[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[S. 705 Introduced in Senate (IS)]

111th CONGRESS
  1st Session
                                 S. 705

    To reauthorize the programs of the Overseas Private Investment 
                  Corporation, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             March 25, 2009

   Mr. Kerry (for himself, Mr. Lugar, Mr. Kaufman, and Mr. Menendez) 
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.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Overseas Private Investment 
Corporation Reauthorization Act of 2009''.

SEC. 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, 2013''.

SEC. 3. CONGRESSIONAL NOTIFICATION REGARDING MAXIMUM CONTINGENT 
              LIABILITY.

    Section 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 
Liability.--The 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 (c), exceeds the 
Corporation's maximum contingent liability for the preceding fiscal 
year by 25 percent or more.''.

SEC. 4. TRANSPARENCY AND ACCOUNTABILITY OF INVESTMENT FUNDS.

    (a) In General.--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 
        management.--With 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 2009, the Corporation may select persons to manage the fund 
        only by contract using competitive procedures that are full and 
        open.
            ``(2) Criteria for selection.--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 239(l).
            ``(3) Annual report.--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) Fund performance.--An analysis of the 
                aggregate financial performance of the investment fund 
                portfolio grouped by region and maturity.
                    ``(B) Status of loan guaranties.--The 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) Risk ratings.--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 
                management.--The number of proposals received and 
                evaluated for each newly established investment 
                fund.''.
    (b) GAO Review.--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).

SEC. 5. INCREASED TRANSPARENCY.

    (a) In General.--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 in 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) Additional Transparency.--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) Review of Methodology.--Not later than 180 days after the 
date of the enactment of the Overseas Private Investment Corporation 
Reauthorization Act of 2009, 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) Public notice.--
                    ``(A) In general.--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) Exception.--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) Published response.--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 defined.--The 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) Office of Accountability.--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) Office of Accountability.--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.''.

SEC. 6. EXTRACTION INVESTMENT.

    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:

``SEC. 234B. EXTRACTION INVESTMENT.

    ``(a) Extraction Investments.--
            ``(1) Prior notification to congressional committees.--
                    ``(A) In general.--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) Project described.--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) In general.--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) Exception.--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 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 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 requirements.--Nothing in this 
        subsection shall affect the limitations and prohibitions with 
        respect to direct investments described in section 234(c).
            ``(5) Reporting requirement.--The Corporation shall include 
        in each annual report required under section 240A a description 
        of its activities to carry out this subsection.
    ``(b) 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.''.

SEC. 7. 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 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.''.

SEC. 8. PREFERENTIAL CONSIDERATION OF CERTAIN INVESTMENT PROJECTS.

    Section 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;''.

SEC. 9. EXTENSION OF AUTHORITY TO OPERATE IN IRAQ.

    Section 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) 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.''.

SEC. 10. INELIGIBILITY OF PERSONS DOING CERTAIN BUSINESS WITH STATE 
              SPONSORS OF TERRORISM.

    (a) In General.--Section 231 of the Foreign Assistance Act of 1961 
(22 U.S.C. 2191) is amended by--
            (1) 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 Powers.--Section 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 general.--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) Discouraged transaction.--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) Exception.--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) Definitions.--In this subsection:
                    ``(A) Affiliate.--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 terrorism.--The 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 terrorism.--The 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.''.

SEC. 11. PROHIBITION ON ASSISTANCE TO DEVELOP OR PROMOTE CERTAIN 
              RAILWAY CONNECTIONS AND RAILWAY-RELATED CONNECTIONS.

    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:
    ``(s) Prohibition on Assistance for Certain Railway Projects.--The 
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.''.

SEC. 12. INCREASING PROJECT REQUIREMENTS REGARDING EMPLOYMENT.

    Subsection (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) In general.--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, 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) Limitation inapplicable.--The limitation contained in 
        paragraph (1) shall not apply to providing assistance for 
        humanitarian services.
            ``(3) Use of reports.--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) Contract language.--The Corporation shall include the 
        following language, in substantially the following form, in all 
        contracts which 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 countries.--Consistent 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.''.

SEC. 13. 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 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) 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)''.
                                 <all>