§ 9671. Limitations and preferences

• (a) No entity receiving support from the Corporation under subchapter II of this chapter may receive more than an amount equal to 2.5 percent of the Corporation’s maximum contingent liability authorized under section 9633 of this title .
• (b)
  • (1) The Corporation should give preferential consideration to projects sponsored by or involving private sector entities that are United States persons.
  • (2) In this subsection, the term “United States person” means—
    • (A) a United States citizen; or
    • (B) an entity owned or controlled by an individual or individuals described in subparagraph (A).
• (c)
  • (1) Not less frequently than annually, the Corporation shall consult with the United States Trade Representative with respect to the status of countries eligible to receive support from the Corporation under subchapter II of this chapter and the compliance of those countries with their international trade obligations.
  • (2) The Corporation shall give preferential consideration to providing support under subchapter II of this chapter for projects in countries in compliance with or making substantial progress coming into compliance with their international trade obligations.
• (d)
  • (1) The Corporation shall only support projects under subchapter II of this chapter in countries that are taking steps to adopt and implement laws that extend internationally recognized worker rights (as defined in section 2467 of title 19 ) to workers in that country, including any designated zone in that country.
  • (2) The Corporation shall also include the following language, in substantially the following form, in all contracts which the Corporation enters into with persons receiving support under subchapter II of this chapter: “The person receiving support agrees not to take actions to prevent employees of the foreign enterprise from lawfully exercising their right of association and their right to organize and bargain collectively. The person further agrees to observe applicable laws relating to a minimum age for employment of children, acceptable conditions of work with respect to minimum wages, hours of work, and occupational health and safety, and not to use forced labor or the worst forms of child labor (as defined in section 507 of the Trade Act of 1974 ( 19 U.S.C. 2467 )). The person is not responsible under this paragraph for the actions of a foreign government.”.
• (e) The Board shall not vote in favor of any project proposed to be supported by the Corporation under subchapter II of this chapter that is likely to have significant adverse environmental or social impacts that are sensitive, diverse, or unprecedented, unless—
  • (1) at least 60 days before the date of the vote, an environmental and social impact assessment or initial environmental and social audit, analyzing the environmental and social impacts of the proposed project and of alternatives to the proposed project, including mitigation measures, is completed;
  • (2) such assessment or audit has been made available to the public of the United States, locally affected groups in the country in which the project will be carried out, and nongovernmental organizations in that country; and
  • (3) the Corporation, applying best practices with respect to environmental and social safeguards, includes in any contract relating to the project provisions to ensure the mitigation of any such adverse environmental or social impacts.
• (f) In utilizing its authorities under subchapter II of this chapter, the Corporation shall consider the impacts of its support on women’s economic opportunities and outcomes and shall prioritize the reduction of gender gaps and maximize development impact by working to improve women’s economic opportunities.
• (g)
  • (1) The Corporation should give preferential consideration to projects for which support under subchapter II of this chapter may be provided in countries the governments of which have demonstrated consistent support for economic policies that promote the development of private enterprise, both domestic and foreign, and maintaining the conditions that enable private enterprise to make a full contribution to the development of such countries, including—
    • (A) market-based economic policies;
    • (B) protection of private property rights;
    • (C) respect for the rule of law; and
    • (D) systems to combat corruption and bribery.
  • (2) The Corporation should rely on both third-party indicators and United States Government information, such as the Department of State’s Investment Climate Statements, the Department of Commerce’s Country Commercial Guides, or the Millennium Challenge Corporation’s Constraints Analysis, to assess whether countries meet the conditions described in paragraph (1).
• (h) In providing support for projects under subchapter II of this chapter, the Corporation shall consider, using information readily available, whether the project is sponsored by or substantially affiliated with any person taking or knowingly agreeing to take actions, or having taken or knowingly agreed to take actions within the past 3 years, which demonstrate or otherwise evidence intent to comply with, further, or support any boycott described in section 4842(a) of title 50 .
• (i) The Corporation shall, using broad criteria, make, to the maximum extent possible consistent with this chapter, efforts—
  • (1) to give preferential consideration in providing support under subchapter II of this chapter to projects sponsored by or involving small businesses; and
  • (2) to ensure that the proportion of projects sponsored by or involving United States small businesses, including women-, minority-, and veteran-owned small businesses, is not less than 50 percent of all projects for which the Corporation provides support and that involve United States persons.
• (j)
  • (1) The Corporation shall develop appropriate policies and guidelines for support provided under subchapter II of this chapter for a project involving a state-owned enterprise, sovereign wealth fund, or a parastatal entity to ensure such support is provided consistent with appropriate principles and practices of competitive neutrality.
  • (2)
    • (A) The Corporation may not provide support under subchapter II of this chapter for a project that involves a private sector entity engaged in anticompetitive practices.
    • (B) The Corporation may not provide support under subchapter II of this chapter for projects that would be operated, managed, or controlled by the government of a county of concern or a state-owned enterprise that belongs to or is under the control of a country of concern.
    • (C) The President may waive the restriction under subparagraph (B) on a project-by-project basis if the President submits to the appropriate congressional committees—
      • (i) a certification, which may be included as a classified or confidential annex to a report required by section 9656 of this title , that such support is important to the national security interests of the United States; and
      • (ii) a written justification of how such support directly counters or significantly limits the influence of an entity described in such subparagraph.
  • (3) In this subsection:
    • (A) The term “control”, with respect to an enterprise, means the power by any means to control the enterprise regardless of—
      • (i) the level of ownership; and
      • (ii) whether or not the power is exercised.
    • (B) The term “owned”, with respect to an enterprise, means a majority or controlling interest, whether by value or voting interest, of the shares of that enterprise, including through fiduciaries, agents, or other means.
    • (C) The term “state-owned enterprise” means any enterprise established for a commercial or business purpose that is directly owned or controlled by one or more governments, including any agency, instrumentality, subdivision, or other unit of government at any level of jurisdiction.