### 1349 Federal Register / Vol. 79, No. 5 / Wednesday, January 8, 2014 / Proposed Rules

1 7 U.S.C. 2(i).

2 See Statement of Dissent by Commissioner Scott D. O’Malia, Interpretive Guidance and Policy Statement Regarding Compliance With Certain Swap Regulations and Related Exemptive Order, July 12, 2013, http://www.cftc.gov/PressRoom/ SpeechesTestimony/omaliastatement071213b.

3 7 U.S.C. 2(i). 4 7 U.S.C. 2(a)(1).

5 Transcript of Open Meeting to Consider CrossBorder Final Guidance and Cross-Border Phase-In Exemptive Order (July 12, 2013), page 79. 4. To the extent a non-U.S. SD must comply with the transactional requirements when entering a Covered Transaction, should the non-U.S. SD be able to rely on a substituted compliance program for purposes of complying with the relevant transactional requirements? If so, should substituted compliance be available for all transactional requirements or only specific requirements? Which requirements? Would the response be different depending on the nature of the counterparty (i.e., whether the non-U.S. counterparty is a guaranteed affiliate or a conduit affiliate of a U.S. person)?

5. The Commission invites comment on the meaning of ‘‘regularly’’ in the phrase ‘‘persons regularly arranging, negotiating, or executing swaps for or on behalf of an SD’’ and whether such persons are performing core, front-office activities of that SD’s swap dealing business. If not, what specific activities would constitute the core, front-office activities of an SD’s swap dealing business? What characteristics or factors distinguish a ‘‘core, front-office’’ activity from other activities? Please be exhaustive in describing such activities.

6. The Commission invites comment on the scope and degree of ‘‘arranging, negotiating, or executing’’ swaps as used in this context.

Issued in Washington, DC, on January 3, 2014, by the Commission. Melissa D. Jurgens, Secretary of the Commission. Appendices To Request for Comment on Application of CommissionRegulations to Swaps Between NonU.S. Swap Dealers and Non-U.S. Counterparties Involving Personnel or Agents of the Non-U.S. Swap Dealers Located in the United States Appendix 1—Commission Voting Summary

On this matter, Chairman Gensler and Commissioners Chilton and Wetjen voted in the affirmative. Commissioner O’Malia voted in the negative.

Appendix 2—Dissenting Statement of Commissioner Scott D. O’Malia

If you thought that the Commission’s approach last year regarding cross-border issues resulted in an unsound rulemaking process, the start of 2014 is no better.

Today’s announcement of the request for comment on a staff Advisory abrogates the Commission’s fundamental legal obligations under the Administrative Procedure Act (‘‘APA’’) and provides another example of the Commission’s unsound rule implementation process.

Making matters worse, today’s request for comment is completely outside the scope of the cross-border Guidance and the Exemptive Order as the Commission did not address the issue relating to swaps negotiated between non-U.S. swap dealers (‘‘SDs’’) and non-U.S. counterparties acting through agents of the non-U.S. SDs located in the United States. This is simply a strategic move by the Commission to try to duck blame for consistently circumventing the fundamental tenets of the APA and failing to adhere faithfully to the express congressional directive to limit the extraterritorial application of the Dodd-Frank Act to foreign transactions that ‘‘have a direct and significant connection with activities in, or effect on, commerce of the United States.’’ 1

Moreover, I question why the Commission has decided to request comment on a narrow issue of the extraterritorial application of Dodd-Frank, while essentially ignoring the dozens of comments already filed as part of the Commission’s cross-border Exemptive Order. 2 Simply requesting comment on a staff Advisory does not endorse the validity of the cross-border Guidance or the staff Advisory issued based on the Guidance.

Additionally, I have serious concerns with the evolving jurisdictional application of the Commission’s authority over cross-border trades. It appears based on the staff Advisory, that the Commission is applying a ‘‘territorial’’ jurisdiction test to elements of a trade between non-U.S. entities. To better understand the legal underpinnings of this position, I have included several additional questions to be considered as part of the overall comment file. It is my hope that public comments will provide greater clarity regarding our cross-border authority and identify areas where we must harmonize global rules with our international regulatory partners in the near future. It makes no sense to apply guidance or staff advisories that do not enjoy the full support and authority provided through rulemakings based on the Commodity Exchange Act (‘‘CEA’’).

Looking forward into this year, the CFTC needs to do away with the reflexive rule implementation process via staff no-action and advisories that are not voted on by the Commission. It should be the goal of the Commission to develop rules that adhere to the APA and ensure proper regulatory oversight, transparency and promote competition in the derivatives space.

In this regard, I would like to seek additional comment on the following points:

1. Please provide your views on whether Covered Transactions with non-U.S. persons who are not guaranteed or conduit affiliates of U.S. persons meet the direct and significant test under CEA section 2(i). 3 Please provide a detailed analysis of any such view and its effect on other aspects of the Commission’s cross-border policy, if any. Would your view change depending on whether a non-U.S. SD is a guaranteed affiliate or a conduit affiliate of a U.S. person?

2. CEA section 2(a)(1) 4 provides for the general jurisidiction of the Commission. Please provide your views on whether Covered Transactions with non-U.S. persons who are not guaranteed or conduit affiliates of U.S. persons fall within the Commission’s jurisdiction under CEA section 2(a)(1) or any other provision of the CEA providing for Commission jurisdiction. Please provide a detailed analysis of any such view and its effect on other aspects of the Commission’s cross-border policy, if any. Would your viewchange depending on the nature of the nonU.S. SD (i.e., whether it is a guaranteed affiliate or a conduit affiliate of a U.S. person)?

3. To the extent that Covered Transactions fall within the Commission’s jurisdiction, should a non-U.S. SD be required to comply with all, or only certain, Transaction-Level Requirements? Please provide a detailed analysis of any such view and its effect onother aspects of the Commission’s crossborder policy, if any. Would your viewchange depending on the nature of the nonU.S. SD (i.e., whether it is a guaranteed affiliate or a conduit affiliate of a U.S. person)?

4. In the open meeting to consider the cross-border final guidance and cross-border phase-in exemptive order, I asked about the Commission’s enforcement and legal authority under the cross-border guidance. The Commission’s General Counsel replied, ‘‘[T]he guidance itself is not binding strictly. We couldn’t go into court and, in a count of the complaint, list a violation of the guidance as an actionable claim.’’ 5 If the Commission adopts the staff Advisory as Commission policy (and not through the rulemaking process), please provide your views on the Commission’s ability to enforce such policy.

[FR Doc. 2014–00080 Filed 1–7–14; 8:45 am]

**BILLING CODE 6351–01–P**

**ENVIRONMENTAL PROTECTION AGENCY** 

**40 CFR Part 52**

**[EPA–R06–OAR–2010–0335; FRL–9905–04– Region 6]** 

**Approval and Promulgation of Implementation Plans; Texas;**  **Procedures for Stringency Determinations and Minor Permit**  **Revisions for Federal Operating Permits** 

**AGENCY :**  Environmental Protection Agency (EPA).

**ACTION :**  Withdrawal of proposed rule.

**SUMMARY :**  On September 10, 2013, the Environmental Protection Agency (EPA)


### 1350 Federal Register / Vol. 79, No. 5 / Wednesday, January 8, 2014 / Proposed Rules

published a direct final rule approving portions of three revisions to the Texas State Implementation Plan (SIP) concerning the Texas Federal Operating Permits Program. EPA received timely, adverse comments on the direct final rule and withdrew the direct final rule on November 6, 2013. In our withdrawal of the direct final rule, we indicated we would address the comments received through the proposed rule published on September 10, 2013. Subsequent to our withdrawal of the direct final, EPA received a letter dated December 19, 2013, from the Texas Commission on Environmental Quality stating that the December 17, 1999; October 4, 2001; and August 11, 2003 revisions specific to stringency determinations and minor permit revisions for Federal Operating Permits have been withdrawn from our consideration as revisions to the Texas SIP. Accordingly, EPA is withdrawing the proposed approval and finds that no further action is necessary on the portions of the three SIP revisions specific to stringency determinations and minor permit revisions for the Texas Federal Operating Permits Program. The State’s action also withdraws from EPA’s review the Federal Operating Permits Program component of the January 22, 2010 Consent Decree between EPA and the BCCA Appeal Group, Texas Association of Business, and Texas Oil and Gas Association. This withdrawal is being taken under section 110 and parts C and D of the Federal Clean Air Act.

**DATES :**  The proposed rule published on September 10, 2013 (78 FR 55234), is withdrawn as of January 8, 2014.

**FOR FURTHER INFORMATION CONTACT :**  Ms. Adina Wiley (6PD–R), Air Permits Section, Environmental Protection Agency, Region 6, 1445 Ross Avenue (6PD–R), Suite 1200, Dallas, TX 75202– 2733. The telephone number is (214) 665–2115. Ms. Wiley can also be reached via electronic mail at wiley.adina@epa.gov.
List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Reporting and recordkeeping requirements.

Dated: December 20, 2013.
Samuel Coleman, Acting Regional Administrator, Region 6.

[FR Doc. 2013–31569 Filed 1–7–14; 8:45 am]

**BILLING CODE 6560–50–P ENVIRONMENTAL PROTECTION**  **AGENCY**

**40 CFR Part 52**

**[EPA–R07–OAR–2013–0674; FRL–9905–02– Region 7]** 

**Approval and Promulgation of Implementation Plans; State of**  **Missouri; Control of Nitrogen Oxide Emissions From Large Stationary**  **Internal Combustion Engines**

**AGENCY :**  Environmental Protection Agency (EPA).

**ACTION :**  Proposed rule.

**SUMMARY :**  EPA is proposing to approve a State Implementation Plan (SIP) revision submitted by the State of Missouri to EPA on September 21, 2010, with a supplemental revision submitted on July 3, 2013. The purpose of the SIP revision is to incorporate revisions to a Missouri regulation to control Nitrogen Oxide (NOX) emissions from large stationary internal combustion engines. This revision includes an emission rate limitation for both large stationary diesel and dual fuel internal combustion engines and adds an exemption for compression ignited stationary internal combustion engines that emit 25 tons or less of NOX between May 1 and September 30. EPA has determined that the SIP revision submitted by the State of Missouri satisfies the applicable requirements of the Clean Air Act (CAA or Act), and in particular, the April 21, 2004, final Federal Phase II NOX SIP Call.

**DATES :**  Comments must be received on or before February 7, 2014.

**ADDRESSES :**  Submit your comments identified by Docket ID No. EPA–R07– OAR–2013–0674, by one of the following methods:

1. http://www.regulations.gov. Follow the on-line instructions for submitting

comments.

2. Email: kemp.lachala@epa.gov.

3. Mail: Ms. Lachala Kemp, Air Planning and Development Branch, U.S. Environmental Protection Agency, Region 7, Air and Waste Management Division, 11201 Renner Boulevard, Lenexa, Kansas 66219.

4. Hand Delivery or Courier: Deliver your comments to Ms. Lachala Kemp, Air Planning and Development Branch, U.S. Environmental Protection Agency, Region 7, Air and Waste Management Division, 11201 Renner Boulevard, Lenexa, KS 66219.

Instructions: Direct your comments to Docket ID No. EPA–R07–OAR–2013– 0674. EPA’s policy is that all comments received will be included in the public docket without change and may be made available online at http:// www.regulations.gov, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit through http:// www.regulations.gov or email information that you consider to be CBI or otherwise protected. The http:// www.regulations.gov Web site is an ‘‘anonymous access’’ system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an email comment directly to EPA without going through http:// www.regulations.gov, your email address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD–ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and should be free of any defects or viruses.

Docket: All documents in the electronic docket are listed in the http://www.regulations.gov index. Although listed in the index, some information is not publicly available, i.e., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically at http:// www.regulations.gov or in hard copy at the U.S. Environmental Protection Agency, Region 7, 11201 Renner Boulevard, Lenexa, Kansas 66219 from 8:00 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The interested persons wanting to examine these documents should make an appointment with the office at least 24 hours in advance.

**FOR FURTHER INFORMATION CONTACT :**  Ms. Lachala Kemp, Air Planning and Development Branch U.S. Environmental Protection Agency, Region 7, 11201 Renner Boulevard, Lenexa, KS 66219; telephone number: (913) 551–7214; fax number: (913) 551– 7065; email address: kemp.lachala@

epa.gov.