[Congressional Bills 112th Congress]
[From the U.S. Government Publishing Office]
[H.R. 3336 Referred in Senate (RFS)]

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 Representatives of the 
United States of America in Congress assembled,

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 subparagraph (A)(iv) through 
subparagraph (C) and inserting 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 extension of 
                        credit by the institution to, on behalf of, or 
                        for the benefit of, the customer; or
                            ``(II) to offset the risks arising from a 
                        swap that meets the requirement of subclause 
                        (I).
                    ``(B) Inclusion.--A person may be designated as a 
                swap dealer for a single type or single class or 
                category of swap or activities and considered not to be 
                a swap dealer for other types, classes, or categories 
                of swaps or activities.
                    ``(C) Exceptions.--
                            ``(i) The term `swap dealer' does not 
                        include a person that enters into swaps for 
                        such person's own account, either individually 
                        or in a fiduciary capacity, but not as part of 
                        regular business activities as described 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 governmental 
                                regulatory compliance purposes.
                            ``(iii) In determining whether a person is 
                        a `swap dealer' within the meaning of 
                        subparagraph (A)(iii), any swap which involves 
                        a capacity contract, a renewable energy credit, 
                        an emissions allowance, or an emissions offset 
                        shall not be considered as part of that 
                        determination, if--
                                    ``(I) the contract, credit, 
                                allowance, or offset is utilized to 
                                meet obligations 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 follows:
                            ``(ii) Exclusion.--Such definition shall 
                        not include an entity that is a small bank, 
                        savings association, farm credit system 
                        institution, non-profit cooperative lender 
                        controlled by electric cooperatives, or credit 
                        union if the aggregate uncollateralized outward 
                        exposure plus aggregate potential outward 
                        exposure of the entity with respect to its 
                        swaps does not exceed $1,000,000,000.''.

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 Exchange Act (7 U.S.C. 1a(33)(D)) is amended 
to read as follows:
                    ``(D) Exclusion of certain captive finance 
                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 parent company, and 
                        uses derivatives only for the purpose of 
                        hedging underlying commercial 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).
                            ``(ii) Definitions.--In this subparagraph:
                                    ``(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 distribution 
                                        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 
                                determined by the Commission.
                                    ``(II) Product.--The term `product' 
                                means--
                                            ``(aa) any good that is 
                                        manufactured or sold by an 
                                        affiliate of the entity; and
                                            ``(bb) any service that is 
                                        provided by an affiliate of the 
                                        entity.
                                    ``(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 
                                `affiliate' means, with respect to an 
                                entity--
                                            ``(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 entity; 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 `person' 
                                means an individual, partnership, 
                                corporation (including a business 
                                trust), limited liability company, 
                                joint stock company, trust, 
                                unincorporated association, joint 
                                venture or other entity, or a 
                                government or any political subdivision 
                                or agency thereof.''.
    (b) Exclusion From Swap Clearing Requirement.--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 captive 
                        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 Protection 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
                    (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 directly a consequence of such 
        amendments.

            Passed the House of Representatives April 25, 2012.

            Attest:

                                                 KAREN L. HAAS,

                                                                 Clerk.