at the end the following: (c)

Resources dedicated to small businesses, cooperatives, and other small United States investors

The Corporation shall ensure that adequate personnel and resources, including senior officers, are dedicated to assist United States small businesses, cooperatives, and other small United States investors in obtaining insurance, reinsurance, financing, and other support under this title. The Corporation shall include, in each annual report under section 240A, the following information with respect to the period covered by the report: (1)A description of such personnel and resources. (2)The number of small businesses, cooperatives, and other small United States investors that received such insurance, reinsurance, financing, and other support, and the dollar value of such insurance, reinsurance, financing, and other support. (3)A description of the projects for which such insurance, reinsurance, financing, and other support was provided. .

11.

Technical corrections

(a)

Pilot equity finance program

Section 234 of the Foreign Assistance Act of 1961 (22 U.S.C. 2194) is amended— (1)by striking subsection (g); and (2)by redesignating subsection (h) as subsection (g). (b)

Transfer authority

Section 235 of the Foreign Assistance Act of 1961 (22 U.S.C. 2195) is amended— (1)by striking subsection (e); and (2)by redesignating subsection (f) as subsection (e). (c)

Guaranty contract

Section 237(j) of the Foreign Assistance Act of 1961 (22 U.S.C. 2197(j)) is amended by inserting insurance, reinsurance, and after Each. (d)

Transfer of predecessor programs and authorities

(1)

Transfer

Section 239 of the Foreign Assistance Act of 1961 (22 U.S.C. 2199), as amended by section 3, is amended— (A)by striking subsection (b); and (B)by redesignating subsections (c) through (l) as subsections (b) through (k), respectively. (2)

Conforming amendments

(A)Section 237(m)(1) of the Foreign Assistance Act of 1961 (22 U.S.C. 2197(m)(1)) is amended by striking 239(g) and inserting 239(f). (B)Section 240A(a) of the Foreign Assistance Act of 1961 (22 U.S.C. 2200A(a)) is amended— (i)in paragraph (1), by striking 239(h) and inserting 239(g); and (ii)in paragraph (2)(A), by striking 239(i) and inserting 239(h). (C)Section 209(e)(16) of the Admiral James W. Nance and Meg Donovan Foreign Relations Authorization Act, Fiscal Years 2000 and 2001 (as enacted into law by section 1000(a)(7) of Public Law 106–113; 31 U.S.C. 1113 note) is amended by striking 239(c) and 2199(c) and inserting 239(b) and 2199(b), respectively. (e)

Additional clerical amendments

Section 234(b) of the Foreign Assistance Act of 1961 (22 U.S.C. 2194(b)) is amended by striking 235(a)(2) and inserting 235(a)(1).