[Federal Register Volume 86, Number 38 (Monday, March 1, 2021)]
[Notices]
[Pages 12057-12064]
[FR Doc No: 2021-04087]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-91184; File No. SR-OCC-2021-801]

Self-Regulatory Organizations; The Options Clearing Corporation;
Notice of Filing of Advance Notice Relating to OCC's Establishment of
Persistent Minimum Skin-In-The-Game

February 23, 2021.
    Pursuant to Section 806(e)(1) of Title VIII of the Dodd-Frank Wall
Street Reform and Consumer Protection Act, entitled Payment, Clearing
and Settlement Supervision Act of 2010 (``Clearing Supervision Act'')
\1\ and Rule 19b-4(n)(1)(i) \2\ under the Securities Exchange Act of
1934 (``Exchange Act''),\3\ notice is hereby given that on February 10,
2021, the Options Clearing Corporation (``OCC'' or ``Corporation'')
filed with the Securities and Exchange Commission (``SEC'' or
``Commission'') an advance notice as described in Items I, II and III
below, which Items have been prepared by OCC. The Commission is
publishing this notice to solicit comments on the advance notice from
interested persons.
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    \1\ 12 U.S.C. 5465(e)(1).
    \2\ 17 CFR 240.19b-4(n)(1)(i).
    \3\ 15 U.S.C. 78a et seq.
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I. Clearing Agency's Statement of the Terms of Substance of the Advance
Notice

    This advance notice is submitted in connection with proposed
changes that would amend OCC's Rules, Capital Management Policy, and
certain other OCC policies to establish a persistent minimum level of
OCC's own pre-funded financial resources (commonly referred to as
``skin-in-the-game'') that OCC would contribute to cover default losses
or liquidity shortfalls. Amendments to OCC's Rules are included in
Exhibit 5a of filing SR-OCC-2021-801. Amendments to OCC's Capital
Management Policy are included in confidential Exhibit 5b of filing SR-

OCC-2021-801. OCC would also make conforming changes to the Default
Management Policy, Clearing Fund Methodology Policy, and Recovery and
Orderly Wind-Down Plan (``RWD Plan''), which can be found in
confidential Exhibits 5c, 5d, and 5e of filing SR-OCC-2021-801,
respectively, to reflect the amended default waterfall (i.e., the
financial resources OCC would use to address default losses and
liquidity shortfalls, listed in the order OCC would utilize them).
Material proposed to be added is marked by underlining, and material
proposed to be deleted is marked with strikethrough text. All terms
with initial capitalization that are not otherwise defined herein have
the same meaning as set forth in the OCC By-Laws and Rules.\4\
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    \4\ OCC's By-Laws and Rules can be found on OCC's public
website: https://www.theocc.com/Company-Information/Documents-and-Archives/By-Laws-and-Rules.
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II. Clearing Agency's Statement of the Purpose of, and Statutory Basis
for, the Advance Notice

    In its filing with the Commission, OCC included statements
concerning the purpose of and basis for the advance notice and
discussed any comments it received on the advance notice. The text of
these statements may be examined at the places specified in Item IV
below. OCC has prepared summaries, set forth in sections A and B below,
of the most significant aspects of these statements.

(A) Clearing Agency's Statement on Comments on the Advance Notice
Received From Members, Participants or Others

    Written comments were not and are not intended to be solicited with
respect to the advance notice and none have been received. OCC will
notify the Commission of any written comments received by OCC.

(B) Advance Notices Filed Pursuant to Section 806(e) of the Payment,
Clearing, and Settlement Supervision Act

Description of the Proposed Change
    OCC is proposing to amend OCC's Rules, Capital Management Policy,
and certain other policies to establish a persistent minimum level of
skin-in-the-game that OCC would contribute to cover default losses or
liquidity shortfalls, which would consist of a minimum amount of OCC's
own pre-funded resources that OCC would charge prior to charging a loss
to the Clearing Fund (as defined below, the ``Minimum Corporate
Contribution'') and, as OCC's Rules currently provide, applicable funds
held in trust in respect to OCC's Executive Deferred Compensation Plan
(``EDCP'') (such funds, as defined in OCC's Rules, being the ``EDCP
Unvested Balance'') that would be charged pari passu with the Clearing
Fund deposits of non-defaulting Clearing Members. The persistent
minimum level of skin-in-the-game would establish a floor for the pre-
funded resources OCC would contribute to cover default losses and
liquidity shortfalls. In addition to this minimum, OCC would continue
to commit its liquid net assets funded by equity (``LNAFBE'') \5\
greater than 110% of its Target Capital Requirement prior to charging a
loss to the Clearing Fund.
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    \5\ International standards and the Commission's Rules
established minimum LNAFBE requirements for financial market
infrastructures and covered clearing agencies, respectively. See
CPSS-IOSCO, Principles for financial market infrastructures, at
Principle 15 (Apr. 16, 2012), available at http://www.bis.org/publ/cpss101a.pdf; 17 CFR 240.17Ad-22(e)(15). The Capital Management
Policy defines ``LNAFBE'' as the level of cash and cash equivalents,
no greater than Equity, less any approved adjustments (i.e., agency-
related liabilities such as Section 31 fees held by OCC).
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Background
    In January 2020, OCC implemented its Capital Management Policy, by
which OCC (a) determines the amount of Equity \6\ sufficient for OCC to
meet its regulatory obligations and to serve market participants and
the public interest (as defined in OCC's Rules, the ``Target Capital
Requirement''), (b) monitors Equity and LNAFBE levels to help ensure
adequate financial resources are available to meet general business
obligations; and (c) manages Equity levels, including by (i) adjusting
OCC's fee schedule (as appropriate) and (ii) establishing a plan for
accessing additional capital should OCC's Equity fall below certain
thresholds (the ``Replenishment Plan'').\7\ In addition, OCC's Rules,
the Capital Management Policy, and associated policies provide for the
use of OCC's current and retained earnings in excess of 110% of the
Target Capital Requirement (i.e., the ``Early Warning'' threshold under
OCC's Replenishment Plan) to cover losses arising from a Clearing
Member's default.\8\ While OCC's Rules previously provided for OCC to
contribute its own capital to cover default losses at the Board's
discretion, the Capital Management Policy changes made the contribution
of such excess capital obligatory.\9\
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    \6\ The Capital Management Policy defines ``Equity'' as
shareholders' equity as shown on OCC's Statement of Financial
Condition.
    \7\ See Exchange Act Release No. 88029 (Jan. 24, 2020), 85 FR
5500 (Jan. 30, 2020) (File No. SR-OCC-2019-007) (hereinafter,
``Order Approving Capital Management Policy'').
    \8\ Id. at 5502.
    \9\ Use of excess capital to cover losses arising from the
default of a bank or other clearing agency that is not otherwise
associated with a Clearing Member default remains at the Board's
discretion. See Rule 1006(e)(ii).
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    In the event of a Clearing Member default, OCC would contribute
excess capital to cover losses remaining after applying the margin
assets and Clearing Fund contribution of the defaulting Clearing Member
and before charging the Clearing Fund contributions of non-defaulting
Clearing Members. Should OCC's excess capital be insufficient to cover
the loss, OCC also has another tranche of OCC resources in addition to
the Clearing Fund; namely, the EDCP Unvested Balance.\10\ In the event
of a default loss, the EDCP Unvested Balance is contributed pari passu
with the Clearing Fund contributions of non-defaulting Clearing
Members.
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    \10\ As defined in OCC's Rules, the EDCP Unvested Balance
consists of funds (x) deposited on or after January 1, 2020 in
respect of its EDCP and (y) in excess of amounts necessary to pay
for benefits accrued and vested under the EDCP at such time.
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    The implementation of OCC's Capital Management Policy marked the
first time OCC committed OCC's own pre-funded financial resources into
OCC's approach to capital management and resiliency. In particular, OCC
believes that the inclusion of the EDCP Unvested Balance is a powerful
alignment of interest between management and Clearing Members. OCC
takes seriously the interest of the industry and international
regulators in seeing more significant skin-in-the-game commitments at
central counterparties.
    To that end, OCC has reviewed feedback received in connection with
the initial filing of the Capital Management Plan, relevant papers from
industry participants and stakeholders concerning skin-in-the-game, and
regulatory regimes in jurisdictions outside the United States. For one,
a comment submitted in connection with the Capital Management Policy's
filing urged OCC to implement a ``minimum amount of skin-in-the-game
that `scales with risk and is defined and funded upfront' and . . . `to
define a level of [skin-in-the-game] ex ante that would always be
readily available in case of a default loss.' '' \11\ OCC has also
reviewed the paper, ``A Path Forward for CCP Resilience, Recover, and
Resolution,'' originally released in October 2019 with nine signatories
and re-released in March of 2020 with ten additional signatories,
representing major buy-side and sell-side firms in the markets OCC

serves.\12\ One of the paper's significant recommendations is that
central counterparties should have skin-in-the-game in a more defined
manner.\13\ In contrast, OCC's current variable approach to skin-in-
the-game does not guarantee a defined amount would be available as
skin-in-the-game. Additionally, as OCC seeks recognition in the
European Union and the United Kingdom, OCC is cognizant of the European
Market Infrastructure Regulation's (``EMIR'') expectation that skin-in-
the-game be a minimum of 25% of the central counterparty's regulatory
capital requirement.\14\ Under the current Capital Management Policy,
excess capital is not dedicated solely as skin-in-the-game and it is
possible that OCC's capital in excess of 110% of its Target Capital
Requirement would be less than 25% of OCC's Target Capital Requirement.
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    \11\ Order Approving Capital Management Policy, 85 FR at 5507
(quoting comments submitted by FIA).
    \12\ See ABN AMRO Clearing Bank N.V., et al., A Path Forward for
CCP Resilience, Recovery, and Resolution (March 10, 2020), available
at https://www.jpmorgan.com/solutions/cib/markets/a-path-forward-for-ccp-resilience-recovery-and-resolution.
    \13\ While OCC agrees with the paper's authors that central
counterparties should have meaningful skin-in-the-game, OCC does not
agree with the level of skin-in-the-game recommended in the paper.
See Optimizing Incentives, Resilience and Stability in Central
Counterparty Clearing: Perspectives on CCP Issues from a Utility
Model Clearinghouse (September 22, 2020), available at https://www.theocc.com/Newsroom/Insights/2020/09-22-Optimizing-Incentives,-Resilience-and-Stabil.
    \14\ Though OCC, as a non-EU central counterparty, would not be
subject directly to the EMIR standards or the supervision of the
European Securities and Markets Authority (``ESMA''), OCC has
considered the EMIR standards as part of its bid to seek third-
country recognition in Europe and the United Kingdom. OCC is seeking
recognition to address European bank capital requirements set to go
into effect next year that would require European banks to set aside
additional capital for exposure to central counterparties that are
not ``qualified CCPs'' in Europe. In order to become a qualified
CCP, ESMA and the regulatory authority in a non-EU jurisdiction must
reach an agreement that their regulatory regimes for central
counterparties are equivalent. As of the date of this filing, the
Commodity Futures Trading Commission (``CFTC'') has reached an
agreement with ESMA on the equivalence of their regulatory regimes.
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    To address the concerns raised by these market participants,
further strengthen OCC's pre-funded financial resources, further align
the interests of OCC's management and Clearing Members, and align OCC's
skin-in-the-game with international standards, OCC is filing an advance
notice, which would establish a persistent minimum amount of skin-in-
the-game that would be used to cover default losses and liquidity
shortfalls. This skin-in-the-game proposal is part of a broader set of
decisions announced by OCC to lower the cost of clearing for its
members,\15\ including a fee decrease effective September 1, 2020.\16\
OCC also discussed these changes on calls with OCC's Non-Equity
Exchanges, Clearing Members, and other market participants, including
discussions with the SIFMA Options Committee and FIA and open calls
with OCC Clearing Members. Members expressed that the proposed addition
of a minimum level of skin-in-the-game would be a welcome enhancement
by OCC. One market participant expressed its appreciation for OCC's
commitment to resiliency, but renewed concerns it had raised in
connection with OCC's Capital Management Policy about increases in
OCC's capital and, if OCC were sold, a more commercial orientation
monetized with higher fees. As OCC stated with respect to the
establishment of the Capital Management Policy,\17\ OCC believes that
this view is well outside the scope of the Capital Management Policy
and this advance notice, but will continue to engage with Clearing
Members and other market participants to address any concerns. While
questions were raised in these conversations, no specific suggestions
were made.
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    \15\ OCC announced these decisions in a press release and letter
to Clearing Members. See Press Release, OCC To Lower Costs for Users
of U.S. Equity Derivatives Markets (Aug. 3, 2020), available at
https://www.theocc.com/Newsroom/Press-Releases/2020/08-03-OCC-To-Lower-Costs-for-Users-of-US-Equity-De; ``Letter to Clearing Member
Firms--OCC to Lower Costs for Users of U.S. Equity Derivative
Markets'' (Aug. 3, 2020), available at https://www.theocc.com/Newsroom/Views/2020/08-03-Letter-to-Clearing-Member-Firms.
    \16\ See Exchange Act Release No. 89534 (Aug. 12, 2020), 85 FR
50858 (Aug. 18, 2020) (File No. SR-OCC-2020-009).
    \17\ See Exhibit 3g to File No. SR-OCC-2019-007.
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Proposed Changes
    In order to establish a persistent minimum amount of skin-in-the-
game, OCC is proposing to: (a) Amend OCC's Rules to define the Minimum
Corporate Contribution, insert the Minimum Corporate Contribution in
OCC's default waterfall as provided in Rule 1006, provide for how OCC
would calculate any LNAFBE greater than 110% of its Target Capital
Requirement OCC would contribute in addition to the Minimum Corporate
Contribution, and provide a time by which OCC would reestablish the
Minimum Corporate Contribution if and when OCC uses it to cover default
losses; (b) amend the Capital Management Policy to exclude the Minimum
Corporate Contribution from OCC's measurement of its LNAFBE against its
Target Capital Requirement and from OCC's calculation of the Early
Warning and Trigger Event, to ensure that OCC may maintain the Minimum
Corporate Contribution exclusively for default losses while retaining
access to replenishment capital in the event OCC suffers an operational
loss that reduces its Equity below those thresholds; and (c) apply
conforming changes to the Default Management Policy, Clearing Fund
Methodology Policy, and the RWD Plan to reflect that in the event of a
default loss or liquidity shortfall, the Minimum Corporate Contribution
would be charged after contributing the margin and Clearing Fund
deposit of a default member and before the contribution of OCC's LNAFBE
in excess of 110% of OCC's Target Capital Requirement, both before OCC
charges the Clearing Fund deposits of non-default Clearing Members and
the EDCP Unvested Balance on a pro rata basis.
(a) Amendments to OCC's Rules
    To establish and maintain a persistent minimum level of skin-in-
the-game, OCC proposes to amend its Rules to (1) define the Minimum
Corporate Contribution; (2) revise OCC's default waterfall to more
clearing define the skin-in-the-game resources OCC would contribute to
a default loss; (3) provide for how OCC would calculate any LNAFBE
greater than 110% of the Target Capital Requirement it would contribute
after exhausting the Minimum Corporate Contribution; and (4) provide
for how OCC would replenish the Minimum Corporate Contribution after
each chargeable default loss.
(1) Defining the Minimum Corporate Contribution
    OCC would establish a persistent minimum level of skin-in-the-game
by first amending OCC's Rules to define the Minimum Corporate
Contribution in Chapter I of the Rules to mean the minimum level of
OCC's own funds maintained exclusively to cover credit losses or
liquidity shortfalls, the level of which OCC's Board shall determine
from time to time. As OCC's own funds, OCC would hold the Minimum
Corporate Contribution in accordance with OCC's By-Laws governing the
investment of OCC's funds \18\ and OCC's policies and procedures
governing cash and investment management. Specifically, OCC maintains
uninvested OCC cash in demand deposits and any investments of funds
maintained to satisfy the Minimum Corporate Contribution would be
limited to overnight reverse repurchase agreements involving U.S.
Government Treasury Securities, consistent with

OCC's same-day liquidity needs for such funds.
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    \18\ See OCC By-Laws Art. IX, Sec. 1.
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    While the proposed definition would give OCC's Board discretion in
setting the Minimum Corporate Contribution, the Board has approved an
initial Minimum Corporate Contribution that sets OCC's total persistent
skin-in-the-game (i.e., the sum of the Minimum Corporate Contribution
and OCC's current EDCP Unvested Balance) at 25% of OCC's Target Capital
Requirement. In setting the initial Minimum Corporate Contribution,
OCC's Board considered factors including, but not limited to, the
regulatory requirements in each jurisdiction in which OCC is registered
or in which OCC is actively seeking recognition, the amount similarly
situated central counterparties commit of their own resources to
address participant defaults, the EDCP Unvested Balance, OCC's LNAFBE
greater than 110% of its Target Capital Requirement, projected revenue
and expenses, and other projected capital needs.
(2) Revising OCC's Default Waterfall
    OCC would also amend OCC Rule 1006 to insert the Minimum Corporate
Contribution in OCC's default waterfall after contributing a defaulting
Clearing Member's margin and Clearing Fund deposit, and before
contributing OCC's LNAFBE greater than 110% of OCC's Target Capital
Requirement, both of which OCC would exhaust before charging a loss to
the Clearing Fund and the EDCP Unvested Balance, pari passu with the
Clearing Fund deposits of non-defaulting Clearing Members. So placed,
OCC believes that the Minimum Corporate Contribution would demonstrate
OCC's institutional commitment to its ongoing financial surveillance of
clearing members and the establishment and maintenance of a prudent and
effective margin methodology. A draw against the Minimum Corporate
Contribution and the associated requirement to replenish, as discussed
below, would provide fewer resources to meet other corporate
commitments. Accordingly, the proposal would further align OCC's and
its management's interests with those of non-defaulting Clearing
Members.
    OCC would also remove references to ``retained earnings'' or
``current or retained earnings'' in OCC Rule 1006(b), Rule 1006(e)(i),
Rule 1006(e)(ii), and the second sentence of Rule 1006(e)(iii), and
replace them with references to the contribution of the ``Minimum
Corporate Contribution'' and ``the Corporation's liquid net assets
funded by equity that are greater than 110% of its Target Capital
Requirement.'' The refences to ``retained earnings'' or ``current or
retained earnings'' are legacy terms used prior to OCC's implementation
of the Capital Management Policy.\19\ OCC is proposing to replace these
references in OCC's Rules to better identify the funds OCC's would
contribute in terms that align with OCC's Capital Management Policy.
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    \19\ OCC first established discretionary use of OCC's current or
retained earnings to cover default losses in Article VIII (Clearing
Fund) of OCC's By-Laws. See Exchange Act Release No. 15493 (Jan. 4,
1979), 44 FR 3802 (Jan. 18, 1979) (File No. SR-OCC-79-01). When OCC
moved the provisions governing the Clearing Fund from OCC's By-Laws
to the Rules in 2018, the provisions governing the usage of the
Clearing Fund became Rule 1006(e). See Exchange Act Release No.
83735 (July 27, 2018), 83 FR 37855 (Aug. 2, 2018) (File No. SR-OCC-
2018-008).
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(3) Calculating LNAFBE Available as Skin-In-The-Game
    Because OCC proposes to replace references to ``current or retained
earnings,'' OCC would also delete the first sentence of Rule
1006(e)(iii), which currently provides for how OCC determines its
``current earnings'' for purposes of the amount available to cover
losses under Rule 1006(e)(i) and Rule 1006(e)(ii). In its place, the
first sentence of Rule 1006(e)(iii) would set out how OCC would
determine its LNAFBE for purposes of contributing LNAFBE greater than
110% of the Target Capital Requirement to cover default losses and
liquidity shortfalls. Specifically, similar to how the Rules currently
provide for the calculation of ``current earnings,'' OCC would
determine its LNAFBE based on OCC's unaudited financial statements at
the close of the calendar month immediately preceding the occurrence of
the loss or deficiency under paragraphs (e)(i) or (e)(ii), less an
amount equal to the aggregate of all refunds made or authorized to be
made or deemed to have been made during the fiscal year in which such
loss or deficiency occurs if the refund is not reflected on such
unaudited financial statements. Accordingly, OCC would retain the
priority given to the payment of refunds that OCC has declared, but not
yet issued, as currently provided by OCC Rule 1106(e)(iii), when
calculating the amount of LNAFBE available to cover a default loss
after contributing the Minimum Corporate Contribution.
    OCC would further amend Rule 1006(e)(iii) to provide that in no
event shall OCC be required to contribute an amount that would cause
OCC's LNAFBE to fall below 110% of the Target Capital Requirement at
the time changed. The Capital Management Policy, in accordance with SEC
Rule 17Ad-22(e)(15)(ii)(A),\20\ currently requires that the funds OCC
maintains to satisfy its Target Capital Requirement be separate from
OCC's resources to cover participant defaults and liquidity shortfalls.
Accordingly, should a default occur in a month during which OCC suffers
an operational loss that decreases the value of its excess capital
available as skin-in-the-game below what is reflected on the unaudited
financial statement at the close of the previous month,\21\ OCC would
be able to take into account the decrease in its excess capital when
calculating its available LNAFBE above 110% of the Target Capital
Requirement. In addition, OCC would renumber as Rule 1006(e)(iv) the
last sentence of Rule 1006(e)(iii). That sentence, which concerns a
defaulting Clearing Member's continuing obligation for losses OCC
charges to OCC's own capital, is conceptually distinct from the rest of
Rule 1006(e)(iii) and, accordingly, deserves to be addressed
separately.
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    \20\ 17 CFR 240.17Ad-22(e)(15)(ii)(A).
    \21\ Under OCC's current rules, LNAFBE greater than 110% of the
Target Capital Requirement and the EDCP Unvested Balance are
committed to cover both operational losses and default losses. In
the event OCC experiences operational losses and default losses in
short succession, OCC would contribute these resources in the manner
specified by OCC's Rules to the event that occurred first.
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(4) Replenishing the Minimum Corporate Contribution
    Finally, OCC would add a new paragraph to Rule 1006(e)--Rule
1006(e)(v)--to provide for a 270 calendar-day period during which the
Minimum Corporate Contribution, once charged, would be reduced to the
remaining unused portion. OCC believes that 270 calendar days, or
approximately nine months, is sufficient time for OCC to accumulate the
funds necessary to reestablish the Minimum Corporate Contribution. In
making this determination, OCC used the same analysis employed to set
the Early Warning and Trigger Event under its Replenishment Plan, both
of which are based on the time OCC estimates it would take to
accumulate 10% of its Target Capital Requirement.\22\ Specifically, OCC
took into account its typical monthly earnings and the amount of
earnings that would be needed to replenish the Minimum Corporate
Contribution on an after-tax basis. Proposed Rule 1006(e)(v) would also
provide that OCC shall notify Clearing Members of any such reduction

to the Minimum Corporate Contribution.
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    \22\ See Order Approving Capital Management Policy, 85 FR at
5510-11. OCC has included this analysis as part of confidential
Exhibit 3 to File No. SR-OCC-2021-801.
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    Each chargeable loss would trigger a new 270-day period. As such,
proposed Rule 1006(e)(v) is designed to allow OCC to manage multiple
defaults within a 270-day period by eliminating the risk that a
successive default would exhaust the resources needed to reestablish
the Minimum Corporate Contribution by the end of the initial 270-day
period. And while a successive default loss that does not impact excess
LNAFBE \23\ available to replenish the Minimum Corporation Contribution
would nevertheless trigger another 270-day period during which the
Minimum Corporate Contribution would be reduced to the remaining unused
portion after the first two defaults, any LNAFBE greater than 110% of
the Target Capital Requirement would continue to be available to cover
successive default losses. In the very unlikely event that OCC
experiences an operational loss or a drop in revenue from clearing fees
that threatens its ability to reestablish the Minimum Corporate
Contribution at the end of the 270-day period, OCC would likely file a
rule change to extend the period rather than act to lower the Minimum
Corporate Contribution, dependent on the Board's consideration of the
same non-exclusive list of factors that the Board would consider when
determining whether to adjust the Minimum Corporate Contribution,
discussed below.
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    \23\ As described below, OCC is proposing to amend the Capital
Management Policy to exclude the Minimum Corporate Contribution from
the definition of LNAFBE. As a result, a second default loss covered
exclusively by the Minimum Corporate Contribution would not impact
OCC's level of LNAFBE.
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(b) Amendments to the Capital Management Policy
    Consistent with the proposed changes to OCC's Rules, OCC would
amend the portions of the Capital Management Policy that concern OCC's
usage of excess capital to cover default losses to more specifically
identify the resources OCC would contribute to default losses; namely,
the Minimum Corporate Contribution and LNAFBE above 110% of the Target
Capital Requirement. OCC would clarify that after exhausting the
Minimum Corporate Contribution, OCC would continue to offset default
losses with LNAFBE, rather than ``Equity,'' above 110% of the Target
Capital requirement. This change is not intended to change OCC's
current obligations. Rather, OCC intends to conform the Capital
Management Policy so that the terms are consistent with those used in
the proposed Rules, other requirements in the Capital Management
Policy, and OCC's regulatory obligations. Specifically, the Capital
Management Policy provides that the resources held to meet the Target
Capital Requirement must be liquid assets separate from OCC's resources
to cover participant defaults and liquidity shortfalls, consistent with
SEC Rule 17Ad-22(e)(15)(ii)(A).\24\ Because Equity typically exceeds
LNAFBE and because any funds OCC would contribute to cover a default
loss would need to be liquid assets, contributing liquid assets in
excess of LNAFBE greater than 110% of the Target Capital Requirement
would be inconsistent with the Capital Management Policy.
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    \24\ See 17 CFR 240.17Ad-22(e)(15)(ii)(A).
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    In addition, OCC would amend the Capital Management Policy's list
of capital management actions with a material impact on current or
future levels of Equity, replacing ``use of current and retained
earnings greater than 100% of the Target Capital Requirement'' with
``use of excess capital,'' to align with the title of the Capital
Management Policy's ``Excess Capital Usage'' section. That section
would also be updated to include a discussion of the factors that the
Board would consider in establishing and adjusting the Minimum
Corporate Contribution. Factors the Board would consider include, but
are not limited to, the regulatory requirements in each jurisdiction in
which OCC is registered or in which OCC is actively seeking
recognition, the amount similarly situated central counterparties
commit of their own resources to address participant defaults, the
current and projected level of the EDCP Unvested Balance, OCC's LNAFBE
greater than 110% of its Target Capital Requirement, projected revenue
and expenses, and other projected capital needs. While the Capital
Management Policy would provide that the Board would review Minimum
Corporate Contribution annually, the Board would retain authority to
change the Minimum Corporate at its discretion. In addition, the
Capital Management Policy would be updated to include the substance of
and references to proposed Rule 1006(e)(v), which, as discussed above,
provides for a 270-day period following a chargeable loss during which
the Minimum Corporate Contribution is reduced to its remaining unused
portion.
    OCC would also amend the definition of LNAFBE in the Capital
Management Policy to specifically exclude the Minimum Corporate
Contribution, which would be dedicated to cover default losses. The
Capital Management Policy defines LNAFBE as the level of cash and cash
equivalents, no greater than Equity, less any approved adjustments. The
definition currently specifies the exclusion of ``agency-related
liabilities, such as Section 31 fees'' as the only approved adjustment.
OCC would amend the definition to add the Minimum Corporate
Contribution as another example of an approved exemption to the
calculation of LNAFBE. As discussed in more detail in the discussion of
the statutory basis for these proposed changes below, this proposed
amendment to the definition of LNAFBE is intended to ensure that OCC
does not double count resources committed to cover default losses as
resources available to satisfy regulatory requirements concerning the
amount of LNAFBE or other financial resources OCC must maintain to
cover operational costs and potential business losses. For similar
reasons, OCC would amend the Capital Management Policy's discussion of
OCC's Replenishment Plan to add that in the event of an operational
loss, OCC shall first use Equity, ``less the Minimum Corporate
Contribution,'' above 110% of Target Capital. This amendment reflects
that the funds maintained for the Minimum Corporate Contribution are
not funds available to cover operational losses.
    With respect to OCC's Replenishment Plan, OCC would also amend the
definitions of the Early Warning and Trigger Event to exclude the
Minimum Corporate Contribution from the calculation of those thresholds
so that OCC maintains access to replenishment capital in the event
operational losses materialize while still maintaining the Minimum
Corporate Contribution exclusively to cover default losses. As
described above, the Early Warning and Trigger Event are the thresholds
for actions under OCC's Replenishment Plan. Currently, the Early
Warning and Trigger Event thresholds are defined with respect to OCC's
Equity falling below certain thresholds. OCC is proposing to amend
those definitions so that the Early Warning and Trigger Event occur
when Equity ``less the Minimum Corporate Contribution'' falls below
those same thresholds. These changes would ensure that OCC may maintain
the Minimum Corporate Contribution exclusively to address default
losses--the effect of which would be to increase Equity relative to
LNAFBE--while still maintaining access to its Replenishment Plan should
OCC's Equity, less the Minimum

Corporate Contribution, fall close to or below the Target Capital
Requirement.
(c) Amendments to the Default Management Policy, Clearing Fund
Methodology Policy, and RWD Plan
    To accommodate the proposed establishment of the Minimum Corporate
Contribution, OCC proposes conforming changes to other rule-filed
policies that describe OCC's default waterfall, as set forth in OCC
Rule 1006. In the Default Management Policy, OCC would delete the
passage concerning ``Current and Retained Earnings'' in the current
discussion of OCC's default waterfall and replace it with the Minimum
Corporate Contribution and LNAFBE greater than 110% of the Target
Capital Requirement, as provided in the proposed amendments to Rule
1006 above. OCC would also amend the Default Management Policy's
definition of ``financial resources'' to include the Minimum Corporate
Contribution as among those available to address Clearing Member
defaults and suspensions. In the Clearing Fund Methodology Policy, OCC
would similarly revise the discussion of the default waterfall in that
policy's section covering Clearing Fund charges and assessments to
incorporate the Minimum Corporate Contribution, consistent with the
proposed amendments to Rule 1006 above. OCC would also amend the
Clearing Fund Methodology Policy's definitions of OCC's ``Pre-Funded
Financial Resources'' for the purposes of sizing or measuring the
sufficiency of the Clearing Fund to include the Minimum Corporate
Contribution. Finally, OCC would amend the RWD Plan to replace all
references to ``current or retained earnings'' with the Minimum
Corporate Contribution and LNAFBE greater than 110% of the Target
Capital Requirement, or ``skin-in-the-game'' for short, modify certain
example scenarios concerning use of OCC's Enhanced Risk Management and
Recovery Tools to account for the proposed Minimum Corporate
Contribution, and make certain other conforming changes concerning use
of skin-in-the-game to address liquidity shortfalls and, in the case of
LNAFBE greater than 110% of the Target Capital Requirement, OCC's
authority to use skin-in-the-game to address losses resulting from bank
or securities or commodities clearing organization failures, including
custody or investment losses.
Anticipated Effect on and Management of Risk
    OCC believes that the proposed changes would reduce the nature and
level of risk presented by OCC because they would enhance the overall
resilience of OCC's capital management and default management
processes. Establishing a Minimum Corporate Contribution, which OCC
would apply after a defaulting Clearing Member's margin and Clearing
Fund deposits, would ensure a minimum level of OCC's own pre-funded
financial resources available to cover credit losses. By applying the
Minimum Corporate Contribution before charging the Clearing Fund, the
proposed change helps protect non-defaulting Clearing Members from
default losses of another Clearing Member, which in turn helps reduce
OCC's overall level of risk and ensure the prompt and accurate
clearance and settlement of its cleared products. In addition, the
proposed changes to OCC's Rules, Capital Management Policy and other
rule-filed policies intended to account for the use of OCC's Minimum
Corporate Contribution and LNAFBE greater than 110% of the Target
Capital Requirement would help ensure that OCC continues to hold LNAFBE
sufficient to meet its regulatory obligations and maintain access to
its Replenishment Plan in the event that an operational loss causes
Equity, less the Minimum Corporate Contribution reserved for default
losses, to fall close to or below regulatory requirements. Together
these features of the Capital Management Policy help ensure that OCC
maintains levels of capital sufficient to allow it to absorb
substantial business losses and meet its responsibilities as a
systemically important financial market utility, which in turn helps
reduce OCC's overall level of risk.
Consistency With the Clearing Supervision Act
    The stated purpose of the Clearing Supervision Act is to mitigate
systemic risk in the financial system and promote financial stability
by, among other things, promoting uniform risk management standards for
systemically important financial market utilities and strengthening the
liquidity of systemically important financial market utilities.\25\
Section 805(a)(2) of the Clearing Supervision Act \26\ also authorizes
the Commission to prescribe risk management standards for the payment,
clearing and settlement activities of designated clearing entities,
like OCC, for which the Commission is the supervisory agency. Section
805(b) of the Clearing Supervision Act \27\ states that the objectives
and principles for risk management standards prescribed under Section
805(a) shall be to promote robust risk management, promote safety and
soundness, reduce systemic risks, and support the stability of the
broader financial system.
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    \25\ 12 U.S.C. 5461(b).
    \26\ 12 U.S.C. 5464(a)(2).
    \27\ 12 U.S.C. 5464(b).
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    The Commission has adopted risk management standards under Section
805(a)(2) of the Clearing Supervision Act and the Exchange Act in
furtherance of these objectives and principles.\28\ Rule 17Ad-22
requires registered clearing agencies, like OCC, to establish,
implement, maintain, and enforce written policies and procedures that
are reasonably designed to meet certain minimum requirements for their
operations and risk management practices on an ongoing basis.\29\
Therefore, the Commission has stated \30\ that it believes it is
appropriate to review changes proposed in advance notices against Rule
17Ad-22 and the objectives and principles of these risk management
standards as described in Section 805(b) of the Clearing Supervision
Act.\31\
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    \28\ 17 CFR 240.17Ad-22. See Exchange Act Release Nos. 68080
(October 22, 2012), 77 FR 66220 (November 2, 2012) (S7-08-11)
(``Clearing Agency Standards''); 78961 (September 28, 2016), 81 FR
70786 (October 13, 2016) (S7-03-14) (``Standards for Covered
Clearing Agencies'').
    \29\ 17 CFR 240.17Ad-22.
    \30\ See, e.g., Exchange Act Release No. 86182 (June 24, 2019),
84 FR 31128, 31129 (June 28, 2019) (SR-OCC-2019-803).
    \31\ 12 U.S.C. 5464(b).
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    OCC believes the proposed changes are consistent with the
objectives and principles of Section 805(b) of the Clearing Supervision
Act.\32\ The proposed changes are generally designed to enhance OCC's
resiliency by establishing a Minimum Corporate Contribution that would
be used to absorb losses or liquidity shortfalls arising from the
default of a Clearing Member. While OCC's current rules commit OCC to
contribute a contingent amount of capital to address default losses or
liquidity shortfalls, the proposed changes would commit to a minimum
amount, subject to a replenishment period if OCC charges a loss to the
Minimum Corporate Contribution. Ensuring a minimum amount of skin-in-
the-game would reduce the amount OCC may need to charge the Clearing
Fund deposits of non-defaulting Clearing Member. In this way, OCC
believes that the proposed establishment of the Minimum Corporate
Contribution and attendant changes would improve OCC's resilience as a
systemically important market utility by promoting robust risk
management, promoting safety and

soundness, reducing systemic risks, and supporting the stability of the
broader financial system.
---------------------------------------------------------------------------

    \32\ Id.
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    OCC also believes that the proposed changes are consistent with the
risk management standards adopted by the Commission under Section
805(a)(2) of the Clearing Supervision Act; \33\ specifically, Rules
17Ad-22(e)(4), \34\ 17Ad-22(e)(15)(ii)(A),\35\ 17Ad-22(e)(15)(iii),\36\
Rules 17Ad-22(e)(2)(i),\37\ and 17Ad-22(e)(23) \38\ thereunder for the
reasons described below.
---------------------------------------------------------------------------

    \33\ 12 U.S.C. 5464(a)(2).
    \34\ 17 CFR 240.17Ad-22(e)(4).
    \35\ 17 CFR 240.17Ad-22(e)(15)(ii).
    \36\ 17 CFR 240.17Ad-22(e)(15)(iii).
    \37\ 17 CFR 240.17Ad-22(e)(2)(i).
    \38\ 17 CFR 240.17Ad-22(e)(23).
---------------------------------------------------------------------------

    Rule 17Ad-22(e)(4) under the Exchange Act provides, in part, that
OCC establish, implement, maintain and enforce written policies and
procedures reasonably designed to effectively identify, measure,
monitor and manage its credit exposures to participants and those
arising from its payment, clearing and settlement processes, including
by maintaining sufficient financial resources to cover its credit
exposure to each participant fully with a high degree of
confidence.\39\ By providing that OCC shall maintain a minimum level of
skin-in-the-game--in addition to OCC's LNAFBE greater than 110% of its
Target Capital Requirement, contributed prior to charging the Clearing
Fund, as OCC's Rules currently provide--OCC is providing for a minimum
level of pre-funded financial resources available to cover losses in
the event of a Clearing Member default, and reducing the amount OCC
would charge the Clearing Fund contributions of non-defaulting Clearing
Members. Therefore, OCC believes the amendments to its Rules, the
Capital Management Policy, and other related policies to establish the
Minimum Corporate Contribution are consistent with Rule 17Ad-22(e)(4).
---------------------------------------------------------------------------

    \39\ 17 CFR 240.17Ad-22(e)(4)(i).
---------------------------------------------------------------------------

    OCC also believes that the proposed changes to the definition of
LNAFBE in OCC's Capital Management Policy, which exclude the Minimum
Corporate Contribution from the calculation of LNAFBE, are consistent
with Rule 17Ad-22(e)(15)(ii)(A) under the Exchange Act.\40\ Rule 17Ad-
22(e)(15)(ii)(A) requires that the LNAFBE held by OCC to satisfy the
minimum LNAFBE required by Rule 17Ad-22(e)(15)(ii) \41\ shall be in
addition to resources held to cover participant defaults or other
credit or liquidity risks.\42\ The proposed revision to OCC's
definition of LNAFBE is designed to satisfy Rule 17Ad-22(e)(15)(ii)(A)
by providing that the proposed Minimum Corporate Contribution, which
would be held exclusively to cover participant defaults and liquidity
shortfalls, would be in addition to the LNAFBE that OCC holds to meet
or exceed its regulatory capital requirements under Rule 17Ad-
22(e)(15)(ii)--i.e., LNAFBE in an amount equal to 110% of OCC's Target
Capital Requirement. In addition, the proposed revisions to OCC Rule
1006(e)(iii) and the Capital Management Policy--which would specify
that OCC's committed skin-in-the-game shall include the Minimum
Corporate Contribution and LNAFBE greater than 110% of the Target
Capital Requirements--are reasonably designed to ensure that OCC would
not be obligated to contribute an amount of skin-in-the-game that would
cause its LNAFBE to fall below the Early Warning threshold intended to
ensure OCC maintains sufficient LNAFBE to meet its regulatory
obligations. As a result, OCC believes the proposed amendments to the
Capital Management Policy are designed to comply with Rule 17Ad-
22(e)(15)(ii)(A).
---------------------------------------------------------------------------

    \40\ 17 CFR 240.17Ad-22(e)(15)(ii)(A).
    \41\ Rule 17Ad-22(e)(15)(ii), in turn, requires that OCC hold
LNAFBE to the greater of (x) six months of OCC's current operating
expenses, or (y) the amount determined by the Board to be sufficient
to ensure a recovery or orderly wind-down of critical operations and
services. 17 CFR 240.17Ad-22(e)(15)(ii). OCC's Capital Management
Policy is reasonably designed to meet this requirement, and Rule
17Ad-22(e)(15) more broadly, by providing that OCC sets its Target
Capital Requirement at a level sufficient to maintain LNAFBE at
least equal to the greater of: (x) Six months of OCC's current
operating expenses, (y) the amount determined by the Board to be
sufficient to ensure a recovery or orderly winddown of critical
operations and services, and (z) the amount determined by the Board
to be sufficient for OCC to continue operations and services as a
going concern if general business losses materialize. See Order
Approving Capital Management Policy, 85 FR at 5501-02. In addition,
in setting the Target Capital Requirement, OCC's Board considers
OCC's projected rolling twelve-months' operating expenses to ensure
that OCC maintains Equity and other financial resources approved by
the CFTC, as required by CFTC Rule 39.11(a)(2). See id. at 5501 n.19
(citing 17 CFR 39.11(a)(2)).
    \42\ Id. Similarly, CFTC Rule 39.11(b)(3) provides that a
derivatives clearing organization (``DCO'') may allocate financial
resources to satisfy requirements that the DCO possess financial
resources (i) to enable the DCO to meet obligations notwithstanding
a default by the clearing member creating the largest financial
exposure for the DCO in extreme but plausible market conditions, and
(ii) to enable the DCO to cover its operational costs, but not both.
See 17 CFR 39.11(b)(3).
---------------------------------------------------------------------------

    In addition, OCC believes that the proposed amendments to OCC's
definition of the Early Warning and Trigger Event thresholds under
OCC's Replenishment Plan are consistent with Rule 17Ad-22(e)(15)(iii)
\43\ because excluding the Minimum Corporate Contribution from those
thresholds would ensure that OCC may continue to access replenishment
capital in the unlikely event that OCC experiences an operational loss
while continuing to maintain the Minimum Corporate Contribution
exclusively to cover default losses. Rule 17Ad-22(e)(15)(iii) requires,
in part, that OCC establish, implement, maintain and enforce written
policies and procedures reasonably designed to identify, monitor, and
manage OCC's general business risk, including by maintaining a viable
plan for raising additional Equity should its Equity fall close to or
below the amount required under Rule 17Ad-22(e)(15)(ii).\44\ By setting
the threshold triggers by reference to the Target Capital Requirement,
OCC's Replenishment Plan is designed to require OCC to act to raise
capital should its Equity fall close to or below the amounts required
under Rule 17Ad-22(e)(15)(ii). However, the effect of holding the
Minimum Corporate Contribution would be to increase OCC's Equity
relative to LNAFBE available to cover potential operational losses. To
help ensure that OCC holds LNAFBE above its Target Capital Requirement
and maintains access to replenishment capital, the proposed change
would exclude the Minimum Corporate Contribution when measuring OCC's
Equity against the Early Warning and Trigger Event thresholds under its
Replenishment Plan. Accordingly, OCC believes that the proposed
amendments to the definitions of the Early Warning and Trigger Event
thresholds are consistent with Rule 17Ad-22(e)(15)(iii).
---------------------------------------------------------------------------

    \43\ 17 CFR 240.17Ad-22(e)(15)(iii).
    \44\ Id. As discussed in note 41, supra, OCC's Target Capital
Requirement is reasonably designed to meet or exceed the minimum
LNAFBE required to satisfy Rule 17Ad-22(e)(15)(ii).
---------------------------------------------------------------------------

    OCC also believe that the proposed changes are consistent with Rule
17Ad-22(e)(2)(i), which requires that covered clearing agencies
maintain written policies and procedures reasonably designed to provide
for governance arrangements that are clear and transparent.\45\ The
proposed changes would align the terminology used in OCC's Rules and
other rule-filed policies with the terminology of the Capital
Management Policy, providing better clarity and consistency between
OCC's governing documents. Specifically, OCC would amend its Rules,
Capital Management Policy, Default Management Policy, Clearing Fund
Methodology Policy and RWD Plan to identify OCC's sources of skin-

in-the-game (the Minimum Corporation Contribution, LNAFBE greater than
110% of the Target Capital Requirement, and the EDCP Unvested Balance)
and their places within OCC's default waterfall. The proposed
amendments to the Capital Management Policy would also identify factors
the Board would consider in setting and adjusting the Minimum Corporate
Contribution. Accordingly, OCC believes conforming the terms in these
governance arrangements and identifying factors OCC would consider in
adjusting the Minimum Corporate Contribution is consistent with Rule
17Ad-22(e)(2)(i).
---------------------------------------------------------------------------

    \45\ 17 CFR 240.17Ad-22(e)(2)(i).
---------------------------------------------------------------------------

    Finally, OCC believe that the proposed changes are consistent with
Rule 17Ad-22(e)(23), which requires covered clearing agencies to
maintain written policies and procedures reasonably designed to, among
other things, provide for publicly disclosing all relevant rules and
material procedures, including key aspects of its default rules and
procedures.\46\ The proposed changes would amend OCC's Rules to remove
the pre-Capital Management Policy references to use of ``retained
earnings'' or ``current and retained earnings'' with respect to the
sources of OCC's skin-in-the-game, and instead identify the Minimum
Corporate Contribution and LNAFBE greater than 110% of the Target
Capital Requirement. The proposed changes would also provide greater
clarity about how OCC calculates the amount of LNAFBE greater than 110%
of the Target Capital Requirement based upon the unaudited financial
statements from the close of the prior month; provided, however, that
OCC would not be required to contribute an amount that would cause its
LNAFBE to fall below 110% of the Target Capital Requirement at the time
charged. The proposed changes to OCC Rules would, in turn, be made
available on OCC's website. Therefore, OCC believes the proposed
changes would disclose relevant default rules and procedures to the
public and to Clearing Members.
---------------------------------------------------------------------------

    \46\ 17 CFR 240.17Ad-22(e)(23).
---------------------------------------------------------------------------

    For the foregoing reasons, OCC believes that the proposed changes
are consistent with Section 805(b) of the Clearing Supervision Act \47\
and Rules 17Ad-22(e)(4), \48\ 17Ad-22(e)(15) (ii)(A),\49\ 17Ad-
22(e)(15)(iii),\50\ Rules 17Ad-22(e)(2)(i),\51\ and 17Ad-22(e)(23) \52\
under the Exchange Act.
---------------------------------------------------------------------------

    \47\ 12 U.S.C. 5464(b).
    \48\ 17 CFR 240.17Ad-22(e)(4).
    \49\ 17 CFR 240.17Ad-22(e)(15)(ii).
    \50\ 17 CFR 240.17Ad-22(e)(15)(iii).
    \51\ 17 CFR 240.17Ad-22(e)(2)(i).
    \52\ 17 CFR 240.17Ad-22(e)(23).
---------------------------------------------------------------------------

III. Date of Effectiveness of the Advance Notice and Timing for
Commission Action

    The proposed change may be implemented if the Commission does not
object to the proposed change within 60 days of the later of (i) the
date the proposed change was filed with the Commission or (ii) the date
any additional information requested by the Commission is received. OCC
shall not implement the proposed change if the Commission has any
objection to the proposed change.
    The Commission may extend the period for review by an additional 60
days if the proposed change raises novel or complex issues, subject to
the Commission providing the clearing agency with prompt written notice
of the extension. A proposed change may be implemented in less than 60
days from the date the advance notice is filed, or the date further
information requested by the Commission is received, if the Commission
notifies the clearing agency in writing that it does not object to the
proposed change and authorizes the clearing agency to implement the
proposed change on an earlier date, subject to any conditions imposed
by the Commission.
    OCC shall post notice on its website of proposed changes that are
implemented. The proposal shall not take effect until all regulatory
actions required with respect to the proposal are completed.

IV. Solicitation of Comments

    Interested persons are invited to submit written data, views, and
arguments concerning the foregoing, including whether the advance
notice is consistent with the Clearing Supervision Act. Comments may be
submitted by any of the following methods:

Electronic Comments

     Use the Commission's internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an email to<EMAIL_ADDRESS>Please include
File Number SR-OCC-2021-801 on the subject line.

Paper Comments

     Send paper comments in triplicate to Secretary, Securities
and Exchange Commission, 100 F Street NE, Washington, DC 20549.

All submissions should refer to File Number SR-OCC-2021-801. This file
number should be included on the subject line if email is used. To help
the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's internet website (http://www.sec.gov/rules/sro.shtml).
Copies of the submission, all subsequent amendments, all written
statements with respect to the advance notice that are filed with the
Commission, and all written communications relating to the advance
notice between the Commission and any person, other than those that may
be withheld from the public in accordance with the provisions of 5
U.S.C. 552, will be available for website viewing and printing in the
Commission's Public Reference Room, 100 F Street NE, Washington, DC
20549 on official business days between the hours of 10:00 a.m. and
3:00 p.m. Copies of the filing also will be available for inspection
and copying at the principal office of the self-regulatory
organization.

    All comments received will be posted without change. Persons
submitting comments are cautioned that we do not redact or edit
personal identifying information from comment submissions. You should
submit only information that you wish to make available publicly.
    All submissions should refer to File Number SR-OCC-2021-801 and
should be submitted on or before March 16, 2021.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\53\
---------------------------------------------------------------------------

    \53\ 17 CFR 200.30-3(a)(91).
---------------------------------------------------------------------------

J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2021-04087 Filed 2-26-21; 8:45 am]
BILLING CODE 8011-01-P


[Federal Register: October 13, 2006 (Volume 71, Number 198)]
[Notices]
[Page 60517-60520]
[DOCID:fr13oc06-79]

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ENVIRONMENTAL PROTECTION AGENCY

EPA-HQ-OPPT-2006-0825; FRL-8099-3

Certain New Chemicals; Receipt and Status Information

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.

-----------------------------------------------------------------------

SUMMARY: Section 5 of the Toxic Substances Control Act (TSCA) requires
any person who intends to manufacture (defined by statute to include
import) a new chemical (i.e., a chemical not on the TSCA Inventory) to
notify EPA and comply with the statutory provisions pertaining to the
manufacture of new chemicals. Under sections 5(d)(2) and 5(d)(3) of
TSCA, EPA is required to publish a notice of receipt of a
premanufacture notice (PMN) or an application for a test marketing
exemption (TME), and to publish periodic status reports on the
chemicals under review and the receipt of notices of commencement to
manufacture those chemicals. This status report, which covers the
period from September 11, 2006 to September 15, 2006, consists of the
PMNs and TME both pending or expired, and the notices of commencement
to manufacture a new chemical that the Agency has received under TSCA
section 5 during this time period.

DATES: Comments identified by the specific PMN number or TME number,
must be received on or before November 13, 2006.

ADDRESSES: Submit your comments, identified by docket identification
(ID) no. EPA-HQ-OPPT-2006-0825, by one of the following methods.
     http://www.regulations.gov. Follow the on-line

instructions for submitting comments.
     Mail: Document Control Office (7407M), Office of Pollution
Prevention and Toxics (OPPT), Environmental Protection Agency, 1200
Pennsylvania Ave., NW., Washington, DC 20460-0001.
     Hand Delivery: OPPT Document Control Office (DCO, EPA East
Bldg., Rm. 6428, 1201 Constitution Ave., NW., Washington, DC.
Attention: Docket ID number EPA-HQ-OPPT-2006-0767. The DCO is open from
8 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The
telephone number for the DCO is<PHONE_NUMBER>. Such deliveries are
only accepted during the Docket's normal hours of operation, and
special arrangements should be made for deliveries of boxed
information.
     Instructions: Direct your comments to docket ID number
EPA-HQ-OPPT-2006-0825. 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 information
that you consider to be CBI or otherwise protected through
regulations.gov or e-mail. The regulations.gov Web site is an
``anonymous access'' systems, 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 e-mail comment directly to EPA without
going through regulations.gov your e-mail 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 be free of any defects
or viruses.
    Docket: All documents in the docket are listed in the
regulations.gov index. Although listed in the index, some information
is not publicly available, e.g., CBI or other information whose
disclosure is restricted by statute. Certain other material, such as
copyrighted material, is not placed on the Internet and will be
publicly available only in hard copy. Publicly available docket
materials are available electronically at http://www.regulations.gov,

or, if only available in hard copy, at the OPPT Docket, EPA Docket
Center (EPA/DC). The EPA suffered structural damage due to flooding in
June 2006. Although the EPA/DC is continuing operations, there will be
temporary changes to the EPA/DC during the clean-up. The EPA/DC Public
Reading Room, which was temporarily closed due to flooding, has been
relocated in the EPA Headquarters Library, Infoterra Room (Room Number
3334) in the EPA West Building, located at 1301 Constitution Ave., NW.,
Washington, DC. The EPA/DC Public Reading Room is open from 8:30 a.m.
to 4:30 p.m., Monday through Friday, excluding legal holidays. The
telephone number for the Public Reading Room is<PHONE_NUMBER>, and the
telephone number for the OPPT Docket is<PHONE_NUMBER>. EPA visitors
are required to show photographic identification and sign the EPA
visitor log. Visitors to the EPA/DC Public Reading Room location will
be provided with an EPA/DC badge that must be visible at all times
while in the EPA Building and returned to the guard upon departure. In
addition, security personnel will escort visitors to and from the new
EPA/DC Public Reading Room location. Up-to-date information about the
EPA/DC is on the EPA Web site at http://www.epa.gov/epahome/dockets.htm
.

FOR FURTHER INFORMATION CONTACT: Colby Lintner, Regulatory Coordinator,
Environmental Assistance Division, Office of Pollution Prevention and
Toxics (7408M), Environmental Protection Agency, 1200 Pennsylvania
Ave., NW., Washington, DC 20460-0001; telephone number:<PHONE_NUMBER>;
e-mail address<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

I. General Information

A. Does this Action Apply to Me?

    This action is directed to the public in general. As such, the
Agency has not attempted to describe the specific entities that this
action may apply to. Although others may be affected, this action
applies directly to the submitter of the premanufacture notices
addressed in the action. If you have any questions regarding the
applicability of this action to a particular entity, consult the person
listed under FOR FURTHER INFORMATION CONTACT.

B. What Should I Consider as I Prepare My Comments for EPA?

    1. Submitting CBI. Do not submit this information to EPA through
regulations.gov or e-mail. Clearly mark the part or all of the
information that you claim to be CBI. For CBI information in a disk or
CD ROM that you mail to EPA, mark the outside of the disk or CD ROM as
CBI and then identify electronically within the disk or CD ROM the
specific information that is claimed CBI). In addition to one complete
version of the comment that includes information claimed as CBI, a copy
of the comment that does not contain the information claimed as CBI
must be submitted for inclusion in the public docket. Information so
marked will not be disclosed except in accordance with procedures set
forth in 40 CFR part 2.
    2. Tips for preparing your comments. When submitting comments,
remember to:
    i. Identify the document by docket number and other identifying
information (subject heading, Federal Register date and page number).
    ii. Follow directions - The agency may ask you to respond to
specific questions or organize comments by referencing a Code of
Federal Regulations (CFR) part or section number.

    iii. Explain why you agree or disagree; suggest alternatives and
substitute language for your requested changes.
    iv. Describe any assumptions and provide any technical information
and/or data that you used.
    v. If you estimate potential costs or burdens, explain how you
arrived at the estimate.
    vi. Provide specific examples to illustrate your concerns, and
suggested alternatives.
    vii. Explain your views as clearly as possible, avoiding the use of
profanity or personal threats.
    viii. Make sure to submit your comments by the comment period
deadline identified.

II. Why is EPA Taking this Action?

    Section 5 of TSCA requires any person who intends to manufacture
(defined by statute to include import) a new chemical (i.e., a chemical
not on the TSCA Inventory to notify EPA and comply with the statutory
provisions pertaining to the manufacture of new chemicals. Under
sections 5(d)(2) and 5(d)(3) of TSCA, EPA is required to publish a
notice of receipt of a PMN or an application for a TME and to publish
periodic status reports on the chemicals under review and the receipt
of notices of commencement to manufacture those chemicals. This status
report, which covers the period from September 11, 2006, to September
15, 2006, consists of the PMNs and TME both pending or expired, and the
notices of commencement to manufacture a new chemical that the Agency
has received under TSCA section 5 during this time period.

III. Receipt and Status Report for PMNs and TME

    This status report identifies the PMNs pending or expired, and the
notices of commencement to manufacture a new chemical that the Agency
has received under TSCA section 5 during this time period. If you are
interested in information that is not included in the following tables,
you may contact EPA as described in Unit II. to access additional non-
CBI information that may be available.
    In Table I of this unit, EPA provides the following information (to
the extent that such information is not claimed as CBI) on the PMNs and
TME received by EPA during this period: the EPA case number assigned to
the PMN; the date the PMN was received by EPA; the projected end date
for EPA's review of the PMN; the submitting manufacturer; the potential
uses identified by the manufacturer in the PMN; and the chemical
identity.

                                            I. 10 Premanufacture Notices Received From: 09/11/06 to 09/15/06
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                              Projected Notice End
              Case No.                    Received Date               Date           Manufacturer/Importer           Use                  Chemical
--------------------------------------------------------------------------------------------------------------------------------------------------------
P-06-0795                            09/11/06                12/09/06                CBI                    (G) Lubricant          (G) Isocetyl
                                                                                palmitate
P-06-0796                            09/12/06                12/10/06                CBI                    (G) Chemical           (G) Sulfoalkylated
                                                                                intermediate           alkoxylated polyol,
                                                                                sodium salt
P-06-0797                            09/12/06                12/10/06                CBI                    (G) processing aid     (G) Sulfoalkylated
                                                                                for redox reactions    alkoxylated polyol
P-06-0798                            09/12/06                12/10/06                Cytec Surface          (S) Resin for paints   (G) Substituted
                                                                                Specialties Inc.       and coatings           alkenoic acid,
                                                                                polymer with
                                                                                substituted
                                                                                carbomonocycle,
                                                                                alkenoate, alkenoic
                                                                                acid and substituted
                                                                                polycycle, peroxide-
                                                                                initiated
P-06-0799                            09/12/06                12/10/06                J.H. Calo Company,     (S) Polyester resin    (S) Hexanedioic acid,
                                                                                Inc.                   for 2 component        polymer with 2,2-
                                                                                polyurethane systems   dimethyl-1,3-
                                                                                propanediol,
                                                                                hexahydro-1,3-
                                                                                isobenzofurandione
                                                                                and 1,2-propanediol
P-06-0800                            09/13/06                12/11/06                Dow Corning            (G) Used in an         (G) Siloxane,
                                                                                Corporation            industrial emulsion    silsesquioxanes
                                                                                as an additive for
                                                                                industrial paints,
                                                                                renders and coatings
P-06-0803                            09/13/06                12/11/06                CBI                    (S) Aqueous            (G) Oxepanone,
                                                                                dispersion of          polymer with dialkyl-
                                                                                polymer for leather    alkanediol, alkyl-
                                                                                finishing              (hydroxyalkyl)-
                                                                                alkanediol,
                                                                                carbocycle,
                                                                                isocyanato-
                                                                                (isocyanatoalkyl)-
                                                                                trialkyl-,
                                                                                carbocycle,
                                                                                alkylenebis[isocyana
                                                                                to-, alkanoic acid,
                                                                                hydroxy-
                                                                                (hydroxyalkyl)-alkyl-
                                                                                , trialkylamine, and
                                                                                hydrazine
P-06-0804                            09/15/06                12/13/06                3M Company             (G) Hot melt adhesive  (G) Polyurethane
                                                                                prepolymer
--------------------------------------------------------------------------------------------------------------------------------------------------------

    In Table II of this unit, EPA provides the following information
(to the extent that such information is not claimed as CBI) on the TMEs
received:

                                       II. 1 Test Marketing Exemption Notices Received From: 09/11/06 to 09/15/06
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                              Projected Notice End
              Case No.                    Received Date               Date           Manufacturer/Importer           Use                  Chemical
--------------------------------------------------------------------------------------------------------------------------------------------------------
T-06-0009                            09/14/06                10/28/06                CBI                    (G) Industrial         (G) Organic and
                                                                                manufacture of an      processing organism
                                                                                organic acid
--------------------------------------------------------------------------------------------------------------------------------------------------------

List of Subjects

    Environmental protection, Chemicals, Premanufacturer notices.

    Dated: October 2, 2006.
Eyvone Petty-Callier,
Acting Director, Information Management Division, Office of Pollution
Prevention and Toxics.
[FR Doc. E6-16915 Filed 10-12-06; 8:45 am]

BILLING CODE 6560-50-S


[Federal Register: October 29, 2008 (Volume 73, Number 210)]
[Notices]
[Page 64320-64322]
[DOCID:fr29oc08-56]

-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-OPP-2007-1019; FRL-8387-5]

Nicotine; Notice of Receipt of Request to Voluntarily Cancel a
Pesticide Registration

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.

-----------------------------------------------------------------------

SUMMARY: In accordance with section 6(f)(1) of the Federal Insecticide,
Fungicide, and Rodenticide Act (FIFRA), as amended. EPA is issuing a
notice of receipt of a request by the registrant to voluntarily cancel
its registration for a product containing the pesticide nicotine. The
request would terminate nicotine use on greenhouse-grown ornamentals.
The request would terminate the last nicotine product registered for
use in the United States. EPA intends to grant this request at the
close of the comment period for this announcement unless the Agency
receives substantive comments within the comment period that would
merit its further review of the request, or unless the registrant
withdraws its request within this period. Upon acceptance of this
request, any sale, distribution, or use of products listed in this
notice will be permitted only if such sale, distribution, or use is
consistent with the terms as described in the final order.

DATES: Comments must be received on or before April 27, 2009.

ADDRESSES: Submit your comments, identified by docket identification
(ID) number EPA-HQ-OPP-2007-1019, by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov.
Follow the on-line instructions for submitting comments.
     Mail: Office of Pesticide Programs (OPP) Regulatory Public
Docket (7502P), Environmental Protection Agency, 1200 Pennsylvania
Ave., NW., Washington, DC 20460-0001.
     Delivery: OPP Regulatory Public Docket (7502P),
Environmental Protection Agency, Rm. S-4400, One Potomac Yard (South
Bldg.), 2777 S. Crystal Dr., Arlington, VA. Deliveries are only
accepted during the Docket Facility's normal hours of operation (8:30
a.m. to 4 p.m., Monday through Friday, excluding legal holidays).
Special arrangements should be made for deliveries of boxed
information. The Docket Facility telephone number is<PHONE_NUMBER>.
    Instructions: Direct your comments to docket ID number EPA-HQ-OPP-
2007-1019. EPA's policy is that all comments received will be included
in the docket without change and may be made available on-line 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 information that you
consider to be CBI or otherwise protected through regulations.gov or e-
mail. The regulations.gov website 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 e-
mail comment directly to EPA without going through regulations.gov,
your e-mail address will be automatically captured and included as part
of the comment that is placed in the 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 be free of any defects or viruses.
    Docket: All documents in the docket are listed in the docket index
available at http://www.regulations.gov. Although listed in the index,
some information is not publicly available, e.g., CBI or other
information whose disclosure is restricted by statute. Certain other
material, such as copyrighted material, is not placed on the Internet
and will be publicly available only in hard copy form. Publicly
available docket materials are available either in the electronic
docket at http://www.regulations.gov, or, if only available in hard
copy, at the OPP Regulatory Public Docket in Rm. S-4400, One Potomac
Yard (South Bldg.), 2777 S. Crystal Dr., Arlington, VA. The hours of
operation of this Docket Facility are from 8:30 a.m. to 4 p.m., Monday
through Friday, excluding legal holidays. The Docket Facility telephone
number is<PHONE_NUMBER>.

FOR FURTHER INFORMATION CONTACT: Jill Bloom, Special Review and
Reregistration Division (7508P), Office of Pesticide Programs,
Environmental Protection Agency, 1200 Pennsylvania Ave., NW.,
Washington, DC 20460-0001; telephone number:<PHONE_NUMBER>; fax
number:<PHONE_NUMBER>; e-mail address<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

I. General Information

A. Does this Action Apply to Me?

    This action is directed to the public in general, and may be of
interest to a wide range of stakeholders including environmental, human
health, and agricultural advocates; the chemical industry; pesticide
users; and members of the public interested in the sale, distribution,
or use of pesticides. Since others also may be interested, the

Agency has not attempted to describe all the specific entities that may
be affected by this action. If you have any questions regarding the
applicability of this action to a particular entity, consult the person
listed under FOR FURTHER INFORMATION CONTACT.

B. What Should I Consider as I Prepare My Comments for EPA?

     1. Submitting CBI. Do not submit this information to EPA through
regulations.gov or e-mail. Clearly mark the part or all of the
information that you claim to be CBI. For CBI information in a disk or
CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as
CBI and then identify electronically within the disk or CD-ROM the
specific information that is claimed as CBI. In addition to one
complete version of the comment that includes information claimed as
CBI, a copy of the comment that does not contain the information
claimed as CBI must be submitted for inclusion in the public docket.
Information so marked will not be disclosed except in accordance with
procedures set forth in 40 CFR part 2.
    2. Tips for preparing your comments. When submitting comments,
remember to:
    i. Identify the document by docket ID number and other identifying
information (subject heading, Federal Register date and page number).
     ii. Follow directions. The Agency may ask you to respond to
specific questions or organize comments by referencing a Code of
Federal Regulations (CFR) part or section number.
    iii. Explain why you agree or disagree; suggest alternatives and
substitute language for your requested changes.
    iv. Describe any assumptions and provide any technical information
and/or data that you used.
    v. If you estimate potential costs or burdens, explain how you
arrived at your estimate in sufficient detail to allow for it to be
reproduced.
    vi. Provide specific examples to illustrate your concerns and
suggest alternatives.
    vii. Explain your views as clearly as possible, avoiding the use of
profanity or personal threats.
    viii. Make sure to submit your comments by the comment period
deadline identified.

II. Background on the Receipt of Requests to Cancel and/or Amend
Registrations to Delete Uses

    This notice announces receipt by EPA of a request from the
registrant, Fuller System, Inc., (Fuller) to cancel one of its product
registrations. The affected nicotine product is labeled for use on
greenhouse-grown ornamentals such as poinsettia, chrysanthemum, and
bedding plants for the control of aphids, thrips, and whiteflies. In a
letter dated February 25, 2008, Fuller requested that EPA cancel the
affected product registration identified in this notice (see Table 1).
Specifically, the Agency became aware during its assessment of the
reregistration eligibility of nicotine that the pesticide-specific
database for nicotine was insufficient, even when taking into account
information available in the open literature. Had the registration been
allowed to continue, this lack of data would have necessitated that the
Agency issue a Data Call-In notice for specific nicotine data elements,
particularly toxicity data. Fuller decided to request product phase-out
rather than develop these data. Fuller requested that:
    1. It be permitted to produce and sell its nicotine product until
December 31, 2013.
    2. Distributors be permitted to sell the product until December 31,
2014.
    3. Users be permitted to use the product until stocks are depleted.
    In addition, Fuller has agreed to implement several risk-reduction
measures in the interim before cancellation becomes effective. The
measures will take the form of revised labeling that:
    1. Prohibits the use of the nicotine product in non-commercial
greenhouses.
    2. Prohibits the use of the nicotine product on plants grown for
cut flowers.
    3. Prohibits worker reentry into a treated greenhouse for at least
24 hours after application and until Worker Protection Standards (WPS)
ventilation criteria have been met, except for appropriately trained
and equipped workers.
    4. Prohibits the sale or transfer of treated plants for 24 hours
following application. These measures address potential risks of
concern identified by the Agency in the nicotine Reregistration
Eligibility Decision (RED).
    Fuller's nicotine product is used only on greenhouse-grown
ornamentals; this action would terminate the last nicotine pesticide
product registered in the United States for any use.

III. What Action is the Agency Taking?

    This notice announces receipt by EPA of a request from a registrant
to cancel a nicotine product registration. The affected product and the
registrant making the request are identified in Tables 1 and 2 of this
unit.
    Under section 6(f)(1)(A) of FIFRA, registrants may request, at any
time, that their pesticide registrations be canceled or amended to
terminate one or more pesticide uses. Section 6(f)(1)(B) of FIFRA
requires that before acting on a request for voluntary cancellation,
EPA must provide a 30-day public comment period on the request for
voluntary cancellation or use termination. In addition, section
6(f)(1)(C) of FIFRA requires that EPA provide a 180-day comment period
on a request for voluntary cancellation or termination of any minor
agricultural use before granting the request, unless:
    1. The registrants request a waiver of the comment period, or
    2. The Administrator determines that continued use of the pesticide
would pose an unreasonable adverse effect on the environment.
    The nicotine registrant has not requested that EPA waive the 180-
day comment period. EPA will provide a 180-day comment period on the
request for cancellation.
    Unless a request is withdrawn by the registrant within 180 days of
publication of this notice, or if the Agency determines that there are
substantive comments that warrant further review of this request, an
order will be issued canceling the affected registration.

   Table 1.--Nicotine Product Registration with a Pending Request for
                              Cancellation
------------------------------------------------------------------------
       Registration Number           Product Name           Company
------------------------------------------------------------------------
1327-41                           Fulex Nicotine      Fuller System,
                                   Fumigator           Inc.
------------------------------------------------------------------------

    Table 2 of this unit shows the name and address of record for the
registrant of the product listed in Table 1 of this unit.

         Table 2.--Registrant Requesting Voluntary Cancellation
------------------------------------------------------------------------
            EPA Company Number                Company Name and Address
------------------------------------------------------------------------
1327                                        Fuller System, Inc.
                                            P.O. Box 3053
                                            Woburn, MA 01888
------------------------------------------------------------------------

IV. What is the Agency's Authority for Taking this Action?

    Section 6(f)(1) of FIFRA provides that a registrant of a pesticide
product may at any time request that any of its pesticide registrations
be canceled or amended to terminate one or more uses. FIFRA further
provides that, before

acting on the request, EPA must publish a notice of receipt of any such
request in the Federal Register. Thereafter, following the public
comment period, the Administrator may approve such a request.

V. Procedures for Withdrawal of Request and Considerations for
Reregistration of Fulex Nicotine Fumigator

    Registrants who choose to withdraw a request for cancellation must
submit such withdrawal in writing to the person listed under FOR
FURTHER INFORMATION CONTACT, postmarked before April 27, 2009. This
written withdrawal of the request for cancellation will apply only to
the applicable FIFRA section 6(f)(1) request listed in this notice. If
the product registration has been subject to a previous cancellation
action, the effective date of cancellation and all other provisions of
any earlier cancellation action are controlling.

VI. Provisions for Disposition of Existing Stocks

    Existing stocks are those stocks of registered pesticide products
which are currently in the United States and which were packaged,
labeled, and released for shipment prior to the effective date of the
cancellation action.
    In any order issued in response to this request for cancellation of
a product registration, EPA proposes to include the following
provisions for the treatment of any existing stocks of the products
identified or referenced in Table 1 in Unit III. Fuller will be
permitted to produce and sell its nicotine product (Fulex Nicotine
Fumigator, EPA Registration Number 1327-41) until December 31,
2013.Distributors will be permitted to sell this product until December
31, 2014. The use of this product will be permitted until existing
stocks are depleted.
    If the request for voluntary cancellation is granted, the Agency
intends to publish the cancellation order in the Federal Register.

List of Subjects

    Environmental protection, Pesticides and pests.

    Dated: October 21, 2008.
Steven Bradbury,
Director, Special Review and Reregistration Division, Office of
Pesticide Programs.
[FR Doc. E8-25831 Filed 10-28-08; 8:45 am]

BILLING CODE 6560-50-S


Comment Info: =================

General Comment:This document concerns pages 1293 through 1507 of BMI France response to an information collection request.