# Order Making Fiscal Year 2009 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, 25795-25805 [E8-10068]

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[Federal Register Volume 73, Number 89 (Wednesday, May 7, 2008)] [Notices] [Pages 25795-25805] From the Federal Register Online via the Government Printing Office [www.gpo.gov] [FR Doc No: E8-10068] [[Page 25795]] ----------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION [Release Nos. 33-8916; 34-57766/May 2, 2008] Order Making Fiscal Year 2009 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 to the Commission on transactions in specified securities.\4\ --------------------------------------------------------------------------- \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). --------------------------------------------------------------------------- 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\ --------------------------------------------------------------------------- \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). Section 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. --------------------------------------------------------------------------- II. Fiscal Year 2009 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 Section 6(b)(5) of the Securities Act requires the Commission to make an annual adjustment to the fee rate applicable under Section 6(b) of the Securities Act in each of the fiscal years 2003 through 2011.\7\ In those same fiscal years, Sections 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. --------------------------------------------------------------------------- \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. --------------------------------------------------------------------------- Section 6(b)(5) sets forth the method for determining the annual adjustment to the fee rate under Section 6(b) for fiscal year 2009. 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 2009], is reasonably likely to produce aggregate fee collections under [Section 6(b)] that are equal to the target offsetting collection amount for [fiscal year 2009].'' That is, the adjusted rate is determined by dividing the ``target offsetting collection amount'' for fiscal year 2009 by the ``baseline estimate of the aggregate maximum offering prices'' for fiscal year 2009. Section 6(b)(11)(A) specifies that the ``target offsetting collection amount'' for fiscal year 2009 is $284,000,000.\8\ Section 6(b)(11)(B) defines the ``baseline estimate of the aggregate maximum offering price'' for fiscal year 2009 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 2009] as determined by the Commission, after consultation with the Congressional Budget Office and the Office of Management and Budget * * *.'' --------------------------------------------------------------------------- \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. --------------------------------------------------------------------------- To make the baseline estimate of the aggregate maximum offering price for fiscal year 2009, 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 2008 annual adjustment. Using this methodology, the Commission determines the ``baseline estimate of the aggregate maximum offering price'' for fiscal year 2009 to be $5,091,289,629,574.\9\ Based on this estimate, the Commission calculates the fee rate for fiscal 2009 to be $55.80 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. --------------------------------------------------------------------------- \9\ Appendix A explains how we determined the ``baseline estimate of the aggregate maximum offering price'' for fiscal year 2009 using our methodology, and then shows the purely arithmetical process of calculating the fiscal year 2009 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 2009. --------------------------------------------------------------------------- III. Fiscal Year 2009 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 Section 31(j)(2),\10\ which currently is $5.60 per million of the aggregate dollar amount of sales of specified securities transacted on the exchange. 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 sales of specified 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\ --------------------------------------------------------------------------- \10\ Order Making Fiscal 2008 Mid-Year Adjustment to the Fee Rates Applicable Under Sections 31(b) and (c) of the Securities Exchange Act of 1934, Rel. No. 34-57407 (February 29, 2008), 73 FR 12228 (March 6, 2008). \11\ The annual adjustments, as well as the mid-year adjustments required in specified circumstances under Section 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. --------------------------------------------------------------------------- Section 31(j)(1) specifies the method for determining the annual adjustment [[Page 25796]] for fiscal year 2009. 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 2009], 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 2009].'' Section 31(l)(1) specifies that the ``target offsetting collection amount'' for fiscal year 2009 is $1,023,000,000.\12\ Section 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 2009] as determined by the Commission, after consultation with the Congressional Budget Office and the Office of Management and Budget * * *.'' --------------------------------------------------------------------------- \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. --------------------------------------------------------------------------- To make the baseline estimate of the aggregate dollar amount of sales for fiscal year 2009, 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 2009 to be $113,703,210,464,919. Based on this estimate, and an estimated collection of $18,755 in assessments on security futures transactions under Section 31(d) in fiscal year 2009, the uniform adjusted rate for fiscal year 2009 is $9.30 per million.\14\ --------------------------------------------------------------------------- \13\ Appendix B explains how we determined the ``baseline estimate of the aggregate dollar amount of sales'' for fiscal year 2009 using our methodology, and then shows the purely arithmetical process of calculating the fiscal year 2009 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 2009. \14\ The calculation of the adjusted fee rate assumes that the current fee rate of $5.60 per million will apply through October 31, 2008, due to the operation of the effective date provision contained in Section 31(j)(4)(A) of the Exchange Act. --------------------------------------------------------------------------- IV. Effective Dates of the Annual Adjustments Section 6(b)(8)(A) of the Securities Act provides that the fiscal year 2009 annual adjustment to the fee rate applicable under Section 6(b) of the Securities Act shall take effect on the later of October 1, 2008, or five days after the date on which a regular appropriation to the Commission for fiscal year 2009 is enacted.\15\ Sections 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\ --------------------------------------------------------------------------- \15\ 15 U.S.C. 77f(b)(8)(A). \16\ 15 U.S.C. 78m(e)(8)(A) and 78n(g)(8)(A). --------------------------------------------------------------------------- Section 31(j)(4)(A) of the Exchange Act provides that the fiscal year 2009 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, 2008, or 30 days after the date on which a regular appropriation to the Commission for fiscal year 2009 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\ --------------------------------------------------------------------------- \17\ 15 U.S.C. 77f(b), 78m(e), 78n(g), and 78ee(j). --------------------------------------------------------------------------- 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 $55.80 per million effective on the later of October 1, 2008, or five days after the date on which a regular appropriation to the Commission for fiscal year 2009 is enacted; and It is further ordered that the fee rates applicable under Sections 31(b) and (c) of the Exchange Act shall be $9.30 per million effective on the later of October 1, 2008, or 30 days after the date on which a regular appropriation to the Commission for fiscal year 2009 is enacted. By the Commission. Nancy M. Morris, Secretary. Appendix A With the passage of the Investor and Capital Markets Relief Act, Congress has, among other things, 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 Commission 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 2009, 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 2008, 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 2009 First, calculate the aggregate maximum offering prices (AMOP) for each month in the sample (March 1998-March 2008). 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 1998 to March 2008. 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 [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 [[Page 25797]] 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 -[alpha]- [beta]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 [alpha] = 0.00154 and [beta] = -0.87424. 6. For the month of April 2008 forecast [Delta]t=4/08 = [alpha] + [beta]et = 3/08 . For all subsequent months, forecast [Delta]t = [alpha]. 7. Calculate forecasts of log(AAMOP). For example, the forecast of log(AAMOP) for June 2008 is given by FLAAMOPt = 6/08 = log(AAMOPt = 3/08 ) + [Delta]t=4/08 +[Delta]t = 5/08 + [Delta]t = 6/08 . 8. Under the assumption that et is normally distributed, the n-step ahead forecast of AAMOP is given by exp(FLAAMOPt + [sigma]n ^{2}/2), where [sigma]n denotes the standard error of the n-step ahead forecast. 9. For June 2008, this gives a forecast AAMOP of $19.7 Billion (Column I), and a forecast AMOP of $414.1 Billion (Column J). 10. Iterate this process through September 2009 to obtain a baseline estimate of the aggregate maximum offering prices for fiscal year 2009 of $5,091,289,629,574. 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 10/1/08 and 9/30/09 to be $5,091,289,629,574. 2. The rate necessary to collect the target $284,000,000 in fee revenues set by Congress is then calculated as: $284,000,000 / $5,091,289,629,574 = 0.00005578. 3. Round the result to the seventh decimal point, yielding a rate of .0000558 (or $55.80 per million). [[Page 25798]] [GRAPHIC] [TIFF OMITTED] TN07MY08.060 [[Page 25799]] [GRAPHIC] [TIFF OMITTED] TN07MY08.061 [[Page 25800]] [GRAPHIC] [TIFF OMITTED] TN07MY08.062 [[Page 25801]] [GRAPHIC] [TIFF OMITTED] TN07MY08.063 BILLING CODE 8010-01-C Appendix B With the passage of the Investor and Capital Markets Relief Act, Congress has, among other things, 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 [[Page 25802]] adjust semi-annually.\18\ 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 certain over-the-counter markets 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. --------------------------------------------------------------------------- \18\ Congress requires that the Commission make a mid-year adjustment to the fee rate if four months into the fiscal year it determines that its forecasts of aggregate dollar volume are reasonably likely to be off by 10% or more. --------------------------------------------------------------------------- For 2009, 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 2008, 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 2009 First, calculate the average daily dollar amount of sales (ADS) for each month in the sample (March 1998-March 2008). The monthly aggregate dollar amount of sales (exchange plus certain over-the-counter markets) is presented in column C of Table B. 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 0.015 and the standard deviation is 0.126. 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 2.3%. Now, use the expected monthly percentage growth rate to forecast total dollar volume. For example, one can use the ADS for March 2008 ($338,395,058,873) to forecast ADS for April 2008 ($346,177,695,873= $338,395,058,873 x 1.023).\19\ Multiply by the number of trading days in April 2008 (22) to obtain a forecast of the total dollar volume for the month ($7,615,909,309,196). Repeat the method to generate forecasts for subsequent months. --------------------------------------------------------------------------- \19\ The value 1.023 has been rounded. All computations are done with the unrounded value. --------------------------------------------------------------------------- The forecasts for total dollar volume are in column G of Table B. The following is a more formal (mathematical) description of the procedure: 1. Divide each month's total dollar volume (column C) by the number of trading days in that month (column B) to obtain the average daily dollar volume (ADS, column D). 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 [mu] = 0.015 and [sigma] = 0.126, 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] + [sigma]^{2}/2), or on average ADSt = 1.023 x ADSt-1 . 6. For April 2008, this gives a forecast ADS of 1.023 x $338,395,058,873 = $346,177,695,873. Multiply this figure by the 22 trading days in April 2008 to obtain a total dollar volume forecast of $7,615,909,309,196. 7. For May 2008, multiply the April 2008 ADS forecast by 1.023 to obtain a forecast ADS of $354,139,323,188. Multiply this figure by the 21 trading days in May 2008 to obtain a total dollar volume forecast of $7,436,925,786,952. 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 10/1/08 through 10/31/08. The projected aggregate dollar amount of sales for this period is $9,125,934,321,266. Projected fee collections at the current fee rate of 0.0000056 are $51,105,232. 2. Estimate the amount of assessments on securities futures products collected during 10/1/08 and 9/30/09 to be $18,755 by projecting a 2.3% monthly increase from a base of $1,173 in March 2008. 3. Subtract the amounts $51,105,232 and $18,755 from the target offsetting collection amount set by Congress of $1,023,000,000 leaving $971,876,013 to be collected on dollar volume for the period 11/1/08 through 9/30/09. 4. Use Table B to estimate dollar volume for the period 11/1/08 through 9/30/09. The estimate is $104,577,276,143,653. Finally, compute the fee rate required to produce the additional $971,876,013 in revenue. This rate is $971,876,013 divided by $104,577,276,143,653 or 0.0000092934. 5. Round the result to the seventh decimal point, yielding a rate of .0000093 (or $9.30 per million). [[Page 25803]] [GRAPHIC] [TIFF OMITTED] TN07MY08.064 [[Page 25804]] [GRAPHIC] [TIFF OMITTED] TN07MY08.065 [[Page 25805]] [GRAPHIC] [TIFF OMITTED] TN07MY08.066 [FR Doc. E8-10068 Filed 5-6-08; 8:45 am] BILLING CODE 8010-01-C