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Sunset Review of Public Accountancy Laws: The Colorado Experience.

Sunset reviews are periodic examinations by state legislatures to assess the necessity, effectiveness, and efficiency of various state functions, including regulatory boards and commissions. The outcome of a sunset review can range from a minor change in the existing law to outright elimination of the regulatory function. In fact, agencies subject to sunset reviews automatically terminate unless renewal legislation is passed. As reported in Table 1, the public accountancy laws of 25 states are subject to sunset reviews. Given the potential substantive results of a sunset review, practicing accountants, educators, and regulators might benefit from a better understanding of the sunset review process and the interplay of the involved parties.

The public accountancy law in Colorado underwent a sunset review during the 2000 legislative session. This provided us the opportunity to examine, in depth and on a contemporaneous basis, the sunset review of a public accountancy law. Various parties, such as government officials, the State Board of Accountancy (SBA), the State Society of CPAs (SSCPA), and ourselves were involved in this process. We were able to interview and/or observe all of these parties. This commentary reflects our observations and experiences with Colorado's sunset review process.

OVERVIEW OF SUNSET REVIEW

Colorado's Department of Regulatory Agencies (DORA) is charged by state statute with the regulation of many occupations and professions, including the accounting profession, and most regulated entities such as public utilities, banks and insurance companies. DORA helps manage the day-to-day business of the boards through administrative and support staff it provides the boards. The Executive Director of DORA, appointed by the Governor, is responsible for management of the department and is also the principal advisor to the Governor and the Legislature on policy issues relating to regulation.

In 1976, Colorado became the first state to pass a sunset law. The law automatically terminates certain state regulatory agencies, boards, or functions on specific dates. Unless the Legislature passes and the Governor signs sunset legislation extending the life of the agency, board or function, its affairs must be concluded within one year. The purpose of Colorado's sunset law is to balance the need for regulation that protects the public with the effects of possible over-regulation of an agency or profession.

DORA's Office of Policy and Research is responsible for the initial stages of sunset reviews. Sunset reviews are conducted according to statutorily established evaluation criteria. In general, the criteria address the following (Colorado Revised Statutes 2000):

* Whether regulation is needed to protect the public interest;

* If regulation is needed, whether the existing regulation is the least restrictive form of regulation consistent with the public interest;

* Whether the agency actually operates in the public interest; and

* Whether the agency operates effectively and efficiently.

Agencies, boards, and functions are each on a specific schedule, typically requiring a sunset review every 5 to 15 years. The SBA was last reviewed in 1993. A timetable and list of sunset review activities pertaining to the SBA appears in Table 2.

INITIAL SUNSET REVIEW PROCESS

A staff analyst under the supervision of the Director of Sunrise/Sunset was primarily responsible for the pre-legislative phase of the public accountancy sunset review. This phase took approximately six months to complete and included the activities outlined in the top half of Table 2. These activities are described below.

Focus Groups

The focus group meetings with the SBA members were primarily intended to identify important issues that the sunset review could possibly address. The SBA members identified a large number of issues, but could not agree on the most important issues.

SBA and SSCPA Joint Task Force

The SBA and SSCPA formed a joint task force to address the sunset review. Their mission was to develop a consensus and to make recommendations to DORA before DORA drafted its report. Task force members recognized that the SBA and the SSCPA might not be able to agree on all issues. The joint task force included four members of the SBA, [1] the SBA's current and former Executive Directors, a state of Colorado assistant attorney general assigned to advise the SBA on legal matters, the SSCPA's Executive Director, the SSCPA's lobbyist, and six additional representatives of the SSCPA.

The joint task force met three times to develop its recommendations. The first meeting was mostly a brainstorming session to develop a comprehensive list of issues that might need to be addressed in the sunset review. Thirty issues, not all completely independent, were identified.

The next two meetings focused on identifying those issues perceived to be the most critical. Tentative positions on the issues were also discussed. Representatives of each group consulted with their larger bodies in developing final positions. Four issues were ultimately selected as being the most crucial [2] The SBA and SSCPA reached agreement on each issue. Within two months of the initial meeting of the task force, a letter summarizing these issues and positions was sent to DORA. The letter was signed by the SBA's Chair and the SSCPA's President.

The four issues raised by the joint task force were:

1. Achieve substantial equivalency to the Uniform Accountancy Act;

2. Enable the SBA to grant exemptions from taking the CPA exam to licensees who allowed their licenses to lapse for more than six years, and who can demonstrate their competency to practice public accounting;

3. Enable the SBA to subpoena and examine client information when investigating allegations of misconduct by a licensee; and

4. Permit non-CPA ownership of CPA firms.

Substantial Equivalency to the Uniform Accountancy Act

The first issue addressed the concept of substantial equivalency to the Uniform Accountancy Act (AICPA/NASBA 1998). The Uniform Accountancy Act (UAA) is a model accountancy act developed by the American Institute of Certified Public Accountants (AICPA) and the National Association of State Boards of Accountancy (NASBA). It is intended to serve as the basis for legislation implemented by the individual states. One objective of the UAA is to enable CPAs to more freely practice across jurisdictions. The certification requirements, including reciprocity provisions, differ considerably across states. Difficulty in obtaining a license in a foreign state is costly, time consuming, and complicates the proper servicing of clients.

Implementation of substantial equivalency rests with NASBA's National Qualification Appraisal Service (NQAS). If a state adopts the essential provisions of the UAA, NQAS designates that state substantially equivalent. All CPAs from that state could then freely practice in other states viewed as substantially equivalent. Similarly, CPAs from other substantially equivalent states could practice in that state.

The task force identified four essential elements to substantial equivalency: (1) completion of 150 hours of education, (2) passage of the Uniform CPA Exam, (3) completion of one year of experience under the supervision of a CPA, and (4) statutory authority allowing the SBA to recognize licensees from other states that meet the substantial equivalency provisions. According to the existing Colorado law and regulations, the 150-hour requirement was to be implemented beginning in 2002. Existing law also required passage of the CPA exam. Thus, the two specific changes in Colorado's public accountancy law necessary to achieve substantial equivalency relate to experience and the granting of reciprocity to CPAs from substantially equivalent states.

The qualifying experience required by the UAA includes any type of service or advice involving the use of accounting, attest, management advisory, financial advisory, tax, or consulting skills. This experience need not be obtained in a public accounting firm. Colorado's existing requirement allowed only public accounting experience. [3] Thus Colorado must broaden the nature of its qualifying experience in order to become substantially equivalent. [4]

Colorado's existing law also includes an education in lieu of experience alternative to the one-year requirement of public accounting experience. In general terms, a candidate with the equivalent of a master's degree in accounting can waive the experience requirement. Colorado must void this alternative in order to become substantially equivalent.

Discretion in Reactivating Licenses

The second issue raised by the joint task force allows the SBA more discretion in reactivating licenses for those holders who permitted their licenses to lapse for more than six years and who can demonstrate their competence to practice public accounting. Existing law required these individuals to retake the CPA Exam. Task force members felt that this requirement impedes people returning to the workforce after their child-rearing years.

Exception to Accountant/Client Privilege Statute

The next joint task force recommendation was to grant the SBA an exemption to the accountant/client privilege statute for the purpose of issuing a subpoena when investigating alleged misconduct by a licensee. Colorado's existing law contained an accountant/client privilege provision, and in 1998 the Colorado Supreme Court ruled that existing law did not grant the SBA exemption from this provision. Consequently, a CPA suspected of misconduct could invoke accountant/client privilege, thereby thwarting an SBA investigation by withholding documents. Both the SBA and SSCPA concluded that an exemption is necessary to enable the Board to effectively undertake disciplinary actions. Only one other state, Missouri, does not have a clear exception to accountant/ client privilege (DORA 1999, 43).

Non-CPA Ownership of CPA Firms

The final issue addressed by the joint task force was non-CPA ownership of CPA firms. Existing law required that all owners of CPA firms be CPAs. The SBA and SSCPA cited the expansion of services offered by CPA firms and the need for these firms to attract the highest quality professionals possible. Offering ownership opportunities to highly qualified personnel who are not CPAs will be most helpful in doing this.

The task force discussed one additional issue, but agreement could not be reached. Representatives from the SBA expressed support for broadening the disciplinary powers of the Board. Existing law empowered the Board to discipline individual CPAs but not CPA firms. The ability to discipline firms may become increasingly important in an environment permitting non-CPA ownership of CPA firms. Misconduct by a non-CPA owner could go unsanctioned if the Board has no jurisdiction over the individual or the firm. Representatives of the SSCPA were reluctant to press this issue and the task force did not pursue the matter further.

Input from Three Educators

We authored a letter to DORA that focused on three issues. [5] First, we recommended that the 150-hour requirement be repealed. We adopted a cost/benefit framework and asserted that the benefits from the 150-hour requirement would be minimal, while the costs would be substantial. Colorado's 150-hour rule would raise the required number of accounting hours from 27 to 30 and raise the number of required nonaccounting business hours from 21 to 24. Thus, very limited increases in accounting and business training would result from implementing the 150-hour requirement. This suggested to us that benefits such as improved audit quality would be minor, while students would incur significant additional costs to meet this requirement. These additional costs could result in fewer OPAs, reduced availability of CPAs' services and higher fees to the public.

We also commented on the experience requirement. Citing the expansion of services offered by CPA firms, we agreed with the joint task force in recommending that the experience requirement be broadened. However, we also noted that such a change does little to ensure that those CPAs offering attest services have the appropriate level of attest experience. Accordingly, we recommended adoption of the UAA provision requiring that mandatory peer reviews evaluate the experience and qualifications of those personnel supervising attest engagements and signing opinions. Colorado's existing law had no mandatory peer review requirement.

The final issue we addressed was the education in lieu of experience option. We favored retaining this option, since it provides candidates with an alternative path to certification.

Analysis of Mail Survey

DORA conducted a mail survey of 845 CPAs licensed in Colorado. The number of questionnaires returned was 391 (46 percent). Eighty percent of the respondents felt that the four-year entry-level education requirement was about right or stringent. This contrasts with the position of the SBA and SSCPA on the 150-hour requirement. A substantial number of the respondents (37 percent) felt that the education in lieu of experience option was lax. These CPAs evidently agreed with the position of the SBA and SSCPA that this alternative should be eliminated. The respondents expressed little dissatisfaction with the SBA. This was important information for DORA in assessing the SBA's performance.

REPORT TO THE LEGISLATURE

In October 1999, DORA issued its 74-page report to the Colorado State Legislature. The report contained the following seven recommendations:

1. Continue the Board until 2005 when the next sunset review will be conducted.

2. Eliminate the 150-hour educational requirement.

3. Amend Colorado's accountant/client privilege to enable the Board to conduct investigations and disciplinary actions.

4. The Board should proactively and systematically apply its jurisdictional authority.

5. Allow for non-CPA ownership of CPA firms.

6. Prohibit, by statute, the receipt of commission and contingent fees related to attest clients of CPA firms.

7. Enable the Board to exempt, at its discretion, licensees who have been inactive six or more years from retaking the CPA exam. These licensees must satisfy the SBA of their continued competence.

In recommending that the SBA be continued, DORA concluded that the Board operates in the public interest and is necessary for the effective regulation of the accounting profession in Colorado. This recommendation was necessary to avoid the SBA's termination under the sunset review statute. Relative to previous SBA sunset reviews, the 2005 date imposes an accelerated sunset review of the Board and the accountancy statue. [6] DORA concluded that an accelerated review is warranted by new and emerging business conditions, such as the electronic delivery of services, that relate to the practice of public accounting.

In 1998, the SBA adopted the 150-hour requirement by rule, rather than the more typical path of legislation. [7] Thus, the Legislature and DORA's Office of Policy and Research had not previously studied the 150-hour issue. Where regulation is necessary, sunset review criteria require that DORA recommend the least restrictive form of regulation consistent with the public interest. In considering this criterion, DORA concluded that the 150-hour rule was an "overly restrictive entry barrier into the profession with no demonstrable public protection function" (DORA 1999, 42).

Sunset review criteria also require that DORA consider whether changes in the SBA's operations are in the public interest. DORA agreed with the SBA-SSCPA task force, and recommended an amendment to Colorado's accountant/client privilege. DORA concluded that this change, if properly structured, eliminates a significant barrier to effective enforcement of Colorado's accountancy statutes and regulations while preserving the privacy rights of consumers.

Accountants increasingly practice in multiple states via electronic means and otherwise. In recommending that the SBA must proactively and systematically apply its jurisdictional authority, DORA was concerned that out-of-state accountants serving clients or doing business in Colorado may not be held to the same regulations and disciplinary actions as a Colorado CPA.

As also suggested by the SBA-SSCPA task force, DORA recommended that non-CPA ownership of CPA firms be allowed, provided that at least majority ownership is controlled by licensed CPAs.

The SBA by rule, not statute, prohibits the receipt of commissions and contingent fees with respect to attest clients. DORA recommended that commissions and contingent fees be prohibited by statute to help ensure the independence of auditors.

DORA's final recommendation was to grant the SBA discretion in re-licensing inactive CPAs. Those inactive CPAs who can demonstrate their continued competence to practice public accounting will be granted a waiver from taking the CPA Exam. DORA felt that such a demonstration ensures public protection. This recommendation was consistent with the position of the SBA-SSCPA task force.

LEGISLATIVE PROCESS

Colorado's Legislature has two chambers, the House and the Senate. Bills on sunset legislation are initially assigned to a committee of one of the two chambers. The accountancy sunset legislation was assigned to the House Business Affairs Committee. [8] Prior to the first committee hearing, legislative staff drafted a bill based on DORA's sunset review recommendations. Hearings were open to the public.

The first House Business Affairs Committee hearing (December 16, 1999) followed a structured process. DORA's Director of Sunrise/Sunset and the Policy Analyst who conducted the review briefed the committee on all of their recommendations. A CPA member of the SBA testified on behalf of the Board. [9] The public was also invited to testify. Two practicing CPA firm partners provided testimony. One was the current President of the SSCPA and the other was a past President of the SSCPA. The Executive Director of the SSCPA also testified, as did one of us. The Board member, the other two CPAs, and the Executive Director of the SSCPA all testified in support of the concept of substantial equivalency and against repeal of the 150-hour rule. They also testified against codifying by statute restrictions on commissions and contingent fees, arguing that existing language in SBA rules was adequate. One of the authors testified in favor of repealing the 150-hour rule. Last, the Executive Director of DORA testified in suppo rt of the report's recommendations. During testimony, committee members asked questions and offered their own comments on the 150-hour rule, accountant/client privilege and non-CPA ownership. The 150-hour rule was clearly the most contentious issue.

Following the testimony, the committee voted on each of the recommendations. Their votes were:

12 for, 0 against Continue the Board until 2005.

6 for, 6 against Eliminate the 150-hour educational requirement.

4 for, 8 against Amend Colorado's accountant/client privilege to enable the Board to conduct investigations and disciplinary actions.

11 for, 1 against The Board should proactively and systematically apply its jurisdictional authority.

10 for, 2 against Allow for non-CPA ownership of CPA firms.

5 for, 7 against Prohibit, by statute, the receipt of commission and contingent fees from attest clients of CPA firms.

12 for, 0 against Enable the Board to exempt at its discretion licensees who have been inactive six or more years from retaking the CPA exam.

Recommendations with positive votes were retained as part of the draft bill; the other recommendations were not retained.

The Governor Intervenes

In the interim preceding the second Business Affairs committee hearing, one committee member was charged with sponsoring the bill as it made its way through the two chambers. During this interim, DORA staff met with this legislative sponsor. Also, during this interim, Governor Owens took a public stance on the 150-hour rule. He was quoted in one of the Denver papers as saying, "Colorado CPAs aren't suffering with only four years of college. It's just a way to protect current CPAs. It's just a needless expense" (Rocky Mountain News 2000, 10A). This position is consistent with Governor Owens' general regulatory philosophy of minimal governmental intervention into markets. [10]

At the second hearing (February 15, 2000), the bill's legislative sponsor re-summarized the bill and offered two principal amendments. First he proposed that the SBA have restricted subpoena power, allowing some intrusion on existing accountant/client privilege. He also proposed that the 150-hour requirement be repealed, as originally recommended in DORA's report. Public testimony was heard from the current President of the SBA, the Executive Director of the SSCPA, and DORA's Director of Sunrise/Sunset. The President of the SBA and the Executive Director of the SSCPA testified in favor of the subpoena power amendment and against repeal of the 150-hour rule. In response to their testimony, the bill's legislative sponsor replied that the Governor was adamantly opposed to the 150-hour rule. DORA's Director of Sunrise/Sunset spoke in favor of both amendments. The committee voted 6-7 against the subpoena power amendment and 13-0 in favor of the amendment repealing the 150-hour rule. The bill as amended passed the entire House by a 53-12 vote on February 23, 2000.

Next the bill moved to the Senate Business Affairs Committee for a hearing (March 6, 2000). The bill's sponsor in the Senate proposed a new amendment concerning the SBA's subpoena power. This amendment provided that the SBA's subpoena power be exempt from the state's accountant/client privilege statue, but only for materials that relate to independent auditor services. The committee passed the subpoena power amendment on a 7-2 vote. The SSCPA's Executive Director and the current President of the SBA again testified against repeal of the 150-hour rule; committee members expressed little interest in discussing the issue and took no action to modify the repeal of the 150-hour requirement as passed by the House. On a 6-3 vote the entire bill passed as amended. Subsequently, the Senate acted to remove the subpoena power amendment and passed the remaining bill by a 33-0 vote on March 21, 2000. [11] Governor Owens signed the bill into law on June 1, 2000.

IMPLICATIONS AND CONCLUSIONS

We found the sunset review process to be quite open. DORA solicited the views of numerous stakeholders and appeared to be quite receptive. This provided all interested parties the opportunity to participate and to potentially influence the ultimate outcome. Legislative committees in both chambers also provided ample opportunity for public testimony at their hearings.

Of course, the sunset review process was political. Much of the negotiating and influencing may have taken place behind the scenes. For example, the SS CPA hired a lobbyist and has a Political Action Committee. Moreover, positions of powerful figures like the Governor carry great weight. Nevertheless, we encourage all stakeholders in accounting regulation to become involved with sunset reviews.

The contentious issues addressed in Colorado's sunset review were substantial equivalency, including the 150-hour requirement, and accountant/client privilege. The privilege issue is settled in nearly every other state and is not of particular interest outside of Colorado.

Substantial equivalency, however, is less settled. Colorado's decision not to seek substantial equivalency was driven by the 150-hour requirement. This was, by far, the most hotly debated issue during the sunset review. Whether this issue will be equally contentious in other states is unknown. [12] It is also unclear whether other states will sacrifice substantial equivalency in order to exercise self-determination with respect to public accountancy laws. However, the Colorado experience makes clear that a sunset review can significantly alter the laws that regulate the practice of public accountancy within a state.

Colorado's sunset review experience also has potential implications for studying and understanding variations in accounting regulations across states. We found that the Governor's political ideology regarding the 150-hour requirement was the most important determinant of the sunset review's outcome. This is consistent with studies in other disciplines that found ideology to be at least as important as other factors in explaining voting patterns (Peltzman 1984). Consequently, studies such as Donabedian (1991), Roberts and Kurtenbach (1998) and Young (1991), that seek to explain variations in licensing restrictiveness across states, should also include one or more variables reflecting the ideology of the politicians who ultimately make the regulatory decisions.

(1.) The terms of two of these members expired during the deliberations of the task force.

(2.) The task force actually listed six issues, but two of them relate to changes in education requirements necessary to achieve substantial equivalency. Because these issues are subsumed under the first issue of substantial equivalency, we do not list them separately. They are, however, discussed in the section on substantial equivalency.

(3.) A few exceptions to the public accounting requirement exist, but they are infrequently utilized.

(4.) Since Colorado's experience requirement is stricter than the UAA, the SBA and SSCPA eventually concluded that the existing experience requirement is not an obstacle to Colorado in achieving substantial equivalency. Accordingly, this issue was not raised during the legislative process.

(5.) A colleague from another Colorado university joined us in writing this letter.

(6.) Review cycles in other states range from four to 12 years, with a median of six years.

(7.) Arkansas and Washington are the only other jurisdictions to adopt the 150-hour requirement by rule rather than by legislation.

(8.) This assignment was typical and customary.

(9.) This SBA member is a past President of the SSCPA.

(10.) The Governor is also knowledgeable about the accounting profession. He served as the State Treasurer and worked on the consulting staff of a Big 8 firm. The Governor does not hold a CPA license.

(11.) A member of the House Committee erroneously believed that the final Senate version of the bill contained a change to the accountant/client privilege provision. Because of this, a conference committee was convened. This necessitated that both chambers reconsider the bill. The Senate repassed the bill by a vote of 32 yes, 0 no on April 14, 2000. The House repassed the bill by a vote of 56 yes and 9 no on April 26, 2000.

(12.) For discussions regarding the 150-hour requirement, see Bernard (1996), Byrnes (2000), Covaleski (2000), Elam (1996), and Miller (1996).

REFERENCES

American Institute of Certified Public Accountants (AICPA) and the National Association of SBAs of Accountancy (NASBA). 1994. Digest of State Accountancy Laws and Regulations. New York, NY: AICPA/NASBA.

----- and -----. 1998. Uniform Accountancy Act and Uniform Accountancy Act Rules. New York, NY: AICPA/NASBA.

Bernard, V. L. 1996. The demand for 150-hours: let the market decide. Issues in Accounting Education 49 (Spring): 207-209.

Byrnes, N. 2000. Where have all the accountants gone? Business Week (March 27): 203-204.

Colorado Department of Regulatory Agencies (DORA). 1999. Regulation of the Accounting Profession in Colorado: Colorado State Board of Accountancy 1999 Sunset Review. Denver, CO: DORA.

Colorado Revised Statutes. 2000. Section 24-34-104. General assembly review of regulatory agencies and functions for termination, continuation, or reestablishment. Denver, CO: Bradford Publishing Co.

Covaleski, J. M. 2000. 150-hour rule goes national. Accounting Today 14 (April 17-30): 1, 53.

Donabedian, B. 1991. The economic rationales for CPA licensing. Journal of Accounting & Public Policy 10 (Summer): 85-103.

Elam, R. 1996. Is the 150-hour requirement really progress? Issues in Accounting Education 49 (Spring): 205-206.

Miller, P. B. 1996. Reply to point/counterpoint: Is the 150-hour requirement really progress? vs. The demand for 150-hours: Let the market decide. Issues in Accounting Education 11 (Fall): 471-475.

Peltzman, S. 1984. Constituent interest and congressional voting. Journal of Law and Economics 27 (April): 181-210.

Roberts R., and J. Kurtenbach. 1998. State regulation and professional accounting reforms: An empirical test of regulatory capture theory. Journal of Accounting & Public Policy 17 (Autumn): 209-226.

Rocky Mountain News. 2000. CPA restriction may be vetoed. (January 26): 10A.

Young, S. D. 1991. Interest group politics and the licensing of public accountants. The Accounting Review 66 (October): 809-817.
TABLE 1
States with Sunset Reviews
Alabama      Montana
Alaska       Nebraska
Arizona      New Mexico
Colorado     Oklahoma
Connecticut  Pennsylvania
Delaware     South Carolina
Georgia      South Dakota
Hawaii       Tennessee
Illinois     Texas
Louisiana    Utah
Maine        Vermont
Maryland     Washington
Michigan
Source: American Institute of CPAs and the
National Association of State Boards of
Accountancy (1994), Digest of State
Accountancy Laws and State Board
Regulations.
TABLE 2
Timtable of Colorado Sunset Review Activities
Initial Sunset Review Process
under the Supervision of the
Director of Sunrise/Sunset
April-May 1999                 Hold focus group meetings with
                               SBA members to identify issues
                               to be addressed by sunset review
June-August 1999               Receive input from the SBA and
                               SSCPA joint task force as to
                               ciritical issues
June-August 1999               Receive input from the authors
                               who are educators
June-August 1999               Analysis of mail survey
                               administered to a sample of
                               Colorado CPA licensees
October 1999                   DORA issues sunset review
                               report to the legislature
Colorado's State Legislative
Process
December 16, 1999              First House Business Affairs
                               Committee hearing
February 15, 2000              Second House Business Affairs
                               Committee hearing
February 23, 2000              House passes accountancy
                               sunset review bill
March 6, 2000                  First Senate Business Affairs
                               Committee hearing
March 21, 2000                 Senate passes accountancy sunset
                               review bill
June 1, 2000                   Governor signs the accountancy
                               sunset review bill into law
SBA = State Board of Accountancy
SSCPA = State Society of CPAs
DORA = Colorado's Department of Regulatory Agencies
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Author:Colbert, Gary J.; Murray, Dennis
Publication:Accounting Horizons
Geographic Code:1USA
Date:Jun 1, 2001
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