[Federal Register Volume 67, Number 85 (Thursday, May 2, 2002)]
[Notices]
[Pages 22126-22140]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-10932]


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SECURITIES AND EXCHANGE COMMISSION

[Release Nos. 33-8095 and 34-45842/April 29, 2002]


Order Making Fiscal 2003 Annual Adjustments to the Fee Rates 
Applicable Under Section 6(b) of the Securities Act of 1933 and 
Sections 13(e), 14(g), 31(b) and 31(c) the Securities Exchange Act of 
1934

I. Background

    The Commission collects fees under various provisions of the 
securities laws. Section 6(b) of the Securities Act of 1933 
(``Securities Act'') requires the Commission to collect fees from 
issuers on the registration of securities.\1\ of the Securities 
Exchange Act of 1934 (``Exchange Act'' requires the Commission to 
collect fees on certain repurchases of securities.\2\ Section 14(g) of 
the Exchange Act requires the Commission to collect fees on proxy 
solicitations and statements in corporate control transactions.\3\ 
Fiscally, sections 31(b) and (c) of the Exchange Act require the 
Commission to collect fees from national securities exchanges and 
national securities associations, respectively, on transactions.\4\
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    \1\ 15 U.S.C. 77f(b).
    \2\ 15 U.S.C. 78m(e).
    \3\ ,15 U.S.C. 78n(g).
    \4\ 15 U.S.C. 77ee(j)(1) and (j)(3). Section 31(d) of the 
Exchange Act also requires the Commission to collect assessments 
from national securities exchanges and national securities 
associations for round turn transactions on security futures.
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    On January 16, 2002, the President signed the Investor and Capital 
Markets Fee Relief Act (``Fee Relief Act''). \5\ The Fee Relief Act 
reduced that fee rates applicable under section 6(b) of the Securities 
13(e), 14(g), 31(b) and 31(c) of the Exchange Act. The Fee Relief Act 
also amended these sections to require the Commission to make annual 
adjustments to the fee rates applicable under these sections for each 
of the fiscal years 2003 through 2011, and one final adjustments to fix 
the fee rates under these sections for fiscal year 2012 and beyond.\6\
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    \5\ Pub. L. No. 107-123, 115 Stat. 2390 (2002).
    \6\ See 15 U.S.C. 77f(b)(5), 77f(b)(6), 78m(e)(5), 78m(e)(6), 
78n(g)(6), 78n(g)(5) 78ee(j)(1), and 78ee(j)(3). Paragraph 31(j)(2) 
of the Exchange Act, 15 U.S.C. 78ee(j)(2), also requires the 
Commission, in certain circumstances, to make a mid-year adjustment 
to the fee rates under Sections 31(b) and (c) of the Exchange Act in 
fiscal 2002 through fiscal 2011.
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II. Fiscal 2002 Annual Adjustment to the Fee Rates Applicable Under 
Section 6(b) of the Securities Act and Sections 13(e) and 14(g) of 
the Exchange Act

    Paragraph 6(b)(2) of the Securities Act requires an issuer to pay 
to the Commission a fee at an initial rate of $92 per million of the 
maximum aggregate offering price at which securities are proposed to be 
offered. This same fee rate applies to certain repurchases of 
securities under section 13(e) of the Exchange Act and proxy 
solicitations and statements in corporate control transactions under 
section 14(g) of the Exchange Act.
    Paragraph 6(b)(5) of the Securities Act requires the Commission to 
make an annual adjustment to the fee rate applicable under paragraph 
6(b)(2) of the Securities Act in each of the fiscal years 2003 through 
2011.\7\ In those same fiscal years, paragraphs 13(e)(5) and 14(g)(5) 
of the Exchange Act require the Commission to adjust the fee rates 
under Sections 13(e) and 14(g) to a rate that is equal to the rate that 
is applicable under Section 6(b). In other words, the annual adjustment 
to the fee rate under section 6(b) of the Securities Act also sets the 
annual adjustment to the fee rates under sections 13(e) and 14(g) of 
the Exchange Act.
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    \7\ The annual adjustments are designed to adjust the fee rate 
in a given fiscal year so that, when applied to the aggregate 
maximum offering price at which securities are proposed to be 
offered for the fiscal year, it is reasonably likely to produce 
total fee collections under Section 6(b) equal to the ``target 
offsetting collection amount''specified in Section 6(b)(11)(A) for 
that fiscal year.
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    Paragraph 6(b)(5) specifies the method for determining the annual 
adjustment to the fee rate Section 6(b) for fiscal 2003. Specifically, 
the Commission must adjust the fee rate under Section 6(b) to a ``rate 
that, when applied to the baseline estimate of the aggregate maximum 
offering prices for [fiscal year 2003], is reasonable likely to produce 
aggregate fee collections under [Section 6(b)] that are equal to the 
target offsetting collection amount for [fiscal 2003].'' That is, the 
adjusted rate is determined by dividing the ``target offsetting 
collection amount'' for fiscal 2003 by the ``baseline estimate of the 
aggregate maximum offering prices'' for fiscal 2003.
    Paragraph 6(b)(11)(A) specifies that the ``target offsetting 
collection amount'' for fiscal 2003 is $435,000,000.\8\ Paragraph 
6(b)(11)(B) defines the ``baseline estimate of the aggregate maximum 
offering price'' for fiscal 2003 as the ``baseline estimate of the 
aggregate maximum offering price at which securities are proposed to be 
offered pursuant to registration statements filed with the Commission 
during [fiscal 2003] as determined by the Commission, after 
consultation with the Congressional Budget Office and the Office of 
Management and Budget. * * *
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    \8\ Congress determined the target offsetting collection amounts 
by applying reduced fee rates to the CBO's January 2001 projection 
of the aggregate maximum offering prices for fiscal years 2002 
through 2011. In any fiscal year through fiscal 2011, the annual 
adjustment mechanism will result in additional fee reductions if the 
CBO's January 2001 projection of the aggregate maximum offering 
prices for the fiscal year proves to be too low, and fee rate 
increases if the CBO's January 2001 projection of the aggregate 
maximum offering prices for the fiscal year proves to be too high.
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    Using a methodology developed in consultation with the 
Congressional Budget Office (``CBO'') and Office of Management and 
Budget (``OMB''), the Commission determines the ``baseline estimate of 
the aggregate maximum offering price'' for fiscal 2003 to be 
$5,379,329,602,021.\9\ Based on this estimate, the Commission 
calculates the annual adjustment for fiscal 2003 to be $80.90 per 
million. This adjusted fee rate applies to section 6(b) of the 
Securities Act, as well as to sections 13(e) and 14(g) of the Exchange 
Act.
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    \9\ Appendix A explains how we determined the ``baseline 
estimate of the aggregate maximum offering price'' for fiscal 2003 
using our methodology, and then shows the purely arithmetical 
process of calculating the fiscal 2003 annual adjustment based on 
that estimate. The appendix includes the data used by the Commission 
in making its ``baseline estimate of the aggregate maximum offering 
price'' for fiscal 2003.
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III. Fiscal 2003 Annual Adjustment to the Fee Rates Applicable 
Under Sections 31(b) and (c) of the Exchange Act

    Section 31(b) of the Exchange Act requires each national securities 
exchange to pay the Commission a fee at a rate, as adjusted by our 
order pursuant to paragraph 31(j)(2), of $30.10 per million of the 
aggregate dollar amount of sales of certain securities transacted on 
the exchange.\10\ Similarly, Section 31(c) requires each national 
securities association to pay the Commission a fee at the same adjusted 
rate on the aggregate dollar amount of

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sales of certain securities transacted by or through any member of the 
association otherwise than on an exchange. Section 31(j)(1) requires 
the Commission to make annual adjustments to the fee rates applicable 
under Sections 31(b) and (c) for each of the fiscal years 2003 through 
2011.\11\
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    \10\ Exchange Act Release No. 45489 (March 1, 2002), 67 FR 10239 
(March 6, 2002).
    \11\ The annual adjustments, as well as the mid-year adjustments 
required in certain circumstances under paragraph 31(j)(2) in fiscal 
2002 through fiscal 2011, are designed to adjust the fee rates in a 
given fiscal year so that, when applied to the aggregate dollar 
volume of sales for the fiscal year, they are reasonably likely to 
produce total fee collections under Section 31 equal to the ``target 
offsetting collection amount'' specified in Section 31(l)(1) for 
that fiscal year.
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    Paragraph 31(j)(1) specifies the method for determining the annual 
adjustment for fiscal 2003. Specifically, the Commission must adjust 
the rates under Sections 31(b) and (c) to a ``uniform adjust rate that, 
when applied to the baseline estimate of the aggregate amount of sales 
for [fiscal 2003], is reasonably likely to produce aggregate fee 
collections under [Section 31] (including assessments collected under 
[Section 31(d)]) that are equal to the target offsetting collection 
amount for [fiscal 2003].''
    Paragraph 31(1)(1) specifies that the ``target offsetting 
collection amount'' for fiscal 2003 is $849,000,000.\12\ Paragraph 
31(1)(2) defines the ``baseline estimate of the aggregate dollar amount 
of sales'' as ``the baseline estimate of the aggregate dollar amount of 
sales of securities * * * to be transacted on each national securities 
exchange and by or through any member of each national securities 
association (otherwise than on a national securities exchange) during 
[fiscal 2003] as determined by the Commission, after consultation with 
the Congressional Budget Office and the Office of Management and 
Budget. * * *''
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    \12\ Congress determined the target offsetting collection 
amounts by applying reduced fee rates to the CBO's January 2001 
projections of dollar volume for fiscal years 2002 through 2011. In 
any fiscal year through fiscal 2011, the annual and, in certain 
circumstances, mid-year adjustment mechanisms will result in 
additional fee rate reductions if the CBO's January 2001 projection 
of dollar volume for the fiscal year proves to be too low, and fee 
rate increases if the CBO's January 2001 projection of dollar volume 
for the fiscal year proves to be too high.
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    To make the baseline estimate of the aggregate dollar amount of 
sales for fiscal year 2003, the Commission is using the same 
methodology it developed in consultation with the CBO and OMB for 
making projections of dollar volume for purposes of the fiscal 2002 
mid-year adjustment.\13\ Using this methodology, the Commission 
calculates the baseline estimate of the aggregate dollar amount of 
sales for fiscal 2003 to be $33,158,519,250,001. Based on this 
estimate, and an estimated collection of $450,000 in assessments on 
securities futures products in fiscal 2003,\14\ the uniform adjusted 
rate is $25.20 per million.\15\
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    \13\ Appendix B explains how we determined the ``baseline 
estimate of the aggregate dollar amount of sales'' for fiscal 2003 
using our methodology, and then shows the purely arithmetical 
process of calculating the fiscal 2003 annual adjustment based on 
that estimate. The appendix also includes the data used by the 
Commission in making its ``baseline estimate of the aggregate dollar 
amount of sales'' for fiscal 2003.
    \14\ This estimate is based on the CBO's August 2001 estimate of 
Section 31(d) collections in fiscal 2003, adjusted to reflect the 
Fee Relief Act's reduction in the Section 31(d) assessment.
    \15\ As explained in Appendix B, the calculation of the adjusted 
fee rate assumes that the current fee rate of $30,10 per million 
will apply through October 31st due to the operation of the 
effective date provision contained in subparagraph 31(j)(4)(A) of 
the Exchange Act.
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VI. Effective Dates of the Annual Adjustments

    Subparagraph 6(b)(8)(A) of the Securities Act provides that the 
fiscal 2003 annual adjustment to the fee rate applicable under section 
6(b) of the Securities Act shall take effect on the later of October 1, 
2002, or five days after the date on which a regular appropriation to 
the Commission for fiscal 2003 is enacted.\16\ Subparagraphs 
13(e)(8)(A) and 14(g)(8)(A) of the Exchange Act provide for the same 
effective date for the annual adjustment to the fee rates applicable 
under section 13(e) and 14(g) of the Exchange Act.\17\
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    \16\ 15 U.S.C. 77f(b)(8)(A).
    \17\ 15 U.S.C. 78m(e)(8)(A) and 78n(g)(8)(A).
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    Subparagraph 31(j)(4)(A) of the Exchange Act provides that the 
fiscal 2003 annual adjustments to the fee rates applicable under 
section 31(b) and (c) of the Exchange Act shall take effect on the 
later of October 1, 2002, or thirty days after the date on which a 
regular appropriation to the Commission for fiscal 2003 is enacted.

V. Conclusion

    Accordingly, pursuant to section 6(b) of the Securities Act and 
sections 13(e), 14(g) and 31(j) of the Exchange Act,\18\
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    \18\ U.S.C. 77f(b), 78m(e), 78n(g), and 78ee(j).
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    It is hereby ordered that the fee rates applicable under section 
6(b) of the Securities Act and sections 13(e) and 14(g) of the Exchange 
Act shall be $80.90 per million effective on the later of October 1, 
2002, or five days after the date on which a regular appropriation to 
the Commission for fiscal 2003 is enacted; and
    It is further ordered that the fee rates applicable under sections 
31(b) and (c) of the Exchange Act shall be $25.20 per million effective 
on the later of October 1, 2002, or thirty days after the date on which 
a regular appropriation to the Commission for fiscal 2003 is enacted.

    By the Commission.
Margaret H. McFarland,
Deputy Secretary.

Appendix A

A. Baseline Estimate of the Aggregate Maximum Offering Prices for 
Fiscal Year 2003 Subject to Securities Act Section 6(b)

    First, calculate the aggregate maximum offering prices (AMOP) 
for each month in the sample (March 1992-March 2002). Next, 
calculate the percentage change in the AMOP from month-to-month.
    Model the monthly percentage change in AMOP as a first order 
moving average process. The moving average approach allows one to 
model the effect that an exceptionally high (or low) observation of 
AMOP tends to be followed by a more ``typical'' value of AMOP.
    Use the estimated moving average model to forecast the monthly 
percent change in AMOP. These percent changes can then be applied to 
obtain forecasts of the monthly aggregate maximum offering prices. 
The following is a more formal (mathematical) description of the 
procedure:
    1. Begin with the monthly data for AMOP. The sample spans ten 
years from March 1992 to March 2002. There are 6 months in the 
sample for which the data are not used because of the impact of 
extraordinary events (e.g., the 1995 government shutdown).
    2. Divide each month's AMOP (column C) by the number of trading 
days in that month (column B) to obtain the average daily AMOP 
(AAMOP, column D).
    3. For each month t, the natural logarithm of AAMOP is reported 
in column E.
    4. Calculate the change in log(AAMOP) from the previous month as 
t = log(AAMOPt) - 
log(AAMOPt-1). This approximates the percentage change.
    5. Estimate the first order moving average model 
t =  + et-1 + 
et, where et denotes the forecast error for 
month t. The forecast error is simply the difference between the 
one-month ahead forecast and the actual realization of 
t. The forecast error is expressed as 
et = t -  - 
et-1. The model can be estimated using standard 
commercially available software such as SAS or Eviews. Using least 
squares, the estimated parameter values are  = 0.01292 and 
 = -0.78083.
    6. For the month of April 2002, forecast 
t=4/02 =  + 
et=3/02. For all subsequent months, forecast 
t = .
    7. Calculate forecasts of log(AAMOP). For example, the forecast 
of log(AAMOP) for June 2002 is given by FLAAMOPt=6/02 = 
log(AAMOPt=3/02) + t=4/02 + 
t=5/02 + t=6/02.
    8. Under the assumption that et is normally 
distributed, the n-step ahead forecast of AAMOP is given by 
exp(FLAAMOPt + n2/2), 
where n denotes the standard error of the n-step 
ahead forecast.
    9. For June 2002, this gives a forecast AAMOP of $18.5 Billion 
(Column I), and a forecast AMOP of $369.9 Bilion (Column J).

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    10. Iterate this process through September 2003 to obtain a 
baseline estimate of the aggregate maximum offering prices for 
fiscal year 2003 of $5,379,329,602,021.

B. Using the Forecasts From A To Calculate the New Fee Rate.

    1. Using the data from Table A1, estimate the aggregate maximum 
offering prices between 10/1/02 and 9/30/03 to be 
$5,379,329,602,021.
    2. The rate necessary to collect the target $435,000,000 in fee 
revenues is then calculated as: $435,000,000  
$5,379,329,602,021 = 0.00008090.

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APPENDIX B

A. Baseline Estimate of the Aggregate Dollar Amount of Sales Subject to 
Exchange Act Sections 31(b) and 31(c)

    First, calculate the average daily dollar amount of sales (ADS) for 
each month in the sample (March 1992-March 2002). The date obtained 
from the exchanges and Nasdaq are presented in Table B1. The monthly 
aggregate dollar amount of sales (exchange plus Nasdaq) is contained in 
column E.
    Next, calculate the percentage change in the ADS from month-to-
month. The average monthly percentage growth of ADS over the entire 
sample is 0.017 and the standard deviation is 0.111. Assuming the 
monthly percentage change in ADS follows a random walk, calculating the 
expected monthly percentage growth rate for the full sample is 
straightforward. The expected monthly percentage growth rate of ADS is 
2.4 percent.
    Now, use the expected monthly percentage growth rate to forecast 
the aggregate dollar amount of sales. For example, one can use the ADS 
for March 2002 ($97,678,101,212) to forecast ADS for April 2002 
($100,007,442,449 = $97,678,101,212  x  1.024). Multiply by the number 
of trading days in April 2002 (22) to obtain a forecast of the 
aggregate dollar amount of sales for the month ($2,200,163,733,884). 
Repeat the method to generate forecasts for subsequent months.
    The forecasts for aggregate dollar amount of sales are in column I 
of Table B1. The following is a more formal (mathematical) description 
of the procedure:
    1. Divide each month's aggregate dollar amount of sales (column E) 
by the number of trading days in that month (column B) to obtain the 
average daily dollar volume (ADS, column F).
    2. For each month t, calculate the change in ADS from the previous 
month as t = log (ADSt-1), where log (x) 
denotes the natural logarithm of x.
    3. Calculate the mean and standard deviation of the series 
{1, 2, . . ., 
120}. These are given by  = 0.017 and 
 = 0.111, respectively.
    4. Assume that the natural logarithm of ADS follows a random walk, 
so that s and t are 
statistically independent for any two months s and t.
    Under the assumption that t is normally 
distributed, the expected value of ADSt/ADSt-1 is 
given by exp ( + \2\/2), or on average 
ADSt = 1.024  x  ADSt-1.
    6. For April 2002, this gives a forecast ADS of 1.024  x  
$97,678,101,212 = $100,007,442,449. Multiply this figure by the 22 
trading days in April 2002 to obtain an aggregate dollar amount of 
sales forecast of $2,200,163,733,884.
    7. For May 2002, multiply the April 2002 ADS forecast by 1.024 to 
obtain a forecast ADS of $102,392,331,762. Multiply this figure by the 
22 trading days in May 2002 to obtain an aggregate dollar amount of 
sales forecast of $2,252,631,298,774.
    8. Repeat this procedure for subsequent months.

B. Using the Forecasts From A To Calculate the New Fee Rate

    1. Use Table B1 to estimate fees collected for the period 10/1/02 
through 10/31/02. The projected aggregate dollar amount of sales for 
this period is $2,649,542,136,536. Projected fee collections at the 
current fee rate of 0.00003010 are $79,751,218.
    2. Assume collections of $450,000 in assessments on securities 
futures products in fiscal 2003. This estimate is based on the CBO's 
August 2001 estimate of Section 31(d) collections in fiscal 2003, 
adjusted to reflect the Fee Relief Act's reduction in the Section 31(d) 
assessments.
    3. Subtract the amounts $79,751,218 and $450,000 from the target 
offsetting collection amount of $849,000,000, leaving $768,798,782 to 
be collected on dollar volume for the period 11/1/02 through 9/30/03.
    4. Use Table B1 to estimate dollar volume for the period 11/1/02 
through 9/30/03. The estimate is $30,508,977,113,465. Finally, compute 
the fee rate required to produce the additional $768,798,782 in 
revenue. This rate is $768,798,782 divided by $30,508,977,113,465 or 
0.0000251991.
    5. Consistent with the system requirements of the exchanges and the 
NASD, round the result to the seventh decimal point, yielding a rate of 
$25.20 per million.
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[FR Doc. 02-10932 Filed 4-29-02; 2:49 pm]
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