(Slip Opinion)

1

Applicability of the Federal Credit Reform Act to Political 

Risk Insurance of Debt Issued by the United States 

International Development Finance Corporation

The organic statute of the United States International Development Finance Corporation 

does not impliedly exempt DFC’s political risk insurance of debt from the budgeting 

and accounting rules imposed by the Federal Credit Reform Act of 1990. 

May 29, 2024

MEMORANDUM OPINION FOR THE

VICE PRESIDENT AND GENERAL COUNSEL

UNITED STATES INTERNATIONAL DEVELOPMENT

FINANCE CORPORATION

The Federal Credit Reform Act of 1990 (“FCRA”) protects the public 

fisc by imposing budgeting and accounting rules on federal agencies’ 

credit offerings. This dispute concerns whether FCRA applies when the 

United States International Development Finance Corporation (“DFC”) 

insures debt against political risks under its organic statute, the Better 

Utilization of Investments Leading to Development Act of 2018 (“BUILD 

Act”), 22 U.S.C. §§ 9601–9689. DFC argues that FCRA does not apply, 

but the Office of Management and Budget (“OMB”) disagrees, and you 

have asked us to resolve the dispute.

For the reasons that follow, we agree with OMB. FCRA expressly covers “insurance” of debt, 2 U.S.C. § 661a(3), and Congress did not expressly exempt DFC’s political risk insurance of debt from FCRA. DFC 

thus bears a substantial burden to show that Congress created an implied 

exception to FCRA’s government-wide framework for budgeting for 

credit activities. But the features of the BUILD Act and historical practice 

that DFC invokes speak less clearly than DFC suggests, and DFC thus 

fails to satisfy its burden.1

1 To support our consideration of this question, we received views from DFC and 

OMB. See Letter for Gillian Metzger, Acting Assistant Attorney General, Office of Legal 

Counsel, from Sarah E. Fandell, Vice President & General Counsel, DFC, Re: Request for 

the Opinion of the Office of Legal Counsel (Dec. 15, 2023) (attaching Memorandum Re: 

The Federal Credit Reform Act of 1990 and Political Risk Insurance Under the “BUILD” 

Act) (“DFC Submission”); Letter for Gillian Metzger, Deputy Assistant Attorney General, 

Office of Legal Counsel, from Daniel Jacobson, General Counsel, OMB (Jan. 2, 2024) 
48 Op. O.L.C. __ (May 29, 2024)

2

I.

A.

Congress enacted FCRA in 1990 as the “culmination of . . . reform efforts” aimed at strengthening Congress’s control over the federal government’s credit programs. 2 Government Accountability Office, Principles 

of Federal Appropriations Law 11-15 (3d ed. 2006) (“Federal Appropriations Law”). Before 1990, the federal government budgeted for credit 

programs on a cash basis. 2 Federal Appropriations Law at 11-12. Under 

this approach, an agency recorded an obligation, and paid that obligation 

from an appropriation, only when a concrete obligation to pay materialized. Id. at 11-12 to -13. This distorted budgeting for federal credit activities in two directions. First, cash budgeting made loans appear artificially 

costly at the time of issuance because agencies had to obligate the full 

loan amount up front, even when most loans would likely be repaid. Barry 

B. Anderson & Kim H. Burke, Budgeting for Loans and Guarantees: The 

United States Federal Credit Reform Act, OECD J. on Budgeting, 2021, 

at 1, 6. Second, cash budgeting made loan guarantees appear artificially 

costless at the time of issuance because any obligation to pay would only 

materialize in the future if the underlying loan defaulted. 2 Federal Appropriations Law at 11-12.

This latter distortion allowed agencies to impose costs on the public 

fisc outside congressional control, as it meant that agencies employing 

cash budgeting could agree to guarantee loans before receiving appropriations from Congress, with appropriations required only if and when a 

default occurred. Id. At that point, Congress had no real choice but to step 

in and ensure the guarantee would be paid. Id.; see also, e.g., Federal 

Credit Reform: Hearing Before the Task Force on Urgent Fiscal Issues of 

the H. Comm. on the Budget, 101st Cong. 2 (1990) (statement of Rep. 

Schumer, Chairman, Task Force on Urgent Fiscal Issues of the H. Comm. 

(“OMB Submission”); Letter for Christopher Fonzone, Assistant Attorney General, Office 

of Legal Counsel, from Sarah E. Fandell, Vice President & General Counsel, DFC, Re: 

Reply in Support of a Request for an Opinion from the Office of Legal Counsel (Jan. 30, 

2024). We also directed questions at each agency and received responses. See OMB 

Responses to Office of Legal Counsel Questions (Feb. 8, 2024) (“OMB Responses”); 

DFC Responses to Office of Legal Counsel Questions (Feb. 13, 2024) (“DFC Responses”).
Applicability of FCRA to Political Risk Insurance Issued by DFC

3

on the Budget) (noting that, although “a loan guarantee . . . costs nothing 

in the [pre-FCRA] budget process,” “[t]he problem . . . is that the chickens come home to roost” and that, “[i]f there was a budget hit” “every 

time [a] guarantee[] was extended, . . . the Administration, Congress, all 

of Washington might have been more careful”).

Given these distortions, “[n]o one involved in the budget process—

Congress, the Office of Management and Budget, [the General Accounting Office (“GAO”)2

]—particularly liked [the existing cash basis] system.” 2 Federal Appropriations Law at 11-13. Congress, in particular, 

was concerned that the system deprived it of its control, under the Appropriations Clause, of “how and when . . . money should be applied” to the 

federal government’s credit programs. Off. of Pers. Mgmt. v. Richmond, 

496 U.S. 414, 427 (1990) (quoting Joseph Story, Commentaries on the 

Constitution of the United States § 1348 (3d ed. 1858)); see U.S. Const. 

art. I, § 9, cl. 7 (“No Money shall be drawn from the Treasury, but in 

Consequence of Appropriations made by Law[.]”); see also H.R. Rep. No. 

101-455, at 202 (1990) (statement of 14 members of Congress noting that 

cash budgeting deprived policymakers of the ability to “control” the “cost 

of credit activities”). Congress thus enacted FCRA to “measure more 

accurately the costs of [such] programs” and “place the cost of credit 

programs on a budgetary basis equivalent to other Federal spending”—

changes that it believed would ultimately “improve the allocation of 

resources among credit programs and between credit and other spending 

programs.” 2 U.S.C. § 661(1), (2), (4).

FCRA accomplishes these goals by defining the “cost” of federal credit 

programs to better track economic realities and then requiring agencies to 

operate based on those costs. Specifically, FCRA states that agencies may 

enter into a credit agreement only if Congress has provided appropriations 

for the subsidy “cost” of such an agreement in an “appropriations Act.”

Id. § 661c(b). FCRA defines this subsidy cost as an “estimate[]” of the 

“long-term cost to the Government” of all cash inflows and outflows 

resulting from the agreement, “calculated on a net present value basis.”

Id. § 661a(5)(A); see id. § 661a(5)(B), (C). Hence, under FCRA, before 

2 In 2004, Congress changed GAO’s name from the General Accounting Office to the 

Government Accountability Office. See GAO Human Capital Reform Act of 2004, Pub. 

L. No. 108-271, § 8, 118 Stat. 811, 814. We use the abbreviation “GAO” to refer to both 

entities.
48 Op. O.L.C. __ (May 29, 2024)

4

an agency enters into credit agreements, it must ensure that it has sufficient appropriations to cover the estimated present value of those agreements. Id. § 661c(b).

Consistent with its goal of establishing a government-wide framework 

for budgeting for credit programs, Congress gave FCRA a broad ambit.

Congress applied FCRA’s requirements to both “direct loans” and “loan 

guarantees,” the latter of which FCRA defines capaciously as “any guarantee, insurance, or other pledge with respect to the payment of all or a 

part of the principal or interest on any debt obligation of a non-Federal 

borrower to a non-Federal lender,” excluding “the insurance of deposits, 

shares, or other withdrawable accounts in financial institutions.” Id.

§ 661a(1), (3). FCRA also expressly “supersede[s], modif[ies], or repeal[s]” any preexisting laws to the extent those laws are “inconsistent” 

with FCRA. Id. § 661f(a).

As a result of the broad background rule that FCRA establishes, 

OMB—which Congress by statute charged with implementing FCRA, id.

§ 661b(a)—observes that many credit programs across the federal government are unquestionably subject to FCRA even though their statutory 

authorizations do not mention it. OMB Submission at 6 & n.28 (providing 

the Community Disaster Loan Program, 42 U.S.C. § 5184, as an example). And although Congress has made a handful of express exceptions to 

FCRA, e.g., 2 U.S.C. § 661e(a); 12 U.S.C. § 1715z–23(w)(1), OMB is not 

aware of any laws that it or GAO has found to impliedly carve out a 

program from all of FCRA’s requirements, see OMB Responses at 4–5.

B.

This dispute arose because DFC argues that Congress created a categorical exemption from FCRA for DFC’s political risk insurance of debt. To 

make this argument, DFC relies on the history of its predecessor agency—

the Overseas Private Investment Corporation (“OPIC”)—and the text of 

DFC’s organic statute, the 2018 BUILD Act.

1.

Congress established OPIC in 1969. Foreign Assistance Act of 1969, 

Pub. L. No. 91-175, sec. 105, § 231, 83 Stat. 805, 809 (codified as amended at 22 U.S.C. § 2191 (2018)). Before its replacement by DFC, OPIC 
Applicability of FCRA to Political Risk Insurance Issued by DFC

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operated loan, loan guarantee, and political risk insurance programs for 

the purpose of encouraging investment in less-developed countries.

22 U.S.C. §§ 2191, 2194(a), (b), (c) (2018). OPIC’s political risk insurance covered both non-debt and debt transactions, although its statutory 

authorities did not distinguish between these two types of insurance. See 

id. § 2194(a). But OPIC could provide political risk insurance for only a 

discrete list of risks: currency inconvertibility; “expropriation or confiscation by action of a foreign government or any political subdivision thereof”; “loss due to war, revolution, insurrection, or civil strife”; and “business interruption[s]” caused by the other insurable risks. Id. 

Because OPIC operated credit programs, FCRA changed the budgetary 

rules that governed OPIC. Congress thus took steps after enacting FCRA 

to conform OPIC’s programs to the new law. See, e.g., H.R. Rep. No. 

102-1026, at 25-26 (1992) (Conf. Rep.); H.R. Rep. No. 102-551, at 22 

(1992). In particular, Congress began funding OPIC’s loans and loan 

guarantees through annual appropriations, even as it funded all other 

OPIC programs, including political risk insurance, through a mandatory 

appropriation via a “noncredit account revolving fund.” Jobs Through 

Exports Act of 1992, Pub. L. No. 102-549, §§ 104(a)(2), 106, 106 Stat. 

3651, 3652–54 (codified as amended at 22 U.S.C. §§ 2195(a)(2), 

2198(d), (e) (1994)) (“Jobs Through Exports Act”). In 2003, Congress 

reinforced that split treatment by providing that “[a]ny payments made to 

discharge liabilities under investment insurance or reinsurance . . . shall 

be paid first out of the noncredit account revolving fund,” but that “[a]ny 

payments made to discharge liabilities under [loan guarantees] or [loans] 

shall be paid in accordance with [FCRA].” 22 U.S.C. § 2195(d) (2018).

These amendments made clear that OPIC had to budget for its loans 

and loan guarantees in a manner consistent with FCRA but raised the 

question of how OPIC should budget for its political risk insurance of 

debt. We have little evidence of how OPIC did so from FCRA’s 1990 

enactment until the early 2000s. In 2002, however, OMB rejected OPIC’s 

argument that it could invoke its political risk insurance authority to 

guarantee the Philippines’ obligations concerning $200 million in bonds 

without complying with FCRA. Letter for Mark Garfinkle, Vice President 

& General Counsel, OPIC, from Philip J. Perry, General Counsel, OMB 

at 1 (Oct. 11, 2002). Specifically, OMB found that the Philippines product 

was an investment guarantee and informed OPIC that the “Office of Legal 
48 Op. O.L.C. __ (May 29, 2024)

6

Counsel . . . agree[d]” that the product “must be treated as loan guarantees 

under the FCRA.” Id. at 2.

In 2004, OMB and OPIC entered into an agreement governing the 

treatment of OPIC’s insurance against political risk. Letter for Dr. Peter S. 

Watson, President & CEO, OPIC, from Joel D. Kaplan, Deputy Director, 

OMB at 1–2 (Jan. 5, 2004) (“Kaplan Letter”). OMB and OPIC agreed that 

OPIC, prior to “assuming any contractual obligations,” would “notify” 

OMB “of the proposed terms of any product involving the insurance of 

debt which OPIC plans to issue under its expropriation insurance authority.” Id. at 1. In turn, OMB would “expeditiously conduct a case-by-case 

analysis of whether the proposed product should be subject to FCRA,” 

guided by the principles that “products that insure repayment of debt only 

against inconvertibility of funds or political violence are not subject to 

FCRA” and that “other products that insure repayment of debt must be 

carefully considered on a case-by-case basis.” Id. In performing this 

analysis, OMB would focus on “whether a proposed product is in substance” more like a “commercial loan guarantee, in that it guarantees 

against conventional risks of default on debt,” or “is instead a more limited insurance policy against particular acts that fall within the international law definition of ‘expropriation.’” Id. at 2.

Under that agreement, the agencies often—but not invariably—applied 

FCRA even to debt-related products that OPIC believed constituted political risk insurance. Between 2004 and the 2018 passage of the BUILD 

Act, OPIC entered into 12 such transactions. DFC Responses at 2. But 

OMB treated only four of those transactions as exempt from FCRA. Id.

And in any event, OPIC’s political risk insurance of debt remained a 

relatively small part of its insurance portfolio around the time of the 

BUILD Act’s enactment, accounting for only 20% of the total. DFC 

Responses at 4.

2.

Against this backdrop, Congress enacted the BUILD Act and created 

DFC. The BUILD Act consolidated all of OPIC with portions of the U.S. 

Agency for International Development, 22 U.S.C. § 9683, and gave DFC 

expanded authority to make investments in developing economies. As 

relevant here, DFC can, like its predecessor OPIC, make loans and loan 

guarantees. Id. § 9621(b)(1). Like OPIC, DFC can also issue political risk 
Applicability of FCRA to Political Risk Insurance Issued by DFC

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insurance of both debt and non-debt investments pursuant to a statutory 

authority that does not explicitly differentiate between the two. Id.

§ 9621(d). Unlike OPIC, however, DFC has authority to “issue insurance 

or reinsurance . . . against any or all political risks,” id., not simply the 

discrete political risks that limited OPIC (currency inconvertibility, expropriation, loss due to war or civil strife, and certain business interruptions).

The BUILD Act expressly states that DFC’s loan and loan guarantee 

programs are “subject to the requirements” of FCRA. Id. § 9621(b)(3); 

see also id. § 9622(b)(10) (stating that DFC “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 an appropriations Act, as 

required by [FCRA]”). And when the BUILD Act establishes DFC’s 

“Corporate Capital Account,” it refers in three places to the “cost” under 

FCRA “of loans and loan guaranties.” Id. § 9634(b)(6), (d)(1)(A), (d)(2).

By contrast, when the BUILD Act authorizes DFC to provide political 

risk insurance—of both debt and equity—it is silent on the application of 

FCRA to such insurance. Id. § 9621(d). So is the rest of the BUILD Act.

II.

As noted above, FCRA expressly covers “loan guarantees,” which it 

defines as “any guarantee, insurance, or other pledge with respect to the 

payment of all or a part of the principal or interest on any debt obligation 

of a non-Federal borrower to a non-Federal lender,” with certain exceptions not applicable here. 2 U.S.C. § 661a(3). That definition unambiguously sweeps in DFC’s political risk insurance of debt: Such insurance is 

“insurance . . . with respect to the payment of . . . principal or interest on 

any debt obligation of a non-Federal borrower to a non-Federal lender.”

Id. By its terms, therefore, FCRA applies to DFC’s political risk insurance 

of debt.

The question we face is thus whether Congress removed this form of 

debt insurance from FCRA’s reach. Nothing in the BUILD Act expressly 

exempts political risk insurance of debt from FCRA. As a result, to agree 

with DFC, we would need to conclude that the BUILD Act impliedly does 

so. This is a high bar for DFC to surmount, particularly when it is seeking 

an exception to a government-wide framework statute that Congress put 

in place to protect one of its core constitutional prerogatives. Although it 
48 Op. O.L.C. __ (May 29, 2024)

8

is a close question, for the reasons provided below, DFC ultimately fails 

to satisfy this heavy burden.

A.

“[R]epeals by implication are not favored” and require a “clear and 

manifest” intention to repeal or an “irreconcilable” conflict between two 

statutes. Me. Cmty. Health Options v. United States, 590 U.S. 296, 315 

(2020) (quoting Morton v. Mancari, 417 U.S. 535, 549–51 (1974)). “When 

confronted with two Acts of Congress allegedly touching on the same 

topic,” we must “strive ‘to give effect to both.’” Epic Sys. Corp. v. Lewis, 

584 U.S. 497, 510 (2018) (quoting Morton, 417 U.S. at 551). A party 

claiming that “two statutes cannot be harmonized, and that one displaces 

the other,” thus “bears [a] heavy burden.” Id. Moreover, the presumption 

against implied repeals applies with no less force to “implied amendments” or “partial repeal[s],” such as DFC’s claim for an implied carveout 

from FCRA only for political risk insurance of debt. Nat’l Ass’n of Home 

Builders v. Defs. of Wildlife, 551 U.S. 644, 664 n.8 (2007) (collecting 

cases).

DFC’s burden is particularly heavy here because the implied exception 

it seeks would undermine FCRA’s important purposes. Congress enacted 

FCRA to address a particular problem—that the pre-FCRA cash budgetary regime distorted the budgeting of federal credit activities in a way that 

hindered Congress’s ability to exercise its power of the purse. See supra 

Part I.A. Congress solved that problem by creating a framework that 

brought different credit programs within a common, equitable accounting 

method and placed them on a level playing field with other federal spending. See 2 U.S.C. § 661(2), (4). The uniform application of FCRA’s 

budgeting rules is thus central to Congress achieving its objectives, as 

deviations from those rules—and, specifically, cash budgeting for loan 

guarantees—enable agencies to impose potentially substantial costs on the 

federal government without budgeting for those costs in advance. And 

Congress recognized the importance of uniformity when it “supersede[d], 

modif[ied], or repeal[ed] any” preexisting laws to the extent they were 

“inconsistent” with FCRA. Id. § 661f(a). We thus will not lightly infer 

that Congress, without saying so expressly, has “overrid[den] [FCRA’s] 

background rule.” Marx v. Gen. Revenue Corp., 568 U.S. 371, 382 

(2013).
Applicability of FCRA to Political Risk Insurance Issued by DFC

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Legislative and administrative practice confirm this approach. Both in 

FCRA itself and in subsequent legislation, Congress has been express 

when it has excepted credit programs from FCRA’s budgeting rules. See, 

e.g., 2 U.S.C. § 661e(a); 12 U.S.C. § 1715z–23(w)(1). That further militates in favor of caution before inferring additional implied exceptions.

Cf. Hillman v. Maretta, 569 U.S. 483, 496 (2013) (stating that, when 

“Congress explicitly enumerates certain exceptions to a general prohibition, additional exceptions are not to be implied, in the absence of evidence of a contrary legislative intent” (quoting Andrus v. Glover Constr. 

Co., 446 U.S. 608, 616–17 (1980))). Indeed, such caution has been the 

norm to date—as noted above, OMB indicated that it is unaware of any 

instance in which it or GAO has concluded that a program was impliedly 

exempted from all of FCRA’s requirements. See supra Part I.A.

B.

To overcome the presumption against implied repeals, DFC argues that 

the BUILD Act treats loans and loan guarantees differently from political 

risk insurance and, in so doing, ratifies and carries forward a pre-BUILD 

Act understanding that FCRA did not cover OPIC’s political risk insurance of debt. But neither the statutory text nor historical practice speaks 

as clearly as DFC suggests, and DFC’s arguments thus fall short of 

providing the “clear and manifest” evidence necessary to find that the 

BUILD Act displaces FCRA. Me. Cmty. Health Options, 590 U.S. at 315 

(quoting Morton, 417 U.S. at 551). 

1.

DFC first observes that the BUILD Act expressly declares that DFC’s 

loan and loan guarantee programs are “subject to the requirements of 

[FCRA],” 22 U.S.C. § 9621(b)(3); see id. §§ 9622(b)(10), 9634(b)(6), 

(d)(1)(A), (d)(2), but says no such thing about political risk insurance, id.

§ 9621(d). Per DFC, this distinction creates a negative implication that 

FCRA does not apply to its political risk insurance. DFC Submission 

attach. at 4–5. As the Supreme Court has explained, “[w]hen Congress 

includes particular language in one section of a statute but omits it from a 

neighbor, we normally understand that difference in language to convey a 

difference in meaning.” Bittner v. United States, 598 U.S. 85, 94 (2023); 
48 Op. O.L.C. __ (May 29, 2024)

10

see also, e.g., Dep’t of Homeland Sec. v. MacLean, 574 U.S. 383, 391 

(2015).

But we think this different language, while striking, signifies less than 

it first appears. As the Supreme Court has also explained, the “force of 

any negative implication . . . depends on context.” Marx, 568 U.S. at 381.

Moreover, the “background presumptions governing” a subject can be “a 

highly relevant contextual feature” that may render “dubious” the conclusion that Congress intended to “override th[ose] background rule[s].” Id. 

at 381–82; see also id. at 381–84 (rejecting the argument that Congress 

had impliedly abrogated background rules governing attorneys fees and 

costs by expressly reiterating those rules only in part); United States v. 

Vonn, 535 U.S. 55, 65 (2002) (holding that a negative implication failed 

to establish the “strong support” necessary to demonstrate an implied 

repeal).

Here, context provides another plausible explanation for why the 

BUILD Act may have referenced FCRA with respect to loans and loan 

guarantees but not political risk insurance: FCRA governs all of DFC’s 

loans and loan guarantees, but not all of DFC’s political risk insurance, 

which can cover non-debt as well as debt products. Supra Part I.B.2; see 

2 U.S.C. § 661a(3). Around the time of the BUILD Act’s passage, in fact, 

political risk insurance of debt made up only 20% of OPIC’s insurance 

portfolio. Supra Part I.B.1. We are thus hesitant to read too much into the 

lack of a FCRA cross-reference in a provision authorizing DFC to insure 

both debt and non-debt products—particularly when the Congress that 

enacted the provision had reason to believe that the majority of the insurance DFC would issue under the provision would cover non-debt products 

outside FCRA’s scope.

Background presumptions further support this understanding: A key 

virtue of establishing FCRA as a background rule is that Congress need 

not specifically address every situation that might trigger FCRA, as 

FCRA itself takes care of such situations. Hence, as noted above, many 

credit programs across the federal government are unquestionably subject 

to FCRA even though their statutory authorizations do not mention it.

Supra Part I.A. Here, DFC does not point us to, and we have not located, 

anything in the BUILD Act’s legislative history showing that Congress 

meant to exempt DFC’s political risk insurance of debt from FCRA. As 

far as we are aware, no member of Congress so much as raised FCRA’s 
Applicability of FCRA to Political Risk Insurance Issued by DFC

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application to DFC’s insurance of debt in the process of enacting the 

BUILD Act, let alone expressed an intent for FCRA not to apply. In the 

face of such silence, we do not think the lack of a cross-reference to 

FCRA in the BUILD Act’s subsection authorizing the issuance of political 

risk insurance—which has historically covered mostly non-debt products—is the sort of “clear and manifest” evidence required to repeal an 

important framework statute’s applicability to DFC’s insurance of debt 

under that provision.

2.

DFC also relies on history. After FCRA, Congress treated OPIC’s political risk insurance as distinct from its loans and loan guarantees, funding 

the latter through annual appropriations but the former through a mandatory appropriation via a “noncredit account revolving fund.” Jobs Through 

Exports Act §§ 104(a)(2), 106. Congress also expressly stated that “[a]ny 

payments made to discharge liabilities under [loan guarantees] or [loans] 

shall be paid in accordance with [FCRA],” but that “[a]ny payments made 

to discharge liabilities under investment insurance or reinsurance . . . shall 

be paid first out of the noncredit account revolving fund”—without mentioning FCRA. 22 U.S.C. § 2195(d) (2018). Moreover, OMB and OPIC’s 

2004 agreement treated some political risk insurance as exempt from 

FCRA. See supra Part I.B.1. DFC claims that this history, taken together, 

supports its view that the BUILD Act ratified and extended a pre-existing 

understanding that FCRA does not cover political risk insurance of debt.

DFC Submission attach. at 8–10.

But DFC’s arguments from history run into problems similar to those 

with its negative implication argument based on the BUILD Act. Like 

DFC, OPIC provided political risk insurance for non-debt as well as debt 

transactions, pursuant to a statute that did not distinguish between these 

two types of insurance. See, e.g., 22 U.S.C. §§ 2194(a), 2195(d) (2018).

And, as noted above, non-debt transactions appear to have made up the 

bulk of OPIC’s insurance portfolio. See DFC Responses at 4. Moreover, 

just like with the BUILD Act, DFC identifies nothing in the legislative 

history of the pre-BUILD Act regime showing that Congress intended to 

exempt political risk insurance of debt from FCRA. If anything, the fact 

that Congress funded all insurance out of a “noncredit account revolving 

fund” suggests it did not focus on the fact that OPIC insured debt as well 
48 Op. O.L.C. __ (May 29, 2024)

12

as non-debt transactions. So while the post-FCRA amendments provide 

some support for DFC’s position, we cannot say they supply “clear and 

manifest” evidence that the BUILD Act—a separate statute enacted over a 

decade after the amendments in question—recognized an implied exemption from FCRA.

Administrative practice also cannot bear the weight DFC would place 

on it. It is true that OMB and OPIC agreed not to apply FCRA’s requirements to a portion of OPIC’s political risk insurance of debt. But during 

the decade and a half that this agreement was in force, OPIC entered into 

only 12 transactions it called “political risk insurance,” and OMB concluded, based on a “case-by-case analysis,” that eight of those transactions were “in substance” more like commercial loan guarantees than 

“more limited insurance polic[ies]” falling squarely within OPIC’s authority to insure against political risks of expropriation, currency inconvertibility, and political violence. Kaplan Letter at 1–2; accord DFC Responses at 2. This mixed administrative practice is a thin reed on which to hang 

a ratification argument.

More than that, ratification of the pre-BUILD Act status quo is not 

what DFC seeks. The BUILD Act gives DFC broader authority to issue 

political risk insurance than OPIC possessed, allowing DFC to insure 

against “any or all political risks,” 22 U.S.C. § 9621(d), and not just the 

specific enumerated risks against which OPIC could insure. In DFC’s 

telling, then, the FCRA exemption now encompasses all the policies it 

may issue under this broader authority—including, as we understand it, 

the eight so-called “insurance” policies that OMB deemed subject to 

FCRA.

We think this significant expansion in scope strongly cuts against 

DFC’s position. If DFC were right that the BUILD Act impliedly exempts 

its political risk insurance of debt from FCRA, this would dramatically 

expand DFC’s ability to issue insurance policies that carry potentially 

significant fiscal burdens without budgeting for their costs in advance. It 

seems unlikely that Congress would have taken this step without recording some express indication in the BUILD Act’s text or legislative history 

that it was doing so. In any event, this silence underscores that DFC has 

not identified the type of “clear and manifest” evidence necessary to 

establish an implied repeal of FCRA.
Applicability of FCRA to Political Risk Insurance Issued by DFC

13

3.

DFC also points to discrete, technical conflicts between the BUILD 

Act’s provisions governing insurance of debt and FCRA—conflicts that 

DFC claims support its view that the BUILD Act and FCRA are irreconcilable. But it is not unheard of for technical aspects of a credit program 

to clash with FCRA in some respect. See OMB Responses at 2–3. And in 

such situations, OMB traditionally works to implement FCRA in a way 

that harmonizes the two statutes, rather than displaces FCRA entirely, id.

at 2, 5 n.1—an approach that accords with the preference for “harmony 

over conflict in statutory interpretation,” Epic Sys., 584 U.S. at 511.

Consistent with this traditional practice, we do not believe any of the 

discrete conflicts identified by DFC suggest that Congress intended a 

wholesale carveout of DFC’s political risk insurance from FCRA.

First, DFC claims that the BUILD Act and FCRA contain opposing 

commands about where to deposit insurance-related receipts. DFC Submission attach. at 7. FCRA says that collections go to a financing account, 

2 U.S.C. § 661a(7); the BUILD Act says they go into DFC’s Corporate 

Capital Account, 22 U.S.C. § 9634(b), (d)(2). But we do not make too 

much of this inconsistency: The BUILD Act also generally requires DFC 

to deposit cash inflows from its loan and loan guarantee programs, which 

FCRA undeniably covers, into the Corporate Capital Account. Id. And 

although the BUILD Act excludes the subsidy “cost” of loans and loan 

guarantees from that requirement, it does not exclude other receipts associated with the programs, such as loan repayments. Id. Any inconsistencies between the BUILD Act and FCRA in this respect thus reveal little, 

particularly because Congress appears to have anticipated the possibility 

of conflicts like this one by including in FCRA authorization for the 

President “to establish such non-budgetary accounts as may be appropriate” to “implement the accounting required by this subchapter.” 2 U.S.C. 

§ 661d(b). Congress thus recognized that account structures under organic 

statutes might not perfectly fit FCRA and provided authority to fix any 

issues.

Second, DFC asserts that the BUILD Act does not authorize it to pay for 

the subsidy “cost” of insurance, as required by FCRA. DFC Submission 

attach. at 7–8; 2 U.S.C. § 661c(b). We disagree. DFC’s Corporate Capital 

Account can be used “to carry out [the account’s] purpose,” 22 U.S.C. 
48 Op. O.L.C. __ (May 29, 2024)

14

§ 9634(d)(2), which includes all of DFC’s purposes, id. § 9634(a). That 

general appropriation provision allows DFC to pay for the subsidy cost of 

insurance of debt, even assuming no more specific authority exists.

Finally, DFC argues that even if the BUILD Act contains an appropriation for the subsidy cost of political risk insurance, this permanent appropriation fails to satisfy FCRA’s requirement for advance authorization in 

an “appropriations Act.” DFC Submission attach. at 11–12; 2 U.S.C. 

§ 661c(b). In particular, DFC contends that “appropriations Act” means 

an annual appropriations bill, which the BUILD Act is not. DFC Submission attach. at 11. OMB disagrees, maintaining that mandatory appropriations can be, and have been, used to satisfy FCRA’s “appropriations Act” 

requirement. OMB Submission at 8; OMB Responses at 5–6. But we need 

not resolve this issue: Even if DFC were correct, that would not show that 

the BUILD Act exempts political risk insurance of debt from FCRA in 

full. Rather, it would require only finding an implied modification of 

FCRA’s “appropriations Act” requirement to encompass the BUILD Act’s 

permanent appropriation—a narrower approach that would harmonize the 

two laws to the greatest extent possible and draw support from history and 

practice. Indeed, OMB argues that while Congress has never silently 

exempted a credit program from all of FCRA’s requirements, Congress 

often has funded credit programs outside the annual appropriation process. OMB Submission at 8 & n.43; see, e.g., CARES Act, Pub. L. 

No. 116-136, §§ 1102, 1107(a)(1), 134 Stat. 281, 286, 301 (2020) (codified as amended at 15 U.S.C. §§ 636(a)(36), 9006) (Paycheck Protection 

Program). Thus, even if DFC’s understanding of “appropriations Act” is 

correct, the BUILD Act merely follows a long line of programs that 

impliedly displace this discrete aspect of FCRA without working a full 

repeal.

III.

For these reasons, we conclude that political risk insurance of debt issued under the BUILD Act is subject to FCRA.

CHRISTOPHER C. FONZONE

Assistant Attorney General

Office of Legal Counsel