1. Export-Import Bank

a. Export-Import Bank Act of 1945, as Amended

Public Law 79-173 [H.R. 3771], 59 Stat. 526, approved July 31, 1945, as amended by Public Law 79-282 [H.R. 4683], 59 Stat. 666, approved December 28, 1945; Public Law 80-89 [S. 993], 61 Stat. 130, approved June 9, 1947; Public Law 82158 [S. 2006], 65 Stat. 367, approved October 3, 1951; Public Law 83-30 [H.R. 4465], 67 Stat. 28, approved May 21, 1953; Public Law 83-570 [S. 3589], 68 Stat. 677, approved August 9, 1954; Public Law 83-779 [H.R. 97301, 68 Stat. 1237, approved September 3, 1954, Public Law 85-55 [H.R. 4136], 71 Stat. 82, approved June 17, 1957; Public Law 85-424 [S. 3149], 72 Stat. 133, approved May 22, 1958; Public Law 87-311 [S. 2325], 75 Stat. 673, approved September 26, 1961; Public Law 88-101 [H.R. 3872], 77 Stat. 128, approved August 20, 1963; Public Law 89-348 [S. 2150], 79 Stat. 1312, approved November 8, 1965; Public Law 90267 [S. 1155], 82 Stat. 47, approved March 13, 1968; Public Law 92-126 [S. 581], 86 Stat. 345, approved August 17, 1971; Public Law 93-331 [S.J. Res. 218], 88 Stat. 289, approved July 4, 1974; Public Law 93-374 [S.J. Res. 229], 88 Stat. 445, approved August 14, 1974; Public Law 93-425 [S.J. Res. 244], 88 Stat. 1166, approved September 30, 1974; Public Law 93-450 [S.J. Res. 251], 88 Stat. 1368, approved October 18, 1974; Public Law 93-646 [H.R. 15977], 88 Stat. 2333, approved January 4, 1975; Public Law 95-143 [H.R. 6415], 91 Stat. 1210, approved October 26, 1977; Public Law 95-407 [H.J. Res. 1140], 92 Stat. 882, approved September 30, 1978; and by Public Law 95-630 [H.R. 14279], 92 Stat. 3641 at 3724, approved November 10, 1978

AN ACT To provide for increasing the lending authority of the Export-Import Bank of Washington, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That this Act may be cited as "the Export-Import Bank Act of 1945."

Sec. 2. (a) (1)1 There is hereby created a corporation with the name Export-Import Bank of the United States which shall be an agency of the United States of America. The objects and purposes of the Bank shall be to aid in financing and to facilitate exports and imports and the exchange of commodities between the United States or any of its territories or insular possessions and any foreign country or the agencies or nationals thereof. In connection with and in furtherance of its objects and purposes, the Bank is authorized and empowered to do a general banking business except that of circulation; to receive deposits; to purchase, discount, rediscount, sell, and negotiate, with or without its endorsement or guaranty, and to guarantee notes, drafts, checks, bills of exchange, acceptances, including bankers' acceptances, cable transfers, and other evidences of indebtedness; to guarantee, insure, coinsure, reinsure against political and credit risks of loss; 3 to purchase, sell, and guarantee securities but not to purchase with its funds any stock in any other corporation except that it may acquire any such stock, through the enforcement of any lien or pledge or otherwise to satisfy a previously contracted indebtedness to it; to accept bills and drafts drawn upon it; to issue letters of credit; to purchase and sell coin, bullion, and exchange; to borrow and to lend money; to perform

1 12 U.S.C. 635. Subsection (a) (1) amended by Act of December 28, 1945 (59 Stat. 666), and by Act of June 9, 1947 (61 Stat. 130). Paragraph (2) was added by Public Law 92-126, 85 Stat. 346, approved August 17, 1971.

2 The name of the Bank, "Export-Import Bank of Washington", was changed to "ExportImport Bank of the United States" by Public Law 90-267, 82 Stat. 47.

Added by Sec. 2 of Public Law 93-646 (88 Stat. 2333).

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any act herein authorized in participation with any other person, including any individual, partnership, corporation, or association; to adopt, alter, and use a corporate seal, which shall be judicially noticed; to sue and to be sued, to complain and to defend in any court of competent jurisdiction; to represent itself or to contract for representation in all legal and arbitral proceedings outside the United States; 3 and the enumeration of the foregoing powers shall not be deemed to exclude other powers necessary to the achievement of the objects and purposes of the Bank. The Bank shall be entitled to the use of the United States mails in the same manner and upon the same conditions as the executive departments of the Government. The Bank is authorized to publish or arrange for the publication of any documents, reports, contracts, or other material necessary in connection with or in furtherance of its objects and purposes without regard to the provisions of section 501 of title 44, United States Code, whenever the Bank determines that publication in accordance with the provisions of such section would not be practicable. The Bank is hereby authorized to use all of its assets and all moneys which have been or may hereafter be allocated to or borrowed by it in the exercise of its functions. Net earnings of the Bank after reasonable provision for possible losses shall be used for payment of dividends on capital stock. Any such dividends shall be deposited into the Treasury as miscellaneous receipts.

(2) The receipts and disbursements of the Bank in the discharge of its functions shall not be included in the totals of the budget of the United States Government and shall be exempt from any annual expenditure and net lending (budget outlays) limitations imposed on the budget of the United States Government. In accordance with the provisions of the Government Corporation Control Act, the President shall transmit annually to the Congress a budget for program activities and for administrative expenses of the Bank, which budget shall also include the estimated annual net borrowing by the Bank from the United States Treasury. The President shall report annually to the Congress the amount of net lending of the Bank, including any net lending created by the net borrowing from the United States Treasury, which would be included in the totals of the budget of the United States Government if the Bank's activities were not excluded from those totals as a result of this section.

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(b) (1) (A) It is the policy of the United States to foster expansion of exports of manufactured goods, agricultural products, and other goods and services, thereby contributing to the promotion and maintenance of high levels of employment and real income and to the increased development of the productive resources of the United States. To meet this objective, the Export-Import Bank is directed, in the exercise of its functions, to provide guarantees, insurance, and extensions of credit at rates and on terms and other conditions

Paragraph (2) was added by Public Law 92-126, 85 Stat. 346, approved August 17, 1971. Section 13 of Public Law 93-646 (88 Stat. 2333 at 2337) provided that "Effective at the close of September 30, 1976, section 2(a) (2) of the Export-Import Bank Act of 1945 is repealed." As amended and restated by Public Law 92-126 (85 Stat. 345) and by Sec. 3 of Public Law 93-646 (88 Stat. 2333).

The words "manufactured goods, agricultural products, and other goods and services" were substituted in lieu of the words "goods and related services" by Sec. 1910 of Public Law 95-630 (92 Stat. 3726).

which are competitive with the Government-supported rates and terms and other conditions available for the financing of exports from the principal countries whose exporters compete with United States exporters. The Bank shall, in cooperation with the export financing instrumentalities of other governments, seek to minimize competition in government-supported export financing and shall, in cooperation with other appropriate United States Government agencies, seek to reach international agreements to reduce government subsidized export financing. The Bank shall, on a semiannual basis, report to the appropriate committees of Congress its actions in complying with these directives. In this report the Bank shall include a survey of all other major export-financing facilities available from other governments and government-related agencies through which foreign exporters compete with United States exporters and indicate in specific terms the ways in which the Bank's rates, terms, and other conditions compare with those offered from such other governments directly or indirectly. Further, the Bank shall at the same time survey a representative number of United States exporters and United States commercial lending institutions which provide export credit to determine their experience in meeting financial competition from other countries whose exporters compete with United States exporters. The results of this survey shall be included as part of the semiannual report required by this subparagraph. The Bank shall also include in the semiannual report a description of each loan by the Bank involving the export of any product or service related to the production, refining, or transportation of any type of energy or the development of any energy resource with a statement assessing the impact, if any, on the availability of such products, services, or energy supplies thus developed for use within the United States.

(B) It is further the policy of the United States that loans made by the Bank shall bear interest at rates determined by the Board of Directors of the Bank, taking into consideration the average cost of money to the Bank as well as the Bank's mandate to support United States exports at rates and on terms and conditions which are competitive with exports of other countries; that the Bank in the exercise of its functions should supplement and encourage, and not compete with, private capital; that the Bank shall accord equal opportunity to export agents and managers, independent export firms, and small commercial banks in the formulation and implementation of its programs; that the Bank shall give due recognition to the policy stated in section 2(a) of the Small Business Act that "the Government should aid, counsel, assist, and protect, insofar as is possible, the interests of small business concerns in order to preserve free competitive enterprise" and that in furtherance of his policy the Board of Directors shall designate an officer of the Bank who shall be responsible to the President of the Bank for all matters concerning or affecting small business concerns and who, among other duties, shall be responsible for advising small businessmen of the opportunities for small business concerns in the functions of the Bank and for maintaining liaison with the Small Business Administration and other departments and

The words to this point beginning with "and shall, in cooperation with added by Sec. 1 of Public Law 95-143 (91 Stat. 1210).

were

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agencies in matters affecting small business concerns; that the Bank should give emphasis to assisting new and small business entrants in the agricultural export market, and shall, in cooperation with other relevant Government agencies, including the Commodity Credit Corporation, develop a program of education to increase awareness of export opportunities among small agribusinesses and cooperatives; that loans, so far as possible consistent with the carrying out of the purposes of subsection (a) of this section, shall generally be for specific purposes, and, in the judgment of the Board of Directors, offer reasonable assurance of repayment; and that in authorizing any loan or guarantee, the Board of Directors shall take into account any serious adverse effect of such loan or guarantee on the competitive position of United States industry, the availability of materials which are in short supply in the United States, and employment in the United States, and shall give particular emphasis to the objective of strengthening the competitive position of United States exporters and thereby of expanding total United States exports. Only in cases where the President determines that such action would be in the national interest where such action would clearly and importantly advance United States policy in such areas as international terrorism, nuclear proliferation, environmental protection and human rights, should the Export-Import Bank deny applications for credit for nonfinancial or noncommercial considerations."

(C) 10 Consistent with the policy of section 501 of the Nuclear NonProliferation Act of 1978 and section 119 of the Foreign Assistance Act of 1961, the Board of Directors shall name an officer of the Bank whose duties shall include advising the President of the Bank on ways of promoting the export of goods and services to be used in the development, production, and distribution of nonnuclear renewable energy resources, disseminating information concerning export opportunities and the availability of Bank support for such activities, and acting as a liaison between the Bank and the Department of Commerce and other appropriate departments and agencies.

(2) 11 The Bank in the exercise of its functions shall not guarantee, insure, or extend credit, or participate in any extension of credit

(A) in connection with the purchase or lease of any product by a Communist country (as defined in section 620 (f) of the Foreign Assistance Act of 1961), or agency or national thereof, or

(B) in connection with the purchase or lease of any product by any other foreign country, or agency, or national thereof, if the product to be purchased or leased by such other country, agency, or national is, to the knowledge of the Bank, principally for use in, or sale or lease to, a Communist country (as so defined),

8 This phrase, from the point of the last semi-colon, was added by Sec. 1916 of Public Law 95-630 (92 Stat. 3727).

Sec. 1904 of Public Law 95-630 (92 Stat. 3724) struck out a phrase concerning human rights, which had been added by Sec. 2 of Public Law 95-143 (91 Stat. 1210), and substituted the words to this point beginning with "and shall give particular emphasis to".

See also sections 607 and 608 of the Foreign Assistance Appropriations Act, 1979 which contain prohibitions on use of funds under that Act by the Export-Import Bank for obligations to countries aiding terrorists and to countries exporting a commodity which is likely to be in surplus on world markets and which might cause substantial injury to U.S. producers (page 198, vol. 1).

10 Clause (C) was added by Sec. 1907 of Public Law 95-630 (92 Stat. 3725).

11 As amended and restated by Public Law 90-267 (82 Stat. 48) and by Sec. 4 of Public Law 93-646 (88 Stat. 2333 at 2334).

unless the President determines that guarantees, insurance, or extensions of credit in connection therewith to such Communist or such other country or agency or national thereof would be in the national interest. The President shall make a separate determination with respect to each transaction in which the Bank would extend a loan to such Communist or such other country, or agency, or national thereof an amount of $50,000,000 or more. Any determination required under the first sentence of this paragraph shall be reported to the Congress not later than the earlier of thirty days following the date of such determination, or the date on which the Bank takes final action on a transaction which is the first transaction involving such country or agency or national after the date of enactment of the Export-Import Bank Amendments of 1974, unless a determination with respect to such country or agency or national has been made and reported prior to such date of enactment. Any determination required to be made under the second sentence of this paragraph shall be reported to the Congress not later than the earlier of thirty days following the date of such determination or the date on which the Bank takes final action on the transaction involved.

(3) 12 Except as provided by the fourth sentence of this paragraph,13 no loan or financial guarantee or combination thereof (i) in an amount which equals or exceeds $100,000,000,1 (ii) in an account which equals or exceeds $25,000,000 for the export of goods or services involving research, exploration, or production of fossil fuel energy resources in the Union of Soviet Socialist Republics, or (iii) for the export of technology, fuel, equipment, materials, or goods or services to be used in the construction, alteration, operation, or maintenance of nuclear power, enrichment, reprocessing, research, or heavy water production facilities, shall be finally approved by the Board of Directors of the Bank, unless in each case the Bank has submitted to the Congress with respect to such loan, financial guarantee, or combination thereof, a detailed statement describing and explaining the transaction, at least 25 days of continuous session of the Congress prior to the date of final approval. For the purpose of the preceding sentence, continuity of a session of the Congress shall be considered as broken only by an adjournment of the Congress sine die, and the days on which either House is not in session because of an adjournment of more than 3 days to a day certain shall be excluded in the computation of the 25 day period referred to in such sentence. Such statement shall contain

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(A) a brief description of the purposes of the transaction, the identity of the party or parties requesting the loan or financial guarantee, the nature of the goods or services to be exported,

12 Section 5 of Public Law 93-646 (88 Stat. 2333 at 2335) inserted paragraph (3) and redesignated paragraphs (3), (4), and (5) of the existing law as paragraphs (4), (5), and (6), respectively (these paragraphs were again redesignated as paragraphs (5), (6) and (7) by Public Law 95-143). Paragraph 3 was amended and restated by Sec, 3(a) of Public Law 95-143 (91 Stat. 1210).

13 This phrase was added by Sec. 1902 (1) of Public Law 95-630 (92 Stat. 3724).

14 This figure was increased from $60,000,000 by Sec. 1902 (2) of Public Law 95-630 (92 Stat. 3724).

15 FA Appropriations Act, 1979 (92 Stat. 1599) prohibited the Export-Import Bank from using any of the funds available during fiscal year 1979 for "expenditures, contracts, or commitments for the export of nuclear equipment. fuel, or technology to any country other than a nuclear-weapon State as defined in Article IX of the Treaty on the Non-Proliferation of Nuclear Weapons eligible to receive economic or military assistance under this Act that has detonated a nuclear explosive after the date of enactment of this Act."