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. 
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled, 
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SECTION 1. SHORT TITLE. 
This Act may be cited as the ‘‘Small Business Credit 
Availability Act’’. 
SEC. 2. CLARIFICATION OF SWAP DEALER DEFINITION. 
Section 1a(49) of the Commodity Exchange Act (7 
U.S.C. 1a(49)) is amended by striking all that follows sub-
paragraph (A)(iv) through subparagraph (C) and insert-
ing the following: 
‘‘provided however, in no event shall an insured 
depository institution, an institution chartered 
and operating under the Farm Credit Act of 
1971, or a United States uninsured branch or 
agency of a foreign bank that has a prudential 
regulator be considered to be a swap dealer to 
the extent that it enters into a swap— 
‘‘(I) with a customer that is seeking 
to manage risk in connection with an ex-
tension of credit by the institution to, on 
behalf of, or for the benefit of, the cus-
tomer; or 
‘‘(II) to offset the risks arising from 
a swap that meets the requirement of sub-
clause (I). 
‘‘(B) INCLUSION.—A person may be des-
ignated as a swap dealer for a single type or 
single class or category of swap or activities and 
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considered not to be a swap dealer for other 
types, classes, or categories of swaps or activi-
ties. 
‘‘(C) EXCEPTIONS.— 
‘‘(i) The term ‘swap dealer’ does not 
include a person that enters into swaps for 
such person’s own account, either individ-
ually or in a fiduciary capacity, but not as 
part of regular business activities as de-
scribed in subparagraph (A). 
‘‘(ii) In determining whether a person 
is a ‘swap dealer’ within the meaning of 
subparagraph (A), the following shall not 
be considered as part of the determination: 
‘‘(I) any swap entered into for a 
person’s own account for the purpose 
of hedging or mitigating commercial 
risk; and 
‘‘(II) any swap entered into for a 
person’s own account for the purpose 
of meeting State or local govern-
mental regulatory compliance pur-
poses. 
‘‘(iii) In determining whether a person 
is a ‘swap dealer’ within the meaning of 
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subparagraph (A)(iii), any swap which in-
volves a capacity contract, a renewable en-
ergy credit, an emissions allowance, or an 
emissions offset shall not be considered as 
part of that determination, if— 
‘‘(I) the contract, credit, allow-
ance, or offset is utilized to meet obli-
gations under State or local law or 
regulation for that person; and 
‘‘(II) the swap is entered into for 
that person’s own account.’’. 
SEC. 3. EXCLUSIONS FROM FINANCIAL ENTITY DEFINITION. 
Section 2(h)(7)(C)(ii) of the Commodity Exchange 
Act (7 U.S.C. 2(h)(7)(C)(ii)) is amended to read as fol-
lows: 
‘‘(ii) 
EXCLUSION.—Such 
definition 
shall not include an entity that is a small 
bank, savings association, farm credit sys-
tem 
institution, 
non-profit 
cooperative 
lender controlled by electric cooperatives, 
or 
credit 
union 
if 
the 
aggregate 
uncollateralized outward exposure plus ag-
gregate potential outward exposure of the 
entity with respect to its swaps does not 
exceed $1,000,000,000.’’. 
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SEC. 4. CLARIFICATION OF THE EXEMPTIONS FOR CAPTIVE 
FINANCE COMPANIES FROM THE DEFINITION 
OF MAJOR SWAP PARTICIPANT AND FROM 
THE SWAP CLEARING REQUIREMENT. 
(a) EXCLUSION FROM DEFINITION OF MAJOR SWAP 
PARTICIPANT.—Section 1a(33)(D) of the Commodity Ex-
change Act (7 U.S.C. 1a(33)(D)) is amended to read as 
follows: 
‘‘(D) EXCLUSION OF CERTAIN CAPTIVE FI-
NANCE ENTITIES.— 
‘‘(i) IN
GENERAL.—The definition 
under this paragraph shall not include an 
entity whose primary business is providing 
financing that facilitates the sale or lease 
of products by or on behalf of the parent 
company or another subsidiary of the par-
ent company, and uses derivatives only for 
the purpose of hedging underlying com-
mercial risks in a consolidated financing 
and leasing portfolio, at least 90 percent of 
which, as of the end of its preceding fiscal 
year, is qualifying financing (including 
loans, notes, installment sales contracts, 
receivables, and operating and financing 
leases). 
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‘‘(ii) DEFINITIONS.—In this subpara-
graph: 
‘‘(I) QUALIFYING
FINANCING.— 
The 
term 
‘qualifying 
financing’ 
means— 
‘‘(aa) any financing or lease 
of, or that includes, a product; or 
‘‘(bb) any financing to or for 
the benefit of an affiliate of the 
entity, a distribution entity, or 
any customer or affiliate of a dis-
tribution entity, 
except that the term does not include 
any financing that does not facilitate 
the sale of a product manufactured by 
the entity or its affiliates, as deter-
mined by the Commission. 
‘‘(II) 
PRODUCT.—The 
term 
‘product’ means— 
‘‘(aa) any good that is man-
ufactured or sold by an affiliate 
of the entity; and 
‘‘(bb) any service that is 
provided by an affiliate of the en-
tity. 
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‘‘(III) DISTRIBUTION
ENTITY.— 
The term ‘distribution entity’ means a 
person whose primary business is the 
sale, lease or servicing of a product 
that is manufactured by the entity or 
its affiliates. 
‘‘(IV) AFFILIATE.—The term ‘af-
filiate’ means, with respect to an enti-
ty— 
‘‘(aa) a person that reports 
information or prepares financial 
statements on a consolidated 
basis with the entity, or for 
which a parent company reports 
information or prepares financial 
statements on a consolidated 
basis for the person and the enti-
ty; or 
‘‘(bb) a person of which the 
entity or the parent of the entity 
holds 50 percent or more of the 
equity interests. 
‘‘(V) PERSON.—The term ‘per-
son’ means an individual, partnership, 
corporation 
(including 
a 
business 
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trust), limited liability company, joint 
stock company, trust, unincorporated 
association, joint venture or other en-
tity, or a government or any political 
subdivision or agency thereof.’’. 
(b) EXCLUSION FROM SWAP CLEARING REQUIRE-
MENT.—Section 2(h)(7)(C)(iii) of such Act (42 U.S.C. 
2(h)(7)(C)(iii)) is amended to read as follows: 
‘‘(iii) EXCLUSION
OF
CERTAIN
CAP-
TIVE FINANCE ENTITIES.—Such term shall 
not include an entity excluded from the 
definition of major swap participant by 
reason of section 1a(33)(D).’’. 
SEC. 5. EFFECTIVE DATE. 
The amendments made by this Act shall take effect 
as if they had been included in subtitle A of title VII of 
the Dodd-Frank Wall Street Reform and Consumer Pro-
tection Act. 
SEC. 6. IMPLEMENTATION. 
The amendments made by this Act to the Commodity 
Exchange Act shall be implemented— 
(1) without regard to— 
(A) chapter 35 of title 44, United States 
Code; and 
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(B) the notice and comment provisions of 
section 553 of title 5, United States Code; 
(2) through the promulgation of an interim 
final rule, pursuant to which public comment will be 
sought before a final rule is issued, and 
(3) such that paragraph (1) shall apply solely 
to changes to rules and regulations, or proposed 
rules and regulations, that are limited to and di-
rectly a consequence of such amendments. 
Passed the House of Representatives April 25, 2012. 
Attest: 
KAREN L. HAAS, 
Clerk. 
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