Export-Import Banks Economic Impact Procedures: An Overview
Report for Congress
Export-Import Bank’s Economic Impact
Procedures: An Overview
November 25, 2002
James K. Jackson
Specialist in International Trade and Finance
Foreign Affairs, Defense, and Trade Division
Congressional Research Service ˜ The Library of Congress
Export-Import Bank’s Economic Impact Procedures:
An Overview
Summary
On June 14, 2002, President Bush signed P.L. 107-189, the Export-Import Bank
Reauthorization Act of 2002. This Act made a number of changes to the Bank’s
charter, including changes in the way the Bank conducts its economic impact
analysis. Congress has balanced its directive to the Bank to aid in financing U.S.
exports with offsetting concerns over the potential adverse economic impact the
Bank’s programs may have on U.S. domestic employment. Congress altered the
Bank’s authorizing statutes relative to the way it provides its services to firms that
export equipment that foreign firms will use to boost their production of articles that
have been determined to be imported into the United States under certain “unfair”
trade practices. These changes stemmed primarily from Congressional objections to
the Bank’s approval in December 2000 of a loan guarantee for a project that resulted
in increased steel-making capacity in China at the same time the Bush Administration
was considering measures to protect the U.S. steel industry from steel products
imported from abroad.
Changes to the Bank’s statute require it to automatically deny its services to
firms for exports of capital equipment or other goods that foreign producers will use
to increase their production of items that are the same as or substantially the same as
those that are subject to an antidumping, countervailing duty, or a “Section 201"
order. The Bank is also required to develop a set of policies to address the conditions
under which it must deny its services to firms that export equipment or other items
that could be used by foreign producers to increase their production of goods that are
subject to a preliminary, rather than a final, injury determination in an antidumping
or countervailing duty investigation or in a Section 201 injury determination.
These changes to the Bank’s statute mean that a potentially larger number of
U.S. firms and their products could be ineligible for Eximbank’s services, but this
conclusion is only tentative. Congress has granted the Bank broad discretionary
powers that allow it to provide its services to firms even if they have been subject to
a final duty order if the Bank determines that the overall damage to the U.S. economy
and workers outweigh the benefits that would accrue to a smaller group of workers
and firms. It is even possible that the Bank could deny its services to firms that
ultimately are not subject to any final duty order or injury determination. This report
will be updated as events warrant.
Contents
Overview ....................................................1
Background ..................................................1
Countervailing, Antidumping, and Escape Clause Actions..............2
Eximbank’s Economic Impact Procedures..........................4
Assessment ...................................................6
List of Tables
Table 1. Comparative Procedures for a Countervailing and Antidumping Duty
Investigation ..................................................8
Table 2. Procedures for a Section 201 “Escape Clause” Investigation
(Conducted by the International Trade Commission)..................10
Export-Import Bank’s Economic Impact
Procedures: An Overview
Overview
On June 14, 2002, President Bush signed P.L. 107-189 (S. 1372), the Export-
Import Bank Reauthorization Act of 2002. This Act made a number of changes to
the Bank’s charter, including changes in the way the Bank conducts its economic
impact analysis. These changes prohibit the Bank from providing loans or guarantees
for exports of goods, primarily capital equipment, that foreign firms can use to
increase their production of goods that are “substantially the same” as products that
are subject to a countervailing or antidumping duty order under title VII of the Tariff
Act of 1930, or a determination under title II (“escape clause relief”) of the Trade Act
of 1974. The Bank is also required to develop a set of policies regarding exports of
equipment that foreign firms can use in the production of items that are subject to a
preliminary, rather that a final, injury determination. As a result of these changes, the
Bank issued a draft of its revised economic impact procedures on September 6, 2002
and is soliciting public comments before it finalizes those procedures.
Background
The Export-Import Bank (Eximbank) is an independent U.S. government agency
that is charged with financing and promoting exports of U.S. goods and services. To
accomplish these goals, Eximbank uses its authority and resources to: assume
commercial and political risks that exporters or private financial institutions are
unwilling, or unable, to undertake alone; overcome maturity and other limitations in
private sector export financing; assist U.S. exporters to meet foreign, officially
sponsored, export credit competition; and provide guidance and advice to U.S.
exporters and commercial banks and foreign borrowers. The Bank operates under
a renewable charter, the Export-Import Bank Act of 1945, as amended, and has been
authorized through September 30, 2006.
Congress has directed the Bank through its authorizing legislation to balance a
number of potentially competing directives in conducting its loan and guarantee
activities. In particular, Congress has voiced concerns on a number of occasions over
the potential adverse repercussions the Bank’s activities could have on U.S. firms or
industries. As a result, Congress has balanced its directive to the Bank to aid in
financing U.S. exports with offsetting concerns over the potential adverse economic
impact the Bank’s programs may have on U.S. domestic employment, particularly
if the Bank’s programs assist foreign firms or industries that could become rivals to
U.S. domestic firms or industries. To emphasize this point, Congress directed the
Bank in the 1970s to:
...take into account any serious adverse effect of such loans or guarantees
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.1
In the 1980s, Congress further stressed this point by specifically directing the
Bank to consider the economic impact of its activities, especially if those activities
caused “substantial” injury to U.S. producers. Congress also directed the Bank to
deny its services to activities that established or expanded foreign production of any
commodity for export if the Bank determined 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.2
Congress also directed the Bank to consider the financial viability of a project
as a factor in determining whether to extend its programs to a project by expecting
the project to offer a “reasonable assurance of repayment.”3 Furthermore, Congress
limited the ability of the Bank to deny certain types of applications by directing the
Bank not to deny applications for “nonfinancial or noncommercial considerations,”
except in specific cases where the President, in consultation with Congress,
determines that such a denial would be in the U.S. national interest by advancing
U.S. policy in such areas as international terrorism, nuclear proliferation,
environmental protection and human rights (including child labor).4
Countervailing, Antidumping, and Escape Clause Actions
In order to carry out the various directives and requirements Congress has
placed on it, the Bank developed a set of Economic Impact Procedures. As part of
those procedures, the Bank decided that it would automatically deny its services to
exports of items to foreign firms if the items could be used to produce or to expand
the production of goods that had been the subject of a final countervailing or
antidumping duty order. Antidumping, countervailing duty and Section 201 orders
are three methods the United States has adopted to give relief to U.S. industries that
face certain types of unfair competition from abroad. As table 1 indicates, there are
five possible stages to a countervailing or antidumping procedure: an investigation;
1 12 U.S.C. Sec. 635 (b)(1)(B); P.L. 92-126 (Aug. 17, 1971): P.L. 93-646 (Jan. 4, 1975): P.L.
2 12 U.S.C. Sec. 635 (e)(1)(A): P.L. 99-472 (Oct. 15, 1986).
3 12 U.S.C. Sec. 635 (b)(1)(B)
4 Ibid.
preliminary International Trade Commission (ITC) and Department of Commerce
(DOC) determinations; and final DOC and ITC determinations.
Countervailing and antidumping duty law5, as contained in title VII of the Tariff
Act of 1930, as amended, aims to offset any unfair competitive advantage foreign
manufacturers or exporters may have as a result of foreign subsidies or sales at less
than fair market value that causes or threatens injury to U.S. producers. As a result,
investigations conducted under these statutes concern the actions of a specific foreign
country with respect to U.S. imports from that country. Countervailing duties can be
imposed when two conditions are met: 1) the Commerce Department determines that
a good that is being imported into the United States is receiving a subsidy in the
manufacturing, production, or exportation; and 2) the ITC determines that a US
industry thereby is being materially injured or is threatened with material injury, or
that the overall health of the U.S. industry is being materially retarded. If these
investigations result in affirmative determinations, duties equal to the net amount of
the subsidies are imposed upon imports of the subsidized goods into the United
States.
Antidumping provisions concern investigations into whether an imported article
is sold in the United States at less than fair value and causes or threatens to cause
material injury to a domestic industry. Dumping, therefore, is a form of international
price discrimination in which goods are sold in the importing market at prices that
are lower than the prices at which comparable goods are sold in their home market
or in third country markets. In both types of procedures, both the DOC and the ITC
conduct preliminary and final investigations that lead to respective determinations
(see table 1).
“Section 201" law (sections 201 to 204 of the Trade Act of 1974 [19 U.S.C.
sections 2251 to 2254]) concerns investigations by the International Trade
Commission into whether goods are being imported into the United States in such
increased quantities that they are a substantial cause of or threaten to cause serious
injury to a U.S. industry.6 Termed an “escape clause” mechanism, or global
safeguards, these provisions authorize the President to withdraw or modify
concessions and impose duties or other restrictions on imports of any article which
is determined to cause or to threaten such injury to producing a like or directly
competitive article. These investigations generally are broader in scope than
countervailing or antidumping duty investigations and their remedies apply to any
number of countries that are exporting a particular item to the United States. A
Section 201 action does not require a finding of an unfair trade practice, but requires
that the injury or threatened injury be “serious,” rather than merely “material,” and
that the increased imports must be a “substantial cause” of the injury. As indicated
in table 2, there are four stages to a Section 201 case: an investigation; an ITC injury
determination; ITC relief recommendations; and Presidential action.
5 Reproduced in: Antidumping and Countervailing Duty Handbook, Ninth Edition, United
States International Trade Commission, December 2001.
6 Summary of Statutory Provisions Related to Import Relief, United States International
Trade Commission, January 1996.
Eximbank’s Economic Impact Procedures
P.L. 107-189 made a number of changes to the statutes authorizing the Bank,
including the conditions under which it must deny its services to U.S. firms for
exporting items to foreign producers that could be used to manufacture items that are
subject to an antidumping or countervailing duty order or a Section 201 investigation.
Under section 18 of P.L. 107-189, titled “Outstanding Orders and Preliminary Injury
Determinations,” the Bank is prohibited from extending loans or guarantees
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 1974.7
In addition, Congress directed the Bank to
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 economy.8
This change to the Bank’s statutes was driven in large part by Congressional
objections to the Bank’s approval in December 2000 of a loan guarantee for a project
that resulted in increased steel-making capacity in China. The Eximbank approval
consisted of an $18 million medium-term loan guarantee to support a $21.7 million
export of computer software, control systems and main drive power supplies by
General Electric Company and other U.S. suppliers to the Benxi Iron & Steel
Company, Benxi, Liaoning, China. The Bank’s Board of Directors approved the loan
guarantee even though the members knew it would be used to increase steel making
capacity at the plant. They based their decision on an estimate by GE that the deal
would support 300 jobs at the GE plant in Salem, Virginia that would supply the
equipment and on indications by the Chinese that if Eximbank denied the guarantee
they would procure similar equipment from French and German companies. In this
case, the Bank reasoned, the plant modernization would occur regardless of the
Eximbank guarantee, so that by supplying the guarantee the U.S. would at least
benefit from the sale of the equipment.9 Some Members of Congress, however,
rejected this line of reasoning and questioned how the Bank could approve such a
7 P.L. 107-189, Sec. 18.
8 Ibid.
9 Ex-Im Bank Supports $22 Million Sale of U.S. Equipment to China, Press release, Export-
Import Bank, January 2, 2001.
project when “the existence of excessive foreign steel capacity was well known and
the domestic steel industry was in a state of severe crisis...”10
The most notable change for the Bank affects the markers it must use to evaluate
whether certain kinds of exports by U.S. firms qualify for its services. According to
P.L. 107-189, Eximbank is directed to deny its services to exports by U.S. firms if
the item in question could enable a foreign buyer to establish or increase production
capacity of an item that is the subject of a countervailing or antidumping duty order
under title VII. In addition, P.L. 107-189 directs the Bank to “establish procedures”
as a part of its overall decision-making process that set criteria for denying its
services for U.S. exports that foreign producers could use to help manufacture
products that are subject to a countervailing or antidumping duty investigation as
soon as the ITC has made an affirmative preliminary determination of a reasonable
indication of material injury, rather than waiting for a final injury determination. In
these procedures, the Bank is directed to ensure that its activities “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.”11
Regarding Section 201 cases, Congress directs the Bank to deny its programs
to U.S. firms for exports that can assist a foreign buyer in establishing or in
increasing production of articles that are the subject of an affirmative ITC injury
determination, regardless of any subsequent ITC relief recommendations and
Presidential actions. For instance, the Bank would be prohibited from providing its
services to U.S. firms that are shipping computer equipment to a foreign buyer if the
buyer is using the equipment to produce steel products once the ITC announced its
injury determination. In cases involving transactions over $10 million, Congress also
directed the Bank that it “shall consider investigations ... that have been initiated at
the request of the President of the United States, the United States Trade
Representative (USTR), 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.”12 This seems to mean that the Bank is specifically
required to look at those cases that have been initiated by the government entities
when the transaction is over $10 million. It is unclear if the Bank is similarly
required to look at cases that are initiated by other entities.
10 Senate Report 107-52, August 3, 2001.
11 Prior to passage of P.L. 107-189, the Bank automatically reviewed as part of its own
internal procedures the potential economic impact of projects by firms that were subject to
a preliminary countervailing or antidumping duty determination if the transaction totaled
more than $10 million and if the Bank believed the transaction posed the risk of “substantial
injury” to U.S. firms, or if the transaction could affect more than 1% of U.S. production in
the affected industry. See: Economic Impact Proposal, Export-Import Bank, September 6,
12 P.L. 107-189, Sec. 18. Based on past experience, initiation of Section 201 investigations
in this manner is quite rare, since most such investigations are initiated by petitions filed by
the affected industry and/or labor.
According to the statutes, as amended by P.L. 107-189, the Bank can exercise
some discretion in deciding whether to deny its programs to a project regardless of
a preliminary or final determination in an antidumping, countervailing, or Section
201 case. Congress also made the new provision detailed above regarding Section
201 cases over $10 million subject to an existing provision that allows the Bank to
balance other interests against those advanced in the provision. It seems that in
giving the Bank this discretionary authority, Congress intended to have the Bank
weigh carefully the short- and long-term economic effects of such decisions on the
U.S. economy as a whole relative to the potential economic injury encountered by
any particular industry. This broad exception states that:
Exception - Paragraphs (1) and (2) shall not apply in any case where, in the
judgement 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.13
Assessment
P.L. 107-189 made a number of changes to the Export-Import Bank’s statute
that could potentially deny the Bank’s programs to a broad group of U.S. firms. The
legislation requires the Bank to deny its services to U.S. firms that export items that
foreign buyers could use to establish or increase their production of articles that are
subject to a remedial duty order in injurious unfair practice cases, or to an ITC’s
determination of injury in Section 201 cases. This change is similar to the Bank’s
existing internal procedures, which require it to deny its services to U.S. firms that
export goods that foreign buyers could use in their production of articles that are
subject to a duty order. In addition, the legislation requires the Bank to develop
procedures that could potentially cover U.S. firms that are exporting items that could
assist a foreign buyer in producing articles that are subject to a preliminary, rather
than a final, injury determination in unfair practice cases, or that are the subject of an
investigation in Section 201 cases, subject to the Bank’s own determination of
potential injury. Under these circumstances, a much broader group of exports
potentially could be determined to be ineligible to receive Eximbank’s services.
As a result of the broad discretionary powers Congress has given the Bank to
weigh various competing interests, it is not possible to determine with certainty the
extent to which the Bank’s actions regarding a broad group of U.S. firms that export
products that could be used to enhance foreign production of items that are subject
to antidumping, countervailing duty and Section 201 cases will be affected by P.L.
107-189. These powers allow the Bank to provide its services to firms that are
exporting products that can be used to produce items that have been subject to a final
duty order if the Bank determines that the overall damage to the U.S. economy and
workers by denying its services would outweigh the benefits that would accrue to a
smaller group of workers and firms. Moreover, it is possible that in some cases the
Bank could deny its services to U.S. firms for products that are exported to foreign
buyers that could be used in producing items that have been subject to an
13 12 U.S.C. 635 (e)(3), redesignated as a result of P.L. 107-189.
antidumping or countervailing duty preliminary affirmative injury determination that
are not subject to a final injury determination. In addition, the Bank could act in
certain escape clause cases initiated by government agencies against U.S. firms that
export products that foreign buyers could use to produce items that have been subject
to an affirmative escape clause injury determination, but not subject to any final
actions due to the broad discretionary powers that are available to the President, who
can accept, reject, or modify any ITC injury relief recommendations. For instance,
of the total of 72 escape clause cases that the ITC investigated under Section 201,
affirmative injury determination was made in 40 cases, but the President took
remedial action in only 15 cases, in many instances requiring less restrictive actions
than those recommended by the ITC. Of the 72 cases, only eight were initiated by
a government entity, and injury was found and remedy applied in seven of them.
On September 6, 2002, the Bank issued a draft of its revised economic impact
procedures, and held a public meeting on these proposals. It is currently soliciting
comments on those procedures. The draft included the ways in which the Bank
believes it needs to alter its economic impact procedures to comply with P.L. 107-
189, the various options the Bank is considering to address these changes, and those
options it is favoring. Once the Bank has finalized its procedures, it will announce
those procedures and make them available to the public. This report will be updated
once the new procedures are available.
Table 1. Comparative Procedures for a Countervailing and
Antidumping Duty Investigation
Procedures for a CountervailingProcedures for an Antidumping
Duty Investigation.Investigation.
Initiation of an Investigation.Initiation of an Investigation.
Who can initiate: Department ofSame.
Commerce; an interested party; a
manufacturer, producer, or wholesaler
in the United States of a like product;
a certified or organized union; a trade
or business association; a coalition of
firms; a coalition of trade associations.
Petitions filed with DOC andSame.
ITC; DOC must decide within 20 days
to commence investigation.
Preliminary ITC InjuryPreliminary ITC Injury
Determination. Determination.
Within 45 days of filing, the ITCSame.
must determine whether there is a
“reasonable indication” of material
injury.
If the ITC determination isSame.
negative, the investigation is
terminated; if the determination is
affirmative, the investigation
continues.
Preliminary DOC SubsidyPreliminary DOC LTFV
Determination. Determination.
Within 85 days of filing, theWithin 160 days after filing the
DOC must determine whether there ispetition, the DOC must determine
a “reasonable basis to believe orwhether there is a “reasonable basis to
suspect a subsidy is being provided.”believe or suspect that the
merchandise is being sold, or is likely
to be sold, at less than fair value
(LTFV).”
If the determination isSame.
affirmative, the DOC must include an
estimated amount of the net subsidy
and order the suspension of liquidation
of goods subject to the determination
(goods are admitted into the country
but not cleared because the duty and
the countervailing duty have not been
exacted) and the ITC must begin its
final injury investigation..
If the preliminary determinationSame.
is negative, no suspension of
liquidation occurs, but the DOC
investigation continues.
Final DOC Subsidy Determination.Final DOC LTFV Determination.
Within 75 days of its preliminaryWithin 75 days of its preliminary
determination, the DOC must issue adetermination, the DOC must issue a
final subsidy determination, unless thefinal LTFV determination, unless an
case involves upstream subsidies, inextension is granted.
which case special extended time
limits apply.
If the final subsidy determinationSame.
is negative, the investigation is
terminated, including any suspension
of liquidation that may be in effect,
and all estimated duties already paid
are refunded.
If the final subsidy determinationSame.
is affirmative, the DOC orders the
suspension of liquidation and the
posting of a cash deposit, bond, or
other security, and awaits notice of the
ITC final injury determination.
Final ITC Injury Determination.Final ITC Injury Determination.
Within 129 days of a DOCWithin 120 days of a DOC
affirmative preliminary determinationaffirmative preliminary determination
or 45 days of a DOC affirmative finalor 45 days of a DOC affirmative final
determination, the ITC must make adetermination, the ITC must make a
final determination of material injury.final determination of material injury.
If the DOC preliminary determinationIf the DOC preliminary determination
was negative, and the DOC finalwas negative, and the DOC final
determination was affirmative, thedetermination was affirmative, the
ITC has until 75 days after the finalITC has until 75 days after the final
affirmative determination to make itsaffirmative determination to make its
final injury determination.final injury determination.
Both the DOC and the ITC mustBoth the DOC and the ITC must
issue affirmative final determinationsissue affirmative final determinations
in order for a countervailing dutyin order for an antidumping duty order
order to be issued. Within 7 days ofto be issued. Within 7 days of receipt
receipt of an affirmative final ITCof an affirmative final ITC
determination, the DOC must issue adetermination, the DOC must issue an
countervailing duty order which:antidumping duty order which: directs
directs the Customs Service to assessthe Customs Service to assess
countervailing duties; describes theantidumping duties; describes the
merchandise involved; and requiresmerchandise involved; and requires
the deposit of estimated countervailingthe deposit of estimated antidumping
duties. duties.
Table 2. Procedures for a Section 201 “Escape Clause”
Investigation (Conducted by the International Trade
Commission).
Initiation of an Investigation.
Who can initiate: a trade
association, firm, union, or group of
workers of an industry, the ITC, the
President, the U.S. Trade
Representative, the House committee
on Ways and Means, or the Senate
Committee on Finance.
The ITC conducts an
investigation “to determine whether an
article is being imported into the
United States in such increased
quantities as to be a substantial cause
of serious injury, of the threat thereof,
to the domestic industry producing an
article like or directly competitive
with the imported article.”
ITC Injury Determination.
Within 120 days of receiving a
petition, the ITC must make its
determination. Petitioners are
encouraged to submit a plan to
promote the positive adjustment of the
industry to import competition.
ITC Relief Recommendations.
If the ITC makes an affirmative
determination concerning the
existence or threat of injury to a
domestic industry, it must recommend
the action that would address the
injury and be the most effective in
facilitating efforts by the affected
domestic industry to make a positive
adjustment. The recommended actions
must be either a tariff; a tariff-rate
quota; quantitative restrictions;
adjustment measures; or a
combination of these measures. The
ITC must; submit its recommendation
for relief to the President within 180
days of the petition being filed.
Presidential Actions.
The President can provide
emergency import relief within 127
days after a petition has been filed (for
non-agricultural goods). Within 60
days of receiving an affirmative ITC
determination, the President is
required to take action. He can choose
among providing import relief,
adjustment measures, auctioned
quotas, orderly marketing agreements,
international negotiations, legislative
proposals, or any action within his
power. Such action may be taken for
up to 8 years.
The President is required to
report to congress on his actions. If
the action taken by the President
differs from that recommended by the
ITC, he is required to state the reasons
for the difference. If the President
decides that there is no appropriate
and feasible action to take with respect
to a domestic industry, the President is
required to state in his report to
Congress the reasons for his inaction.
If the President’s remedial action
differs from those recommended by
the ITC, Congress may adopt a joint
resolution of disapproval within 90
legislative days. Within 30 days after
enactment of such a resolution, the
President must proclaim the relief
recommended by the ITC.