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

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

2See 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). 

5Transcript 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 Commission 

Regulations 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 view 

change 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 on 

other aspects of the Commission’s crossborder policy, if any. Would your view 

change 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) 

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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. 

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