12 U.S.C. § 635a — Management of Bank

(a) Establishment as an independent agency. The Export-Import Bank of the United States is an independent United States agency. Congress may provide by law for the Bank, or any of its functions, powers, or duties, to be transferred to or combined with another government department, agency, or corporation; otherwise, that may not happen.

(b) President and First Vice President. The President of the United States appoints the Bank's President, with the Senate's advice and consent. The President of the Bank is the Bank's chief executive officer. The President of the United States also appoints the Bank's First Vice President, with the Senate's advice and consent. The First Vice President serves as Bank President when the President is absent or unable to serve, or when that office is vacant. At other times, the First Vice President performs functions that the Bank President assigns.

(c) Board of Directors. (1) The Bank has a Board of Directors. It consists of the Bank President, who is the Chair; the First Vice President, who is the Vice Chair; and three other people appointed by the President of the United States with the Senate's advice and consent.

(2) No more than three of the five Board members may belong to the same political party.

(3) Omitted.

(4) Before beginning work, each director^* must swear an oath to carry out the office's duties faithfully.

(5) Besides serving on the Board, directors must perform additional duties and may hold other Bank administrative offices that the Bank President assigns.

(6)(A) At least three Board members are needed for a quorum.

(B)(i) If there are too few directors for a quorum under subparagraph (A) for 120 consecutive days during a President's term, a temporary Board acts instead of the Board of Directors. It consists of the United States Trade Representative, the Secretary of the Treasury, the Secretary of Commerce, and the members of the Board of Directors.

(ii) At a temporary Board meeting, if a Board member listed in clause (i)(IV) is present, that member chairs the meeting consistently with the Bank's bylaws. If none is present, the United States Trade Representative chairs it.

(iii) The United States Trade Representative, the Secretary of the Treasury, or the Secretary of Commerce may delegate authority to vote on whether to authorize a transaction worth no more than $100,000,000. The Trade Representative may delegate to the Deputy United States Trade Representative. The Secretary of the Treasury or Commerce may delegate to the Deputy Secretary of the department named in the relevant subclause.

(iv) If every temporary Board member belongs to one political party, the President of the United States must, as far as practicable, appoint a qualified person^* from another political party who holds a position requiring presidential nomination and Senate consent.

(v) The temporary Board may not change or amend Bank policies, procedures, bylaws, or guidelines.

(vi) The temporary Board ends when the term of the President who was in office when it was formed ends, or when a Board quorum is restored under subparagraph (A), whichever occurs first.

(vii) For a transaction worth $100,000,000 or more, the temporary Board's Chair must ensure that the Bank follows section 635(b)(3) of this title.

(7) The Board must adopt bylaws needed to manage and operate the Bank properly. It may amend them from time to time. The bylaws must name the Bank's vice presidents and other officers and state^* their duties.

(8)(A) Directors' terms, including the Bank President's and First Vice President's terms, last four years. However: (i) during their terms, directors serve at the pleasure of the President of the United States; (ii) a director appointed after November 30, 1983, to serve before January 20, 1985, has a term ending January 20, 1985; (iii) of the directors first appointed to serve beginning on or after January 21, 1985, two directors other than the Bank President and First Vice President must receive two-year terms, as the President of the United States designates when appointing them; and (iv) a director first appointed for a term beginning after January 21, 1985, serves only the remainder of the period for which that director would have been appointed if the term had begun January 21, 1985. If that period would have ended before the actual start date, the director receives the four-year period, or the part remaining, as if a director whose term began January 21, 1985, had served immediately before.

(B) At least one of the five Board members appointed by the President must come from the small-business community and represent small-business interests.

(C) A person appointed to fill a vacancy serves only the rest of the predecessor's unexpired term.

(D) A director whose term has ended may be appointed again.

(E) A director whose term has ended may continue serving until the earlier of the date the successor qualifies or the end of six months after the term ended.

(9) If any two Board members ask, the Chair must put a Bank policy or procedure on the Board's discussion agenda. Within 30 days after the request, the Chair must hold a Board meeting to discuss it.

(10) Notice and comments. (A) Before a Board meeting to make a final decision on a long-term transaction worth more than $100,000,000, and at the same time as any statement required under section 635(b)(3) of this title, the Bank must provide notice and an opportunity for comments.

(B) To decide whether the transaction exceeds that threshold, the Bank must add the proposed transaction's dollar amount to the dollar amounts of all long-term loans and guarantees the Bank approved during the prior 12 months that involved the same foreign entity and substantially the same product to be produced.

(C)(i) The Bank must publish a Federal Register notice of the application proposing the transaction; allow at least 25 days for comments on the application; notify the Senate Committee on Banking, Housing, and Urban Affairs and the House Committee on Financial Services; and seek comments from the Department of Commerce and the Office of Management and Budget.

(ii) For an application for a loan or financial guarantee, the notice must appropriately describe: (I) the transaction's purposes and the expected use of each exported item, without proprietary information, including, to the extent the Bank reasonably knows, whether the item may be used to produce exports or provide services competing with goods or services from a United States industry; (II) the obligor, principal supplier, and guarantor; and (III) the type, model number, or other description of an item for which Bank financing is sought, but only if the description does not disclose confidential or proprietary business information, violate the Trade Secrets Act, or endanger United States jobs by giving competitors information they could use against United States companies.

(D)(i) If an application materially changes after its notice is published, the Bank must publish a revised Federal Register notice and provide another comment period under subparagraph (C)(i)(II). (ii) For a loan or guarantee application, a “material change” includes increasing the requested loan or guarantee by at least 25 percent. This section does not define “material change” more broadly.

(E) Before final action on the application, Bank staff must give the Board a written statement of the views of every person who commented under this paragraph.

(F) Within 30 days after the Board's final decision, the Bank must give a commenter who requests it a non-confidential summary of the facts found and conclusions reached in any detailed analysis or similar study about the loan or guarantee that was submitted to the Board. The summary should be sent within 30 days after the later of the written request or the Board's final decision.

(G) These duties do not create, change, or prevent any legal right to bring an action.

(d) Advisory Committee. (1)(A) The Board must establish an Advisory Committee with 17 members. The Board appoints them on the Bank President's recommendation. (B) The members must broadly represent environmental interests, production, commerce, finance, agriculture, labor, services, State government, and the textile industry.

(2)(A) At least three members must represent small business. (B) At least two must represent labor, and no two labor representatives may come from the same union. (C) At least two must represent environmental nongovernmental organizations, and no two may come from the same environmental organization.

(3) The Advisory Committee must meet at least once every quarter.

(4) It must advise the Bank about its programs. With the report described in section 635(b)(1)(A) of this title, it must send Congress its own comments on how well the Bank is meeting its duty to provide competitive financing that expands United States exports, plus suggestions for improvement.

(5) In doing that work, the Committee must consider ways to finance textile-industry transactions while maintaining the requirement that the Bank have reasonable assurance of repayment. It must find ways to (A) increase Bank support for United States-made textile components or inputs and (B) support maintaining, promoting, and expanding United States jobs that are important to making textile components and inputs.

(e) Conflicting personal interests. (1) A Bank director, officer, attorney, agent, or employee may not directly or indirectly take part in discussing or deciding a question that affects that person's personal interests or the interests of a corporation, partnership, or association in which that person has a direct or indirect personal interest. (2) The Bank's General Counsel must make sure directors, officers, and employees have suitable legal counsel for advice and oversight about personnel and other administrative-law matters. The General Counsel must designate an attorney as Assistant General Counsel for Administration. Under the General Counsel's supervision, that attorney's duties must concern those matters solely or primarily.

(f) Small Business Division. (1) Establishment. The Bank must establish a Small Business Division, called the “Division” in this subsection, to: (A) carry out section 635(b)(1)(E) and (I) provisions about outreach, feedback, improving products, and advocating for transactions for small-business concerns, as defined in section 632(a) of title 15; (B) advise small-business concerns and seek their feedback about opportunities and benefits in Bank financing products, especially through outreach, tailoring products to small-business needs, and increasing loans to small-business concerns; (C) work with the Small Business Administration and other departments and agencies on matters affecting small-business concerns; and (D) oversee developing, implementing, and operating technology improvements that strengthen outreach to small businesses, including the improvement required by section 635(b)(1)(E)(x) of this title.

(2) Management. The Bank President must appoint an officer ranked at least senior vice president whose only executive function is managing the Division. That officer must (A) have substantial recent experience financing exports by small-business concerns and (B) advise the Board, especially the director appointed under subsection (c)(8)(B) to represent small-business interests, about matters affecting small business.

(g) Small-business specialists. (1) The Bank President must ensure that every operating division has staff specializing in processing transactions that primarily benefit small-business concerns, as defined in section 632(a) of title 15.

(2) These specialists must take part in every aspect of processing loan, guarantee, and insurance applications supporting exports by small-business concerns, including approving or denying applications or making staff recommendations to approve or deny them, as applicable. They must consider small businesses' unique requirements and develop exporter-performance standards tailored to small-business exporters.

(3) To make processing these transactions faster and more efficient, the specialists may approve applications for working-capital loans and guarantees and for insurance under Board policies and procedures. Congress states that those policies and procedures should not, when appropriate, stop specialists from approving applications supporting exports worth less than $25,000,000.

(4) The Bank must prominently identify the specialists on its website and in promotional materials.

(5) Evaluations of staff designated under paragraph (1), including yearly reviews of their duties concerning exports by small-business concerns and any recommendations for pay changes, promotions, or other personnel actions, must address the criteria established under subsection (h)(2)(B)(iii). The relevant operating-division manager must conduct the evaluations after consulting the Small Business Division's manager.

(6) Bank staff recommendations to deny or withdraw medium-term applications, exporter-held multi-buyer policies, single-buyer policies, and working-capital applications must be sent to the Division manager no later than two business days before the final decision.

(7) Nothing in this subchapter prevents delegating to the Division authority needed to carry out section 635(b)(1)(E) and (I) of this title.

(h) Small Business Committee. (1) The Bank must establish a management committee called the “Small Business Committee.”

(2)(A) Purpose. The Committee coordinates the Bank's small-business initiatives and policies concerning small-business concerns, as defined in section 632(a) of title 15. This includes promptly processing and underwriting transactions involving direct exports by small-business concerns and developing and coordinating new or improved Bank products and services for them.

(B) Duties. The Bank President determines the duties, which must include: (i) helping develop the Bank's small-business strategic plans, including plans under section 635(b)(1)(E)(v) and (x) of this title, and at least yearly measuring and reporting in writing to the Bank President on progress toward the plans' goals; (ii) at least yearly evaluating and reporting in writing to the Bank President on each operating division's service to small-business concerns, the effect of processing and underwriting standards on direct-export transactions by small-business concerns, and whether the Small Business Division has enough staff and resources; (iii) setting standards for evaluating staff designated under subsection (g)(1); and (iv) coordinating services for small-business concerns with other United States departments and agencies.

(3)(A) Chair. The Chair is the officer appointed to manage the Small Business Division under subsection (f)(2). The Chair may call meetings, set agendas, and ask Committee members for policy recommendations. (B) Other members. Unless this subsection says otherwise, the Bank President decides the Committee's membership and appoints or removes members. The President must include senior managing officers responsible for underwriting and processing transactions, and other Bank officers and employees responsible for outreach to small-business concerns and for underwriting or processing transactions involving them.

(4) The Chair must give the Bank President minutes of every Committee meeting, including recommendations by the Committee or individual members.

(i) Office for financing disadvantaged small businesses and women-owned small businesses. (1) The Bank President must establish an office in the Small Business Division whose only functions are continuing and improving Bank outreach to, and increasing the total loans, guarantees, and insurance the Bank provides to support exports by, socially and economically disadvantaged small-business concerns, as defined in section 637(a)(4) of title 15, and small-business concerns owned by women. (2) A suitably ranked Bank officer must manage the office and report to the officer designated under subsection (f)(2). (3) As far as practicable, when filling positions in the office, the Bank President must ensure that qualified minority and women applicants are considered.

(j) Use of part of surplus for information technology. (1) Subject to paragraphs (3) and (4), during fiscal years 2015 through 2019 the Bank may use an amount equal to 1.25 percent of its surplus to: (A) address operational weaknesses and risk-management vulnerabilities resulting from the Bank's information-technology system; (B) fix fragmented data, improve information flow throughout the Bank, and manage Bank-wide data; and (C) improve the Bank's operating capacity and risk-management ability so it can better increase exports and jobs while protecting taxpayers.

(2) “Surplus” means the amount, if any, by which (A) the Bank's collected interest and fees exceed (B) the total of money set aside for expected losses on Bank-financed transactions and costs to pay the Bank's administrative expenses.

(3) The total used under paragraph (1) for fiscal years 2015 through 2019 may not exceed $20,000,000. (4) The authority in paragraph (1) may be used only to the extent and in the amounts provided in advance by appropriations Acts.

(k) Office of Ethics. (1) The Bank must establish an Office of Ethics to oversee all Bank ethics issues. (2)(A) The office's head is the Chief Ethics Officer, who reports to the Board. (B) No later than 180 days after December 4, 2015, the Bank President must appoint the Chief Ethics Officer, and the Board must approve the appointment. The appointee must have a legal background and experience in law and ethics and must not, before appointment, hold a position requiring appointment by the President of the United States. (C) The Chief Ethics Officer serves as the Bank's designated agency ethics official under chapter 131 of title 5.

(3) The Office of Ethics has authority over every Bank employee and every ethics matter concerning the Bank. For Bank employees, it must (A) recommend administrative actions to establish or enforce official-conduct standards; (B) refer to the Bank Inspector General alleged violations of (i) the ethical-conduct standards applicable under parts 2635 and 6201 of title 5, Code of Federal Regulations, (ii) standards set by the Chief Ethics Officer, and (iii) other laws, rules, or regulations governing official duties or responsibilities that apply to Bank employees; (C) report substantial evidence of a violation of a law applying to official duties to the appropriate Federal or State authorities if the Office learned of it; and (D) give advisory opinions about whether current or proposed conduct by a Bank employee or contractor is proper, and issue general guidance as needed.

(l) Chief Risk Officer. (1) The Bank must have a Chief Risk Officer who oversees every Bank risk issue and reports to the Bank President. (2) No later than 180 days after December 4, 2015, the Bank President must appoint the Chief Risk Officer and the Board must approve the appointment. The appointee must have demonstrated general-management ability and knowledge of, and extensive practical experience with, financial-risk evaluation practices in large government or business entities. The person also must not, before appointment, hold a position requiring appointment by the President of the United States.

(3) The Chief Risk Officer must: (A) handle all matters involving management and reduction of every risk to which the Bank is exposed, including program and operating risks; (B) establish risk-oversight policies and processes, monitor management's compliance with risk limits, and manage exposures and controls throughout the Bank; (C) plan and carry out all Bank risk-management activities, including policies, reports, and systems for strategic risk goals; (D) develop an integrated program for identifying, ranking, measuring, monitoring, and managing internal-control, operating, and other identified risks; (E) ensure that risk assessment and underwriting for each transaction considers that transaction's effect on concentration of exposure in the Bank's whole portfolio, taking account of fees, collateral, and historical default rates; and (F) review whether the Bank adequately uses qualitative measures to assess default risk under different scenarios.

(m) Risk Management Committee. (1) The Bank must establish a management committee called the “Risk Management Committee.” (2) Its members are the Board members, and the Bank President and First Vice President serve as members by virtue of their offices. (3) The Committee must, with the Bank Chief Financial Officer's office, oversee (A)(i) regular stress tests of the entire Bank portfolio using different market, industry, and broad economic scenarios and consistent with common commercial and multilateral development-bank practices, and (ii) monitoring industry, geographic, and obligor exposure levels. It must also (B) review every required Bank default-rate report before it is sent to Congress under section 635g(g) of this title.