22 U.S.C. § 9613 — Management of Corporation

Page 2272 TITLE 22—FOREIGN RELATIONS AND INTERCOURSE § 9612 tion [amending former section 2199(f) of this title by in- serting ‘‘, Poland, Hungary,’’ after ‘‘Yugoslavia’’], the amendment made by that Act shall not be effective.’’ § 9612. United States International Development Finance Corporation (a) Establishment There is established in the executive branch the United States International Development Finance Corporation (in this chapter referred to as the ‘‘Corporation’’), which shall be a wholly owned Government corporation for purposes of chapter 91 of title 31 under the foreign policy guidance of the Secretary of State. (b) Purpose The purpose of the Corporation shall be to mo- bilize and facilitate the participation of private sector capital and skills in the economic devel- opment of less developed countries, as described in subsection (c), and countries in transition from nonmarket to market economies, in order to complement the development assistance ob- jectives, and advance the foreign policy inter- ests, of the United States. In carrying out its purpose, the Corporation, utilizing broad cri- teria, shall take into account in its financing operations the economic and financial soundness and development objectives of projects for which it provides support under subchapter II of this chapter. (c) Less developed country focus (1) In general The Corporation shall prioritize the provi- sion of support under subchapter II of this chapter in less developed countries with a low- income economy or a lower-middle-income economy. (2) Support in upper-middle-income countries The Corporation shall restrict the provision of support under subchapter II of this chapter in a less developed country with an upper-mid- dle-income economy unless— (A) the President certifies to the appro- priate congressional committees that such support furthers the national economic or foreign policy interests of the United States; and (B) such support is designed to produce sig- nificant developmental outcomes or provide developmental benefits to the poorest popu- lation of that country. (Pub. L. 115–254, div. F, title I, § 1412, Oct. 5, 2018, 132 Stat. 3486.) Editorial Notes REFERENCES IN TEXT This chapter, referred to in subsec. (a), was in the original ‘‘this division’’, meaning 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. Executive Documents DELEGATION OF AUTHORITY UNDER THE BETTER UTILIZA- TION OF INVESTMENTS LEADING TO DEVELOPMENT ACT OF 2018 Memorandum of President of the United States, July 7, 2020, 85 F.R. 45749, provided: Memorandum for the Secretary of State By the authority vested in me as President by the Constitution and the laws of the United States of America, including section 301 of title 3, United States Code, I hereby delegate to the Secretary of State the authority vested in the President by section 1412(c)(2)(A) of the Better Utilization of Investments Leading to Development Act of 2018 (title I of division F of Public Law 115–254) (the ‘‘Act’’) [22 U.S.C. 9612(c)(2)(A)] to certify to the appropriate congressional committees that the provision of support under title II of the Act [amending sections 9621 to 9624 of this title] in a less developed country with an upper-middle-in- come economy furthers the national economic or for- eign policy interests of the United States. The delega- tion in this memorandum shall apply to any provision of any future public law that is the same or substan- tially the same as the provision referenced in this memorandum. You are authorized and directed to publish this memorandum in the Federal Register. DONALD J. TRUMP. § 9613. Management of Corporation (a) Structure of Corporation There shall be in the Corporation a Board of Directors (in this chapter referred to as the ‘‘Board’’), a Chief Executive Officer, a Deputy Chief Executive Officer, a Chief Risk Officer, a Chief Development Officer, and such other offi- cers as the Board may determine. (b) Board of Directors (1) Duties All powers of the Corporation shall vest in and be exercised by or under the authority of the Board. The Board— (A) shall perform the functions specified to be carried out by the Board in this chapter; (B) may prescribe, amend, and repeal by- laws, rules, regulations, policies, and proce- dures governing the manner in which the business of the Corporation may be con- ducted and in which the powers granted to the Corporation by law may be exercised; and (C) shall develop, in consultation with stakeholders, other interested parties, and the appropriate congressional committees, a publicly available policy with respect to consultations, hearings, and other forms of engagement in order to provide for meaning- ful public participation in the Board’s ac- tivities. (2) Membership of Board (A) In general The Board shall consist of— (i) the Chief Executive Officer of the Cor- poration; (ii) the officers specified in subparagraph (B); and (iii) four other individuals who shall be appointed by the President, by and with the advice and consent of the Senate, of which— (I) one individual should be appointed from among a list of at least 5 individ- uals submitted by the majority leader of the Senate after consultation with the chairman of the Committee on Foreign Relations of the Senate; (II) one individual should be appointed from among a list of at least 5 individ- Page 2273 TITLE 22—FOREIGN RELATIONS AND INTERCOURSE § 9613 uals submitted by the minority leader of the Senate after consultation with the ranking member of the Committee on Foreign Relations of the Senate; (III) one individual should be appointed from among a list of at least 5 individ- uals submitted by the Speaker of the House of Representatives after consulta- tion with the chairman of the Com- mittee on Foreign Affairs of the House of Representatives; and (IV) one individual should be appointed from among a list of at least 5 individ- uals submitted by the minority leader of the House of Representatives after con- sultation with the ranking member of the Committee on Foreign Affairs of the House of Representatives. (B) Officers specified (i) In general The officers specified in this subpara- graph are the following: (I) The Secretary of State or a des- ignee of the Secretary. (II) The Administrator of the United States Agency for International Devel- opment or a designee of the Adminis- trator. (III) The Secretary of the Treasury or a designee of the Secretary. (IV) The Secretary of Commerce or a designee of the Secretary. (ii) Requirements for designees A designee under clause (i) shall be se- lected from among officers— (I) appointed by the President, by and with the advice and consent of the Sen- ate; (II) whose duties relate to the pro- grams of the Corporation; and (III) who is designated by and serving at the pleasure of the President. (C) Requirements for nongovernment mem- bers A member of the Board described in sub- paragraph (A)(iii)— (i) may not be an officer or employee of the United States Government; (ii) shall have relevant experience, which may include experience relating to the pri- vate sector, the environment, labor orga- nizations, or international development, to carry out the purpose of the Corpora- tion; (iii) shall be appointed for a term of 3 years and may be reappointed for one addi- tional term; (iv) shall serve until the member’s suc- cessor is appointed and confirmed; (v) shall be compensated at a rate equiv- alent to that of level IV of the Executive Schedule under section 5315 of title 5 when engaged in the business of the Corporation; and (vi) may be paid per diem in lieu of sub- sistence at the applicable rate under the Federal Travel Regulation under subtitle F of title 41, Code of Federal Regulations, from time to time, while away from the home or usual place of business of the member. (3) Chairperson The Secretary of State, or the designee of the Secretary under paragraph (2)(B)(i)(I), shall serve as the Chairperson of the Board. (4) Vice chairperson The Administrator of the United States Agency for International Development, or the designee of the Administrator under para- graph (2)(B)(i)(II), shall serve as the Vice Chairperson of the Board. (5) Quorum Five members of the Board shall constitute a quorum for the transaction of business by the Board. (c) Public hearings The Board shall hold at least 2 public hearings each year in order to afford an opportunity for any person to present views with respect to whether— (1) the Corporation is carrying out its activi- ties in accordance with this chapter; and (2) any support provided by the Corporation under subchapter II of this chapter in any country should be suspended, expanded, or ex- tended. (d) Chief Executive Officer (1) Appointment There shall be in the Corporation a Chief Ex- ecutive Officer, who shall be appointed by the President, by and with the advice and consent of the Senate, and who shall serve at the pleasure of the President. (2) Authorities and duties The Chief Executive Officer shall be respon- sible for the management of the Corporation and shall exercise the powers and discharge the duties of the Corporation subject to the bylaws, rules, regulations, and procedures es- tablished by the Board. (3) Relationship to Board The Chief Executive Officer shall report to and be under the direct authority of the Board. (4) Omitted (e) Deputy Chief Executive Officer There shall be in the Corporation a Deputy Chief Executive Officer, who shall be appointed by the President, by and with the advice and consent of the Senate, and who shall serve at the pleasure of the President. (f) Chief Risk Officer (1) Appointment Subject to the approval of the Board, the Chief Executive Officer of the Corporation shall appoint a Chief Risk Officer, from among individuals with experience at a senior level in financial risk management, who— (A) shall report directly to the Board; and (B) shall be removable only by a majority vote of the Board. (2) Duties The Chief Risk Officer shall, in coordination with the audit committee of the Board estab- Page 2274 TITLE 22—FOREIGN RELATIONS AND INTERCOURSE § 9613 lished under section 9651 of this title, develop, implement, and manage a comprehensive proc- ess for identifying, assessing, monitoring, and limiting risks to the Corporation, including the overall portfolio diversification of the Cor- poration. (g) Chief Development Officer (1) Appointment Subject to the approval of the Board, the Chief Executive Officer, with the concurrence of the Administrator of the United States Agency for International Development, shall appoint a Chief Development Officer, from among individuals with experience in develop- ment, who— (A) shall report directly to the Board; and (B) shall be removable only by a majority vote of the Board. (2) Duties The Chief Development Officer shall— (A) coordinate the Corporation’s develop- ment policies and implementation efforts with the United States Agency for Inter- national Development, the Millennium Chal- lenge Corporation, and other relevant United States Government departments and agencies, including directly liaising with missions of the United States Agency for International Development, to ensure that departments, agencies, and missions have training, awareness, and access to the Cor- poration’s tools in relation to development policy and projects in countries; (B) under the guidance of the Chief Execu- tive Officer, manage employees of the Cor- poration that are dedicated to structuring, monitoring, and evaluating transactions and projects co-designed with the United States Agency for International Development and other relevant United States Government departments and agencies; (C) authorize and coordinate transfers of funds or other resources to and from such agencies, departments, or missions upon the concurrence of those institutions in support of the Corporation’s projects or activities; (D) manage the responsibilities of the Cor- poration under paragraphs (1) and (4) of sec- tion 9652(b) of this title and paragraphs (1)(A) and (3)(A) of section 9653(b) of this title; (E) coordinate and implement the activi- ties of the Corporation under section 9655 of this title; and (F) be an ex officio member of the Develop- ment Advisory Council established under subsection (i) and participate in or send a representative to each meeting of the Coun- cil. (h) Officers and employees (1) In general Except as otherwise provided in this section, officers, employees, and agents shall be se- lected and appointed by the Corporation, and shall be vested with such powers and duties as the Corporation may determine. (2) Administratively determined employees (A) Appointment; compensation; removal Of officers and employees employed by the Corporation under paragraph (1), not more than 50 may be appointed, compensated, or removed without regard to title 5. (B) Reinstatement Under such regulations as the President may prescribe, officers and employees ap- pointed to a position under subparagraph (A) may be entitled, upon removal from such po- sition (unless the removal was for cause), to reinstatement to the position occupied at the time of appointment or to a position of comparable grade and salary. (C) Additional positions Positions authorized by subparagraph (A) shall be in addition to those otherwise au- thorized by law, including positions author- ized under section 5108 of title 5. (D) Rates of pay for officers and employees The Corporation may set and adjust rates of basic pay for officers and employees ap- pointed under subparagraph (A) without re- gard to the provisions of chapter 51 or sub- chapter III of chapter 53 of title 5, relating to classification of positions and General Schedule pay rates, respectively. (3) Liability of employees (A) In general An individual who is a member of the Board or an officer or employee of the Cor- poration has no liability under this chapter with respect to any claim arising out of or resulting from any act or omission by the in- dividual within the scope of the employment of the individual in connection with any transaction by the Corporation. (B) Rule of construction Subparagraph (A) shall not be construed to limit personal liability of an individual for criminal acts or omissions, willful or mali- cious misconduct, acts or omissions for pri- vate gain, or any other acts or omissions outside the scope of the individual’s employ- ment. (C) Conflicts of interest The Corporation shall establish and pub- lish procedures for avoiding conflicts of in- terest on the part of officers and employees of the Corporation and members of the De- velopment Advisory Council established under subsection (i). (D) Savings provision This paragraph shall not be construed— (i) to affect— (I) any other immunities and protec- tions that may be available to an indi- vidual described in subparagraph (A) under applicable law with respect to a transaction described in that subpara- graph; or (II) any other right or remedy against the Corporation, against the United States under applicable law, or against any person other than an individual de- scribed in subparagraph (A) partici- pating in such a transaction; or (ii) to limit or alter in any way the im- munities that are available under applica- 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.