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Ex-Im Bank Charter: Section 2e

Sec. 2(e) Limitation on assistance which adversely affect[s] the United States.
(1) In general.  The Bank may not extend any direct credit or financial guarantee for establishing or expanding production of any commodity for export by any country other than the United States, if --
(A)  the Bank determines that --
(i)  the commodity is likely to be in surplus on world markets at the time the resulting commodity will first be sold; or
(ii)  the resulting production capacity is expected to compete with United States production of the same, similar, or competing commodity; and
(B)  the Bank determines that the extension of such credit or guarantee will cause substantial injury to United States producers of the same, similar, or competing commodity.
In making the determination under subparagraph (B), the Bank shall determine whether the facility that would benefit from the extension of a credit or guarantee is reasonably likely to produce a commodity in addition to, or other than, the commodity specified in the application and whether the production of the additional commodity may cause substantial injury to United States producers of the same, or a similar or competing, commodity.

Sec. 2(e)(2) Outstanding Orders and Preliminary Injury Determinations.
(A) Orders.- The Bank shall not provide any loan or guarantee to an entity for the resulting production of substantially the same product that is the subject of--
(i) a countervailing duty or antidumping order under title VII of the Tariff Act of 1930; or
(ii) a determination under title II of the Trade Act of 1974.
(B) Affirmative Determination.- Within 60 days after the date of the enactment of this paragraph, the Bank shall establish procedures regarding loans or guarantees provided to any entity that is subject to a preliminary determination of a reasonable indication of material injury to an industry under title VII of the Tariff Act of 1930. The procedures shall help to ensure that these loans and guarantees are likely to not result in a significant increase in imports of substantially the same product covered by the preliminary determination and are likely to not have a significant adverse impact on the domestic industry. The Bank shall report to the Committee on Financial Services of the House of Representatives and the Committee on Banking, Housing, and Urban Affairs of the Senate on the implementation of these procedures.
(C) Comment Period.- The Bank shall establish procedures under which the Bank shall notify interested parties and provide a comment period of not less than 14 days (which, on request of any affected party, shall be extended to a period of not more than 30 days) with regard to loans or guarantees reviewed pursuant to subparagraph (B) or (D).
(D) Consideration of Investigations under Title II of the Trade Act of 1974.- In making any determination under paragraph (1) for a transaction involving more than $10,000,000, the Bank shall consider investigations under title II of the Trade Act of 1974 that have been initiated at the request of the President of the United States, the United States Trade Representative, the Committee on Finance of the Senate, or the Committee on Ways and Means of the House of Representatives, or by the International Trade Commission on its own motion.
(E) Anti-Circumvention. - The Bank shall not provide a loan or guarantee if the Bank determines that providing the loan or guarantee will facilitate circumvention of an order or determination referred to in subparagraph (A).

Sec. 2(e)(3) Exception. Paragraphs (1) and (2) shall not apply in any case where, in the judgment of the Board of Directors of the Bank, the short- and long-term benefits to industry and employment in the United States are likely to outweigh the short- and long-term injury to United States producers and employment of the same, similar, or competing commodity.

Sec. 2(e)(4) Definition.  For purposes of paragraph (1)(B), the extension of any credit or guarantee by the Bank will cause substantial injury if the amount of the capacity for production established, or the amount of the increase in such capacity expanded, by such credit or guarantee equals or exceeds 1 percent of United States production.

Sec. 2(e)(5) Designation of Sensitive Commercial Sectors and Products.- Not later than 120 days after the date of the enactment of this Act, the Bank shall submit a list to the Committee on Banking, Housing, and Urban Affairs of the Senate and the Committee on Financial Services of the House of Representatives, which designates sensitive commercial sectors and products with respect to which the provision of financing support by the Bank is deemed unlikely by the President of the Bank due to the significant potential for a determination that such financing support would result in an adverse economic impact on the United States. The President of the Bank shall review on an annual basis thereafter the list of sensitive commercial sectors and products and the Bank shall submit an updated list to the Committee on Banking, Housing, and Urban Affairs of the Senate and the Committee on Financial Services of the House of Representatives of such sectors and products.

Sec. 2(e)(6) Financial Threshold Determinations.- For purposes of determining whether a proposed transaction exceeds a financial threshold under this subsection or under the procedures or rules of the Bank, the Bank shall aggregate the dollar amount of the proposed transaction and the dollar amounts of all loans and guarantees, approved by the Bank in the preceding 24-month period, that involved the same foreign entity and substantially the same product to be produced.

Sec. 2(e)(7) Procedures to Reduce Adverse Effects of Loans and Guarantees on Industries and Employment in United States. -
(A) Consideration of Economic Effects of Proposed Transactions.- If, in making a determination under this paragraph with respect to a loan or guarantee, the Bank conducts a detailed economic impact analysis or similar study, the analysis or study, as the case may be, shall include consideration of--
(i) the factors set forth in subparagraphs (A) and (B) of paragraph (1); and
(ii) the views of the public and interested parties.
(B) Notice and Comment Requirements.-
(i) In General.- If, in making a determination under this subsection with respect to a loan or guarantee, the Bank intends to conduct a detailed economic impact analysis or similar study, the Bank shall publish in the Federal Register a notice of the intent, and provide a period of not less than 14 days (which, on request by any affected party, shall be extended to a period of not more than 30 days) for the submission to the Bank of comments on the economic effects of the provision of the loan or guarantee, including comments on the factors set forth in subparagraphs (A) and (B) of paragraph (1). In addition, the Bank shall seek comments on the economic effects from the Department of Commerce, the Office of Management and Budget, the Committee on Banking, Housing, and Urban Affairs of the Senate, and the Committee on Financial Services of the House of Representatives.
(ii) Content of Notice.- The notice shall include appropriate, nonproprietary information about--
(I) the country to which the goods involved in the transaction will be shipped;
(II) the type of goods being exported;
(III) the amount of the loan or guarantee involved;
(IV) the goods that would be produced as a result of the provision of the loan or guarantee;
(V) the amount of increased production that will result from the transaction;
(VI) the potential sales market for the resulting goods; and
(VII) the value of the transaction.
(iii) Procedure Regarding Materially Changed Applications.-
(I) In General.- If a material change is made to an application for a loan or guarantee from the Bank after a notice with respect to the intent described in clause (i) is published under this subparagraph, the Bank shall publish in the Federal Register a revised notice of the intent, and shall provide for a comment period, as provided in clauses (i) and (ii).
(II) Material Change Defined.- As used in subclause (I), the term `material change', with respect to an application, includes--
(aa) a change of at least 25 percent in the amount of a loan or guarantee requested in the application; and
(bb) a change in the principal product to be produced as a result of any transaction that would be facilitated by the provision of the loan or guarantee.
(C) Requirement to Address Views of Adversely Affected Persons.- Before taking final action on an application for a loan or guarantee to which this section applies, the staff of the Bank shall provide in writing to the Board of Directors the views of any person who submitted comments pursuant to subparagraph (B).
(D) Publication of Conclusions.- Within 30 days after a party affected by a final decision of the Board of Directors with respect to a loan or guarantee makes a written request therefor, the Bank shall provide to the affected party a non-confidential summary of the facts found and conclusions reached in any detailed economic impact analysis or similar study conducted pursuant to subparagraph (B) with respect to the loan or guarantee, that were submitted to the Board of Directors.
(E) Rule of Interpretation.- This paragraph shall not be construed to make subchapter II of chapter 5 of title 5, United States Code, applicable to the Bank.
(F) Regulations.- The Bank shall implement such regulations and procedures as may be appropriate to carry out this paragraph.