© CCH. All rights reserved. Originally published in the CCH Commodity Futures Law Reporter. Reposted by the CFTC with 

permission. Such reposting does not constitute or imply endorsement by the Commodity Futures Trading Commission of the 

accuracy of the reposted material or of any summaries thereof. 

1

Commodity Futures Archive - Selected materials, CFTC-OGC Interpretative 

Letter No. 86-5. (Export Trading Company's Proposed Financial Credit 

Arrangements.), ¶23,227, Commodity Futures Trading Commission, (Jun. 17, 

1986)

¶23,227. Commodity Futures Trading Commission, Office of the General Counsel. June 17, 1986. Correspondence in 

full text.

Interpretations: Hedging Service Export Trading Company: Proposed Financial Credit Arrangement..– The 

Office of the General Counsel would not recommend enforcement action if an export trading company offered its 

hedging service via financial credit arrangements only to commercial entities engaged in export or international trade 

and if the Federal Reserve Board approved the service under the Bank Holding Company Act. The Office's position was 

predicated on its understanding that the company was an export trading company within the meaning of the Export 

Trading Company Act and the Bank Holding Company Act and on the company's representation that under no 

circumstances would the service be offered to the general public.

See ¶12,001, "Liabilities—Prohibitions" division, Volume 1.

By letter dated February 19, 1986, you have asked the staff to issue a “no-action” letter with respect to certain proposed 

activities by an export trading company (“X”). From your letter (and attached statutory materials), we understand the 

facts to be as follows.

X is a subsidiary of a bank holding company which is regulated by the Federal Reserve Board (“Board”) under the 

Bank Holding Company Act, 12 U.S.C. §1841 et seq. Since its formation in 1983. X has engaged in various types of 

financing and trading activities related to international trade.

X was formed pursuant to the Export Trading Company Act, 15 U.S.C. §4001 et seq., and the Bank Export Services 

Act, 12 U.S.C. §1841 et seq. Congress enacted the Export Trading Company Act to increase United States exports of 

products and services by, among other things, promoting the formation of export trading companies. 15 U.S.C. §4001. 

An “export trading company” is defined as an entity organized and operated principally for the purpose of exporting or 

facilitating the exportation of goods or services produced in the United States. 15 U.S.C. §4002f(a)(4).

The Bank Export Services Act directs the Board to pursue regulatory policies that, among other things, provide for the 

establishment of export trading companies. More specifically, the Act amends the Bank Holding Company Act to 

authorize, in effect, bank holding companies to form export trading companies. 12 U.S.C. §1843(c)(14). The export 

trading company must be “exclusively engaged in activities related to international trade....” 12 U.S.C. 

§1843(c)(14)(F).

Under the Bank Holding Company Act, as amended by the Bank Export Services Act, an export trading company that is 

a subsidiary of a bank holding company may take positions in commodities and commodity contracts to the extent 

necessary in the course of its business. Purely speculative trading in commodities or commodity contracts is prohibited. 

The Board may require, among other things, that a bank holding company terminate its investment in an export trading 

company “if the Board determines that the export trading company has taken positions in commodities or commodity 

contracts ... other than as may be necessary in the course of the export trading company's business operations.” 12 

U.S.C. §1843(c)(14)(D).

The Board has access to the books and records and to all other pertinent information relating to the activities of export 

trading companies that are bank holding company subsidiaries. The Board audits bank holding companies and their 

subsidiaries regularly. The Board receives periodically from bank holding companies consolidated financial statements. 

Part 211. Subpart C of the Board's regulations specifically govern export trading companies. 12 C.F.R. 211.31 et seq.

Your letter states that the service which X seeks to provide (and for which a staff “no-action” letter is requested) would 

facilitate international trade by providing United States exporters, foreign importers of domestic goods and services, and 

others engaged in international trade lines of credit to finance contracts for the purchase or sale of certain commodities. 

Such arrangements would provide “an opportunity to obtain price protection for commodity transactions through a form 

of hedging.” 1 Under X's “hedging service,” 2 X would enter into contracts with its customers for the purchase or sale 

of commodities. Settlement on the financial contracts would be by cash. Rather than standardized contract terms, each 

customer would separately negotiate the particular commodity, quantity and quality of the commodity, price, currency 

in which payment is to be made, terms of payment, delivery date, and delivery location. About 25% of the transactions 

would likely involve commodities that are not traded on futures markets anywhere in the world ( e.g., certain base 

metals); about 50% would likely involve commodities similar to, but also different from, commodities traded on 
© CCH. All rights reserved. Originally published in the CCH Commodity Futures Law Reporter. Reposted by the CFTC with 

permission. Such reposting does not constitute or imply endorsement by the Commodity Futures Trading Commission of the 

accuracy of the reposted material or of any summaries thereof. 

2

exchanges ( e.g., different grades of certain petroleum products); and about 25% would likely involve commodities 

identical to commodities traded on exchanges, although the contract terms (e.g., delivery date and location) may be 

significantly different. X would hedge its risk under these contracts through transactions in the futures and cash 

markets.

The following example of an actual transaction in which X proposes to engage is set forth in your letter:

[X] would like to provide its hedging service to a Portuguese soybean crusher, which sells soybean meal forward 

on a fixed price basis in escudos (the domestic currency of Portugal). The crusher's normal practice is to obtain 

the necessary beans (one transaction ... would involve 36,000 metric tons) from a U.S. exporter at a price in U.S. 

dollars based on the Chicago Board of Trade soybean futures prices for the spot month. Under that arrangement, 

the crusher is at the risk both of fluctuations in the soybean market and of fluctuations in the exchange rate 

between the dollar and the escudo. [X] would enable the crusher to hedge both of those risks by entering into a 

contract to sell the crusher 30,000 metric tons of soybeans for forward delivery at a price fixed in escudos, with 

settlement to be made in cash. On maturity of the contract, if the escudo value of soybeans has increased, the 

crusher will have lost money on his supply contract with the U.S. exporter, but [X] will make up that loss by 

paying the crusher the increase in the value of its contract with [X]. On the other hand, if the escudo value of 

soybeans has decreased, the crusher will pay the difference to [X], but make up for that loss by taking delivery of 

its soybeans from its supplier at a lower cost.

*****

The contract between [X] and the crusher will be on a so-called ‘dedicated credit line.’ This means that the 

crusher would not be required to deposit any margin or make any down payment.

X's hedging service via financial credit arrangements would be offered only to commercial entities engaged in export or 

international trade. Under no circumstances would X's service be offered to the general public. X would seek to assure 

itself that its customers use the contracts as part of their commercial trade business and not for speculation.

Your letter states that “[p]erhaps most important, a description of the proposed activity for which the ‘no-action letter’ 

is being requested will be submitted to the [Board] staff for concurrence that such activity would be permissible under 

the [Bank Holding Company Act].” X believes that its hedging service will further the intent of Congress to increase 

United States exports.

Based on these facts, and only if Board staff indeed concurs that X's hedging service is permissible under the Bank 

Holding Company Act. 3 this Office will not recommend enforcement action against X pursuant to section 4(a) of the 

Commodity Exchange Act, 7 U.S.C. §6(a), if X offers its service as described herein and as concurred in by the Board 

staff. 4 Our position is particularly predicated on our understanding that X is an “export trading company” within the 

meaning of the Export Trading Company Act and the Bank Holding Company Act, as amended, and on X's 

representation that its service will not be offered to the general public.

You should be aware that our position does not excuse X from complying with any otherwise applicable provisions of 

the Commodity Exchange Act.

The views expressed in this letter are those of the Office of the General Counsel and do not necessarily reflect the views 

of the Commission or any other office or division within the Commission. Moreover, our position is based upon the 

representations that have been made to us. Any different, changed, or omitted facts might require us to reach different 

conclusions. We therefore request that you notify us immediately if Board staff does not concur that X's hedging service 

is permissible under the Bank Holding Company Act or if X plans to alter its service as described herein.

Footnotes

1 In this connection, the Office of the General Counsel notes that the transactions in which X wishes to engage 

would not necessarily fall within the definition of bona fide hedging transactions in Commission rule 1.3(z), 17 

C.F.R. §1.3(z)(1985).

2 You note that X also plans to open a "consulting service" for foreign buyers of domestic goods. We do not 

construe this activity as included in your request for a "no-action" letter.

3 In this connection, the Office of the General Counsel wishes to make clear that it is expressing no opinion with 

respect to whether the transactions in which X wishes to engage will facilitate international trade or otherwise 

implement the intent of Congress in this regard. The Office also wishes to make clear that this letter should not be 

interpreted as an endorsement of such transactions.
© CCH. All rights reserved. Originally published in the CCH Commodity Futures Law Reporter. Reposted by the CFTC with 

permission. Such reposting does not constitute or imply endorsement by the Commodity Futures Trading Commission of the 

accuracy of the reposted material or of any summaries thereof. 

3

4 We interpret your letter as a request for "no-action" under section 4(a) of the Commodity Exchange Act. Section 

4(a) generally prohibits a person from soliciting or accepting orders for any commodity futures transaction unless 

the transaction is conducted on or subject to the rules of a designated contract market. 7 U.S.C. §6(a).