Administrative Procedure -- 2013



Air Transport Ass'n v. Export-Import Bank   (D.C. Circuit)

Supporting Ex-Im Bank's loan guarantee review procedures

Providers of international airline passenger service sued the Export-Import Bank of the United States for approving financing assistance for U.S.-manufactured goods sold to Air India. They contended that the Bank must first conduct a detailed individualized economic analysis of the potential indirect effects that might result for U.S. competitors operating in downstream markets where the foreign customer may provide services using the exported goods. Thus, the case is all about how much economic scrutiny the law requires the Ex-Im Bank to do before it may approve export financing for goods manufactured in the United States for export.

The NAM filed a brief 1/2/2013 support Ex-Im's process, whereby the statute requires it to more carefully scrutinize the impact on domestic manufacturers, but does not require as thorough a review for much more indirect effects in service industries. We highlighted the importance of Ex-Im's approval process and its role in supporting nearly 300,000 American jobs at more than 3,600 U.S. companies, large and small. Streamlined review procedures for export financing at the Bank are critical to enabling it to respond effectively and nimbly to the export credit financing provided by foreign governments. This is particularly important since the Bank labors under certain structural disadvantages in offering countervailing assistance, and further roadblocks imposed in litigation by private parties will jeopardize its flexibility and the competitiveness of American manufacturers.

We also provided the court with a detailed analysis of the Bank's statutory authority to establish the streamlined system it employs. It has broad discretion to craft such procedures as may be appropriate, and has extensive experience with the kinds of guarantees at issue in this case.

On 6/18/13, the court sent the case back to the Bank to explain why it created a categorical exclusion from scrutiny for loan guarantees to help a foreign company provide air travel services. It must show why such guarantees can never cause adverse effects to U.S. industries and U.S. jobs. After the Bank provides such information, the trial court is expected to take another look at the lawsuit to determine if the Bank has met its statutory requirements.


Related Documents:
NAM brief  (January 2, 2013)