IIB 

112TH CONGRESS 

2D SESSION H. R. 3336 

IN THE SENATE OF THE UNITED STATES 

APRIL 26, 2012 

Received; read twice and referred to the Committee on Agriculture, Nutrition, 

and Forestry 

AN ACT 

To ensure the exclusion of small lenders from certain 

regulations of the Dodd-Frank Act. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 


jbell on DSK7SPTVN1PROD with BILLS
2 

HR 3336 RFS

1 SECTION 1. SHORT TITLE. 

2 This Act may be cited as the ‘‘Small Business Credit 

3 Availability Act’’. 

4 SEC. 2. CLARIFICATION OF SWAP DEALER DEFINITION. 

5 Section 1a(49) of the Commodity Exchange Act (7 

6 U.S.C. 1a(49)) is amended by striking all that follows sub7 paragraph (A)(iv) through subparagraph (C) and insert8 ing the following: 

9 ‘‘provided however, in no event shall an insured 

10 depository institution, an institution chartered 

11 and operating under the Farm Credit Act of 

12 1971, or a United States uninsured branch or 

13 agency of a foreign bank that has a prudential 

14 regulator be considered to be a swap dealer to 

15 the extent that it enters into a swap— 

16 ‘‘(I) with a customer that is seeking 

17 to manage risk in connection with an ex18 tension of credit by the institution to, on 

19 behalf of, or for the benefit of, the cus20 tomer; or 

21 ‘‘(II) to offset the risks arising from 

22 a swap that meets the requirement of sub23 clause (I). 

24 ‘‘(B) INCLUSION.—A person may be des25 ignated as a swap dealer for a single type or 

26 single class or category of swap or activities and 


jbell on DSK7SPTVN1PROD with BILLS
3 

HR 3336 RFS

1 considered not to be a swap dealer for other 

2 types, classes, or categories of swaps or activi3 ties. 

4 ‘‘(C) EXCEPTIONS.— 

5 ‘‘(i) The term ‘swap dealer’ does not 

6 include a person that enters into swaps for 

7 such person’s own account, either individ8 ually or in a fiduciary capacity, but not as 

9 part of regular business activities as de10 scribed in subparagraph (A). 

11 ‘‘(ii) In determining whether a person 

12 is a ‘swap dealer’ within the meaning of 

13 subparagraph (A), the following shall not 

14 be considered as part of the determination: 

15 ‘‘(I) any swap entered into for a 

16 person’s own account for the purpose 

17 of hedging or mitigating commercial 

18 risk; and 

19 ‘‘(II) any swap entered into for a 

20 person’s own account for the purpose 

21 of meeting State or local govern22 mental regulatory compliance pur23 poses. 

24 ‘‘(iii) In determining whether a person 

25 is a ‘swap dealer’ within the meaning of 


jbell on DSK7SPTVN1PROD with BILLS
4 

HR 3336 RFS

1 subparagraph (A)(iii), any swap which in2 volves a capacity contract, a renewable en3 ergy credit, an emissions allowance, or an 

4 emissions offset shall not be considered as 

5 part of that determination, if— 

6 ‘‘(I) the contract, credit, allow7 ance, or offset is utilized to meet obli8 gations under State or local law or 

9 regulation for that person; and 

10 ‘‘(II) the swap is entered into for 

11 that person’s own account.’’. 

12 SEC. 3. EXCLUSIONS FROM FINANCIAL ENTITY DEFINITION. 

13 Section 2(h)(7)(C)(ii) of the Commodity Exchange 

14 Act (7 U.S.C. 2(h)(7)(C)(ii)) is amended to read as fol15 lows: 

16 ‘‘(ii) EXCLUSION.—Such definition 

17 shall not include an entity that is a small 

18 bank, savings association, farm credit sys19 tem institution, non-profit cooperative 

20 lender controlled by electric cooperatives, 

21 or credit union if the aggregate 

22 uncollateralized outward exposure plus ag23 gregate potential outward exposure of the 

24 entity with respect to its swaps does not 

25 exceed $1,000,000,000.’’. 


jbell on DSK7SPTVN1PROD with BILLS
5 

HR 3336 RFS

1 SEC. 4. CLARIFICATION OF THE EXEMPTIONS FOR CAPTIVE 

2 FINANCE COMPANIES FROM THE DEFINITION 

3 OF MAJOR SWAP PARTICIPANT AND FROM 

4 THE SWAP CLEARING REQUIREMENT. 

5 (a) EXCLUSION FROM DEFINITION OF MAJOR SWAP

6 PARTICIPANT.—Section 1a(33)(D) of the Commodity Ex7 change Act (7 U.S.C. 1a(33)(D)) is amended to read as 

8 follows: 

9 ‘‘(D) EXCLUSION OF CERTAIN CAPTIVE FI10 NANCE ENTITIES.— 

11 ‘‘(i) IN GENERAL.—The definition 

12 under this paragraph shall not include an 

13 entity whose primary business is providing 

14 financing that facilitates the sale or lease 

15 of products by or on behalf of the parent 

16 company or another subsidiary of the par17 ent company, and uses derivatives only for 

18 the purpose of hedging underlying com19 mercial risks in a consolidated financing 

20 and leasing portfolio, at least 90 percent of 

21 which, as of the end of its preceding fiscal 

22 year, is qualifying financing (including 

23 loans, notes, installment sales contracts, 

24 receivables, and operating and financing 

25 leases). 


jbell on DSK7SPTVN1PROD with BILLS
6 

HR 3336 RFS

1 ‘‘(ii) DEFINITIONS.—In this subpara2 graph: 

3 ‘‘(I) QUALIFYING FINANCING.— 

4 The term ‘qualifying financing’ 

5 means— 

6 ‘‘(aa) any financing or lease 

7 of, or that includes, a product; or 

8 ‘‘(bb) any financing to or for 

9 the benefit of an affiliate of the 

10 entity, a distribution entity, or 

11 any customer or affiliate of a dis12 tribution entity, 

13 except that the term does not include 

14 any financing that does not facilitate 

15 the sale of a product manufactured by 

16 the entity or its affiliates, as deter17 mined by the Commission. 

18 ‘‘(II) PRODUCT.—The term 

19 ‘product’ means— 

20 ‘‘(aa) any good that is man21 ufactured or sold by an affiliate 

22 of the entity; and 

23 ‘‘(bb) any service that is 

24 provided by an affiliate of the en25 tity. 


jbell on DSK7SPTVN1PROD with BILLS
7 

HR 3336 RFS

1 ‘‘(III) DISTRIBUTION ENTITY.— 

2 The term ‘distribution entity’ means a 

3 person whose primary business is the 

4 sale, lease or servicing of a product 

5 that is manufactured by the entity or 

6 its affiliates. 

7 ‘‘(IV) AFFILIATE.—The term ‘af8 filiate’ means, with respect to an enti9 ty— 

10 ‘‘(aa) a person that reports 

11 information or prepares financial 

12 statements on a consolidated 

13 basis with the entity, or for 

14 which a parent company reports 

15 information or prepares financial 

16 statements on a consolidated 

17 basis for the person and the enti18 ty; or 

19 ‘‘(bb) a person of which the 

20 entity or the parent of the entity 

21 holds 50 percent or more of the 

22 equity interests. 

23 ‘‘(V) PERSON.—The term ‘per24 son’ means an individual, partnership, 

25 corporation (including a business 


jbell on DSK7SPTVN1PROD with BILLS
8 

HR 3336 RFS

1 trust), limited liability company, joint 

2 stock company, trust, unincorporated 

3 association, joint venture or other en4 tity, or a government or any political 

5 subdivision or agency thereof.’’. 

6 (b) EXCLUSION FROM SWAP CLEARING REQUIRE7 MENT.—Section 2(h)(7)(C)(iii) of such Act (42 U.S.C. 

8 2(h)(7)(C)(iii)) is amended to read as follows: 

9 ‘‘(iii) EXCLUSION OF CERTAIN CAP10 TIVE FINANCE ENTITIES.—Such term shall 

11 not include an entity excluded from the 

12 definition of major swap participant by 

13 reason of section 1a(33)(D).’’. 

14 SEC. 5. EFFECTIVE DATE. 

15 The amendments made by this Act shall take effect 

16 as if they had been included in subtitle A of title VII of 

17 the Dodd-Frank Wall Street Reform and Consumer Pro18 tection Act. 

19 SEC. 6. IMPLEMENTATION. 

20 The amendments made by this Act to the Commodity 

21 Exchange Act shall be implemented— 

22 (1) without regard to— 

23 (A) chapter 35 of title 44, United States 

24 Code; and 


jbell on DSK7SPTVN1PROD with BILLS
9 

HR 3336 RFS

1 (B) the notice and comment provisions of 

2 section 553 of title 5, United States Code; 

3 (2) through the promulgation of an interim 

4 final rule, pursuant to which public comment will be 

5 sought before a final rule is issued, and 

6 (3) such that paragraph (1) shall apply solely 

7 to changes to rules and regulations, or proposed 

8 rules and regulations, that are limited to and di9 rectly a consequence of such amendments. 

Passed the House of Representatives April 25, 2012. 

Attest: KAREN L. HAAS, 

Clerk. 


jbell on DSK7SPTVN1PROD with BILLS