[Federal Register Volume 69, Number 89 (Friday, May 7, 2004)]
[Notices]
[Pages 25632-25646]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-10399]


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SECURITIES AND EXCHANGE COMMISSION

[Release Nos. 33-8418; 34-49634/April 30, 2004]


Order Making Fiscal Year 2005 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) of 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\ Section 13(e) of the 
Securities Exchange Act of 1934 (``Exchange Act'') requires the 
Commission to collect fees on specified 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\ Finally, sections 31(b) and (c) of the Exchange Act 
require national securities exchanges and national securities 
associations, respectively, to pay fees on transactions in specified 
securities to the Commission.\4\
    The Investor and Capital Markets Fee Relief Act (``Fee Relief 
Act'') \5\ amended section 6(b) of the Securities Act and sections 
13(e), 14(g), and 31 of the Exchange Act 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 
adjustment to fix the fee rates under these sections for fiscal year 
2012 and beyond.\6\
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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. 78ee(b) and (c). In addition, section 31(d) of the 
Exchange Act requires the Commission to collect assessments from 
national securities exchanges and national securities associations 
for round turn transactions on security futures. 15 U.S.C. 78ee(d).
    \5\ Pub. L. 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)(5), 78n(g)(6), 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 specified circumstances, to make a mid-year 
adjustment to the fee rates under Sections 31(b) and (c) of the 
Exchange Act in fiscal years 2002 through 2011.
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II. Fiscal Year 2005 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)(5) of the Securities Act requires the Commission to 
make an annual adjustment to the fee rate applicable under paragraph 
6(b) 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) sets forth the method for determining the annual 
adjustment to the fee rate under Section 6(b) for fiscal year 2005. 
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 2005], is reasonably 
likely to produce aggregate fee collections under [Section 6(b)] that 
are equal to the target offsetting collection amount for [fiscal year 
2005].'' That is, the adjusted rate is determined by dividing the 
``target offsetting collection amount'' for fiscal year 2005 by the 
``baseline estimate of the aggregate maximum offering prices'' for 
fiscal year 2005.
    Paragraph 6(b)(11)(A) specifies that the ``target offsetting 
collection amount'' for fiscal year 2005 is $570,000,000.\8\ Paragraph 
6(b)(11)(B) defines the ``baseline estimate of the aggregate maximum 
offering price'' for fiscal year 2005 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 year 2005] 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 projections 
of the aggregate maximum offering prices for fiscal years 2002 
through 2011. In any fiscal year through fiscal year 2011, the 
annual adjustment mechanism will result in additional fee rate 
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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    To make the baseline estimate of the aggregate maximum offering 
price for fiscal year 2005, the Commission is using the same 
methodology it developed in consultation with the Congressional Budget 
Office (``CBO'') and Office of Management and Budget (``OMB'') to 
project aggregate offering price for purposes of the fiscal year 2004 
annual adjustment. Using this methodology, the Commission determines 
the ``baseline estimate of the aggregate maximum offering price'' for 
fiscal year 2005 to be $4,842,692,718,337.\9\ Based on this estimate, 
the Commission calculates the annual adjustment for fiscal 2005 to be 
$117.70 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 year 
2005 using our methodology, and then shows the purely arithmetical 
process of calculating the fiscal year 2005 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 year 2005.
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III. Fiscal Year 2005 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), which currently is $23.40 per 
million of the aggregate dollar amount of sales of specified 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

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aggregate dollar amount of sales of specified securities transacted by 
or through any member of the association otherwise than on an exchange. 
Paragraph 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\ Order Making Fiscal 2004 Mid-Year Adjustment to the Fee 
Rates Applicable Under Sections 31(b) and (c) of the Securities 
Exchange Act of 1934, Rel. No. 34-49332 (February 27, 2004), 69 FR 
10278 (March 4, 2004).
    \11\ The annual adjustments, as well as the mid-year adjustments 
required in specified circumstances under paragraph 31(j)(2) in 
fiscal years 2002 through 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 year 2005. Specifically, the Commission must 
adjust the rates under Sections 31(b) and (c) to a ``uniform adjusted 
rate that, when applied to the baseline estimate of the aggregate 
dollar amount of sales for [fiscal year 2005], 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 year 2005].''
    Paragraph 31(l)(1) specifies that the ``target offsetting 
collection amount'' for fiscal year 2005 is $1,220,000,000.\12\ 
Paragraph 31(l)(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 year 2005] 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 year 2011, the annual and, in 
specified 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 2005, the Commission is using the same 
methodology it developed in consultation with the CBO and OMB to 
project dollar volume for purposes of prior fee adjustments.\13\ Using 
this methodology, the Commission calculates the baseline estimate of 
the aggregate dollar amount of sales for fiscal year 2005 to be 
$37,902,443,515,254. Based on this estimate, and an estimated 
collection of $61,356 in assessments on securities futures transactions 
under section 31(d) in fiscal year 2005, the uniform adjusted rate is 
$32.90 per million.\14\
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    \13\ Appendix B explains how we determined the ``baseline 
estimate of the aggregate dollar amount of sales'' for fiscal year 
2005 using our methodology, and then shows the purely arithmetical 
process of calculating the fiscal year 2005 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 year 2005.
    \14\ The calculation of the adjusted fee rate assumes that the 
current fee rate of $23.40 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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IV. Effective Dates of the Annual Adjustments

    Subparagraph 6(b)(8)(A) of the Securities Act provides that the 
fiscal year 2005 annual adjustment to the fee rate applicable under 
section 6(b) of the Securities Act shall take effect on the later of 
October 1, 2004, or five days after the date on which a regular 
appropriation to the Commission for fiscal year 2005 is enacted.\15\ 
Subparagraphs 13(e)(8)(A) and 14(g)(8)(A) of the Exchange Act provide 
for the same effective date for the annual adjustments to the fee rates 
applicable under sections 13(e) and 14(g) of the Exchange Act.\16\
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    \15\ 15 U.S.C. 77f(b)(8)(A).
    \16\ 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 year 2005 annual adjustments to the fee rates applicable under 
sections 31(b) and (c) of the Exchange Act shall take effect on the 
later of October 1, 2004, or thirty days after the date on which a 
regular appropriation to the Commission for fiscal year 2005 is 
enacted.

V. Conclusion

    Accordingly, pursuant to section 6(b) of the Securities Act and 
sections 13(e), 14(g) and 31 of the Exchange Act,\17\
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    \17\ 15 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 $117.70 per million effective on the later of October 1, 
2004, or five days after the date on which a regular appropriation to 
the Commission for fiscal year 2005 is enacted; and
    It is further ordered that the fee rates applicable under sections 
31(b) and (c) of the Exchange Act shall be $32.90 per million effective 
on the later of October 1, 2004, or thirty days after the date on which 
a regular appropriation to the Commission for fiscal year 2005 is 
enacted.

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

Appendix A

    With the passage of the Investor and Capital Markets Relief Act, 
Congress has established a target amount of monies to be collected 
from fees charged to issuers based on the value of their 
registrations. This appendix provides the formula for determining 
such fees, which the Commission adjusts annually. Congress has 
mandated that the Commission determine these fees based on the 
``aggregate maximum offering prices,'' which measures the aggregate 
dollar amount of securities registered with the SEC over the course 
of the year. In order to maximize the likelihood that the amount of 
monies targeted by Congress will be collected, the fee rate must be 
set to reflect projected aggregate maximum offering prices. As a 
percentage, the fee rate equals the ratio of the target amounts of 
monies to the projected aggregate maximum offering prices.
    For 2005, the Commission has estimated the aggregate maximum 
offering prices by projecting forward the trend established in the 
previous decade. More specifically, an ARIMA model was used to 
forecast the value of the aggregate maximum offering prices for 
months subsequent to March 2004, the last month for which the 
Commission has data on the aggregate maximum offering prices.
    The following sections describe this process in detail.

A. Baseline Estimate of the Aggregate Maximum Offering Prices for 
Fiscal Year 2005

    First, calculate the aggregate maximum offering prices (AMOP) 
for each month in the sample (March 1994-March 2004). 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 total dollar value of registrations. 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 1994 to March 2004. There are 4 months in the 
sample for which the data are omitted 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).

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    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 
[Delta]t = log (AAMOPt)-
log(AAMOPt-1). This approximates the percentage change.
    5. Estimate the first order moving average model 
[Delta]t = [alpha] + [beta]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 
[Delta]t. The forecast error is expressed as 
et = [Delta]t- [beta]t-1. The model 
can be estimated using standard commercially available software such 
as SAS or Eviews. Using least squares, the estimated parameter 
values are [alpha]=0.01112 and [beta] = 0.76742.
    6. For the month of April 2004, forecast 
[Delta]t = 4/04 = [alpha] + [eszett]e = 3/04. 
For all subsequent months, forecast [Delta]t =[alpha].
    7. Calculate forecasts of log(AAMOP). For example, the forecast 
of log(AAMOP) for June 2004 is given by FLAAMOP t = 6/04 
= log(AAMOP t = 3/04) + [Delta]t = 4/04 + 
[Delta]t = 5/04 + [Delta]t = 6/04.
    8. Under the assumption that et is normally 
distributed, the n-step ahead forecast of AAMOP is given by 
exp(FLAAMOPt + [sigma]n2/2), where 
[sigma]n denotes the standard error of the n-step ahead 
forecast.
    9. For June 2004, this gives a forecast AAMOP of $16.8 Billion 
(Column I), and a forecast AMOP of $368.9 Billion (Column J).
    10. Iterate this process through September 2005 to obtain a 
baseline estimate of the aggregate maximum offering prices for 
fiscal year 2005 of $4,842,692,718,337.

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

    1. Using the data from Table A, estimate the aggregate maximum 
offering prices between 10/1/04 and 9/30/05 to be 
$4,842,692,718,337.
    2. The rate necessary to collect the target $570,000,000 in fee 
revenues set by Congress is then calculated as: $570,000,000 / 
$4,842,692,718,337 = 0.00011770 (or $117.70 per million.).
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Appendix B

    With the passage of the Investor and Capital Markets Relief Act, 
Congress has established a target amount of monies to be collected 
from fees charged to investors based on the value of their 
transactions. This appendix provides the formula for determining 
such fees, which the Commission adjusts annually, and may adjust 
semi-annually.\1\ In order to maximize the likelihood that the 
amount of monies targeted by Congress will be collected, the fee 
rate must be set to reflect projected dollar transaction volume on 
the securities exchanges and the Nasdaq over the course of the year. 
As a percentage, the fee rate equals the ratio of the target amounts 
of monies to the projected dollar transaction volume.
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    \1\ Congress requires that the Commission make a mid-year 
adjustment to the fee rate if 4 months into the fiscal year it 
determines that its forecasts of aggregate dollar volume are 
reasonably likely to be off by 10% or more.
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    For 2005, the Commission has estimated dollar transaction volume 
by projecting forward the trend established in the previous decade. 
More specifically, dollar transaction volume was forecasted for 
months subsequent to March 2004, the last month for which the 
Commission has data on transaction volume.
    The following sections describe this process in detail.

A. Baseline Estimate of the Aggregate Dollar Amount of Sales for Fiscal 
Year 2005

    First, calculate the average daily dollar amount of sales (ADS) 
for each month in the sample (March 1994-March 2004). The data 
obtained from the exchanges and the NASD are presented in Table B. 
The monthly aggregate dollar amount of sales (exchange plus Nasdaq) 
is contained in column E.
    Next, calculate the change in the natural logarithm of ADS from 
month-to-month. The average monthly percentage growth of ADS over 
the entire sample is 0.014 and the standard deviation 0.118. 
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 2.2 percent.
    Now, use the expected monthly percentage growth rate to forecast 
total dollar volume. For example, one can use the ADS for March 2004 
($114,370,494,465) to forecast ADS for April 2004 ($116,834,236,575 
= $114,370,494,465 x 1.022) \2\. Multiply by the number of trading 
days in April 2004 (21) to obtain a forecast of the total dollar 
volume for the month ($2,453,518,968,084). Repeat the method to 
generate forecasts for subsequent months.
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    \2\ The value 1.022 has been rounded. All computations are done 
with the unrounded value.
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    The forecasts for total dollar volume are in column I of Table 
A. The following is a more formal (mathematical) description of the 
procedure:
    1. Divide each month's total dollar volume (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 [Delta]t = log (ADSt / 
ADSt-1), where log (x) denotes the natural logarithm of 
x.
    3. Calculate the mean and standard deviation of the series 
{[Delta]1, [Delta]2, ... , 
[Delta]120{time} . These are given by [sigma] = 0.014 and 
[sigma] = 0.118, respectively.
    4. Assume that the natural logarithm of ADS follows a random 
walk, so that [Delta]s and [Delta]t are 
statistically independent for any two months s and t.
    5. Under the assumption that [Delta]t is normally 
distributed, the expected value of ADSt /
ADSt-1 is given by exp ([mu] + 22), or on 
average ADSt = 1.022 x ADSt-1.
    6. For April 2004, this gives a forecast ADS of 1.022 x 
$114,370,494,465 = $116,834,236,575. Multiply this figure by the 21 
trading days in April 2004 to obtain a total dollar volume forecast 
of $2,453,518,968,084.
    7. For May 2004, multiply the April 2004 ADS forecast by 1.022 
to obtain a forecast ADS of $119,351,052,035. Multiply this figure 
by the 20 trading days in May 2004 to obtain a total dollar volume 
forecast of $2,387,021,040,703.
    8. Repeat this procedure for subsequent months.

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

    1. Use Table B to estimate fees collected for the period 10/1/04 
through 10/31/04. The projected aggregate dollar amount of sales for 
this period is $2,788,214,479,378. Projected fee collections at the 
current fee rate of 0.0000234 are $65,244,219.
    2. Estimate the amount of assessments on securities futures 
products collected during 10/1/04 and 9/30/05 to be $61,356 by 
projecting a 2.2% monthly increase from a base of $3,884 in March 
2004.
    3. Subtract the amounts $65,244,219 and $61,356 from the target 
offsetting collection amount set by Congress of $1,220,000,000 
leaving $1,154,694,425 to be collected on dollar volume for the 
period 11/1/04 through 9/30/05.
    4. Use Table B to estimate dollar volume for the period 11/1/04 
through 9/30/05. The estimate is $35,114,229,035,876. Finally, 
compute the fee rate required to produce the additional 
$1,154,694,425 in revenue. This rate is $1,154,694,425 divided by 
$35,114,229,035,876 or .0000328839.
    5. Consistent with the system requirements of the exchanges and 
the NASD, round the result to the seventh decimal point, yielding a 
rate of .0000329 (or $32.90 per million).
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[FR Doc. 04-10399 Filed 5-6-04; 8:45 am]
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