12 USC 635a - Management of Bank

U.S Code last checked for updates: Nov 22, 2024

§ 635a.

Management of Bank

(a)

Establishment as independent agency

(b)

President and First Vice President of the Bank; appointment; duties

(c)

Board of Directors; composition; oath; terms; duties; quorum; bylaws

(1)

There shall be a Board of Directors of the Bank consisting of the President of the Export-Import Bank of the United States, who shall serve as Chairman, the First Vice President who shall serve as Vice Chairman, and three additional persons appointed by the President of the United States by and with the advice and consent of the Senate.

(2)

Of the five members of the Board, not more than three shall be members of any one political party.

(3)

Omitted

(4)

Before entering upon his duties, each of the directors shall take an oath faithfully to discharge the duties of his office.

(5)

The directors, in addition to their duties as members of the Board, shall perform such additional duties and may hold such other offices in the administration of the Bank as the President of the Bank may from time to time prescribe.

(6)

(A)

A quorum of the Board of Directors shall consist of at least three members.

(B)

(i)

If there is an insufficient number of directors to constitute a quorum under subparagraph (A) for 120 consecutive days during the term of a President of the United States, a temporary Board, consisting of the following members, shall act in the stead of the Board of Directors:

(I)

The United States Trade Representative.

(II)

The Secretary of the Treasury.

(III)

The Secretary of Commerce.

(IV)

The members of the Board of Directors.

(ii)

If, at a meeting of the temporary Board—

(I)

a member referred to in clause (i)(IV) is present, the meeting shall be chaired by such a member, consistent with Bank bylaws; or

(II)

no such member is present, the meeting shall be chaired by the United States Trade Representative.

(iii)

A member described in subclause (I), (II), or (III) of clause (i) may delegate the authority of the member to vote on whether to authorize a transaction, whose value does not exceed $100,000,000, to—

(I)

if the member is the United States Trade Representative, the Deputy United States Trade Representative; or

(II)

if the member is referred to in such subclause (II) or (III), the Deputy Secretary of the department referred to in the subclause.

(iv)

If the temporary Board consists of members of only one political party, the President of the United States shall, to the extent practicable, appoint to the temporary Board a qualified member of a different political party who occupies a position requiring nomination by the President, by and with the consent of the Senate.

(v)

The temporary board may not change or amend Bank policies, procedures, bylaws, or guidelines.

(vi)

The temporary Board shall expire at the end of the term of the President of the United States in office at the time the temporary Board was constituted or upon restoration of a quorum of the Board of Directors as defined in subparagraph (A).

(vii)

With respect to a transaction that equals or exceeds $100,000,000, the Chairperson of the temporary Board shall ensure that the Bank complies with section 635(b)(3) of this title.

(7)

The Board of Directors shall adopt, and may from time to time amend, such bylaws as are necessary for the proper management and functioning of the Bank, and shall, in such bylaws, designate the vice presidents and other officers of the Bank and prescribe their duties.

(8)

(A)

The terms of the directors, including the President and the First Vice President of the Bank, appointed under this section shall be four years, except that—

(i)

during their terms of office, the directors shall serve at the pleasure of the President of the United States;

(ii)

the term of any director appointed after November 30, 1983, to serve before January 20, 1985, shall expire on January 20, 1985;

(iii)

of the directors first appointed to serve beginning on or after January 21, 1985, two directors (other than the President and First Vice President of the Bank) shall be appointed for terms of two years, as designated by the President of the United States at the time of their appointment; and

(iv)

any director first appointed to serve for a term beginning on any date after January 21, 1985, shall serve only for the remainder of the period for which such director would have been appointed if such director’s term had begun on January 21, 1985. If such term would have expired before the date on which such director’s term actually begins, the term of such director shall be the four-year period, or remainder thereof, as if such director had been preceded by a director whose term had begun on January 21, 1985.

(B)

Of the five members of the Board appointed by the President, not less than one such member shall be selected from among the small business community and shall represent the interests of small business.

(C)

Any person chosen to fill a vacancy shall be appointed only for the unexpired term of the director whom such person succeeds.

(D)

Any director whose term has expired may be reappointed.

(E)

Any director whose term has expired may continue to serve on the Board of Directors until the earlier of—

(i)

the date on which such director’s successor is qualified; or

(ii)

the end of the 6-month period beginning on the date such director’s term expires.

(9)

At the request of any 2 members of the Board of Directors, the Chairman of the Board shall place an item pertaining to the policies or procedures of the Bank on the agenda for discussion by the Board. Within 30 days after the date such a request is made, the Chairman shall hold a meeting of the Board at which the item shall be discussed.

(10)

Notice and comment requirements.—

(A)

In general.—

Before any meeting of the Board for final consideration of a long-term transaction the value of which exceeds $100,000,000, and concurrent with any statement required to be submitted under section 635(b)(3) of this title with respect to the transaction, the Bank shall provide a notice and comment period.

(B)

Financial threshold determinations.—

For purposes of determining whether the value of a proposed transaction exceeds the financial threshold set forth in subparagraph (A), the Bank shall aggregate the dollar amount of the proposed transaction and the dollar amounts of all long-term loans and guarantees, approved by the Bank in the preceding 12-month period, that involved the same foreign entity and substantially the same product to be produced.

(C)

Specific requirements.—

(i)

In general.—

The Bank shall—

(I)

publish in the Federal Register a notice of the application proposing the transaction;

(II)

provide a period of not less than 25 days for the submission to the Bank of comments on the application; and

(III)

notify the Committee on Banking, Housing, and Urban Affairs of the Senate, and the Committee on Financial Services of the House of Representatives of the application, and seek comments on the application from the Department of Commerce and the Office of Management and Budget.

(ii)

Content of notice.—

The notice published under clause (i)(I) with respect to an application for a loan or financial guarantee shall include appropriate information about—

(I)

a brief non-proprietary description of the purposes of the transaction and the anticipated use of any item being exported, including, to the extent the Bank is reasonably aware, whether the item may be used to produce exports or provide services in competition with the exportation of goods or the provision of services by a United States industry;

(II)

the identities of the obligor, principal supplier, and guarantor; and

(III)

a description, such as type or model number, of any item with respect to which Bank financing is being sought, but only to the extent the description does not disclose any information that is confidential or proprietary business information, that would violate the Trade Secrets Act, or that would jeopardize jobs in the United States by supplying information which competitors could use to compete with companies in the United States.

(D)

Procedure regarding materially changed applications.—

(i)

In general.—

If a material change is made to an application to which this paragraph applies, after a notice with respect to the application is published under subparagraph (C)(i)(I), the Bank shall publish in the Federal Register a revised notice of the application and provide for an additional comment period as provided in subparagraph (C)(i)(II).

(ii)

Material change defined.—

In clause (i), the term “material change”, with respect to an application for a loan or guarantee, includes an increase of at least 25 percent in the amount of a loan or guarantee requested in the application.

(E)

Requirement to address views of commenters.—

Before taking final action on an application to which this paragraph applies, the staff of the Bank shall provide in writing to the Board of Directors the views of any person who submitted comments on the application pursuant to this paragraph.

(F)

Publication of conclusions.—

Within 30 days after a final decision of the Board of Directors with respect to an application to which this paragraph applies, the Bank shall provide to a commenter on the application or the decision who makes a request therefor, a non-confidential summary of the facts found and conclusions reached in any detailed analysis or similar study with respect to the loan or guarantee that is the subject of the application, that was submitted to the Board of Directors. Such summary should be sent within 30 days of the receipt of the written request or date of the final decision of the Board of Directors, whichever is later.

(G)

Rule of interpretation.—

The obligations imposed by this paragraph shall not be interpreted to create, modify, or preclude any legal right of action.

(d)

Advisory Committee; appointment; composition; meetings; advice to Bank; report to Congress

(1)

(A)

There is established an Advisory Committee to consist of 17 members who shall be appointed by the Board of Directors on the recommendation of the President of the Bank.

(B)

Such members shall be broadly representative of environment, production, commerce, finance, agriculture, labor, services, State government, and the textile industry.

(2)

(A)

Not less than three members appointed to the Advisory Committee shall be representative of the small business community.

(B)

Not less than 2 members appointed to the Advisory Committee shall be representative of the labor community, except that no 2 representatives of the labor community shall be selected from the same labor union.

(C)

Not less than 2 members appointed to the Advisory Committee shall be representative of the environmental nongovernmental organization community, except that no 2 of the members shall be from the same environmental organization.

(3)

The Advisory Committee shall meet at least once each quarter.

(4)

The Advisory Committee shall advise the Bank on its programs, and shall submit, with the report specified in section 635(b)(1)(A) of this title, its own comments to the Congress on the extent to which the Bank is meeting its mandate to provide competitive financing to expand United States exports, and any suggestions for improvements in this regard.

(5)

In carrying out paragraph (4), the Advisory Committee shall consider ways to promote the financing of Bank transactions for the textile industry, consistent with the requirement that the Bank obtain a reasonable assurance of repayment, and determine ways to—

(A)

increase Bank support for the exports of textile components or inputs made in the United States; and

(B)

support the maintenance, promotion and expansion of jobs in the United States that are critical to the manufacture of textile components and inputs.

(e)

Conflicting personal interests

(1)

No director, officer, attorney, agent, or employee of the Bank shall in any manner, directly or indirectly, participate in the deliberation upon or the determination of any question affecting such individual’s personal interests, or the interests of any corporation, partnership or association in which such individual is directly or indirectly personally interested.

(2)

The General Counsel of the Bank shall ensure that the directors, officers, and employees of the Bank have available appropriate legal counsel for advice on, and oversight of, issues relating to personnel matters and other administrative law matters by designating an attorney to serve as Assistant General Counsel for Administration, whose duties, under the supervision of the General Counsel, shall be concerned solely or primarily with such issues.

(f)

Small Business Division

(1)

Establishment

There is established a Small Business Division (in this subsection referred to as the “Division”) within the Bank in order to—

(A)

carry out the provisions of subparagraphs (E) and (I) of section 635(b)(1) of this title relating to outreach, feedback, product improvement, and transaction advocacy for small business concerns (as defined in section 632(a) of title 15);

(B)

advise and seek feedback from small business concerns on the opportunities and benefits for small business concerns in the financing products offered by the Bank, with particular emphasis on conducting outreach, enhancing the tailoring of products to small business needs and increasing loans to small business concerns;

(C)

maintain liaison with the Small Business Administration and other departments and agencies in matters affecting small business concerns; and

(D)

provide oversight of the development, implementation, and operation of technology improvements to strengthen small business outreach, including the technology improvement required by section 635(b)(1)(E)(x) of this title.

(2)

Management

The President of the Bank shall appoint an officer, who shall rank not lower than senior vice president and whose sole executive function shall be to manage the Division. The officer shall—

(A)

have substantial recent experience in financing exports by small business concerns; and

(B)

advise the Board, particularly the director appointed under subsection (c)(8)(B) to represent the interests of small business, on matters of interest to, and concern for, small business.

(g)

Small business specialists

(1)

Dedicated personnel

(2)

Responsibilities

(3)

Approval authority

(4)

Identification

(5)

Employee evaluations

(6)

Staff recommendations

(7)

Rule of interpretation

(h)

Small Business Committee

(1)

Establishment

(2)

Purpose and duties

(A)

Purpose

(B)

Duties

The duties of the Small Business Committee shall be determined by the President of the Bank and shall include the following:

(i)

Assisting in the development of the Bank’s small business strategic plans, including the Bank’s plans for carrying out section 635(b)(1)(E) (v) and (x) of this title, and measuring and reporting in writing to the President of the Bank, at least once a year, on the Bank’s progress in achieving the goals set forth in the plans.

(ii)

Evaluating and reporting in writing to the President of the Bank, at least once a year, with respect to—

(I)

the performance of each operating division of the Bank in serving small business concerns;

(II)

the impact of processing and underwriting standards on transactions involving direct exports by small business concerns; and

(III)

the adequacy of the staffing and resources of the Small Business Division.

(iii)

Establishing criteria for evaluating the performance of staff designated by the President of the Bank under subsection (g)(1).

(iv)

Coordinating the provision of services with other United States Government departments and agencies to small business concerns.

(3)

Composition

(A)

Chairperson

(B)

Other members

Except as otherwise provided in this subsection, the President of the Bank shall determine the composition of the Small Business Committee, and shall appoint or remove the members of the Small Business Committee. In making such appointments, the President of the Bank shall ensure that the Small Business Committee is comprised of—

(i)

the senior managing officers responsible for underwriting and processing transactions; and

(ii)

other officers and employees of the Bank with responsibility for outreach to small business concerns and underwriting and processing transactions that involve small business concerns.

(4)

Reporting

(i)

Office of financing for socially and economically disadvantaged small business concerns and small business concerns owned by women

(1)

Establishment

(2)

Management

(3)

Staffing

(j)

Authority to use portion of bank surplus to update information technology systems

(1)

In general

Subject to paragraphs (3) and (4), the Bank may use an amount equal to 1.25 percent of the surplus of the Bank during fiscal years 2015 through 2019 to—

(A)

seek to remedy any of the operational weakness and risk management vulnerabilities of the Bank which are the result of the information technology system of the Bank;

(B)

remedy data fragmentation, enhance information flow throughout the Bank, and manage data across the Bank; and

(C)

enhance the operational capacity and risk management capabilities of the Bank to better enable the Bank to increase exports and grow jobs while protecting the taxpayer.

(2)

Surplus

In paragraph (1), the term “surplus” means the amount (if any) by which—

(A)

the sum of the interest and fees collected by the Bank; exceeds

(B)

the sum of—

(i)

the funds set aside to cover expected losses on transactions financed by the Bank; and

(ii)

the costs incurred to cover the administrative expenses of the Bank.

(3)

Limitation

(4)

Subject to appropriations

(k)

Office of Ethics

(1)

Establishment

(2)

Head of office

(A)

In general

(B)

Appointment

Not later than 180 days after December 4, 2015, the Chief Ethics Officer shall be—

(i)

appointed by the President of the Bank from among persons—

(I)

with a background in law who have experience in the fields of law and ethics; and

(II)

who are not serving in a position requiring appointment by the President of the United States before being appointed to be Chief Ethics Officer; and

(ii)

approved by the Board.

(C)

Designated agency ethics official

(3)

Duties

The Office of Ethics has jurisdiction over all employees of, and ethics matters relating to, the Bank. With respect to employees of the Bank, the Office of Ethics shall—

(A)

recommend administrative actions to establish or enforce standards of official conduct;

(B)

refer to the Office of the Inspector General of the Bank alleged violations of—

(i)

the standards of ethical conduct applicable to employees of the Bank under parts 2635 and 6201 of title 5, Code of Federal Regulations;

(ii)

the standards of ethical conduct established by the Chief Ethics Officer; and

(iii)

any other laws, rules, or regulations governing the performance of official duties or the discharge of official responsibilities that are applicable to employees of the Bank;

(C)

report to appropriate Federal or State authorities substantial evidence of a violation of any law applicable to the performance of official duties that may have been disclosed to the Office of Ethics; and

(D)

render advisory opinions regarding the propriety of any current or proposed conduct of an employee or contractor of the Bank, and issue general guidance on such matters as necessary.

(l)

Chief Risk Officer

(1)

In general

There shall be a Chief Risk Officer of the Bank, who shall—

(A)

oversee all issues relating to risk within the Bank; and

(B)

report to the President of the Bank.

(2)

Appointment

Not later than 180 days after December 4, 2015, the Chief Risk Officer shall be—

(A)

appointed by the President of the Bank from among persons—

(i)

with a demonstrated ability in the general management of, and knowledge of and extensive practical experience in, financial risk evaluation practices in large governmental or business entities; and

(ii)

who are not serving in a position requiring appointment by the President of the United States before being appointed to be Chief Risk Officer; and

(B)

approved by the Board.

(3)

Duties

The duties of the Chief Risk Officer are—

(A)

to be responsible for all matters related to managing and mitigating all risk to which the Bank is exposed, including the programs and operations of the Bank;

(B)

to establish policies and processes for risk oversight, the monitoring of management compliance with risk limits, and the management of risk exposures and risk controls across the Bank;

(C)

to be responsible for the planning and execution of all Bank risk management activities, including policies, reporting, and systems to achieve strategic risk objectives;

(D)

to develop an integrated risk management program that includes identifying, prioritizing, measuring, monitoring, and managing internal control and operating risks and other identified risks;

(E)

to ensure that the process for risk assessment and underwriting for individual transactions considers how each such transaction considers the effect of the transaction on the concentration of exposure in the overall portfolio of the Bank, taking into account fees, collateralization, and historic default rates; and

(F)

to review the adequacy of the use by the Bank of qualitative metrics to assess the risk of default under various scenarios.

(m)

Risk Management Committee

(1)

Establishment

(2)

Membership

(3)

Duties

The duties of the Risk Management Committee shall be—

(A)

to oversee, in conjunction with the Office of the Chief Financial Officer of the Bank—

(i)

periodic stress testing on the entire Bank portfolio, reflecting different market, industry, and macroeconomic scenarios, and consistent with common practices of commercial and multilateral development banks; and

(ii)

the monitoring of industry, geographic, and obligor exposure levels; and

(B)

to review all required reports on the default rate of the Bank before submission to Congress under section 635g(g) of this title.

(July 31, 1945, ch. 341, § 3, 59 Stat. 527; Aug. 9, 1954, ch. 660, § 1, 68 Stat. 677; Pub. L. 90–267, § 1(a), (d), Mar. 13, 1968, 82 Stat. 47, 49; Pub. L. 98–181, title I [title VI, §§ 613, 614(a), 620(b)], Nov. 30, 1983, 97 Stat. 1255, 1261; Pub. L. 99–472, § 18, Oct. 15, 1986, 100 Stat. 1205; Pub. L. 102–429, title I, § 113, Oct. 21, 1992, 106 Stat. 2195; Pub. L. 105–121, §§ 6, 8, Nov. 26, 1997, 111 Stat. 2529, 2530; Pub. L. 106–46, § 1(a), Aug. 11, 1999, 113 Stat. 227; Pub. L. 107–189, § 24(b)(4), June 14, 2002, 116 Stat. 709; Pub. L. 109–438, §§ 6(a), 14(a), 15, 18(a), Dec. 20, 2006, 120 Stat. 3270, 3280, 3281; Pub. L. 112–122, §§ 9(a), 19–20(b)(1), May 30, 2012, 126 Stat. 354, 361, 362; Pub. L. 114–94, div. E, title LI, §§ 51004–51006(a), title LIII, § 53002, title LIV, § 54002(c), Dec. 4, 2015, 129 Stat. 1764–1766, 1768, 1769; Pub. L. 116–94, div. I, title IV, § 409(a), Dec. 20, 2019, 133 Stat. 3025; Pub. L. 117–286, § 4(c)(22), Dec. 27, 2022, 136 Stat. 4357.)

cite as: 12 USC 635a