Activities of Alfredo PALLONE related to 2010/0250(COD)
Plenary speeches (16)
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Derivatives, central counterparties and trade repositories (debate)
Amendments (69)
Amendment 167 #
Proposal for a regulation
Recital 16
Recital 16
(16) Where appropriate, rules applicable to financial counterparties, should also apply to non-financial counterparties. It is recognised that non-financial counterparties use OTC-contracts in order to cover themselves against commercial risks directly linked to their commercial activities. Consequently, in determining whether a non-financial counterparty should be subject to the clearing obligation, consideration should be given to the purpose for which that non-financial counterparty uses OTC derivatives, beyond the adopted accounting treatment, and to the size of the exposures that it has in those instruments. When establishing the threshold for the clearing obligation, ESMA should consult all relevant authorities, as for example regulators responsible for commodity markets, in order to ensure that the particularities of these sectors are fully taken into account. Moreover, by 31 December 2013, the Commission shall assess the systemic importance of the transactions of non- financial firms in OTC derivatives in different sectors, including the energy sector.
Amendment 227 #
Proposal for a regulation
Article 1 – paragraph 1
Article 1 – paragraph 1
1. This Regulation lays down uniform requirements for derivative contracts set out in Annex I Section C numbers (4) to (10) of Directive 2004/39/EC that are traded over-the-counter and lays down uniform requirements for the performance of activities of central counterparties and trade repositories.
Amendment 229 #
Proposal for a regulation
Article 1 – paragraph 1 a (new)
Article 1 – paragraph 1 a (new)
1 a. Articles 3 through 5 shall not apply to derivative contracts executed on a regulated market provided that such contracts are cleared by a CCP. This is without prejudice to the clearing obligation applying to the same contracts when executed OTC.
Amendment 236 #
Proposal for a regulation
Article 1 – paragraph 4 – point b
Article 1 – paragraph 4 – point b
(b) multilateral development banks, as listed under Section 4.2 of Part 1 of Annex VI to Directive 2006/48/EC, and other public international bodies.
Amendment 239 #
Proposal for a regulation
Article 1 – paragraph 4 – point b a (new)
Article 1 – paragraph 4 – point b a (new)
(b a) public international bodies established with a development mission which (i) provide finance to borrowers guaranteed by national governments or by persons or bodies within paragraph (a) of Article 1(4) of this Regulation, and (ii) enter into derivatives to hedge their funding arrangements or such financing activity.
Amendment 245 #
Proposal for a regulation
Article 2 – paragraph 1 – point 3
Article 2 – paragraph 1 – point 3
(3) ’clearing' means the process of establishing settlement positions, including the calculation of net positions, and the process of checking that financial instruments, cash or both are available to secure the exposures arising from a transacby which a third party interposes itself, directly or indirectly, between the transaction counterparties in order to assume their rights and obligations;
Amendment 249 #
Proposal for a regulation
Article 2 – paragraph 1 – point 4
Article 2 – paragraph 1 – point 4
(4) ’class of derivatives' means a number of OTC derivative contracts that share common, essential charactesubset of derivatives sharing common and essential characteristics which include, but may not be limited to: relationship with the underlying asset, type of underlying asset, pay-off profile and currency of notional. Derivatives belonging to the same class may have different maturistics;es.
Amendment 281 #
Proposal for a regulation
Article 2 – paragraph 1 – point 22 a (new)
Article 2 – paragraph 1 – point 22 a (new)
(22 a) ‘trade compression’ means the process of legally substituting a given set of derivative contracts with a different set of contracts characterised, from the perspective of each participant to the process, by: (a) lower number of contracts and aggregated notional value; and (b) the same or a similar risk profile as the original set of derivative contracts;
Amendment 302 #
Proposal for a regulation
Article 3 – paragraph 1 – subparagraph 2
Article 3 – paragraph 1 – subparagraph 2
That clearing obligation shall also apply to financial counterparties and to the non- financial counterparties referred to in Article 7(2) which enter into eligible OTC derivative contracts with third country entities which are, similarly, either financial counterparties or non-financial counterparties exceeding the clearing threshold.
Amendment 321 #
Proposal for a regulation
Article 3 – paragraph 2 a (new)
Article 3 – paragraph 2 a (new)
2 a. When complying with the clearing obligation under paragraph 1, clearing members shall distinguish in separate accounts with the CCP the positions of each client. Clients shall be known to the CCP.
Amendment 322 #
Proposal for a regulation
Article 3 – paragraph 2 b (new)
Article 3 – paragraph 2 b (new)
Amendment 326 #
Proposal for a regulation
Article 4 – paragraph 1
Article 4 – paragraph 1
1. Where a competent authority has authorised a CCP to clear a class of derivatives under Article 10 or 11, it shall immediately notify ESMA of that authorisation and request a decision on the eligibility for the clearing obligation referred to in Article 3.
Amendment 328 #
Proposal for a regulation
Article 4 – paragraph 1 a (new)
Article 4 – paragraph 1 a (new)
1 a. Where a CCP established in a third country has been recognised in accordance with Article 23, the relevant competent authority of the third country shall notify ESMA, in application of the cooperative arrangements referred to in Article 23(4), of the classes of derivative contracts for which that CCP has been granted the right to provide clearing services to clearing members and/or clients established in the Union.
Amendment 329 #
Proposal for a regulation
Article 4 – paragraph 2 – introductory part
Article 4 – paragraph 2 – introductory part
2. ESMA, aAfter receiving the notification and request referred to in paragraph 1, and 1a, ESMA shall, within six months, address a decision to the requesting competent authority statdevelop and submit to the Commission draft implementing technical standards determining the following:
Amendment 333 #
Proposal for a regulation
Article 4 – paragraph 2 – point a
Article 4 – paragraph 2 – point a
(a) whether that class of derivatives is eligible forsubject to the clearing obligation pursuant to Article 3;
Amendment 337 #
Proposal for a regulation
Article 4 – paragraph 2 – point b
Article 4 – paragraph 2 – point b
(b) the date from which the clearing obligation takes effect, including the timeframe in which counterparties or categories of counterparties become subject to the clearing obligation.
Amendment 341 #
Proposal for a regulation
Article 4 – paragraph 3
Article 4 – paragraph 3
Amendment 371 #
Proposal for a regulation
Article 4 – paragraph 3 a (new)
Article 4 – paragraph 3 a (new)
3 a. Before submitting the draft implementing technical standards to the Commission, ESMA shall conduct a public consultation and consult with the European Systemic Risk Board (ESRB), and, where appropriate, the competent authorities of third countries. In order to ensure uniform conditions of application of Article 3(1), powers are conferred upon the Commission to determine the elements indicated in subparagraph 1. The implementing technical standards shall be adopted in accordance with Article 15 of Regulation EU 1095/2010.
Amendment 372 #
Proposal for a regulation
Article 4 – paragraph 4
Article 4 – paragraph 4
Amendment 376 #
Proposal for a regulation
Article 4 – paragraph 4 a (new)
Article 4 – paragraph 4 a (new)
4 a. In order to take into account of relevant market developments leading to changes in the conditions that backed the existing implementing technical standards, ESMA shall submit to the Commission new draft implementing technical standards to amend, suspend or revoke existing implementing technical standards. Before doing so, ESMA shall consult the European Systemic Risk Board (ESRB) and, where appropriate, the competent authorities of third countries. The Commission shall amend, suspend and revoke the existing implementing technical standards in accordance with Article 15 of Regulation EU 1095/2010. The Commission may at any time request ESMA to provide it with draft implementing technical standards within 6 months.
Amendment 377 #
Proposal for a regulation
Article 4 – paragraph 5
Article 4 – paragraph 5
5. ESMA shall, on its own initiative and in consultationafter conducting a public consultation and consulting with the European Systemic Risk Board (ESRB), identify and notify to the Commission the classes of derivatives contracts that should be included in its public register, but for which no CCP has yet received authorisationsubject to the clearing obligation pursuant to Article 3, but for which no CCP has yet received authorisation. Following the notification by ESMA, the Commission may publish a call for development of proposals for the clearing of those classes of derivatives contracts.
Amendment 383 #
Proposal for a regulation
Article 4 – paragraph 6 – subparagraph 1
Article 4 – paragraph 6 – subparagraph 1
Powers are delegated to the Commission to adopt regulatoryimplementing technical standards specifying the following: (a)in accordance with Article 15 of Regulation (EU) No 1095/2010 specifying the details to be included in the notification referred to in paragraphs 1; (b) the criteria referred to in paragraph 3; (c) the details to be included in the register referred to in paragraph 4. and 2. deleted deleted deleted
Amendment 387 #
Proposal for a regulation
Article 4 – paragraph 6 – subparagraph 2
Article 4 – paragraph 6 – subparagraph 2
Amendment 389 #
Proposal for a regulation
Article 4 – paragraph 6 – subparagraph 3
Article 4 – paragraph 6 – subparagraph 3
Amendment 392 #
Proposal for a regulation
Article 4 – paragraph 6 – subparagraph 4
Article 4 – paragraph 6 – subparagraph 4
ESMA shall submit drafts for those regulatoryimplementing technical standards to the Commission by 30 June 2012.
Amendment 395 #
Proposal for a regulation
Article 4 a (new)
Article 4 a (new)
Article 4a Public Register 1. For the purpose of the clearing obligation, ESMA shall establish and manage a public register. The register shall be publicly available on ESMA’s website. 2. The register shall reflect at least: a) the classes of derivative contracts that are subject to the clearing obligation pursuant to Article 3; b) the CCPs that can be used for the purpose of the clearing obligation; c) the dates from which the clearing obligation takes effect, including any phased-in implementation d) the classes of derivatives identified by ESMA in accordance with Article 4(5). 3. Where a competent authority, or the relevant competent authority of a third country, has withdrawn the authorisation to clear a given class of derivative contracts, ESMA shall immediately remove such CCP from the register in relation to that class of derivatives. 4. The register shall be regularly updated by ESMA. 5. In order to ensure uniform conditions of application of this Article, ESMA may develop draft implementing technical standards to specify the details to be included in the public register referred to in paragraph 1. ESMA shall submit those draft implementing technical standards to the Commission by 30 June 2012. Power is conferred on the Commission to adopt the implementing technical standards referred to in the first subparagraph in accordance with Article 15 of Regulation (EU) No 1095/2010.
Amendment 416 #
Proposal for a regulation
Article 6 – paragraph 1 – subparagraph 1
Article 6 – paragraph 1 – subparagraph 1
Amendment 422 #
Proposal for a regulation
Article 6 – paragraph 1 – subparagraph 1 a (new)
Article 6 – paragraph 1 – subparagraph 1 a (new)
The reporting obligations under subparagraph 1 shall be satisfied by the CCP where the derivative contracts subject to the clearing obligation are cleared. When derivative contracts are subject to a process of trade compression, the reporting obligations under subparagraph 1 shall be satisfied by the operator of the trade compression service.
Amendment 426 #
Proposal for a regulation
Article 6 – paragraph 1 – subparagraph 2
Article 6 – paragraph 1 – subparagraph 2
Amendment 430 #
Proposal for a regulation
Article 6 – paragraph 1 – subparagraph 2 a (new)
Article 6 – paragraph 1 – subparagraph 2 a (new)
The entities referred to in subparagraphs 1 and 2 shall ensure that the details of their OTC derivative contract are reported without duplication.
Amendment 451 #
Proposal for a regulation
Article 6 – paragraph 4 – subparagraph 2 – point a
Article 6 – paragraph 4 – subparagraph 2 – point a
(a) the parties to the contract and, where different, the beneficiary of the rights and obligations arising from it are appropriately identifiedin case of transactions executed on regulated markets or multilateral trading facilities, their clients and clearing members;
Amendment 453 #
Proposal for a regulation
Article 6 – paragraph 4 – subparagraph 2 – point b
Article 6 – paragraph 4 – subparagraph 2 – point b
(b) the main characteristics of the contract, including the type, underlying, maturity and notional value are reported.
Amendment 469 #
Proposal for a regulation
Article 7 – paragraph 1 – subparagraph 1
Article 7 – paragraph 1 – subparagraph 1
Where a non-financial counterparty takes positions in OTC derivative contracts that exceed the information threshold to be determined pursuant to paragraph 3(a) over a specified time period, it shall notify the competent authority designated in accordance with Article 48 of Directive 2004/39/EC thereof, providing justification for taking those positionsinformation on those positions on reasonable request of the competent authority.
Amendment 477 #
Proposal for a regulation
Article 7 – paragraph 2 – subparagraph 1
Article 7 – paragraph 2 – subparagraph 1
Where a non-financial counterparty takes net positions and exposures in OTC derivative contracts exceeding the clearing threshold to be determined pursuant to paragraph 3(b) over a specified time period, it shall be subject to the clearing obligation set out in Article 3 with regard to all its eligible OTC derivative contracts in excess of the clearing threshold.
Amendment 479 #
Proposal for a regulation
Article 7 – paragraph 2 – subparagraph 2
Article 7 – paragraph 2 – subparagraph 2
The clearing obligation shall subsist as long as the non-financial counterparty’s net positions and exposures in OTC derivative contracts exceed the clearing threshold and shall end once these net positions and exposures are below the clearing threshold over a specified time period. The competent authority designated in accordance with Article 48 of Directive 2004/39/EC shall ensure that the obligation under the first subparagraph is met within an appropriate timeframe.
Amendment 489 #
Proposal for a regulation
Article 7 – paragraph 3 – subparagraph 1 – point b a (new)
Article 7 – paragraph 3 – subparagraph 1 – point b a (new)
(b a) criteria for establishing which derivative contracts are objectively measurable as directly linked to the commercial or treasury financing activity;
Amendment 490 #
Proposal for a regulation
Article 7 – paragraph 3 – subparagraph 1 – point b b (new)
Article 7 – paragraph 3 – subparagraph 1 – point b b (new)
(b b) the time periods mentioned in Article 7(2) subparagraphs 1 and 2
Amendment 493 #
Proposal for a regulation
Article 7 – paragraph 3 – subparagraph 2
Article 7 – paragraph 3 – subparagraph 2
Those thresholds shall be determined taking into account the systemic relevance of the sum of net positions and exposures by counterparty per class of OTC derivatives. The systemic relevance of the sum of net positions and exposures of OTC derivatives shall be assessed on the basis of appropriate quantitative and qualitative criteria per class of OTC derivatives, in particular on the credit risk exposures to systemically relevant financial institutions. These regulatory technical standards shall take into account existing regulations, generally accepted standards and audit procedure and hedges of operating cash flows
Amendment 507 #
Proposal for a regulation
Article 7 – paragraph 4
Article 7 – paragraph 4
4. In calculating the positions referred to in Article 7, paragraph 2, OTC derivative contracts entered into by a non-financial counterparty, beyond the adopted accounting treatment, that are objectively measurable as directly linked to the commercial or treasury financing activity of that counterparty shall not be taken into account, nor shall transactions in OTC derivative contracts of the same nature with affiliates be taken into account.
Amendment 512 #
Proposal for a regulation
Article 7 – paragraph 4 a (new)
Article 7 – paragraph 4 a (new)
4 a. For those derivatives, the qualification as financial hedging instruments shall be carried out by the non-financial counterparty itself, in accordance with the criteria referred to in paragraph 3(c). Certification shall be subject to sample supervision by ESA (ESMA).
Amendment 517 #
Proposal for a regulation
Article 8 – paragraph 1 – subparagraph 1 – introductory part
Article 8 – paragraph 1 – subparagraph 1 – introductory part
Financial counterparties or the non- financial counterparties referred to in Article 7(2), that enter into an OTC derivative contract not cleared by a CCP, shall ensure that appropriate procedures and arrangements are in place to measure, monitor and mitigate operational and credit risk, including at least:
Amendment 527 #
Proposal for a regulation
Article 8 – paragraph 1 – subparagraph 2
Article 8 – paragraph 1 – subparagraph 2
For the purposes of point (b), the value of outstanding contracts shall be marked-to- market on a dailyregular basis and risk management procedures shall require the timely, accurate and appropriately segregated exchange of collateral or the appropriate and proportionate holding of capitalcapital backing commensurate with the risk.
Amendment 529 #
Proposal for a regulation
Article 8 – paragraph 1 – subparagraph 2 a (new)
Article 8 – paragraph 1 – subparagraph 2 a (new)
The obligations under the first sub- paragraph point a) and b) above shall only apply to a non-financial counterparty which is subject to the clearing obligation under Article 7 (2) and from the date on which the non-financial counterparty becomes subject to the clearing obligation under Article 7 (2).
Amendment 546 #
Proposal for a regulation
Article 10 – paragraph 1 – subparagraph 1
Article 10 – paragraph 1 – subparagraph 1
Where a CCP that is a legal person established in the Union and has access to adequate liquidity intends to perform its services and activitiesintends to act as a CCP, it shall apply for authorisation to the competent authority of the Member State where it is established.
Amendment 550 #
Proposal for a regulation
Article 10 – paragraph 1 – subparagraph 2
Article 10 – paragraph 1 – subparagraph 2
Amendment 559 #
Proposal for a regulation
Article 12 – paragraph 1
Article 12 – paragraph 1
1. A CCP shall have a permanent, available and separataid-up and available initial capital of at least EUR 25 million to be authorised pursuant to Article 10.
Amendment 562 #
Proposal for a regulation
Article 12 – paragraph 2
Article 12 – paragraph 2
2. Capital, together with retained earnings and reserves of a CCP, shall be proportional to the risk stemming from the activities of the CCP. It shall at all times be sufficient to ensure an orderly winding- down or restructuring of the activities over an appropriate time span and that the CCP is adequately protected against operational and residual risk, legal and investment risks which are not already covered by other risk mitigation measures.
Amendment 564 #
Proposal for a regulation
Article 12 – paragraph 2 a (new)
Article 12 – paragraph 2 a (new)
2 a. In addition to what required under paragraph 2, a CCP shall hold capital, together with retained earnings and reserves, of an amount determined taking into consideration the total default fund contributions.
Amendment 565 #
Proposal for a regulation
Article 12 – paragraph 3 – subparagraph 1
Article 12 – paragraph 3 – subparagraph 1
Powers are delegated to the Commission to adopt regulatory technical standards specifying the requirements regarding the capital, retained earnings and reserves of a CCP referred to in paragraph 2 and 2a, including the frequency or timing when these should be updated.
Amendment 700 #
Proposal for a regulation
Article 27 – paragraph 4 – subparagraph 1
Article 27 – paragraph 4 – subparagraph 1
Powers are delegated to the Commission to adopt regulatory technical standards specifying the details of the records and information to be retained as referred to in paragraphs 1 and 2 and, where appropriate, a longer time length for the maintenance of records.
Amendment 758 #
Proposal for a regulation
Article 37 – paragraph 1
Article 37 – paragraph 1
1. A CCP shall keep records and accounts that shall enable it, at any time and without delay, to identify and segregate the assets anddistinguish the positions of one clearing member from the assets and positions of any other clearing member and from its own assetsCCP with whom it has entered into an interoperability arrangement, and to comply with the requirements set forth in paragraphs 2 and 3.
Amendment 762 #
Proposal for a regulation
Article 37 – paragraph 2
Article 37 – paragraph 2
2. A CCP shall require each cClearing member toshall distinguish and segregate inin separate accounts with the CCP the assets and positions of thate clearing member from those of its clients. A CCP shall allow clients to have a more detailed segregation of their assets and positions. The CCP shall publicly disclose the risks and costs associated with the different levels of segregation.
Amendment 774 #
Proposal for a regulation
Article 37 – paragraph 3
Article 37 – paragraph 3
Amendment 786 #
Proposal for a regulation
Article 37 – paragraph 3 a (new)
Article 37 – paragraph 3 a (new)
3 a. Clearing members shall distinguish in separate accounts with the CCP the positions of each client (“full segregation”). Clients shall be given by clearing members the possibility to have their positions recorded in omnibus accounts with the CCP (opt-out).
Amendment 787 #
Proposal for a regulation
Article 37 – paragraph 3 b (new)
Article 37 – paragraph 3 b (new)
3 b. A CCP shall keep records that shall enable it, at any time and without delay, to identify the assets posted in relation to each account kept in accordance with the present Article.
Amendment 791 #
Proposal for a regulation
Article 37 – paragraph 4
Article 37 – paragraph 4
4. Provided that thea client is not exposed to the default of the clearing member through which it has access to the CCP or of any other clientshas selected full segregation, Annex III, Part 2, point 6 of Directive 2006/48/EC shall apply.
Amendment 793 #
Proposal for a regulation
Article 37 – paragraph 5
Article 37 – paragraph 5
Amendment 812 #
Proposal for a regulation
Article 39 – paragraph 3 a (new)
Article 39 – paragraph 3 a (new)
3 a. A CCP shall call and collect margins that are adequate to cover the positions registered in each account kept in accordance with article 37 with respect to specific financial instruments.
Amendment 814 #
Proposal for a regulation
Article 39 – paragraph 3 b (new)
Article 39 – paragraph 3 b (new)
3 b. A CCP may calculate margins with respect to a portfolio of financial instruments only when the price correlation among the financial instruments included in the portfolio is high and stable.
Amendment 820 #
Proposal for a regulation
Article 39 – paragraph 5 – subparagraph 1
Article 39 – paragraph 5 – subparagraph 1
Powers are delegated to the Commission to adopt regulatory technical standards specifying the appropriate percentage in excess of 99 per cent and time horizon, as referred to in paragraph 1, to be considered for the different classes of financial instruments. , and the conditions referred to in paragraphs 3a and/or 3b.
Amendment 833 #
Proposal for a regulation
Article 40 – paragraph 2 a (new)
Article 40 – paragraph 2 a (new)
2 a. A CCP shall develop scenarios of extreme but plausible market conditions. The scenarios shall include the most volatile periods that have been experienced by the markets for which the CCP provides its services and a range of potential future scenarios. They shall take into account sudden sales of financial resources and rapid reductions in market liquidity. The size of the default fund shall include the margins calculated, in compliance with Article 39, on the positions stemming from the hypothesised scenarios. In calculating credit exposures to its clearing members, a CCP shall take into account: a) the exposures of each clearing member, as registered on each account kept in accordance with article 37, and b) whether or not profits on proprietary positions can be used to cover losses on clients’ positions.
Amendment 845 #
Proposal for a regulation
Article 42 – paragraph 3
Article 42 – paragraph 3
3. A CCP shall use contributions to the default fund anfter having exhausted other contributions of non-the defaulting clearing members only after having exhausted the contributions of the defaulting clearing member and, where relevant, the CCP's own fund, a CCP shall use its own funds up to the amount referred to in Article 12(2a) before depleting the default fund or using any other financial resources or arrangements referred to in Article 41(1).
Amendment 864 #
Proposal for a regulation
Article 44 – paragraph 1 a (new)
Article 44 – paragraph 1 a (new)
1 a. The amount of capital, together with retained earnings and reserves of a CCP, which are not invested according to paragraph 1, shall not be considered for the purposes of Article 12(2 and 2a).
Amendment 894 #
Proposal for a regulation
Article 49 a (new)
Article 49 a (new)
Article 49a Provision of margins among CCPs 1. A CCP shall segregate the collateral received by CCPs with whom it has entered into an interoperability arrangement. 2. Collateral received in the form of cash shall be segregated in accounts with the central bank of issue. 3. Collateral received in the form of financial instruments shall be segregated in accounts with operators of securities settlement systems notified under Directive 98/26/EC. 4. Collateral segregated under paragraphs 1, 2 and 3 shall be available to the receiving CCP only in case of default of the CCP which has provided the collateral in the context of an interoperability arrangement. 5. In case of default of the CCP which has received the collateral in the context of an interoperability arrangement, the collateral segregated under paragraphs 1, 2 and 3 shall be readily returned to the providing CCP.
Amendment 950 #
Proposal for a regulation
Article 67 – paragraph 2 – introductory part
Article 67 – paragraph 2 – introductory part
2. A trade repository shall make the necessary information availableavailable the aggregate positions by class of derivatives and the details of the contracts reported to it to the following entities:
Amendment 951 #
Proposal for a regulation
Article 67 – paragraph 2 – point c a (new)
Article 67 – paragraph 2 – point c a (new)
(c a) the competent authority supervising the venues of executions of the reported contracts;
Amendment 961 #
Proposal for a regulation
Article 68 – paragraph 1 – subparagraph 1
Article 68 – paragraph 1 – subparagraph 1
By 31 December 2013[3] at the latest, the Commission shall review and prepare a general report on the instituis Regulational and supervisory arrangements under Title III and in particular the role and responsibilities of ESMAon regulatory technical standards adopted by the Commission. The Commission shall submit the report to the European Parliament and the Council, together with any appropriate proposals.
Amendment 970 #
Proposal for a regulation
Article 70
Article 70
Amendment 971 #
Proposal for a regulation
Article 70 – paragraph - 1 (new)
Article 70 – paragraph - 1 (new)