22 U.S.C. § 9621 — Authorities relating to provision of sup-

Page 2275 TITLE 22—FOREIGN RELATIONS AND INTERCOURSE § 9621 1 See References in Text note below. 1 So in original. The word ‘‘of’’ probably should not appear. ble law for Federal officers and employees not described in this paragraph. (i) Development Advisory Council (1) In general There is established a Development Advisory Council (in this subsection referred to as the ‘‘Council’’) to advise the Board on develop- ment objectives of the Corporation. (2) Membership Members of the Council shall be appointed by the Board, on the recommendation of the Chief Executive Officer and the Chief Develop- ment Officer, and shall be composed of not more than 9 members broadly representative of nongovernmental organizations, think tanks, advocacy organizations, foundations, and other institutions engaged in inter- national development. (3) Functions The Board shall call upon members of the Council, either collectively or individually, to advise the Board regarding the extent to which the Corporation is meeting its develop- ment mandate and any suggestions for im- provements in with respect to meeting that mandate, including opportunities in countries and project development and implementation challenges and opportunities. (4) Federal Advisory Committee Act The Council shall not be subject to the Fed- eral Advisory Committee Act (5 U.S.C. App.).1 (Pub. L. 115–254, div. F, title I, § 1413, Oct. 5, 2018, 132 Stat. 3487.) Editorial Notes REFERENCES IN TEXT This chapter, referred to in subsecs. (a), (b)(1)(A), and (c)(1), (3)(A), was in the original ‘‘this division’’, mean- ing division F of Pub. L. 115–254, Oct. 5, 2018, 132 Stat. 3485, which is classified principally to this chapter. For complete classification of division F to the Code, see Short Title note set out under section 9601 of this title and Tables. The Federal Advisory Committee Act, referred to in subsec. (i)(4), is Pub. L. 92–463, Oct. 6, 1972, 86 Stat. 770, which was set out in the Appendix to Title 5, Govern- ment Organization and Employees, and was substan- tially repealed and restated in chapter 10 (§ 1001 et seq.) of Title 5 by Pub. L. 117–286, §§ 3(a), 7, Dec. 27, 2022, 136 Stat. 4197, 4361. For disposition of sections of the Act into chapter 10 of Title 5, see Disposition Table pre- ceding section 101 of Title 5. CODIFICATION Section is comprised of section 1413 of Pub. L. 115–254. Par. (4) of subsec. (d) of section 1413 of Pub. L. 115–254 amended section 5313 of Title 5, Government Organiza- tion and Employees. § 9614. Independent accountability mechanism (a) In general The Board shall establish a transparent and independent accountability mechanism. (b) Functions The independent accountability mechanism established pursuant to subsection (a) shall— (1) annually evaluate and report to the Board and Congress regarding compliance with environmental, social, labor, human rights, and transparency standards, consistent with Corporation statutory mandates; (2) provide a forum for resolving concerns re- garding the impacts of specific Corporation- supported projects with respect to such stand- ards; and (3) provide advice regarding Corporation projects, policies, and practices. (Pub. L. 115–254, div. F, title I, § 1415, Oct. 5, 2018, 132 Stat. 3492.) SUBCHAPTER II—AUTHORITIES § 9621. Authorities relating to provision of sup- port (a) In general The authorities in this subchapter shall only be exercised to— (1) carry out of 1 the policy of the United States in section 9611 of this title and the pur- pose of the Corporation in section 9612 of this title; (2) mitigate risks to United States taxpayers by sharing risks with the private sector and qualifying sovereign entities through co-fi- nancing and structuring of tools; and (3) ensure that support provided under this subchapter is additional to private sector re- sources by mobilizing private capital that would otherwise not be deployed without such support. (b) Lending and guaranties (1) In general The Corporation may make loans or guaran- ties upon such terms and conditions as the Corporation may determine. (2) Denomination Loans and guaranties issued under para- graph (1) may be denominated and repayable in United States dollars or foreign currencies. Foreign currency denominated loans and guar- anties should only be provided if the Board de- termines there is a substantive policy ration- ale for such loans and guaranties. (3) Applicability of Federal Credit Reform Act of 1990 Loans and guaranties issued under para- graph (1) shall be subject to the requirements of the Federal Credit Reform Act of 1990 (2 U.S.C. 661 et seq.). (c) Equity investments (1) In general The Corporation may, as a minority inves- tor, support projects with funds or use other mechanisms for the purpose of purchasing, and may make and fund commitments to pur- chase, invest in, make pledges in respect of, or otherwise acquire, equity or quasi-equity secu- rities or shares or financial interests of any entity, including as a limited partner or other investor in investment funds, upon such terms and conditions as the Corporation may deter- mine. Page 2276 TITLE 22—FOREIGN RELATIONS AND INTERCOURSE § 9621 (2) Denomination Support provided under paragraph (1) may be denominated and repayable in United States dollars or foreign currency. Foreign currency denominated support provided by paragraph (1) should only be provided if the Board deter- mines there is a substantive policy rationale for such support. (3) Guidelines and criteria The Corporation shall develop guidelines and criteria to require that the use of the author- ity provided by paragraph (1) with respect to a project has a clearly defined development and foreign policy purpose, taking into account the following objectives: (A) The support for the project would be more likely than not to substantially reduce or overcome the effect of an identified mar- ket failure in the country in which the project is carried out. (B) The project would not have proceeded or would have been substantially delayed without the support. (C) The support would meaningfully con- tribute to transforming local conditions to promote the development of markets. (D) The support can be shown to be aligned with commercial partner incentives. (E) The support can be shown to have sig- nificant developmental impact and will con- tribute to long-term commercial sustain- ability. (F) The support furthers the policy of the United States described in section 9611 of this title. (4) Limitations on equity investments (A) Per project limit The aggregate amount of support provided under this subsection with respect to any project shall not exceed 30 percent of the ag- gregate amount of all equity investment made to the project at the time that the Corporation approves support of the project. (B) Total limit Support provided pursuant to this sub- section shall be limited to not more than 35 percent of the Corporation’s aggregate expo- sure on the date that such support is pro- vided. (5) Sales and liquidation of position The Corporation shall seek to sell and liq- uidate any support for a project provided under this subsection as soon as commercially feasible, commensurate with other similar in- vestors in the project and taking into consid- eration the national security interests of the United States. (6) Timetable The Corporation shall create a project-spe- cific timetable for support provided under paragraph (1). (d) Insurance and reinsurance The Corporation may issue insurance or rein- surance, upon such terms and conditions as the Corporation may determine, to private sector entities and qualifying sovereign entities assur- ing protection of their investments in whole or in part against any or all political risks such as currency inconvertibility and transfer restric- tions, expropriation, war, terrorism, civil dis- turbance, breach of contract, or nonhonoring of financial obligations. (e) Promotion of and support for private invest- ment opportunities (1) In general In order to carry out the purpose of the Cor- poration described in section 9612(b) of this title, the Corporation may initiate and sup- port, through financial participation, incen- tive grant, or otherwise, and on such terms and conditions as the Corporation may deter- mine, feasibility studies for the planning, de- velopment, and management of, and procure- ment for, potential bilateral and multilateral development projects eligible for support under this subchapter, including training ac- tivities undertaken in connection with such projects, for the purpose of promoting invest- ment in such projects and the identification, assessment, surveying, and promotion of pri- vate investment opportunities, utilizing wher- ever feasible and effective, the facilities of pri- vate investors. (2) Contributions to costs The Corporation shall, to the maximum ex- tent practicable, require any person receiving funds under the authorities of this subsection to— (A) share the costs of feasibility studies and other project planning services funded under this subsection; and (B) reimburse the Corporation those funds provided under this section, if the person succeeds in project implementation. (f) Special projects and programs The Corporation may administer and manage special projects and programs in support of spe- cific transactions undertaken by the Corpora- tion, including programs of financial and advi- sory support that provide private technical, pro- fessional, or managerial assistance in the devel- opment of human resources, skills, technology, capital savings, or intermediate financial and investment institutions or cooperatives, and in- cluding the initiation of incentives, grants, or studies for energy, women’s economic empower- ment, microenterprise households, or other small business activities. (g) Enterprise funds (1) In general The Corporation may, following consulta- tion with the Secretary of State, the Adminis- trator of the United States Agency for Inter- national Development, and the heads of other relevant departments or agencies, establish and operate enterprise funds in accordance with this subsection. (2) Private character of funds Nothing in this section shall be construed to make an enterprise fund an agency or estab- lishment of the United States Government, or to make the officers, employees, or members of the Board of Directors of an enterprise fund Page 2277 TITLE 22—FOREIGN RELATIONS AND INTERCOURSE § 9621 officers or employees of the United States for purposes of title 5. (3) Purposes for which support may be pro- vided The Corporation, subject to the approval of the Board, may designate private, nonprofit organizations as eligible to receive support under this subchapter for the following pur- poses: (A) To promote development of economic freedom and private sectors, including small- and medium-sized enterprises and joint ventures with the United States and host country participants. (B) To facilitate access to credit to small- and medium-sized enterprises with sound business plans in countries where there is limited means of accessing credit on market terms. (C) To promote policies and practices con- ducive to economic freedom and private sec- tor development. (D) To attract foreign direct investment capital to further promote private sector de- velopment and economic freedom. (E) To complement the work of the United States Agency for International Develop- ment and other donors to improve the over- all business-enabling environment, financing the creation and expansion of the private business sector. (F) To make financially sustainable in- vestments designed to generate measurable social benefits and build technical capacity in addition to financial returns. (4) Operation of funds (A) Expenditures Funds made available to an enterprise fund shall be expended at the minimum rate necessary to make timely payments for projects and activities carried out under this subsection. (B) Administrative expenses Not more than 3 percent per annum of the funds made available to an enterprise fund may be obligated or expended for the admin- istrative expenses of the enterprise fund. (5) Board of Directors Each enterprise fund established under this subsection should be governed by a Board of Directors comprised of private citizens of the United States or the host country, who— (A) shall be appointed by the President after consultation with the chairmen and ranking members of the appropriate con- gressional committees; and (B) have pursued careers in international business and have demonstrated expertise in international and emerging market invest- ment activities. (6) Majority member requirement The majority of the members of the Board of Directors shall be United States citizens who shall have relevant experience relating to the purposes described in paragraph (3). (7) Reports Not later than one year after the date of the establishment of an enterprise fund under this subsection, and annually thereafter until the enterprise fund terminates in accordance with paragraph (10), the Board of Directors of the enterprise fund shall— (A) submit to the appropriate congres- sional committees a report— (i) detailing the administrative expenses of the enterprise fund during the year pre- ceding the submission of the report; (ii) describing the operations, activities, engagement with civil society and rel- evant local private sector entities, devel- opment objectives and outcomes, financial condition, and accomplishments of the en- terprise fund during that year; (iii) describing the results of any audit conducted under paragraph (8); and (iv) describing how audits conducted under paragraph (8) are informing the op- erations and activities of the enterprise fund; and (B) publish, on a publicly available inter- net website of the enterprise fund, each re- port required by subparagraph (A). (8) Oversight (A) Inspector general performance audits (i) In general The Inspector General of the Corporation shall conduct periodic audits of the activi- ties of each enterprise fund established under this subsection. (ii) Consideration In conducting an audit under clause (i), the Inspector General shall assess whether the activities of the enterprise fund— (I) support the purposes described in paragraph (3); (II) result in profitable private sector investing; and (III) generate measurable social bene- fits. (B) Recordkeeping requirements The Corporation shall ensure that each en- terprise fund receiving support under this subsection— (i) keeps separate accounts with respect to such support; and (ii) maintains such records as may be reasonably necessary to facilitate effective audits under this paragraph. (9) Return of funds to Treasury Any funds resulting from any liquidation, dissolution, or winding up of an enterprise fund, in whole or in part, shall be returned to the Treasury of the United States. (10) Termination The authority of an enterprise fund to pro- vide support under this subsection shall termi- nate on the earlier of— (A) the date that is 10 years after the date of the first expenditure of amounts from the enterprise fund; or (B) the date on which the enterprise fund is liquidated. (h) Supervision of support Support provided under this subchapter shall be subject to section 2382(c) of this title. Page 2278 TITLE 22—FOREIGN RELATIONS AND INTERCOURSE § 9622 (i) Small business development (1) In general The Corporation shall undertake, in co- operation with appropriate departments, agen- cies, and instrumentalities of the United States as well as private entities and others, to broaden the participation of United States small businesses and cooperatives and other small United States investors in the develop- ment of small private enterprise in less devel- oped friendly countries or areas. (2) Outreach to minority-owned and women- owned businesses (A) In general The Corporation shall collect data on the involvement of minority- and women-owned businesses in projects supported by the Cor- poration, including— (i) the amount of insurance and financ- ing provided by the Corporation to such businesses in connection with projects sup- ported by the Corporation; and (ii) to the extent such information is available, the involvement of such busi- nesses in procurement activities conducted or supported by the Corporation. (B) Inclusion in annual report The Corporation shall include, in its an- nual report submitted to Congress under sec- tion 9653 of this title, the aggregate data col- lected under this paragraph, in such form as to quantify the effectiveness of the Corpora- tion’s outreach activities to minority- and women-owned businesses. (Pub. L. 115–254, div. F, title II, § 1421, Oct. 5, 2018, 132 Stat. 3492.) TERMINATION OF SECTION For termination of section 7 years after Oct. 5, 2018, see section 9624 of this title. Editorial Notes REFERENCES IN TEXT The Federal Credit Reform Act of 1990, referred to in subsec. (b)(3), is title V of Pub. L. 93–344 as added by Pub. L. 101–508, title XIII, § 13201(a), Nov. 5, 1990, 104 Stat. 1388–609, which is classified generally to sub- chapter III (§ 661 et seq.) of chapter 17A of Title 2, The Congress. For complete classification of this Act to the Code, see Short Title note set out under section 621 of Title 2 and Tables. § 9622. Terms and conditions (a) In general Except as provided in subsection (b), support provided by the Corporation under this sub- chapter shall be on such terms and conditions as the Corporation may prescribe. (b) Requirements The following requirements apply to support provided by the Corporation under this sub- chapter: (1) The Corporation shall provide support using authorities under this subchapter only if it is necessary— (A) to alleviate a credit market imperfec- tion; or (B) to achieve specified development or foreign policy objectives of the United States Government by providing support in the most efficient way to meet those objec- tives on a case-by-case basis. (2) The final maturity of a loan made or guaranteed by the Corporation shall not ex- ceed the lesser of— (A) 25 years; or (B) debt servicing capabilities of the project to be financed by the loan (as deter- mined by the Corporation). (3) The Corporation shall, with respect to providing any loan guaranty to a project, re- quire the parties to the project to bear the risk of loss in an amount equal to at least 20 percent of the guaranteed support by the Cor- poration in the project. (4) The Corporation may not make or guar- antee a loan unless the Corporation deter- mines that the borrower or lender is respon- sible and that adequate provision is made for servicing the loan on reasonable terms and protecting the financial interest of the United States. (5) The interest rate for direct loans and in- terest supplements on guaranteed loans shall be set by reference to a benchmark interest rate (yield) on marketable Treasury securities or other widely recognized or appropriate benchmarks with a similar maturity to the loans being made or guaranteed, as deter- mined in consultation with the Director of the Office of Management and Budget and the Sec- retary of the Treasury. The Corporation shall establish appropriate minimum interest rates for loans, guaranties, and other instruments as necessary. (6) The minimum interest rate for new loans as established by the Corporation shall be ad- justed periodically to take account of changes in the interest rate of the benchmark financial instrument. (7)(A) The Corporation shall set fees or pre- miums for support provided under this sub- chapter at levels that minimize the cost to the Government while supporting achievement of the objectives of support. (B) The Corporation shall review fees for loan guaranties periodically to ensure that the fees assessed on new loan guaranties are at a level sufficient to cover the Corporation’s most recent estimates of its costs. (8) Any loan guaranty provided by the Cor- poration shall be conclusive evidence that— (A) the guaranty has been properly ob- tained; (B) the loan qualified for the guaranty; and (C) but for fraud or material misrepresen- tation by the holder of the guaranty, the guaranty is presumed to be valid, legal, and enforceable. (9) The Corporation shall prescribe explicit standards for use in periodically assessing the credit risk of new and existing direct loans or guaranteed loans. (10) The Corporation may not make loans or loan guaranties except to the extent that budget authority to cover the costs of the loans or guaranties is provided in advance in