1.This Act may be cited as the
Overseas Private Investment
Corporation Reauthorization Act of 2010
.
2.Reauthorization
of OPIC programsSection
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 the
date that is 4 years after the date of the enactment of the Overseas Private
Investment Corporation Reauthorization Act of 2010
.
3.Congressional
notification regarding maximum contingent liabilitySection 239 of the Foreign Assistance Act of
1961 (22 U.S.C. 2199) is amended by adding at the end the following:
(l)Congressional
notification of increase in maximum contingent liabilityThe Corporation shall notify the Committee
on Foreign Relations of the Senate and the Committee on Foreign Affairs of the
House of Representatives not later than 15 days after the date on which the
Corporation’s maximum contingent liability outstanding at any one time pursuant
to insurance issued under section 234(a), and the amount of financing issued
under sections 234(b) and 234(c), exceeds the Corporation’s maximum contingent
liability for the preceding fiscal year by 25 percent or
more.
.
4.Transparency and
accountability of investment funds
(a)Section 239 of the Foreign Assistance Act of 1961 (22
U.S.C. 2199), as amended by section 3, is amended by adding at the end the
following:
(m)Transparency and
accountability of investment funds
(1)Competitive
selection of investment fund managementWith respect to any
investment fund that the Corporation creates on or after the date of the
enactment of the Overseas Private Investment
Corporation Reauthorization Act of 2010, the Corporation may
select persons to manage the fund only by contract using competitive procedures
that are full and open.
(2)In assessing a proposal for investment fund management,
the Corporation shall consider, in addition to other factors, the
following:
(A)The prospective
fund management's experience, depth, and cohesiveness.
(B)The prospective
fund management's track record in investing risk capital in emerging
markets.
(C)The prospective
fund management's experience, management record, and monitoring capabilities in
the countries in which the management operates, including details of local
presence (directly or through local alliances).
(D)The prospective
fund management's experience as a fiduciary in managing institutional capital,
meeting reporting requirements, and administration.
(E)The prospective
fund management's record in avoiding investments in companies that would be
disqualified under section 237(l).
(3)The Corporation shall include in each annual report under
section 240A an analysis of the investment fund portfolio of the Corporation,
including the following:
(A)An analysis of the aggregate financial performance of
the investment fund portfolio grouped by region and maturity.
(B)Status of loan
guarantiesThe amount of guaranties committed by the Corporation
to support investment funds, including the percentage of such amount that has
been disbursed to the investment funds.
(C)The definition of risk ratings, and the current aggregate
risk ratings for the investment fund portfolio, including the number of
investment funds in each of the Corporation's rating categories.
(D)Competitive
selection of investment fund managementThe number of proposals
received and evaluated for each newly established investment
fund.
.
(b)Not later than 1 year after the submission of the first
report to Congress under section 240A of the Foreign Assistance Act of 1961
that includes the information required by section 239(m)(3) of that Act (as
added by subsection (a) of this section), the Comptroller General of the United
States shall prepare and submit to the Committee on Foreign Relations of the
Senate and the Committee on Foreign Affairs of the House of Representatives an
independent assessment of the investment fund portfolio of the Overseas Private
Investment Corporation, covering the items required to be addressed under such
section 239(m)(3).
5.
(a)Section 231A(c)(2) of the Foreign Assistance Act of 1961
(22 U.S.C. 2191a(c)(2)) is amended to read as follows:
(2)In conjunction with each meeting of
its Board of Directors, the Corporation shall hold a public hearing in order to
afford an opportunity for any person to present views regarding the activities
of the Corporation. The Corporation shall provide notice of the hearing at
least 20 days before the hearing. At least 15 days in before the hearing the
Corporation shall make available a public summary of each project, including
information related to workers rights, to be considered at the meeting. The
Corporation shall not include any confidential business information in the
summary made available under this subsection. Any views expressed at the
hearing or in written comments shall be made part of the
record.
.
(b)Section 237 of the Foreign Assistance Act of 1961
(22 U.S.C. 2197) is amended by adding at the end the following new
subsections:
(p)Not later than
180 days after the date of the enactment of the
Overseas Private Investment Corporation
Reauthorization Act of 2010, 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—
(1)on employment in the United States;
(2)on development and the environment in host
countries; and
(3)on the protection of internationally
recognized worker rights, as well as the elimination of discrimination with
respect to employment and occupation, in host countries.
(q)Public notice
prior to project approval
(1)
(A)The Board of Directors of the Corporation may not vote in
favor of any action proposed to be taken by the Corporation on a Category A
project before the date that is 60 days after the Corporation—
(i)makes available
for public comment a summary of the project and relevant information about the
project; and
(ii)such summary and
information described in clause (i) has been made available to groups in the
area that may be impacted by the proposed project and to nongovernmental
organizations in the host country.
(B)The
Corporation shall not include any confidential business information in the
summary and information made available under clauses (i) and (ii) of
subparagraph (A).
(2)To the extent
practicable, the Corporation shall publish responses to the comments received
under paragraph (1)(A)(i) with respect to a Category A project 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.
(3)Category A
project definedThe term
Category A project means any project or other activity for which
the Corporation proposes to provide insurance, reinsurance, a guaranty,
financing, or other assistance under this title and which is likely to have a
significant adverse environmental
impact.
.
(c)Section 237 of the Foreign Assistance Act of 1961
(22 U.S.C. 2197), as amended by subsection (b) of this section, is amended by
adding at the end the following new subsection:
(r)The
Corporation shall maintain an Office of Accountability to provide, to the
maximum extent practicable, upon request, problem-solving services for projects
supported by the Corporation and review of the Corporation’s compliance with
its environmental, social, internationally recognized worker rights, human
rights, and transparency policies and procedures. The Office of Accountability
shall operate in a manner that is fair, objective, and
transparent.
.
6.Title IV of chapter
2 of part I of the Foreign Assistance Act of 1961 (22 U.S.C. 2191 et seq.) is
amended by inserting after section 234A the following new section:
234B.
(a)
(1)Prior
notification to congressional committees
(A)The Corporation shall provide notice of consideration of
approval of a project described in subparagraph (B) to the Committees on
Foreign Relations and Appropriations of the Senate and the Committees on
Foreign Affairs and Appropriations of the House of Representatives not later
than 60 days before approval of such project.
(B)A project described in this subparagraph is a Category
A project (as defined in section 237(q)(3)) relating to an extractive industry
project or any extractive industry project for which the assistance to be
provided by the Corporation is valued at $10,000,000 or more (including
contingent liability).
(2)Commitment to
EITI principles
(A)Except as provided in subparagraph (B), the Corporation
may approve a contract of insurance, reinsurance, a 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
finding of the audit; and
- (cc)verifying government receipts against
company payments, including widespread dissemination of such payment
information, and disclosure of such documents as host government agreements,
concession agreements, and bidding documents, and allowing in any such
dissemination or disclosure for the redaction of, or exceptions for,
information that is commercially proprietary or that would create a competitive
disadvantage.
(B)If
a host country does not meet the requirements of subparagraph (A)(ii) (I) or
(II), the Corporation may approve a contract of insurance, reinsurance, or a
guaranty, or enter into an agreement to provide financing for a project in the
host country if the Corporation determines it is in the foreign policy interest
of the United States for the Corporation to provide support for the project in
the host country and the host country does not prevent an eligible investor
from complying with subparagraph (A)(i).
(3)Preference for
certain projectsWith 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 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)Effect on other
requirementsNothing in this subsection shall affect the
limitations and prohibitions with respect to direct investments described in
section 234(c).
(5)The Corporation shall include in each annual report
required under section 240A a description of its activities to carry out this
subsection.
(b)In this section, 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.Assistance for
small businesses and entitiesSection 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
investorsThe 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 assistance 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
United States small businesses, cooperatives, and other small United States
investors that received insurance, reinsurance, financing, and other assistance
from the Corporation, and the dollar value of such insurance, reinsurance,
financing, and other assistance.
(3)A description of
the projects for which the insurance, reinsurance, financing, and other
assistance was
provided.
.
8.Preferential
consideration of certain investment projectsSection 231(f) of the Foreign Assistance Act
of 1961 (22 U.S.C. 2191(f)) is amended to read as follows:
(f)to the greatest degree practicable and
consistent with the goals of the Corporation, to give preferential
consideration to investment projects in any less developed country the
government of which is receptive to both domestic and foreign private
enterprise and to projects in any country the government of which is willing
and able to maintain conditions that enable private enterprise to make a full
contribution to the development
process;
.
9.Extension of
authority to operate in IraqSection 239 of the Foreign Assistance Act of
1961 (22 U.S.C. 2199), as amended by sections 3 and 4, is amended by adding at
the end the following:
(n)Notwithstanding subsections (a) and (b) of section 237, the
Corporation is authorized to undertake in Iraq any program authorized by this
title.
.
10.Ineligibility of
persons doing certain business with State sponsors of terrorism
(a)Section 231 of the Foreign Assistance Act of 1961 (22
U.S.C. 2191) is amended—
(1)by striking
and
at the end of division (m);
(2)by striking the
period at the end of division (n) and inserting ; and
;
and
(3)by adding at the
end the following:
(o)to decline to issue any contract of
insurance or reinsurance, or any guaranty, or to enter into any agreement to
provide financing or any other assistance for a prospective eligible investor
who enters, directly or through an affiliate, into certain discouraged
transactions with a state sponsor of
terrorism.
.
(b)General
provisions and powersSection 239 of the Foreign Assistance Act
of 1961 (22 U.S.C. 2199), as amended by sections 3, 4, and 9, is amended by
adding at the end the following:
(o)State sponsor of
terrorism
(1)In order to carry out the policy set forth in section
231(o) of this Act, the Corporation shall require a certification from an
officer of a prospective OPIC-supported United States investor that the
investor and all affiliates of the investor are not engaged in a discouraged
transaction with a state sponsor of terrorism.
(2)In this subsection, the term discouraged
transaction means any of the following activities:
(A)An investment
commitment of $20,000,000 or more by the investor in the energy sector in a
state sponsor of terrorism.
(B)Any loan, or an
extension of credit, to the government of a state sponsor of terrorism by the
investor that—
(i)is outstanding on
the date the Corporation enters into a contract with the investor; and
(ii)that has a value
of more than $5,000,000, including the sale of goods for which payment is not
required by the purchaser within 45 days.
(C)The transfer by
the investor of goods that are included on the United States Munitions List,
referred to in section 38(a)(1) of the Arms Export Control Act (22 U.S.C.
2778(a)(1)) to a state sponsor of terrorism within the 3-year period preceding
the date the Corporation enters into a contract with the investor.
(3)An
officer of a prospective OPIC-supported United States investor may provide a
certification under this subsection notwithstanding the fact that an affiliate
of the investor is engaged in a discouraged transaction if the transaction is
carried out under a contract or other obligation of the affiliate that was
entered into or incurred before the acquisition of such affiliate by the
prospective OPIC-supported United States investor or the parent company of the
OPIC-supported United States investor.
(4)In
this subsection:
(A)The
term affiliate means any person that is directly or indirectly
controlled by, under common control with, or controls a prospective
OPIC-supported United States investor or the parent company of such
investor.
(B)Investment
commitment in the energy sector of a state sponsor of
terrorismThe term investment commitment in the energy
sector of a state sponsor of terrorism means any of the following
activities if such activity is undertaken pursuant to a commitment, or pursuant
to the exercise of rights under a commitment, that was entered into with the
government of a state sponsor of terrorism or a nongovernmental entity in a
country that is a state sponsor of terrorism:
(i)The entry into a
contract that includes responsibility for the development or transportation of
petroleum or natural gas resources located in a country that is a state sponsor
of terrorism, or the entry into a contract providing for the general
supervision or guaranty of another person's performance of such a
contract.
(ii)The purchase of a
share of ownership, including an equity interest, in the development of
petroleum or natural resources described in clause (i).
(iii)The entry into a
contract providing for the participation in royalties, earnings, or profits in
the development of petroleum or natural resources described in clause (i),
without regard to the form of the participation.
(C)State sponsor of
terrorismThe term state sponsor of
terrorism—
(i)means any country
the government of which the Secretary of State has determined has repeatedly
provided support for acts of international terrorism pursuant to section 6(j)
of the Export Administration Act of 1979, section 620A of this Act, or section
40 of the Arms Export Control Act; and
(ii)does not include
Southern Sudan, Southern Kordofan/Nuba Mountains State, Blue Nile State, and
Abyei, Darfur, if the Corporation, with the concurrence of the Secretary of
State, determines that providing assistance for projects in such regions will
provide emergency relief, promote economic self-sufficiency, or implement a
nonmilitary program in support of a viable peace agreement in Sudan, such as
the Comprehensive Peace Agreement for Sudan and the Darfur Peace
Agreement.
.
11.Prohibition on
assistance to develop or promote certain railway connections and
railway-related connectionsSection 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:
(s)Prohibition on
assistance for certain railway projectsThe Corporation may not
provide insurance, reinsurance, a guaranty, financing, or other assistance to
support the development or promotion of a railway connection or railway-related
connection that connects Azerbaijan and Turkey without connecting or traversing
with
Armenia.
.
12.Increasing
project requirements regarding employmentSubsection (a) of section 231A of the
Foreign Assistance Act of 1961 (22 U.S.C. 2191a(a)) is amended to read as
follows:
(a)Increasing
project requirements regarding employment
(1)The Corporation may insure, reinsure, guaranty, or
finance a project only if—
(A)the country in
which the project is to be undertaken is eligible for designation as a
beneficiary developing country under the Generalized System of Preferences (19
U.S.C. 2461 et seq.) and has not been determined to be ineligible for such
designation on the basis of section 502(b)(2)(G) of the Trade Act of 1974 (19
U.S.C. 2462(b)(2)(G)) (relating to internationally recognized worker rights),
or section 502(b)(2)(H) of such Act (19 U.S.C. 2462(b)(2)(H) (relating to the
worst forms of child labor); or
(B)the country in which the project is to be
undertaken is not eligible for designation as a beneficiary country under the
Generalized System of Preferences (referred to in subparagraph (A)), but the
government of that country has taken or is taking steps to afford workers in
the country (including any designated zone or special administrative region or
area in that country) internationally recognized worker rights (as defined in
section 507(4) of the Trade Act of 1974 (19 U.S.C. 2467(4))).
(2)The limitation contained in paragraph (1) shall not
apply to providing assistance for humanitarian services.
(3)The Corporation shall, in implementing paragraph (1),
consider—
(A)information
contained in the reports required by sections 116(d) and 502B(b) of this Act
and the report required by section 504 of the Trade Act of 1974 (19 U.S.C.
2464);
(B)other relevant
sources of information readily available to the Corporation, including
observations, reports, and recommendations of the International Labour
Organization; and
(C)information
provided in the hearing required under subsection (c).
(4)The Corporation shall include the following language, in
substantially the following form, in all contracts that the Corporation enters
into with eligible investors to provide support under this title:
The
investor agrees not to take any actions to obstruct or prevent employees of the
foreign enterprise from exercising the employees' internationally recognized
worker rights (as defined in section 507(4) of the Trade Act of 1974 (19 U.S.C.
2467(4))) and the investor agrees to adhere to the obligations regarding those
rights. The investor agrees to prohibit discrimination with respect to
employment and occupation.
.
(5)Preference to
certain countriesConsistent with its development objectives, the
Corporation shall give preferential consideration to projects in countries
that—
(A)have adopted and
maintained, in the country’s laws and regulations, internationally recognized
worker rights, as well as the elimination of discrimination with respect to
employment and occupation; and
(B)are effectively
enforcing those
laws.
.
13.
(a)Pilot equity
finance programSection 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)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)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)Section
239 of the Foreign Assistance Act of 1961 (22 U.S.C. 2199), as amended by
sections 3, 4, 9, and 10, is amended—
(A)by striking
subsection (b); and
(B)by redesignating
subsections (c) through (o) as subsections (b) through (n),
respectively.
(2)
(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 amendmentsSection 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)
.