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Code · REGISTER · 2004-11-09 · SECURITIES AND EXCHANGE COMMISSION · Notices

Notices. Notice of Registration for the Diversity Immigrant Visa Program

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BILLING CODE 7710-FW-P SECURITIES AND EXCHANGE COMMISSION [Release No. 34-50622; File No. SR-BSE-2004-25] Self-Regulatory Organizations; Boston Stock Exchange, Inc.; Order Approving a Proposed Rule Change and Amendment Nos. 1, 2 and 3 Thereto and Notice of Filing and Order Granting Accelerated Approval to Amendment No. 4 Thereto Relating to the Specialist Performance Evaluation Program November 2, 2004. I. Introduction On June 21, 2004, the Boston Stock Exchange, Inc. (“BSE” or “Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”) 1 and Rule 19b-4 thereunder, 2 a proposed rule change to amend its rules concerning its Specialist Performance Evaluation Program (“SPEP”).
On July 26, 2004, the BSE submitted Amendment No. 1 to the proposed rule change. 3 On August 25, 2004, the BSE submitted Amendment Nos. 2 4 and 3 5 to the proposed rule change. The proposed rule change, as amended by Amendment Nos. 1, 2 and 3, was published for comment in the **Federal Register** on September 3, 2004. 6 The Commission received no comments on the proposed rule change. 1 15 U.S.C. 78s(b)(1). 2 17 CFR 240.19b-4. 3 *See* letter from John Boese, Vice President, Chief Regulatory Officer, BSE, to Nancy Sanow, Assistant Director, Division of Market Regulation (“Division”), Commission, dated July 22, 2004 and accompanying Form 19b-4 (“Amendment No. 1”).
Amendment No. 1 replaced and superceded the originally filed proposed rule change. 4 *See* letter from John Boese, Vice President, Chief Regulatory Officer, BSE, to Nancy Sanow, Assistant Director, Division, Commission, dated August 18, 2004 (“Amendment No. 2”). Amendment No. 2 replaced and superceded BSE Rule Chapter XV, Section 17, Paragraph
(a)of the previously filed proposed rule change. 5 *See* letter from John Boese, Vice President, Chief Regulatory Officer, BSE, to Nancy Sanow, Assistant Director, Division, Commission, dated August 19, 2004 (“Amendment No. 3”). Amendment No. 3 replaced and superceded BSE Rule Chapter XV, Section 17, Paragraph
(a)of the previously filed proposed rule change. 6 *See* Securities Exchange Act Release No. 50287 (August 27, 2004), 69 FR 53966. On October 15, 2004, the BSE submitted Amendment No. 4 to the proposed rule change. 7 This order approves the proposed rule change, as amended by Amendment Nos. 1, 2, 3 and 4. Simultaneously, the Commission is providing notice of filing of Amendment No. 4 and granting accelerated approval of Amendment No. 4. 7 *See* letter from John Boese, Vice President, Chief Regulatory Officer, BSE, to Nancy Sanow, Assistant Director, Division, Commission, dated October 6, 2004 (“Amendment No. 4”). In Amendment No. 4, the BSE proposed permanent approval of the SPEP by deleting Paragraph
(f)of Chapter XV, Dealer-Specialists, Section 17, Specialist Performance Evaluation Program, which limited the effective date of the SPEP through December 31, 2004. II. Description The Exchange proposes to amend the SPEP, which is set forth in Chapter XV, Dealer-Specialists, Section 17, Specialist Performance Evaluation Program. Specifically, the BSE proposes to eliminate the current measurement standards set forth in the rule and replace them with a ranking program based on statistics reported under Rule 11Ac1-5 under the Act 8 (“Rule 5”). 9 Because the measurement standards will no longer be set forth in the rule, the BSE proposes to communicate the measurement standards and thresholds to members via Floor Memoranda, at least thirty days in advance, at least each time a new Rule 5 measurement is chosen, or a new threshold is established. The BSE also proposes to replace references to the Performance Improvement Action Committee (“PIAC”) in the rule text with the Market Performance Committee (“MPC”), because the PIAC, a subcommittee of the MPC, has been abolished by the Exchange, and its duties have been subsumed by the MPC. 8 17 CFR 240.11Ac1-5. 9 *See* Securities Exchange Act Release No. 43590 (November 17, 2000), 65 FR 75414 (December 31, 2000) (adopting Rule 5). III. Discussion The Commission finds that the proposed rule change, as amended, is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities exchange 10 and, in particular, the requirements of Section 6(b) of the Act 11 and the rules and regulations thereunder. The Commission finds that the proposed rule change, as amended, is consistent with Section 6(b)(5) of the Act, 12 which requires that the rules of an exchange be designed to prevent fraudulent and manipulative acts and practices, to promote just and equitable principles of trade, to remove impediments to and perfect the mechanism of a free and open market and a national market system, and, in general, to protect investors and the public interest. 10 In approving this proposed rule change, the Commission has considered the proposed rule's impact on efficiency, competition, and capital formation. 15 U.S.C. 78c(f). 11 15 U.S.C. 78f(b). 12 15 U.S.C. 78f(b)(5). Specifically, the Commission finds that utilizing Rule 5 measurements for SPEP should provide the Exchange with greater flexibility in tailoring its SPEP criteria to respond to market conditions. The BSE, as part of its self-regulatory responsibilities, must conduct effective oversight of specialists. Among the obligations imposed upon specialists by the Act and the rules thereunder is engaging in a course of dealings for their own accounts to assist in the maintenance of fair and orderly markets in their designated securities. 13 To ensure that specialists fulfill their obligations, the Exchange must review specialists' performance. The Commission believes that the BSE's SPEP is critical to this oversight. 13 Rule 11b-1, 15 CFR 240.11b-1. The Commission notes that the proposed rule change, as amended, includes objective measures of performance, as derived from Rule 5. The Commission believes that the Rule 5 measurements should provide the BSE with adequate statistics upon which to evaluate its specialists' performance. Further, the SPEP contains procedures for the review and discipline of specialists who fail to perform their obligations adequately. In Amendment No. 4, the BSE proposed to make its SPEP permanent. The Commission notes that the SPEP rule have been subject to notice and comment and that no comments have been received. The Commission believes that the proposed SPEP program, which utilizes Rule 5 measurements and sets forth a review and disciplinary procedures, merits permanent approval. The Commission emphasizes, however, that the BSE should continue to closely monitor the conditions for review and should take steps to ensure that all specialists whose performance is deficient will be subject to meaningful review. Accordingly, the Commission finds that there is good cause, consistent with Section 6(b)(5) 14 and Section 19(b)(2) of the Act, 15 to approve Amendment No. 4 on an accelerated basis prior to the 30th day of the date of publication of notice of filing thereof in the **Federal Register** . 14 15 U.S.C. 78f(b)(5). 15 15 U.S.C. 78s(b)(2). IV. Solicitation of Comments Interested persons are invited to submit written data, views, and arguments concerning Amendment No. 4, including whether Amendment No. 4 is consistent with the Act. Comments may be submitted by any of the following methods: Electronic Comments: • Use the Commission's Internet comment form ( *http://www.sec.gov/rules/sro.shtml* ); or • Send an e-mail to *rule-comments@sec.gov* . Please include File Number SR-BSE-2004-25 on the subject line. Paper Comments • Send paper comments in triplicate to Jonathan G. Katz, Secretary, Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549-0609. All submissions should refer to File Number SR-BSE-2004-25. This file number should be included on the subject line if e-mail is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site ( *http://www.sec.gov/rules/sro.shtml* ). Copies of the submission, all subsequent amendments, all written statements with respect to Amendment No. 4 that are filed with the Commission, and all written communications relating to Amendment No. 4 between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for inspection and copying in the Commission's Public Reference Room. Copies of the filing also will be available for inspection and copying at the principal office of the BSE. All comments received will be posted without change; the Commission does not edit personal identifying information from submissions. You should submit only information that you wish to make available publicly. All submissions should refer to File Number SR-BSE-2004-25 and should be submitted on or before November 30, 2004. V. Conclusion *It is therefore ordered* , pursuant to Section 19(b)(2) of the Act, 16 that the proposed rule change (File No. SR-BSE-2004-25), as amended by Amendment Nos. 1, 2 and 3, be, and hereby is, approved, and that Amendment No. 4 to the proposed rule change be, and hereby is, approved on an accelerated basis. 16 15 U.S.C. 78s(b)(2). For the Commission, by the Division of Market Regulation, pursuant to delegated authority. 17 17 17 CFR 200.30-3(a)(12). Jill M. Peterson, Assistant Secretary. [FR Doc. E4-3076 Filed 11-8-04; 8:45 am] BILLING CODE 8010-01-P SECURITIES AND EXCHANGE COMMISSION [Release No. 34-50620; File No. SR-CHX-2004-37] Self-Regulatory Organizations; Notice of Filing and Immediate Effectiveness of Proposed Rule Change by the Chicago Stock Exchange, Inc. Relating to the Trading of Nasdaq/NM Securities November 2, 2004. SUMMARY: Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”), 1 and Rule 19b-4 thereunder, 2 notice hereby is given that on October 29, 2004, the Chicago Stock Exchange, Incorporated (“CHX” or “Exchange”) filed with the Securities and Exchange Commission (“SEC” or “Commission”) the proposed rule change as described in Items I, II and III below, which Items have been prepared by the self-regulatory organization. The Commission is publishing this notice to solicit comments on the proposed rule change from interested persons. 1 15 U.S.C. 78s(b)(1). 2 17 CFR 240.19b-4. I. Self-Regulatory Organization's Statement of the Terms of Substance of the Proposed Rule Change The Exchange has requested a six-month extension of the pilot relating to the trading of Nasdaq/NM securities on the Exchange. Specifically, the pilot amended CHX Article XX, Rule 37 and CHX Article XX, Rule 43. The pilot currently is due to expire on November 1, 2004. The Exchange proposes that the pilot remain in effect on a pilot basis through May 1, 2005. The text of the proposed rule change is available at the principal offices of the CHX and at the Commission. II. Self-Regulatory Organization's Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change In its filing with the Commission, the Exchange included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received regarding the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. CHX has prepared summaries, set forth in Sections A, B and C below, of the most significant aspects of such statements. A. Self-Regulatory Organization's Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change 1. Purpose The Exchange has requested a six-month extension of the pilot relating to the trading of Nasdaq/NM securities on the Exchange. Specifically, the pilot amends CHX Article XX, Rule 37 and CHX Article XX, Rule 43. The pilot currently is due to expire on November 1, 2004; the Exchange proposes that the amendments remain in effect on a pilot basis through May 1, 2005. On May 4, 1987, the Commission approved certain Exchange rules and procedures relating to the trading of Nasdaq/NM securities on the Exchange. 3 Among other things, these rules rendered the Exchange's BEST Rule guarantee (CHX Article XX, Rule 37(a)) applicable to Nasdaq/NM securities and made Nasdaq/NM securities eligible for the automatic execution feature of the Exchange's Midwest Automated Execution System (the “MAX” system). 4 3 *See* Securities Exchange Act Release No. 24424 (May 4, 1987), 52 FR 17868 (May 12, 1987) (order approving File No. SR-MSE-87-2); *see also* Securities Exchange Act Release Nos. 28146 (June 26, 1990), 55 FR 27917 (July 6, 1990) (order expanding the number of eligible securities to 100); 36102 (August 14, 1995), 60 FR 43626 (August 22, 1995) (order expanding the number of eligible securities to 500); 41392 (May 12, 1999), 64 FR 27839 (May 21, 1999)(order expanding the number of eligible securities to 1000). 4 The MAX system may be used to provide an automated delivery and execution facility for orders that are eligible for execution under the Exchange's BEST Rule and certain other orders. *See* CHX Rules, Art. XX, Rule 37(b). A MAX order that fits within the BEST parameters is executed pursuant to the BEST Rule via the MAX system. If an order is outside the BEST parameters, the BEST rule does not apply, but MAX system handling rules remain applicable. On January 3, 1997, the Commission approved, on a one year pilot basis, a program that eliminated the requirement that CHX specialists automatically execute orders for Nasdaq/NM securities when the specialist is not quoting at the national best bid or best offer disseminated pursuant to SEC Rule 11Ac1-1 (the “NBBO”). 5 When the Commission approved the program on a pilot basis, it requested that the Exchange submit a report to the Commission describing the Exchange's experience with the pilot program. The Commission stated that the report should include at least six months of trading data. Due to programming issues, the pilot program was not implemented until April 1997. Six months of trading data did not become available until November 1997. As a result, the Exchange requested an additional three-month extension to collect the data and prepare the report for the Commission. 5 *See* Securities Exchange Act Release No. 38119 (January 3, 1997), 62 FR 1788 (January 13, 1997). On December 31, 1997, the Commission extended the pilot program for an additional three months, until March 31, 1998, to give the Exchange additional time to prepare and submit the report and to give the Commission adequate time to review the report prior to approving the pilot on a permanent basis. 6 The Exchange submitted the report to the Commission on January 30, 1998. Subsequently, the Exchange requested another three-month extension, in order to give the Commission adequate time to approve the pilot program on a permanent basis. On March 31, 1998, the Commission approved the pilot for an additional three-month period, until June 30, 1998. 7 On July 1, 1998, the Commission approved the pilot for an additional six-month period, until December 31, 1998. 8 On December 31, 1998, the Commission approved the pilot for an additional six-month period, until June 30, 1999. 9 On June 30, 1999, the Commission approved the pilot for an additional seven-month period, until January 31, 2000. 10 On January 31, 2000, the Commission approved the pilot for an additional three-month period, until May 1, 2000. 11 On May 1, 2000, the Commission approved the pilot for an additional six-month period, until November 1, 2000. 12 On November 15, 2000, the Commission approved the pilot for an additional one-year period, until November 1, 2001. 13 On November 1, 2001, the pilot was extended for an additional one-year period, until November 1, 2002. 14 On November 1, 2002, the pilot was extended for an additional one-year period, until November 1, 2003. 15 On November 1, 2003, the pilot was extended for an additional one-year period until November 1, 2004. 16 In light of the evolving nature of the Nasdaq market and unlisted trading of Nasdaq/NM securities, the Exchange now requests another extension of the current pilot program, through May 1, 2005. The Exchange is not requesting approval of any changes to the pilot in this submission. 6 *See* Securities Exchange Act Release No. 39512 (December 31, 1997), 63 FR 1517 (January 9, 1998). 7 *See* Securities Exchange Act Release No. 39823 (March 31, 1998), 63 FR 17246 (April 8, 1998). 8 *See* Securities Exchange Act Release No. 40150 (July 1, 1998), 63 FR 36983 (July 8, 1998). 9 *See* Securities Exchange Act Release No. 40868 (December 31, 1998), 64 FR 1845 (January 12, 1999). 10 *See* Securities Exchange Act Release No. 41586 (June 30, 1999), 64 FR 36938 (July 8, 1999). 11 *See* Securities Exchange Act Release No. 42372 (January 31, 2000), 65 FR 6425 (February 9, 2000). 12 *See* Securities Exchange Act Release No. 42740 (May 1, 2000) 65 FR 26649 (May 8, 2000). 13 *See* Securities Exchange Act Release No. 43565 (November 15, 2000), 65 FR 71166 (November 29, 2000). 14 *See* Securities Exchange Act Release No. 45010 (November 1, 2001), 66 FR 56585 (November 8, 2001). 15 See Securities Exchange Act Release No. 46932 (November 29, 2002), 67 FR 72990 (December 9, 2002). 16 *See* Securities Exchange Act Release No. 48742 (November 3, 2003), 68 FR 63829 (November 10, 2003). Under the pilot program, specialists must continue to accept agency market orders 17 or marketable limit orders, but only for orders of 100 to 5099 shares in Nasdaq/NM securities. This threshold order acceptance requirement is referred to as the “auto acceptance threshold.” Specialists, however, must accept all agency limit orders in Nasdaq/NM securities from 100 up to and including 10,000 shares for placement in the limit order book. Specialists are required to automatically execute Nasdaq/NM orders in accordance with certain amendments to the pilot program that were approved by the Commission. 18 17 The term “agency order” means an order for the account of a customer, but does not include professional orders, as defined in CHX Rules, Art. XXX, Rule 2, Interpretation and Policy .04. The rule defines a “professional order” as any order for the account of a broker-dealer, the account of an associated person of a broker-dealer, or any account in which a broker-dealer or an associated person of a broker-dealer has any direct or indirect interest. 18 *See* Securities Exchange Act Release No. 44778 (September 7, 2001), 66 FR 48075 (September 17, 2001). The pilot program has no minimum auto execution threshold for Nasdaq/NM securities. When a CHX specialist is quoting at the NBBO, orders for a number of shares less than or equal to the size of the specialist's quote are executed automatically (in an amount up to the size of the specialist's quote). Orders of a size greater than the specialist's quote are automatically executed up to the size of the specialist's quote, with the balance of the order designated as an open order in the specialist's book, to be filled in accordance with the Exchange's rules for manual execution of orders for Nasdaq/NM securities. Such rules dictate that the specialist must either manually execute the order at the NBBO or a better price or act as agent for the order in seeking to obtain the best available price for the order on a marketplace other than the Exchange. If the specialist decides to act as agent for the order, the pilot program requires the specialist to use order-routing systems to obtain an execution where appropriate. Orders for securities quoted with a spread greater than the minimum variation are executed automatically after a fifteen second delay from the time the order is entered into MAX. The size of the specialist's bid or offer is then automatically decremented by the size of the execution. When the specialist's quote is exhausted, the system generates an autoquote at an increment away from the NBBO for 100 shares. When the specialist is not quoting a Nasdaq/NM security at the NBBO, an order that is of a size less than or equal to the auto execution threshold designated by the specialist will execute automatically at the NBBO price up to the size of the auto execution threshold. Orders of a size greater than the auto execution threshold will be designated as open orders in the specialist's book and manually executed, unless the order-sending firm previously has advised the specialist that it elects partial automatic execution, in which event the order will be executed automatically up to the size of the auto execution threshold, with the balance of the order to be designated as an open order in the specialist's book. Whether the specialist is quoting at the NBBO or not, “oversized” orders, *i.e.* , orders that are of a size greater than the auto acceptance threshold of 5099 shares (as designated by the specialist), are not subject to the foregoing requirements, and may be canceled within one minute of being entered into MAX or designated as an open order. 2. Statutory Basis The CHX believes that the proposed rule is consistent with Section 6(b) of the Act, 19 generally, and Section 6(b)(5) of the Act 20 in that it is designed to promote just and equitable principles of trade, to remove impediments and to perfect the mechanism of a free and open market and a national market system, and, in general, to protect investors and the public interest. 19 15 U.S.C. 78f(b). 20 15 U.S.C. 78f(b)(5). C. Self-Regulatory Organization's Statement of Burden on Competition The Exchange does not believe that the proposed rule change will impose any inappropriate burden on competition. D. Self-Regulatory Organization's Statement on Comments Regarding the Proposed Rule Change Received From Members, Participants or Others No written comments were either solicited or received. III. Date of Effectiveness of the Proposed Rule Change and Timing for Commission Action The foregoing rule change has become effective pursuant to Section 19(b)(3)(A) of the Act 21 and subparagraph (f)(6) of Rule 19b-4 22 thereunder because the proposal:
(1)Does not significantly affect the protection of investors or the public interest;
(2)does not impose any significant burden on competition; and
(3)does not become operative for 30 days from the date of filing, or such shorter time as the Commission may designate if consistent with the protection of investors and the public interest; provided that the Exchange has given the Commission written notice of its intent to file the proposed rule change at least five business days prior to the filing date of the proposed rule change. At any time within 60 days of the filing of such proposed rule change, the Commission may summarily abrogate such rule change if it appears to the Commission that such action is necessary or appropriate, in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. 21 15 U.S.C. 78s(b)(3)(A). 22 17 CFR 240.19b-4. The Exchange has requested that the Commission waive the 5-day pre-filing notification requirement and the 30-day operative delay. The Commission believes that waiving the 5-day pre-filing notification requirement and the 30-day operative delay is consistent with the protection of investors and the public interest. 23 The Commission notes that waiver of the 5-day pre-filing requirement and acceleration of the operative date will prevent the Exchange's pilot program relating to the trade of Nasdaq/NM securities from lapsing, and will allow the current rules to remain effective. 23 For purposes only of accelerating the operative date of this proposal, the Commission has considered the proposed rule's impact on efficiency, competition, and capital formation. 15 U.S.C. 78c(f). IV. Solicitation of Comments Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods: Electronic Comments • Use the Commission's Internet comment form *(http://www.sec.gov/rules/sro.shtml* ); or • Send an e-mail to *rule-comments@sec.gov.* Please include File Number SR-CHX-2004-37 on the subject line. Paper Comments • Send paper comments in triplicate to Jonathan G. Katz, Secretary, Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549-0609. All submissions should refer to File Number SR-CHX-2004-37. This file number should be included on the subject line if e-mail is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site ( *http://www.sec.gov/rules/sro.shtml* ). Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for inspection and copying in the Commission's Public Reference Section, 450 Fifth Street, NW., Washington, DC 20549. Copies of such filing also will be available for inspection and copying at the principal offices of the CHX. All comments received will be posted without change; the Commission does not edit personal identifying information from submissions. You should submit only information that you wish to make available publicly. All submissions should refer to File Number SR-CHX-2004-37 and should be submitted on or before November 30, 2004. For the Commission, by the Division of Market Regulation, pursuant to delegated authority. 24 24 17 CFR 200.30-3(a)(12). Jill M. Peterson, Assistant Secretary. [FR Doc. E4-3075 Filed 11-8-04; 8:45 am] BILLING CODE 8010-01-P SECURITIES AND EXCHANGE COMMISSION [Release No. 34-50619; File No. SR-CHX-2003-07] Self-Regulatory Organizations; Chicago Stock Exchange, Inc.; Order Granting Approval of Proposed Rule Change and Amendments No. 1 and No. 2 Thereto Relating to Out-of-Range Execution Rules November 2, 2004. On March 20, 2003, the Chicago Stock Exchange, Incorporated (“CHX” or “Exchange”) filed with the Securities and Exchange Commission (“Commission”) a proposed rule change pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”) 1 and Rule 19b-4 thereunder, 2 to amend CHX Article XX, Rule 37, which governs, among other things, “out-of-range” executions. 3 The Exchange amended the proposal on March 10, 2004, 4 and September 15, 2004. 5 The proposed rule change, as amended, was published for comment in the **Federal Register** on September 29, 2004. 6 The Commission received no comments on the proposal. This order approves the proposed rule change, as amended. 1 15 U.S.C. 78s(b)(1). 2 17 CFR 240.19b-4. 3 An “out-of-range” execution is an execution that would create a new high or new low for the day when compared to the primary market range. 4 *See* letter from Kathleen M. Boege, Vice President & Associate General Counsel, CHX, to Nancy J. Sanow, Assistant Director, Division of Market Regulation (“Division”), Commission, dated March 10, 2004 (“Amendment No. 1”). Amendment No. 1 clarified the purpose and effects of the proposal. 5 *See* letter from Kathleen M. Boege, Vice President & Associate General Counsel, CHX, to Nancy J. Sanow, Assistant Director, Division, Commission, dated September 13, 2004 (“Amendment No. 2”). Amendment No. 2 replaced the original proposal and Amendment No. 1 in their entirety. 6 *See* Securities Exchange Act Release No. 50417 (September 21, 2004), 69 FR 58208. After careful review, the Commission finds that the proposal is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities exchange. 7 In particular, the Commission believes that the proposal is consistent with Section 6(b)(5) of the Act 8 because it is designed to promote just and equitable principles of trade, to remove impediments to and perfect the mechanism of a free and open market and a national market system, and, in general, to protect investors and the public interest. 7 In approving this proposed rule change, the Commission notes that it has considered the proposed rule's impact on efficiency, competition, and capital formation. *See* 15 U.S.C. 78c(f). 8 15 U.S.C. 78f(b)(5). CHX Article XX, Rule 37, governs the Exchange's Midwest Automated Execution (“MAX”) system and its SuperMAX 2000 system. Currently, Rule 37 contains provisions stating that neither system shall automatically execute an order if the execution would set a new high or new low for the day compared to the primary market price. If an out-of-range execution would result, the order is deemed to have been submitted with a request for a stop and will be sent to a CHX specialist for manual handling. This proposal would eliminate these provisions, thereby allowing MAX and SuperMAX 2000 to effect automatic executions that may establish new highs or new lows for the day. CHX believes that these provisions are no longer necessary because, with the advent of decimal pricing and the increase in trading volume at regional exchanges such as CHX, an out-of-range execution is more readily seen by customers as reflecting the current market for the security. The out-of-range provisions in Rule 37 were designed to assist specialists in providing customers primary market price protection and to provide those customers an opportunity for price improvement by offering a stop. Although the Commission found these provisions to be consistent with the Act, 9 it does not believe that the Act compels CHX to offer this particular form of investor protection. Therefore, the Commission believes that it is consistent with the Act for CHX to delete these provisions, thereby allowing its automatic execution systems to establish new highs and new lows for a security. 9 *See* Securities Exchange Act Release No. 36401 (October 20, 1995), 60 FR 54893 (October 26, 1995). Although deleting the provisions that treat orders that would result in out-of-range executions as if they had a request for a stop, certain of CHX's other rules contain references to the practice of stopping stock. 10 CHX has represented that it is appropriate to clarify whether the practice of stopping stock should be permitted on the Exchange. If the Exchange's management, member committees, and Board of Governors determine that the practice of stopping stock on the Exchange should be prohibited, the Exchange would propose a separate rule change to the Commission. On the other hand, if the Exchange determines that it remains appropriate for CHX specialists to stop stock in certain limited circumstances, CHX has represented that it would propose a rule change to the Commission defining the circumstances under which stock may be stopped on the Exchange and specifying appropriate conduct by CHX specialists. 10 *See* CHX Article XX, Rules 28 and 37(b)(2). It is therefore ordered, pursuant to Section 19(b)(2) of the Act, 11 that the proposed rule change (SR-CHX-2003-07), as amended, be, and it hereby is, approved. 11 15 U.S.C. 78s(b)(2). For the Commission, by the Division of Market Regulation, pursuant to delegated authority. 12 12 17 CFR 200.30-3(a)(12). Jill M. Peterson, Assistant Secretary. [FR Doc. E4-3081 Filed 11-8-04; 8:45 am] BILLING CODE 8010-01-P SECURITIES AND EXCHANGE COMMISSION [Release No. 34-50621; File No. SR-NASD-2004-151] Self-Regulatory Organizations; Notice of Filing and Immediate Effectiveness of Proposed Rule Change by the National Association of Securities Dealers, Inc. Making Technical Modifications to the NASD Trade Reporting Rules November 2, 2004. Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”), 1 and Rule 19b-4 thereunder, 2 notice is hereby given that on October 12, 2004, the National Association of Securities Dealers, Inc. (“NASD”), through its subsidiary, The Nasdaq Stock Market, Inc. (“Nasdaq”), filed with the Securities and Exchange Commission (“Commission”) the proposed rule change as described in Items I, II, and III below, which Items have been prepared by Nasdaq. Nasdaq has designated this proposal as one concerned solely with the administration of the self-regulatory organization under Section 19(b)(3)(A)(iii) of the Act 3 and Rule 19b-4(f)(3) thereunder, 4 which renders the rule effective upon Commission receipt of this filing. The Commission is publishing this notice to solicit comments on the proposed rule change from interested persons. 1 15 U.S.C. 78s(b)(1). 2 7 CFR 240.19b-4. 3 15 U.S.C. 78s(b)(3)(A)(iii). 4 17 CFR 240.19b-4(f)(3). I. Self-Regulatory Organization's Statement of the Terms of Substance of the Proposed Rule Change Nasdaq proposes to make technical modifications to the NASD trade reporting rules. These modifications do not in any way alter members' trade reporting obligations. The changes merely reflect technical language changes necessitated by the fact that SR-NASD-2004-076 (the “name change” filing”) 5 was filed without including the language changes previously approved as part of SR-NASD-2003-159. 6 In addition, the filing makes two technical corrections to the text of NASD Rules 5430(b)(10) and 6620(e)(5) to correct placement errors made in SR-NASD-2004-076. 7 The text of the proposed rule change is available at the NASD and at the Commission. 5 Securities Exchange Act Release No. 50074 (July 23, 2004), 69 FR 45866 (July 30, 2004). 6 Securities Exchange Act Release No. 49581 (April 19, 2004), 69 FR 22578 (April 26, 2004). 7 *See* footnote 5, *supra* . II. Self-Regulatory Organization's Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change In its filing with the Commission, Nasdaq included statements concerning the purpose of and basis for the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. Nasdaq has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements. A. Self-Regulatory Organization's Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change 1. Purpose Nasdaq proposes to make technical modifications to the NASD trade reporting rules. These modifications do not in any way alter members' trade reporting obligations. The changes merely reflect technical language changes necessitated by the fact that SR-NASD-2004-076 8 was filed without including the language previously approved as part of SR-NASD-2003-159. 9 8 *Id* . 9 *See* footnote 6, *supra* . On April 19, 2004, the Commission approved SR-NASD-2003-159, 10 which filing created several new trade report modifiers and expanded the use of certain existing modifiers. For example, Nasdaq created the .ST modifier, which it will attach to late reports of pre-open and after-hours trades. The filing also proposed expanding use of the .W modifier to identify Stop Stock Transactions, and allowing the .PRP modifier to be used for exchange-listed securities. These modifications pertain only to reports submitted to Nasdaq's Automated Confirmation Transaction Service (“ACT”), and do not affect reports submitted to the NASD's alternative display facility. The appropriate language changes were included in the filing—SR-NASD-2003-159. 11 10 *Id* . 11 *Id* . Subsequent to the Commission approving SR-NASD-2003-159, Nasdaq filed, as effective upon filing, SR-NASD-2004-076, 12 re-naming certain Nasdaq systems. For example, Nasdaq's trade reporting system and its execution system were known as ACT and SuperMontage, respectively. SR-NASD-2004-076 13 eliminated the individual names of these systems, which are referred to collectively now as the Nasdaq Market Center. However, Nasdaq deliberately did not incorporate in the name-change filing the rule language changes approved in SR-NASD-2003-159 14 because, at that time, there were some questions as to when, or if, some of the new modifiers would be implemented. 12 *See* footnote 5, *supra* . 13 *Id* . 14 *See* footnote 6, *supra* . The .ST modifier, while approved by the Commission, could not be implemented until the respective participants of the Nasdaq UTP Plan and Consolidated Tape Association Plan (“CTA Plan”) approved the changes, which approval had not been obtained when the name-change filing was submitted. Nasdaq believed incorporating the rule language changes approved in SR-NASD-2003-159 15 in the name-change filing would create confusion because the language was not effective. 15 *Id* . Since the filing of SR-NASD-2004-076, 16 Nasdaq has obtained approval from the Nasdaq UTP Plan and CTA Plan participants to implement the .ST modifier and other modifiers approved in SR-NASD-2003-159. 17 Because of these developments, Nasdaq believes it is appropriate to include the language associated with these modifiers in the NASD rules. However, given that implementation of some of the changes will be delayed for an additional period of time, Nasdaq is adding footnotes after affected text to indicate that the rule language modifications will become effective at a later date. These footnotes were not included in SR-NASD-2003-159, 18 and thus are new language being added by the current filing. 16 *See* footnote 5, *supra* . 17 *See* footnote 6, *supra* . 18 *Id* . Nasdaq also is adding new language to avoid confusion about when the time of execution must be included on all reports submitted to the Nasdaq Market Center. In SR-NASD-2003-159, 19 the Commission approved Nasdaq's proposal to require the time of execution on all reports submitted to the Nasdaq Market Center, but Nasdaq also requested that the effective date of this obligation be delayed for one year after Commission approval. The filing contained the changes to the NASD rules that would be appropriate when the obligation is effective. For example, Nasdaq proposed removing language that indicated the time of execution is necessary only when a trade is reported late, and added language indicating that the time of execution is necessary on all reports. Including these language changes in the name-change filing also would have created confusion because the actual effective date of the obligation is not until April 25, 2005. To prevent such confusion, Nasdaq is adding interpretive material indicating that members will be required to provide the time of execution on all trade reports beginning on April 25, 2005, and that the necessary language changes will be made to the NASD rules at a later time. 19 *Id* . Finally, Nasdaq is making non-substantive changes to NASD Rules 5430(b)(10) and 6620(e)(5) to correct text placement errors made in SR-NASD-2204-076. 20 In particular, the language of section
(10)of NASD Rule 5430(b) will be moved in its entirety to its correct location under subparagraph
(a)of that same rule in conformity with SR-NASD-2003-154, 21 the rule filing that created it. For NASD Rule 6620, Nasdaq proposes to remove the incorrectly placed language of subparagraph (e)(5) that duplicates the correct rule language already in place in subparagraph (b)(5) of that same rule. 20 *See* footnote 5, *supra* . 21 21 Securities Exchange Act Release No. 48823 (November 21, 2003), 68 FR 67249 (December 1, 2003). 2. Statutory Basis Nasdaq believes that the proposed rule change is consistent with the provisions of Section 15A of the Act, 22 in general, and with Section 15A(b)(6) of the Act, 23 in particular, in that it is designed to prevent fraudulent and manipulative acts and practices, to foster cooperation and coordination with persons engaged in regulating, clearing, settling, processing information with respect to, and facilitating transactions in securities, and to protect investors and the public interest. Nasdaq believes the proposal is consistent with these obligations because it consolidates the rule language changes of two previously approved NASD filings and clarifies the effective date of certain of the proposals. 22 15 U.S.C. 78o-3. 23 15 U.S.C. 78o-3(b)(6). B. Self-Regulatory Organization's Statement on Burden on Competition Nasdaq does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act, as amended. C. Self-Regulatory Organization's Statement on Comments on the Proposed Rule Change Received From Members, Participants, or Others Nasdaq neither solicited nor received written comments with respect to the proposed rule change. III. Date of Effectiveness of the Proposed Rule Change and Timing for Commission Action The foregoing rule change has become effective upon filing pursuant to Section 19(b)(3)(A)(iii) of the Act, 24 and Rule 19b-4(f)(3) thereunder, 25 in that it is concerned solely with the administration of the self-regulatory organization. 24 15 U.S.C. 78s (b)(3)(A)(iii). 25 17 CFR 240.19b-4(f)(3). At any time within 60 days of the filing of the proposed rule change, the Commission may summarily abrogate such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. IV. Solicitation of Comments Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods: Electronic Comments • Use the Commission's Internet comment form ( *http://www.sec.gov/rules/sro.shtml* ); or • Send an e-mail to *rule-comments@sec.gov* . Please include File Number SR-NASD-2004-151 on the subject line. Paper Comments • Send paper comments in triplicate to Jonathan G. Katz, Secretary, Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549-0609. All submissions should refer to File Number SR-NASD-2004-151. This file number should be included on the subject line if e-mail is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site ( *http://www.sec.gov/rules/sro.shtml* ). Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for inspection and copying in the Commission's Public Reference Section, 450 Fifth Street, NW., Washington, DC 20549. Copies of such filing also will be available for inspection and copying at the principal office of the NASD. All comments received will be posted without change; the Commission does not edit personal identifying information from submissions. You should submit only information that you wish to make available publicly. All submissions should refer to File Number SR-NASD-2004-151 and should be submitted on or before November 30, 2004. For the Commission, by the Division of Market Regulation, pursuant to delegated authority. 26 26 17 CFR 200.30-3(a)(12). Jill M. Peterson, Assistant Secretary. [FR Doc. E4-3074 Filed 11-8-04; 8:45 am] BILLING CODE 8010-01-P
(B)through
(D)No change.
(l)through
(u)No change. II. Self-Regulatory Organization's Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change In its filing with the Commission, NASD included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. NASD has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements. A. Self-Regulatory Organization's Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change 1. Purpose Currently, NASD charges a BTDS Professional Delayed-Time Data Display Fee of $15.00 per month, per terminal, for each interrogation or display device receiving Delayed-Time TRACE transaction data under Rule 7010(k)(3)(A)(ii). The fee was established for a pilot period, which will expire on October 31, 2004. NASD is proposing to extend the pilot program and the $15.00 fee for the BTDS Professional Delayed-Time Data Display through July 31, 2005. NASD is not proposing to revise the fee during the extended pilot period. NASD is proposing to extend the pilot program because it intends to undertake a comprehensive review of TRACE fees and wants to evaluate the BTDS Professional Delayed-Time Data Display Fee as part of this review. As discussed below, NASD is filing the proposed rule change for immediate effectiveness, with an implementation date of October 29, 2004. 2. Statutory Basis NASD believes that the proposed rule change is consistent with the provisions of Section 15A(b)(5) of the Act, 6 which requires, among other things, that NASD rules provide for the equitable allocation of reasonable dues, fees and other charges among members and issuers and other persons using any facility or system that NASD operates or controls. NASD is proposing to extend the pilot program for the BTDS Professional Delayed-Time Data Display Fee through July 31, 2005, because NASD intends to undertake a comprehensive review of TRACE fees and wants to evaluate the BTDS Professional Delayed-Time Data Display Fee as part of this review. 6 15 U.S.C. 78o-3(b)(5). B. Self-Regulatory Organization's Statement on Burden on Competition NASD does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act, as amended. C. Self-Regulatory Organization's Statement on Comments on the Proposed Rule Change Received From Members, Participants or Others Written comments were neither solicited nor received. III. Date of Effectiveness of the Proposed Rule Change and Timing for Commission Action Because the proposed rule change:
(i)Does not significantly affect the protection of investors or the public interest;
(ii)does not impose any significant burden on competition; and
(iii)does not become operative for 30 days (or such shorter time as the Commission may designate if consistent with the protection of investors and the public interest) from the date on which it was filed, the proposed rule change has become effective pursuant to Section 19(b)(3)(A) of the Act 7 and Rule 19b-4(f)(6) thereunder. 8 7 15 U.S.C. 78s(b)(3)(A). 8 17 CFR 240.19b-4(f)(6). A proposed rule change filed under Rule 19b-4(f)(6) normally does not become operative prior to 30 days after the date of the filing. However, Rule 19b-4(f)(6)(iii) permits the Commission to designate a shorter time if such action is consistent with the protection of investors and the public interest. NASD has asked the Commission to waive the 30-day operative delay. The Commission hereby grants this request. The Commission believes that waiving the 30-day operative delay is consistent with the protection of investors and the public interest because the nine-month extension of the pilot program for the BTDS Professional Delayed-Time Data Display Fee allows professional market participants to continue to access TRACE data at a discounted rate during a transitional period during which more TRACE data will become available. 9 NASD has also requested that the Commission waive the pre-filing notice requirement of at least five business days (or such shorter time as designated by the Commission). 10 The Commission hereby grants NASD's request to waive the pre-filing requirement. 9 For purposes only of accelerating the operative date of this proposal, the Commission has considered the proposed rule's impact on efficiency, competition, and capital formation. 15 U.S.C. 78c(f). 10 17 CFR 240.19b-4(f)(6)(iii). At any time within 60 days of the filing of the proposed rule change, the Commission may summarily abrogate such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. 11 11 *See* Section 19(b)(3)(C) of the Act, 15 U.S.C. 78s(b)(3)(C). IV. Solicitation of Comments Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods: Electronic Comments • Use the Commission's Internet comment form ( *http://www.sec.gov/rules/sro.shtml* ); or • Send an e-mail to *rule-comments@sec.gov.* Please include File Number SR-NASD-2004-163 on the subject line. Paper Comments • Send paper comments in triplicate to Jonathan G. Katz, Secretary, Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549-0609. All submissions should refer to File Number SR-NASD-2004-163. This file number should be included on the subject line if e-mail is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site ( *http://www.sec.gov/rules/sro.shtml* ). Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for inspection and copying in the Commission's Public Reference Room. Copies of such filing also will be available for inspection and copying at the principal office of NASD. All comments received will be posted without change; the Commission does not edit personal identifying information from submissions. You should submit only information that you wish to make available publicly. All submissions should refer to File Number SR-NASD-2004-163 and should be submitted on or before November 30, 2004. For the Commission, by the Division of Market Regulation, pursuant to delegated authority. 12 12 17 CFR 200.30-3(a)(12). J. Lynn Taylor, Assistant Secretary. [FR Doc. E4-3079 Filed 11-8-04; 8:45 am] BILLING CODE 8010-01-P SECURITIES AND EXCHANGE COMMISSION [Release No. 34-50625; File No. SR-NYSE-2004-41] Self-Regulatory Organizations; Order Granting Approval of Proposed Rule Change by the New York Stock Exchange, Inc. and Notice of Filing and Order Granting Accelerated Approval to Amendment Nos. 2 and 3 Thereto To Amend Section 303A of the NYSE Listed Company Manual Relating to Corporate Governance November 3, 2004. I. Introduction On August 3, 2004, the New York Stock Exchange, Inc. (“NYSE” or “Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”) 1 and Rule 19b-4 thereunder, 2 a proposed rule change (SR-NYSE-2004-41) to amend certain provisions of Section 303A of the NYSE Listed Company Manual (“Listed Company Manual”) regarding corporate governance standards for companies listed on the Exchange. On August 30, 2003, the NYSE submitted Amendment No. 1 to the proposal. 3 The proposed rule change, as amended by Amendment No. 1, was published for comment in the **Federal Register** on September 8, 2004. 4 The Commission received ten comment letters on the proposed rule change. 5 On October 28, 2004, the NYSE filed Amendment No. 2 to the proposed rule change. 6 On November 2, 2004, the NYSE filed Amendment No. 3 to the proposed rule change. 7 This order approves the proposed rule change, as amended by Amendment Nos. 1, 2, and 3. The Commission is granting accelerated approval of Amendment Nos. 2 and 3, and is soliciting comments from interested persons on those amendments. 1 15 U.S.C. 78s(b)(1). 2 17 CFR 240.19b-4. 3 *See* letter from Darla C. Stuckey, Corporate Secretary, NYSE, to Nancy J. Sanow, Assistant Director, Division of Market Regulation, Commission, dated August 27, 2004 (“Amendment No. 1”). 4 *See* Securities Exchange Act Release No. 50298 (August 31, 2004), 69 FR 54328 (“Notice”). 5 *See* Letters to Jonathan G. Katz, Secretary, Commission, from: Sarah A.B. Teslik, Executive Director, Council of Institutional Investors, dated September 15, 2004 (“CII letter”); Dale McCormick, Maine State Treasurer, dated September 17, 2004 (“Maine Treasurer Letter”); Richard Curtis, Executive Director, Highway Patrol Retirement System, William Estabrook, Executive Director, Ohio Police and Fire Pension Fund, Laurie Hacking, Executive Director, Public Employees Retirement System of Ohio, Damon Asbury, Executive Director, State Teachers Retirement System of Ohio, James Winfree, Executive Director, School Employees Retirement System of Ohio, Keith Overly, Executive Director, Public Employees Deferred Compensation, dated September 21, 2004 (“Ohio Retirement System Letter”); Colin Melvin, Director-Corporate Governance, Hermes Investment Management Limited, dated September 22, 2004 (“Hermes Letter”); Joseph M. Huber, Senior Corporate Counsel, Federated Investors, Inc., dated September 27, 2004 (“Federated Letter”); Henry H. Hubble, Vice President, Investor Relations and Secretary, Exxon Mobil Corporation, dated September 28, 2004 (“ExxonMobil Letter”); Steve Odland, Chairman, President and CEO, AutoZone, Inc., and Chairman, Corporate Governance Task Force, Business Roundtable, dated September 29, 2004 (“Business Roundtable Letter”); Kay R.H. Evans, Executive Director, Maine State Retirement System, dated September 29, 2004 (“Maine Retirement System Letter”); Michael J. Holliday, Chair of the Committee, Committee on Securities Regulation of the Business Law Section of the New York State Bar Association, dated September 29, 2004 (“NYSBA Committee Letter”); and letter to William H. Donaldson, Chairman, Commission, from The Honorable Diana DeGette, The Honorable Edward Markey, and The Honorable Janice Schakowsky, Members of Congress, dated October 14, 2004 (“Representatives’ Letter”). 6 *See* letter from Mary Yeager, Assistant Corporate Secretary, NYSE, to Nancy J. Sanow, Assistant Director, Division of Market Regulation, Commission, dated October 28, 2004, and accompanying Form 19b-4 (“Amendment No. 2”). In Amendment No. 2, the NYSE withdrew a proposed change to the Commentary to Section 303A.02(b)(iii) that would have revised the definition of “immediate family member” for purposes of the bright line test relating to a director's relationships with the listed company's auditor. *See also* Section IV. below. 7 *See* letter from Mary Yeager, Assistant Corporate Secretary, NYSE, to Nancy J. Sanow, Assistant Director, Division of Market Regulation, Commission, dated November 2, 2004 (“Amendment No. 3”). In Amendment No. 3, the NYSE proposed to give listed companies until their first annual meeting after June 30, 2005 to replace a director who was independent under the NYSE's existing bright line test relating to relationships of a director or the director's immediate family member to the auditor of the company, but would not be under the revised rule. As originally proposed, the extension would have been granted until the first annual meeting after January 1, 2005. Amendment No. 3 also proposes to include this provision in the text of Section 303A. II. Description of the Proposed Rule Change On November 4, 2003, the Commission approved Section 303A of the Listed Company Manual, which sets out the Exchange's corporate governance requirements applicable to listed companies. 8 In the instant proposal, the Exchange proposes certain clarifying and substantive changes to Section 303A, described in detail below. 9 8 *See* Securities Exchange Act Release No. 48745 (November 4, 2003), 68 FR 64154 (November 12, 2003) (SR-NYSE-2002-33). 9 The proposed rule change also includes various technical and stylistic revisions to the language of Section 303A. *See* notice. Definition of Independent Director Section 303A.02 of the Listed Company Manual sets forth a definition of “independent director” for purposes of the Exchange's corporate governance standards for listed companies, which, among other things, includes a series of bright line tests that directors must satisfy in order to be eligible to be deemed independent for purposes of board and committee membership. Many of the proposed changes relate to these independence tests. As an initial matter, the Exchange proposes to amend Section 303A.02(a) of the Listed Company Manual to clarify that companies are required to identify which of their directors have been deemed independent. The Exchange also proposes to amend Section 303A.02(b)(i) to add a definition of the term “executive officer,” and to amend other provisions throughout Section 303A by including use of this term. Additionally, the Exchange proposes to amend the Commentary to Sections 303A.02(b)(i) and (ii), which set forth bright line tests of independence for directors who are, or whose family members are, current or former employees or recipients of compensation from a listed company, to state that service as an interim executive officer (and not only an interim Chairman or CEO, as currently provided) will not trigger the look-back provisions in those sections. The Exchange further proposes to amend Section 303A.02(b) to reformulate the wording of the bright line independence tests to provide more clarity with respect to how the applicable look-back periods should be applied. In particular, with respect to Section 303A.02(b)(ii), the Exchange proposes to amend the rule text to state that a director is not independent if the director “has received or has an immediate family member who has received, during any twelve-month period within the last three years, more than $100,000 in direct compensation from the listed company, other than director and committee fees and pension or other forms of deferred compensation for prior service (provided such compensation is not contingent in any way on continued service).” 10 10 This language would replace the current rule text, which provides: “A director who receives, or whose immediate family member receives, more than $100,000 per year in direct compensation from the listed company, other than director and committee fees and pension or other forms of deferred compensation for prior service (provided such compensation is not contingent in any way on continued service), is not independent until three years after he or she ceases to receive more than $100,000 per year in such compensation.” The NYSE is also proposing a change to Section 303A.02(b)(iii), the bright line test relating to relationships of a director or the director's immediate family member to the auditor of the company (“Director-Auditor Relationship Test”). Section 303A.02(b)(iii) currently provides that: “A director who is affiliated with or employed by, or whose immediate family member is affiliated with or employed in a professional capacity by, a present or former internal or external auditor of the company is not 'independent' until three years after the end of the affiliation or the employment or auditing relationship.” An “immediate family member” is defined currently for all the independence tests in Section 303A.02(b) to include “a person's spouse, parents, children, siblings, mothers and fathers-in-law, sons and daughters-in-law, brothers and sisters-in-law, and anyone (other than domestic employees) who shares such person's home.” The Exchange proposes to revise this standard to provide that a director is not independent if: “(A) The director or an immediate family member is a current partner of a firm that is the company's internal or external auditor;
(B)the director is a current employee of such a firm;
(C)the director has an immediate family member who is a current employee of such a firm and who participates in the firm's audit, assurance or tax compliance (but not tax planning) practice; or
(D)the director or an immediate family member was within the last three years (but is no longer) a partner or employee of such a firm and personally worked on the listed company's audit within that time.” In the proposed rule change as published in the Notice, NYSE also proposed to revise the definition of “immediate family member” for purposes of the Director-Auditor Relationship Test. In Amendment No. 2, NYSE withdrew this proposed revision. 11 11 *See* Amendment No. 2. As amended by Amendment No. 3, the proposal would give listed companies until their first annual meeting after June 30, 2005 to replace a director who was independent under the NYSE's existing Director-Auditor Relationship Test, but would not be under the revised rule. 12 12 As originally proposed, the extension would have been granted until the first annual meeting after January 1, 2005. *See* Amendment No. 3, which also proposes to include this provision in the text of Section 303A. The Exchange proposes to revise the Commentary to Section 303A.02(b)(v), the bright line test regarding, among other things, the independence of a director who held, or whose immediate family held, certain positions in a company that received payments from the listed company. The revised language would state that contributions made to tax exempt organizations shall not be considered “payments” under the test. The proposed change is meant to clarify that payments to a charitable organization related to a listed company's business relationship with that organization would be subject to the test. 13 13 *See* notice. Requirements for Non-Management Directors The Exchange proposes to revise Section 303A.03(b) of the Listed Company Manual to clarify that a non-management director must preside over each executive session of the non-management directors, although the same director is not required to preside at all executive sessions of the non-management directors. 14 14 *See* proposed rule text as published in notice for further proposed clarifications in this subsection. Requirements for Compensation Committees The Exchange proposes to revise Section 303A.05(b)(i)(B) of the Listed Company Manual to clarify, among other things, that the non-CEO compensation regarding which a compensation committee must make recommendations to its board is that of the executive officers. The Exchange also proposes to make clear that nothing in the aforementioned provision is intended to preclude the board from delegating its authority over the matters that this provision addresses to the compensation committee. Duties of the Audit Committee The Exchange proposes to revise Section 303A.07(c)(iii)(B) of the Listed Company Manual to add that the audit committee of a listed company must meet to review the company's financial statements and must review the company's specific Management's Discussion and Analysis (“MD&A”) disclosures. Disclosures of Guidelines and Codes and Methods of Communication The Exchange proposes to amend Sections 303A.03, .09 and .10 of the Listed Company Manual to specify that the relevant disclosures must be in the listed company's annual proxy statement (or, if the company does not file a proxy statement, then in the Form 10-K). Foreign Private Issuer Disclosures The Exchange proposes to revise Section 303A.11 of the Listed Company Manual to clarify that foreign private issuers are required to provide disclosure of the significant ways in which their actual corporate governance practices (as opposed to their home country practices, as in the current version) differ from those required of domestic companies under Section 303A. Certifications and Affirmations Section 303A.12 of the Listed Company Manual provides that each listed company CEO must certify to the NYSE each year that he or she is not aware of any violation by the company of the NYSE corporate governance listing standards. The Exchange proposes to amend this provision by adding the phrase “qualifying the certification to the extent necessary.” Any qualifications would need to be included in the disclosure of the certification required under the provision. The Exchange also proposes to add new Section 303A.12(c) to require that a listed company submit annual Written Affirmations to the NYSE, in a form specified by the Exchange, regarding details of compliance or non-compliance with Section 303A, as well as interim Written Affirmations each time a change occurs to the board of any of the committees of the company that are subject to the provisions of Section 303A. The proposed rule change would also amend the General Application section of Section 303A to specify that listed open-end management investment companies (which can be listed as Investment Company Units, more commonly known as Exchange Traded Funds or ETFs), foreign private issuers, and preferred and debt listed companies (to the extent such companies must comply with Section 303A.06 of the Listed Company Manual) would be required to submit the annual and interim Written Affirmations. III. Summary of Comments on the Proposed Rule Change The Commission received ten comment letters on the proposed rule change. Four comment letters generally supported the objective of the proposed amendments, or specifically the proposed changes to the Director-Auditor Relationship Test, 15 although two of these commenters recommended revisions with respect to certain aspects of the proposal, 16 while a third urged the Exchange to consider further input before finalizing the amendments. 17 Six comment letters opposed the proposal, most specifically with respect to the Director-Auditor Relationship Test. 18 The following is a summary of comments set forth by topic: 15 *See* Business Roundtable Letter, ExxonMobil Letter, Federated Letter, NYSBA Committee Letter. 16 *See* Business Roundtable Letter, NYSBA Committee Letter. 17 *See* ExxonMobil Letter. 18 *See* CII Letter, Hermes Letter, Ohio Retirement Systems Letter, Maine Retirement Systems Letter, Maine Treasurer Letter. A. Proposed Changes to Director-Auditor Relationship Test Four comment letters supported the proposed changes to the Director-Auditor Relationship Test. 19 One commenter, for example, believed that the amendments are appropriate because “they focus on those relationships that have the potential to impact a director's independence.” 20 Two commenters expressed the view that the changes, or aspects of them, would harmonize the NYSE's standards more closely with those of other markets. 21 19 *See* Business Roundtable Letter, ExxonMobil Letter, Federated Letter, NYSBA Committee Letter. Some of the comments related to the proposed revision to the definition of “immediate family member,” which NYSE has withdrawn. *See supra* note 6. 20 *See* Business Roundtable Letter. 21 *See* Federated Letter, Business Roundtable Letter. One commenter added that the enumeration of specific relationships in the text of the standard would provide clarity to listed companies in applying the standard. Business Roundtable Letter. One commenter favoring the changes stated that “[b]ecause the current standard is so broadly drafted, it reaches a wide range of individuals, including individuals who never served on the listed company's audit.” 22 The commenter noted that deeming a director as not independent based on this standard results in the loss of the director's ability to serve on the three key board committees, and added that the pool of accounting firms with the necessary expertise and resources to audit the financial statements of large, multinational companies is limited, and listed companies have limited options when selecting an auditor. 22 *See* Business Roundtable Letter. Commenters supporting the proposed changes believed that the amended standard would still reach those family member relationships that are the most likely to impact a director's independence, 23 and that the greater coverage of the current standard does not reach any relationship that is likely to meaningfully affect independence. 24 One commenter argued that “it seems strange that the current standard could deem directors not independent even though the auditor with a similar relationship to the company was deemed independent under the test applicable to it relative to the company.” 25 23 *Id.* 24 *See* NYSBA Committee Letter. 25 *Id.* Six comment letters, in contrast, opposed the proposed changes to the Director-Auditor Relationship Test, 26 believing it would weaken corporate governance standards and investor protections 27 and erode investor confidence. 28 These commenters believed, for example, that the changes would allow a director to qualify as independent notwithstanding “close relationships and/or employment ties” 29 and “obvious conflicts.” 30 26 *See* CII Letter, Hermes Letter, Ohio Retirement Systems Letter, Maine Retirement Systems Letter, Maine Treasurer Letter; Representatives' Letter. Some of the comments related to the proposed revision to the definition of “immediate family member,” which NYSE has withdrawn. *See supra* note 6. 27 *See* CII Letter, Maine Treasurer Letter, Ohio Retirement Systems Letter, Representatives' Letter. 28 *See* CII Letter, Hermes Letter, Ohio Retirement Systems Letter. 29 *See* Maine Retirement Letter. 30 *See* Maine Treasurer Letter. In the view of some commenters, the proposed changes not only do not advance the goal of reducing corporate wrongdoing, “but could actually precipitate more malfeasance by opening the door to conflicts of interest, which could ultimately compromise a director's ability to protect the interest of shareholders.” 31 31 *See* Representatives' Letter. Specifically with regard to the proposed change to the look-back requirement of the test, which would make it applicable only to former partners and employees of an auditing firm who worked on the audit, some commenters believed that the change would only invite more conflicts of interest. 32 Commenters opposing the proposal further believed that justifying it as necessary in order to make NYSE's rules consistent with those of The Nasdaq Market (“Nasdaq”) and the American Stock Exchange (“Amex”) was not appropriate, 33 and that NYSE should be enforcing the toughest standards rather than matching weaker ones. 34 32 *See* Representatives' Letter. 33 *See* Ohio Retirement Systems Letter. 34 *See* CII Letter. *See also* Representatives' Letter. With regard to the proposed change in the definition of “immediate family member” for this test—subsequently withdrawn 35 —commenters noted that, under the proposal, a director would not be disqualified if his or her parent, child, sibling, mother- or father-in-law, son- or daughter-in-law, or brother- or sister-in-law, was, for example, a partner in the listed company's auditing firm. 36 Some commenters expressed concern that the change “would only work toward making directors less-independently minded, not more so.” 37 These and other commenters believed that the proposed change would diverge significantly from other exchanges' standards. 38 35 *See supra* note 6. 36 *See* CII Letter, Maine Treasurer Letter, Ohio Retirement Systems Letter. 37 *See* Representatives' Letter. 38 *Id. See also* CII Letter, Ohio Retirement Systems Letter. “The audit process is sacrosanct and should be above suspicion,” stated one commenter generally. 39 “Any analysis,” stated another, “should focus on whether directors or their relatives (broadly defined) have or have had an employment connection to the audit firm—regardless of their title or specific role at the firm.” 40 39 *See* Hermes Letter. 40 *See* CII Letter. Some commenters also questioned why the NYSE is proposing to amend listing standards adopted less than a year ago after substantial discussion, 41 and believed that the current standards “have not been in place long enough to be declared unworkable.” 42 41 *See* CII Letter, Maine Treasurer Letter. 42 *See* Maine Retirement Systems Letter. B. Proposed Amendment Concerning Look-Back Period for Compensation Test One commenter expressed concern regarding the proposed change to clarify that the look-back prohibition on an independent director receiving more than $100,000 in compensation from the listed company per year applies to any twelve-month period within the last three years. 43 This commenter believed that a “rolling 12-months” test would entail an amount of work and burden of research for listed companies that is unwarranted for any incremental benefit it might provide. The commenter recommended that the test instead refer to payments in any of the last three fiscal years, following the format in the NYSE's test of independence with respect to payments made by or received from a company where a director is an employee, as well as in Commission rules for similar disclosure of transactions with directors and officers. 43 *See* NYSBA Committee Letter. C. Proposed Amendment Concerning Audit Committee Responsibilities One commenter addressed the proposed changes to the rules regarding audit committee responsibilities. 44 The commenter believed that the provision as proposed to be amended could be read to suggest that the audit committee should have greater involvement in reviewing MD&A disclosures relative to earnings releases. The commenter stated that this suggestion does not accurately reflect the current practices of audit committees, many of which, consistent with emerging best practices, review individual earnings releases prior to publication. 44 *See* Business Roundtable Letter. Additionally, the commenter maintained that the meaning of the proposal to require review of “specific” disclosures under MD&A is unclear. The commenter believed the proposed amendments should be accordingly modified. D. Additional Comments One commenter recommended additional changes to clarify other aspects of the proposal. 45 Some commenters believed that the new definition of “immediate family member” that NYSE had proposed for the Director-Auditor Relationship Test should be used uniformly for all the director independence tests in Section 303A. 46 In addition, some commenters took the opportunity to suggest other changes, or raise concerns with respect to other aspects of the NYSE's corporate governance listing standards, that are beyond the scope of the instant proposal. Finally, one commenter believed there was need for more general comment on the standards, and urged the Exchange to consider a broad range of input before finalizing the proposed amendments. 47 45 *See* NYSBA Committee Letter. The commenter included suggestions to: add language to subsection Section 303A.02(b)(v) to clarify the treatment of payments for property or services from or to tax-exempt organizations in ordinary course commercial transactions; revise the Commentary of that subsection, in consonance with the proposed change to the text of the rule, to refer to “each of the last three fiscal years” rather than the “last completed fiscal year,” so as to avoid confusion; and revise the proposed changes to the text of Section 303A.05(b)(i)(B) to clarify the extent to which determinations of non-CEO compensation may be delegated by a company's board to its compensation committee. The commenter also urged that, for the sake of clarity, NYSE use a different phrase to define family member for purposes of the Director-Auditor Relationship Test. 46 *See* ExxonMobil Letter, NYSBA Committee Letter. 47 *See* ExxonMobil Letter. IV. Amendment Nos. 2 and 3 to the Proposed Rule Change In Amendment No. 2, the NYSE withdrew the proposed revision to the definition of “immediate family member” for purposes of the Director-Auditor Relationship Test, and addressed comments received concerning the proposed rule change. With respect to the comments relating to the Director-Auditor Relationship Test, the Exchange referred to its statement in its original proposal noting that a number of NYSE listed companies are finding directors precluded from independence because of past personal or family member affiliation with an auditing firm, even though the person involved never worked on the listed company account. The Exchange stated that during the 2004 proxy season, it was contacted by a number of listed companies that noted what it believes is the problematic nature of the broad application of the current test, and provided examples of cases that arose in which directors were precluded from being deemed independent under the current Director-Auditor Relationship Test due to what the Exchange regards as its unintended broadness. The NYSE stated that, in considering alternative approaches with respect to immediate family members, it noted that the Nasdaq and Amex listing standards are more targeted than the current NYSE standard, implicating, for example, only former partners or employees of the audit firm who worked on the company's audit. The NYSE stated that because the Nasdaq and Amex outside auditor bright line tests were subject to Commission review and public comment, the Exchange felt that adapting its bright line test to reflect their approach would be an appropriate and non-controversial change. In response to a comment that the three-year look-back should apply to all former auditing partners and employees, as it does under the NYSE's current standard, and that a change to this standard would be “only inviting more conflicts of interest into the corporate boardrooms,” 48 the Exchange responded that, “in fact, our proposal to cover all partners of the audit firm is a strengthening of its current standard, which only applies to partners or former partners who participate in the audit firm's audit, assurance or tax compliance (but not tax planning) practice.” With respect the proposed revision to the “immediate family member” definition applicable to the Director-Auditor Relationship Test, NYSE noted comments supporting and opposing the proposal, and stated that, based on comments from the Commission staff and the public, it had determined to withdraw this specific amendment at this time. 48 *See* Representatives' Letter. Finally, the NYSE discussed comments on the additional proposed changes to Sections 303A.02(b)(ii), 303A.02(b)(v), 303A.05(b)(i)(B), 303A.07, 303A.08 and 303A.12. With regard to these comments, the NYSE stated that it will consider these suggestions as part of its ongoing review of Section 303A, but does not feel that additional clarifications or amendments to these sections are appropriate at this time. In Amendment No. 3, NYSE revised the proposed applicability date of the amended Director-Auditor Relationship Test for certain listed companies, and included a proposed reference to this date in the text of Section 303A. NYSE stated: “Due to this proposed tightening of the independence test and to avoid a sudden change to the status of a current director, companies will have until their first annual meeting after June 30, 2005, to replace a director who was independent under the prior test but who is not independent under the current test.” V. Discussion After careful consideration of the proposal and the comments received, the Commission finds that the proposed rule change, as amended, is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities exchange, 49 and, in particular, with the requirements of Section 6(b) of the Act. 50 Specifically, the Commission finds that the proposal is consistent with Section 6(b)(5) 51 of the Act, which requires that the rules of a national securities exchange, among other things, be designed to prevent fraudulent and manipulative acts and practices, to promote just and equitable principles of trade, to remove impediments to, and perfect the mechanism of a free and open market and, in general, to protect investors and the public interest. 49 In approving this proposed rule change, the Commission notes that it has considered the proposed rule's impact on efficiency, competition, and capital formation. 15 U.S.C. 78c(f). 50 15 U.S.C. 78f. 51 15 U.S.C. 78f(b)(5). In the Commission's view, the proposed rule change provides appropriate clarification, and, in some cases, enhancement, of several of the corporate governance listing standards contained in Section 303A of the Listed Company Manual. For example, the proposed rule change clarifies that listed companies must identify which of their directors have been deemed independent; sets forth a definition of executive officer as used in these rules; rewords the look-back test regarding compensation received by a director or immediate family member in a manner that makes it easier to understand and apply; and specifies that only contributions to a tax-exempt organization are not to be considered “payments” for purposes of Section 303A.02(b)(v), but not payments to such organization made in the context of a business relationship. The proposal further requires audit committees to meet to review and discuss their companies' financial statements and to review their companies' specific MD&A disclosures; clarifies the responsibilities of compensation committees with respect to non-CEO compensation; requires more meaningful disclosure by foreign private issuers regarding how their practices differ from the practices required of domestic companies; clarifies various disclosure requirements generally; and provides for the inclusion and disclosure of any qualifications to the certifications that CEOs submit to the NYSE. The addition of a provision requiring Written Affirmations from listed companies of their ongoing compliance with these standards should help assure that companies are meeting the requirements. With respect to Section 303A.02(b)(iii), the Director-Auditor Relationship Test, the Commission notes that the proposed rule change, as amended, clarifies and tightens NYSE's standard of independence with respect to current relationships of a director or immediate family member with the listed company auditor, while more closely aligning the look-back provision of the test with similar provisions adopted by Amex and Nasdaq, which, unlike NYSE's current standard, apply a look-back test only to former partners or employees of the audit firm who personally worked on the audit. For example, under the current NYSE standard, an immediate family member of a director who is “affiliated with or employed in a professional capacity by” the company's internal or external auditor would preclude the director from independence. As interpreted by the NYSE, under the current standard an immediate family member who is a current partner, but does not act in a “professional capacity” at the audit firm, would not impact the director's independence. Under the proposed revision, however, a director would not be considered independent if any of the director's immediate family members is a current partner of the audit firm. With respect to family members of a director who are current employees of the auditor, the proposed rule change clarifies, in consonance with NYSE's response to Frequently Asked Questions regarding its current rule, that the director is precluded from independence only if the family member employee participates in the firm's audit, assurance, or tax compliance (but not tax planning) practice. With respect to the look-back provision of the test, NYSE's current standard precludes a director from being considered independent if the director was affiliated with or employed by the auditor, or the director's immediate family member was affiliated with or employed in a professional capacity by the auditor, until three years after the end of the affiliation or relationship. NYSE is proposing to revise this provision so that the director is precluded from independence only when the director or his or her immediate family member was a partner or employee of the audit firm and personally worked on the listed company's audit within the three-year look back period. As noted by the NYSE, the Commission has previously approved analogous look-back provisions in the director-auditor relationship tests of other markets as consistent with the Act. The Commission further believes that approval of the proposed change in the NYSE standard is in accord with principles of fair competition and equal regulation of markets. The Commission finds good cause for approving Amendment Nos. 2 and 3 before the thirtieth day after the date of publication of notice of filing thereof in the **Federal Register** . The only revision to the original proposal made by Amendment No. 2 was the withdrawal of a proposed change to the definition of “immediate family member” for purposes of the Director-Auditor Relationship Test. The amendment proposes no new changes to the corporate governance standards for listed companies and raises no new regulatory issues. In Amendment No. 3, the NYSE proposed to give listed companies until their first annual meeting after June 30, 2005, rather than their first meeting after January 1, 2005, as set forth in the original proposal, to replace a director who was independent under the current test but who would not be independent under the revised test. The amendment also would include this extension in the text of Section 303A. The Commission believes this extension of time for listed companies that based decisions on the current test of independence is reasonable, and acceleration of the amendment should help facilitate planning by listed companies. VI. Solicitation of Comments Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether Amendment Nos. 2 and 3 are consistent with the Act. Comments may be submitted by any of the following methods: Electronic Comments • Use the Commission's Internet comment form ( *http://www.sec.gov/rules/sro.shtml* ); or • Send an e-mail to *rule-comments@sec.gov* . Please include File Number SR-NYSE-2004-41 on the subject line. Paper Comments • Send paper comments in triplicate to Jonathan G. Katz, Secretary, Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549-0609. All submissions should refer to File Number SR-NYSE-2004-41. This file number should be included on the subject line if e-mail is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site ( *http://www.sec.gov/rules/sro.shtml* ). Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for inspection and copying in the Commission's Public Reference Section, 450 Fifth Street, NW., Washington, DC 20549. Copies of such filing also will be available for inspection and copying at the principal office of the NYSE. All comments received will be posted without change; the Commission does not edit personal identifying information from submissions. You should submit only information that you wish to make available publicly. All submissions should refer to File Number SR-NYSE-2004-41 and should be submitted on or before November 30, 2004. VII. Conclusion For the foregoing reasons, the Commission finds that the proposed rule change is consistent with the Act and the rules and regulations thereunder applicable to a national securities exchange. *It is therefore ordered* , pursuant to Section 19(b)(2) of the Act, 52 that the proposed rule change (SR-NYSE-2004-41), as amended, be, and hereby is, approved and Amendment Nos. 2 and 3 are approved on an accelerated basis. 52 15 U.S.C. 78s(b)(2). For the Commission, by the Division of Market Regulation, pursuant to delegated authority. 53 53 17 CFR 200.30-3(a)(12). J. Lynn Taylor, Assistant Secretary. [FR Doc. E4-3080 Filed 11-8-04; 8:45 am] BILLING CODE 8010-01-P DEPARTMENT OF STATE [Public Notice 4888] Bureau of Consular Affairs; Registration for the Diversity Immigrant (DV-2006) Visa Program ACTION: Notice of Registration for the Diversity Immigrant Visa Program. This public notice provides information on how to apply for the DV 2006 Program. This notice is issued pursuant to 22 CFR 42.33(b)(3) which implements sections 201(a)(3), 201(e), 203(c) and 204(a)(1)(G) of the Immigration and Nationality Act, as amended, (8 U.S.C. 1151, 1153, and 1154(a)(1)(G)). Instructions for the 2006 Diversity Immigrant Visa Program (DV-2006) The congressionally mandated Diversity Immigrant Visa Program is administered on an annual basis by the Department of State and conducted under the terms of Section 203(c) of the Immigration and Nationality Act (INA). Section 131 of the Immigration Act of 1990 (Pub. L. 101-649) amended INA 203 to provide for a new class of immigrants known as “diversity immigrants” (DV immigrants). The Act makes available 50,000 permanent resident visas annually to persons from countries with low rates of immigration to the United States. The annual DV program makes permanent residence visas available to persons meeting the simple, but strict, eligibility requirements. Applicants for Diversity Visas are chosen by a computer-generated random lottery drawing. The visas, however, are distributed among six geographic regions with a greater number of visas going to regions with lower rates of immigration, and with no visas going to citizens of countries sending more than 50,000 immigrants to the U.S. in the past five years. Within each region, no one country may receive more than seven percent of the available Diversity Visas in any one year. For DV-2006, natives of the following countries are not eligible to apply because they sent a total of more than 50,000 immigrants to the U.S. in the previous five years (the term “country” in this notice includes countries, economies and other jurisdictions explicitly listed in this notice): Canada, China (mainland-born), Colombia, Dominican Republic, El Salvador, Haiti, India, Jamaica, Mexico, Pakistan, Philippines, Russia, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam. Persons born in Hong Kong SAR, Macau SAR and Taiwan are eligible. Application Submission Dates Entries for the DV-2006 Diversity Visa Lottery must be submitted electronically between noon
(EST)on Friday, November 5, 2004 and noon
(EST)on Friday, January 7, 2005. Applicants may access the electronic Diversity Visa entry form at *http://www.dvlottery.state.gov* during the registration period beginning noon November 5, 2004. Paper entries will not be accepted. Applicants are strongly encouraged to not wait until the last week of the registration period to enter. Heavy demand may result in delays. No entries will be accepted after noon
(EST)on January 7, 2005. Requirements for Entry Applicant must be a native of one of the countries listed. See “List of Countries by Region Whose Natives Qualify.” In most cases this means the country in which the applicant was born. However, there are two other ways a person may be able to qualify. First, if a person was born in a county whose natives are ineligible but his/her spouse was born in a country whose natives are eligible, such person can claim the spouse's country of birth provided both the applicant and spouse are issued visas and enter the U.S. simultaneously. Second, if a person was born in a country whose natives are ineligible, but neither of his/her parents was born there or resided there at the time of his/her birth, such person may claim nativity in one of the parents' country of birth if it is a country whose natives qualify for the DV-2006 program. Applicants must meet either the education OR training requirement of the DV program. An applicant must have EITHER a high school education or its equivalent, defined as successful completion of a 12-year course of elementary and secondary education; OR two years of work experience within the past five years in an occupation requiring at least two years of training or experience to perform. The U.S. Department of Labor's O*Net OnLine database will be used to determine qualifying work experience. If the applicant cannot meet these requirements, he/she should NOT submit an entry to the DV program. Procedures for Submitting an Entry to DV-2006 The Department of State will ONLY accept completed Electronic Diversity Visa Entry Forms submitted electronically at *http://www.dvlottery.state.gov* during the registration period beginning at 12 pm EST (GMT-5) on November 5, 2004 and ending at 12 pm EST (GMT-5) on January 7, 2005. All entries by an applicant will be disqualified if more than ONE entry for the applicant is received, regardless of who submitted the entry. Applicants may prepare and submit their own entries, or have someone submit the entry for them. Successfully registered entries will result in the display of a confirmation screen containing the applicant's name, date of birth, country of chargeability, and a date/time stamp. The applicant may print this confirmation screen for his/her records using the print function of their web browser. Paper entries will not be accepted. The entry will be disqualified if all required photos are not submitted. Recent photographs of the applicant and his/her spouse and each child under 21 years of age, including all natural children as well as all legally-adopted and stepchildren (except a child who is already a U.S. citizen or a Legal Permanent Resident), even if a child no longer resides with the applicant or is not intended to immigrate under the DV program, must be submitted electronically with the Electronic Diversity Visa Entry Form. Group or family photos will not be accepted; there must be a separate photo for each family member. A digital photo (image) of each applicant, his/her spouse, and children must be submitted on-line with the EDV Entry Form. The image file can be produced either by taking a new digital photograph or by scanning a photographic print with a digital scanner. Instructions for Submitting a Digital Photo (Image) The image file must adhere to the following compositional specifications and technical specifications and can be produced in one of the following ways: taking a new digital image; or using a digital scanner to scan a submitted photograph. Compositional Specifications The submitted digital image must conform to the following compositional specifications or the entry will be disqualified. The person being photographed must directly face the camera. The head of the person should not be tilted up, down, or to the side. The head should cover about 50% of the area of the photo. The photograph should be taken with the person in front of a neutral, light-colored background. Dark or patterned backgrounds are not acceptable. The photo must be in focus. Photos in which the person being photographed is wearing sunglasses or other items that detract from the face will not be accepted. Photos of applicants wearing head coverings or hats are only acceptable due to religious beliefs, and even then, may not obscure any portion of the face of the applicant. Photos of applicants with tribal or other headgear not specifically religious in nature will not be accepted. Photos of military, airline, or other personnel wearing hats will not be accepted. Technical Specifications The submitted digital photograph must conform to the following technical specifications or the system will automatically reject the EDV Entry Form and notify the sender. When taking a new digital image: the image file format must be in the Joint Photographic Experts Group
(JPEG)format; it must have a maximum image file size of sixty-two thousand five hundred (62,500) bytes; the image resolution must be 320 pixels high by 240 pixels wide; the image color depth 24-bit color, or 8-bit color, or 8-bit grayscale. [ **Note:** Monochrome images (2-bit color depth) will not be accepted.] Before a photographic print is scanned it must meet the following specifications: the print size must be 2 inches by 2 inches (50mm x 50mm) square; the print color image must be either in color or grayscale. The photographic print must also meet the compositional specifications. If the photographic print meets the print size, print color and compositional specifications, scan the print using the following scanner specifications: scanner resolution must be 150 dots per inch (dpi); the image file in Joint Photographic Experts Group
(JPEG)format; maximum image file size will be sixty-two thousand five hundred (62,500) bytes; the image resolution at 300 by 300 pixels; the image color depth 24-bit color or 8-bit color or 8-bit grayscale. [ **Note:** Monochrome images (2-bit color depth) will not be accepted.] Information Required for the Electronic Entry There is only one way to enter the DV-2006 lottery. Applicants must submit an Electronic Diversity Visa Entry Form (EDV Entry Form), which is accessible only at *http://www.dvlottery.state.gov* . Failure to complete the form in its entirety will disqualify the applicant's entry. Applicants will be asked to submit the following information on the EDV Entry Form. 1. *Full Name* —Last/Family Name, First Name, Middle Name. 2. *Date of Birth* —Day, Month, Year. 3. *Gender* —Male or Female. 4. *City/Town of Birth* . 5. *Country of Birth* —The name of the country should be that which is currently in use for the place where the applicant was born. 6. *Applicant Photograph* —(See information in this notice on photo specifications). 7. *Mailing Address* —Address, City/Town, District/Country/Province/State, Postal Code/Zip Code, Country. 8. *Phone Number* (optional). 9. *E-mail Address* (optional). 10. *Country of Eligibility if the Applicant's Native Country is Different from Country of Birth* —If the applicant is claiming nativity in a country other than his/her place of birth, this information must be indicated on the entry. 11. *Marriage Status* —Unmarried, Married, Divorced, Widowed, Legally Separated. 12. *Number of Children that are Unmarried and Under 21 Years of Age* —Except children that are either U.S. legal permanent residents or American citizens. 13. *Spouse Information* —Name, Date of Birth, Gender, City/Town of Birth, Country of Birth, Photograph. 14. *Children Information* —Name, Date of Birth, Gender, City/Town of Birth, Country of Birth, Photograph. Note: Entries must include the name, date and place of birth of the applicant's spouse and all natural children, as well as all legally-adopted and stepchildren, who are unmarried and under the age of 21 (except children who are already U.S. citizens or Legal Permanent Residents), even if they are no longer legally married to the child's parent, and even if the spouse or child does not currently reside with you and/or will not immigrate with you. Note that married children and children 21 years or older will not qualify for the diversity visa. Failure to list all children will result in your disqualification for the visa. (See question 11 on the list of Frequently Asked Questions.) Selection of Applicants Applicants will be selected at random by computer from among all qualified entries. Those selected will be notified by mail between May and July 2005 and will be provided further instructions, including information on fees connected with immigration to the U.S. Persons not selected will not receive any notification. U.S. embassies and consulates will not be able to provide a list of successful applicants. Spouses and unmarried children under age 21 of successful applicants may also apply for visas to accompany or follow to join the principal applicant. DV-2006 visas will be issued between October 1, 2005 and September 30, 2006. In order to actually receive a visa, applicants selected in the random drawing must meet all eligibility requirements under U.S. law. Processing of entries and issuance of diversity visas to successful applicants and their eligible family members must occur by midnight on September 30, 2006. Under no circumstances can diversity visas be issued or adjustments approved after this date, nor can family members obtain diversity visas to follow to join the applicant in the U.S. after this date. Important Notice No fee is charged to enter the annual DV program. The U.S. Government employs no outside consultants or private services to operate the DV program. Any intermediaries or others who offer assistance to prepare DV casework for applicants do so without the authority or consent of the U.S. Government. Use of any outside intermediary or assistance to prepare a DV entry is entirely at the applicant's discretion. A qualified entry submitted electronically directly by an applicant has an equal chance of being selected by the computer at the Kentucky Consular Center as does an entry submitted electronically through a paid intermediary who completes the entry for the applicant. Every entry received during the lottery registration period will have an equal random chance of being selected within its region. However, receipt of more than one entry per person will disqualify the person from registration, regardless of the source of the entry. Frequently Asked Questions About DV Registration 1. What Does the Term “Native” Mean? Are There Any Situations in Which Persons Who Were Not Born in a Qualifying Country May Apply? “Native” ordinarily means someone born in a particular country, regardless of the individual's current country of residence or nationality. But for immigration purposes “native” can also mean someone who is entitled to be “charged” to a country other than the one in which he/she was born under the provisions of Section 202(b) of the Immigration and Nationality Act. For example, if a principal applicant was born in a country that is not eligible for this year's DV program, he or she may claim “chargeability” to the country where his/her derivative spouse was born, but he/she will not be issued a DV-1 unless the spouse is also eligible for and issued a DV-2, and both must enter the U.S. together on the DVs. In a similar manner, a minor dependent child can be “charged” to a parent's country of birth. Finally, any applicant born in a country ineligible for this year's DV program can be “charged” to the country of birth of either parent as long as neither parent was a resident of the ineligible country at the time of the applicant's birth. In general, people are not considered residents of a country in which they were not born or legally naturalized if they are only visiting the country temporarily or stationed in the country for business or professional reasons on behalf of a company or government. An applicant who claims alternate chargeability must indicate such information on the application for registration. 2. Are There Any Changes or New Requirements in the Application Procedures for This Diversity Visa Registration? All DV-2006 lottery entries must be submitted electronically at *http://www.dvlottery.state.gov* between 12 pm
(EST)Friday, November 5, 2004 and 12 pm
(EST)Friday, January 7, 2005. No paper entries will be accepted. The Department of State implemented an electronic registration system for last year's lottery in order to make the Diversity Visa process more efficient and secure. The Department utilizes special technology and other means to identify applicants who commit fraud for the purposes of illegal immigration or who submit multiple entries. The DV-2006 Diversity Immigrant Visa Program registration period will run from noon Eastern Standard Time November 5, 2004 through noon Eastern Standard Time January 7, 2005. 3. Are Signatures and Photographs Required for Each Family Member, or Only for the Principal Applicant? Signatures are not required on the Electronic Diversity Visa Entry Form. Recent and individual photos of the applicant, his/her spouse and all children under 21 years of age are required. Family or group photos are not accepted. Check the information on the photo requirements included in this notice. 4. Why Do Natives of Certain Countries Not Qualify for the Diversity Program? Diversity visas are intended to provide an immigration opportunity for persons from countries other than the countries that send large numbers of immigrants to the U.S. The law states that no diversity visas shall be provided for natives of “high admission” countries. The law defines this to mean countries from which a total of 50,000 persons in the Family-Sponsored and Employment-Based visa categories immigrated to the United States during the previous five years. Each year, the U.S. Citizenship and Immigration Services (USCIS) adds the family and employment immigrant admission figures for the previous five years in order to identify the countries whose natives must be excluded from the annual diversity lottery. Because there is a separate determination made before each annual DV entry period, the list of countries whose natives do not qualify may change from one year to the next. 5. What Is the Numerical Limit for DV-2006? By law, the U.S. diversity immigration program makes available a maximum of 55,000 permanent residence visas each year to eligible persons. However, the Nicaraguan Adjustment and Central American Relief Act (NACARA) passed by Congress in November 1997 stipulates that beginning as early as DV-99, and for as long as necessary, 5,000 of the 55,000 annually-allocated diversity visas will be made available for use under the NACARA program. The actual reduction of the limit to 50,000 began with DV-2000 and remains in effect for the DV-2006 program. 6. What Are the Regional Diversity Visa
(DV)Limits for DV-2006? The U.S. Citizenship and Immigration Services (USCIS) determines the DV regional limits for each year according to a formula specified in Section 203(c) of the Immigration and Nationality Act (INA). Once the USCIS has completed the calculations, the regional visa limits will be announced. 7. When Will Entries for the DV-2006 Program Be Accepted? The DV-2006 entry period will begin on noon EST Friday, November 5, 2004 and will last for 63 days through noon EST Friday, January 7, 2005. Each year millions apply for the program during the registration period. The massive volume of entries creates an enormous amount of work in selecting and processing successful applicants. Holding the entry period during November and December will ensure successful applicants are notified in a timely manner, and will give both them and our embassies and consulates time to prepare and complete entries for visa issuance. Applicants are strongly encouraged to enter early in the registration period. Excessive demand at end of the registration period may slow the system down. No entries whatsoever will be accepted after noon EST Friday, January 7, 2005. 8. May Persons Who Are in the U.S. Apply for the Program? Yes, an applicant may be in the U.S. or in another country, and the entry may be submitted from the U.S. or from abroad. 9. Is Each Applicant Limited to Only One Entry During the Annual DV Registration Period? Yes, the law allows only one entry by or for each person during each registration period; applicants for whom more than one entry is submitted will be disqualified. The Department of State will employ sophisticated technology and other means to identify individuals that submit multiple entries during the registration period. Applicants submitting more than one entry will be disqualified and an electronic record will be permanently maintained by the Department of State. Applicants may apply for the program each year during the regular registration period. 10. May a Husband and a Wife Each Submit a Separate Entry? Yes, a husband and a wife may each submit one entry, if each meets the eligibility requirements. If either were selected, the other would be entitled to derivative status. 11. What Family Members Must I Include on My DV Entry? On your entry you must list your spouse, that is, husband or wife, and all unmarried children under 21 years of age, with the exception of children who are already U.S. citizens or Legal Permanent Residents. You must list your spouse even if you are currently separated from him/her, unless you are legally separated ( *i.e.* there is a written agreement recognized by a court or a court order.) If you are legally separated or divorced, you do not need to list your former spouse. You must list ALL your children who are unmarried and under the age of 21 years, whether they are your natural children, your spouse's children, or children you have formally adopted in accordance with the laws of your country, unless such a child is already a U.S. citizen or Legal Permanent Resident. List all children under 21 years of age even if they no longer reside with you or you do not intend for them to immigrate under the DV program. The fact that you have listed family members on your entry does not mean that they later must travel with you. They may choose to remain behind. However, if you include an eligible dependent on your visa application forms that you failed to include on your original entry, your case will be disqualified. (This only applies to persons who were dependents at the time the original application was submitted, not those acquired at a later date.) Your spouse may still submit a separate entry, even though he or she is listed on your entry, as long as both entries include details on all dependents in your family. See question 10 above. 12. Must Each Applicant Submit His/Her Own Entry, or May Someone Act on Behalf of an Applicant? Applicants may prepare and submit their own entries, or have someone submit the entry for them. Regardless of whether an entry is submitted by the applicant directly, or assistance is provided by an attorney, friend, relative, etc., only one entry may be submitted in the name of each person. If the entry is selected, the notification letter will be sent only to the mailing address provided on the entry. 13. What Are the Requirements for Education or Work Experience? The law and regulations require that every applicant must have at least a high school education or its equivalent or, within the past five years, have two years of work experience in an occupation requiring at least two years training or experience. A “high school education or equivalent” is defined as successful completion of a twelve-year course of elementary and secondary education in the United States or successful completion in another country of a formal course of elementary and secondary education comparable to a high school education in the United States. Documentary proof of education or work experience should not be submitted with the lottery entry, but must be presented to the consular officer at the time of the visa interview. To determine eligibility based on work experience, definitions from the Department of Labor's O*Net OnLine database will be used. 14. How Will Successful Entrants Be Selected? At the Kentucky Consular Center, all entries received from each region will be individually numbered. After the end of the registration period, a computer will randomly select entries from among all the entries received for each geographic region. Within each region, the first entry randomly selected will be the first case registered, the second entry selected the second registration, etc. All entries received during the registration period will have an equal chance of being selected within each region. When an entry has been selected, the applicant will be sent a notification letter by the Kentucky Consular Center, which will provide visa application instructions. The Kentucky Consular Center will continue to process the case until those who are selected are instructed to appear for visa interviews at a U.S. consular office, or until those able to do so apply at a USCIS office in the United States for change of status. 15. May Winning Applicants Adjust Their Status With USCIS? Yes, provided they are otherwise eligible to adjust status under the terms of Section 245 of the INA, selected applicants who are physically present in the United States may apply to the U.S. Citizenship and Immigration Services (USCIS) for adjustment of status to permanent resident. Applicants must ensure that USCIS can complete action on their cases, including processing of any overseas derivatives, before September 30, 2006, since on that date registrations for the DV-2006 program expire. No visa numbers for the DV-2006 program will be available after midnight on September 30, 2006 under any circumstances. 16. Will Applicants Who Are Not Selected Be Informed? No, applicants who are not selected will receive no response to their entry. Only those who are selected will be informed. All notification letters are sent within about five to seven months from the end of the application period to the address indicated on the entry. Since there is no notification provided to those not selected, anyone who does not receive a letter about five to seven months from the end of the registration period should assume that his/her application has not been selected. 17. How Many Applicants Will Be Selected? There are 50,000 DV visas available for DV-2006, but more than that number of individuals will be selected. Because it is likely that some of the first 50,000 persons who are selected will not qualify for visas or pursue their cases to visa issuance, more than 50,000 entries will be selected by the Kentucky Consular Center to ensure that all of the available DV visas are issued. However, this also means that there will not be a sufficient number of visas for all those who are initially selected. All applicants who are selected will be informed promptly of their place on the list. Interviews with those selected will begin in early October 2005. The Kentucky Consular Center will send appointment letters to selected applicants four to six weeks before the scheduled interviews with U.S. consular officers at overseas posts. Each month visas will be issued, visa number availability permitting, to those applicants who are ready for issuance during that month. Once all of the 50,000 DV visas have been issued, the program for the year will end. In principle, visa numbers could be finished before September 2006. Selected applicants who wish to receive visas must be prepared to act promptly on their cases. Random selection by the Kentucky Consular Center computer does not automatically guarantee that you will receive a visa. 18. Is There a Minimum Age for Applicants To Apply for the DV Program? There is no minimum age to apply for the program, but the requirement of a high school education or work experience for each principal applicant at the time of application will effectively disqualify most persons who are under age 18. 19. Are There Any Fees for the DV Program? There is no fee for submitting an entry. A special DV case processing fee will be payable later by persons whose entries are actually selected and processed at a U.S. consular section for this year's program. DV applicants, like other immigrant visa applicants, must also pay the regular visa fees at the time of visa application. Details of required fees will be included with the instructions sent by the Kentucky Consular Center to applicants who are selected. 20. Are DV Applicants Specially Entitled To Apply for a Waiver of Any of the Grounds of Visa Ineligibility? No. Applicants are subject to all grounds of ineligibility for immigrant visas specified in the Immigration and Nationality Act. There are no special provisions for the waiver of any ground of visa ineligibility other than those ordinarily provided in the Act. 21. May Persons Who Are Already Registered for an Immigrant Visa in Another Category Apply for the DV Program? Yes, such persons may apply for the DV program. 22. How Long Do Applicants Who Are Selected Remain Entitled To Apply for Visas in the DV Category? Persons selected in the DV-2006 lottery are entitled to apply for visa issuance only during fiscal year 2006, *i.e.* , from October 2005 through September 2006. Applicants must obtain the DV visa or adjust status by the end of the Fiscal Year (September 30, 2006). There is no carry-over of DV benefits into the next year for persons who are selected but who do not obtain visas during FY-2006. Also, spouses and children who derive status from a DV-2006 registration can only obtain visas in the DV category between October 2005 and September 2006. Applicants who apply overseas will receive an appointment letter from the Kentucky Consular Center four to six weeks before the scheduled appointment. 23. When Will E-DV Online Be Available? Online entry will become available at 12 pm EST (GMT-5) on November 5, 2004 and will end at 12 pm EST (GMT-5) on January 7, 2005. 24. Will I Be Able To Download and Save the E-DV Entry Form to a Microsoft Word Program (or Other Suitable Program) and Then Fill It Out? No, you will not be able to save the form into another program for completion and submission later. The E-DV Entry Form is a Web form only. This makes it more “universal” than a proprietary word processor format. Additionally, it does require that the information be filled in and submitted while on-line. 25. If I Don't Have Access to a Scanner, Can I Send Photos to My Relative in the U.S. to Scan the Photos, Save the Photos to a Diskette, and Then Mail the Diskette Back to Me to Apply? Yes, this can be done as long as the photo meets the photo requirements in the instructions, and the photo is electronically submitted with, and at the same time the E-DV online entry is submitted. The applicant must already have the scanned photo file when they submit the entry on-line. The photo cannot be submitted separate from the online application. Only one on-line entry by or for each person can be submitted. Multiple submissions will disqualify the entry for that person for DV-2006. The entire entry (photo and application together) can be submitted electronically from the United States. 26. Can I Save the Form On-Line So That I Can Fill Out Part and Then Come Back Later and Complete the Remainder? No, this cannot be done. The E-DV Entry Form is designed to be completed and submitted at one time. However, because the form is in two parts, and because of possible network interruptions and delays, the E-DV system is designed to handle up to sixty
(60)minutes between downloading of the form and when the entry is received at the E-DV Web site after being submitted online. If more than sixty minutes elapses, and the entry has not been electronically received, the information received so far is discarded. This is done so that there is no possibility that a full entry could accidentally be interpreted as a duplicate of a previous partial entry. For example, suppose an applicant with a wife and child sends a filled in E-DV Entry Form Part One and then receives Form Part Two, but there is a delay before sending Part Two because of trouble finding the file which holds the child's photograph. If the filled in Form Part Two is sent by the applicant and received by the E-DV Web site within sixty
(60)minutes then there is no problem, but if the Form Part Two is received after sixty
(60)minutes has elapsed then the applicant will be informed that they need to start over for the entire entry. The DV-2006 instructions explain clearly and completely what information needs to be gathered to fill in the form. This way you can be fully prepared, making sure you have all of the information needed, before you start to complete the form on-line. 27. If the Submitted Digital Images Do Not Conform to the Specifications, the Procedures State That the System Will Automatically Reject the E-DV Entry Form and Notify the Sender. Does This Mean I Will Be Able to Re-Submit My Entry? Yes, the entry can be resubmitted. Since the entry was automatically rejected it was not actually considered as submitted to the E-DV Web site. It does not count as a submitted E-DV entry, and no confirmation notice of receipt is sent. If there are problems with the digital photograph sent because it does not conform to the requirements, it is automatically rejected by the E-DV Web site. However, the amount of time it takes the rejection message to reach the sender is unpredictable due to the nature of the Internet. If the problems can be fixed by the applicant, and the Form Part One or Two re-sent within sixty
(60)minutes then there is no problem. Otherwise the submission process will have to be started over. An applicant can try to submit an application as many times as is necessary until a complete application is received and the confirmation notice sent. 28. Will the Electronic Confirmation Notice That the Completed E-DV Entry Form Has Been Received Through the Online System Be Sent Immediately After Submission? The response from the E-DV Web site which contains confirmation of the receipt of an acceptable E-DV Entry Form is sent by the E-DV Web site immediately, but how long it takes the response to reach the sender is unpredictable due to the nature of the Internet. If many minutes have elapsed since pressing the “Submit” button there is no harm in pressing the “Submit” button a second time. The E-DV system will not be confused by a situation where the “Submit” button is hit a second time because no confirmation response has been received. An applicant can try to submit an application as many times as is necessary until a complete application is received and the confirmation notice sent. List of Countries by Region Whose Natives Qualify The lists below show the countries whose natives are QUALIFIED within each geographic region for this diversity program. The determination of countries within each region is based on information provided by the Geographer of the Department of State. The countries whose natives do not qualify for the DV-2006 program were identified by the U.S. Citizenship and Immigration Services (USCIS) according to the formula in Section 203(c) of the Immigration and Nationality Act. Dependent areas overseas are included within the region of the governing country. The countries whose natives do NOT qualify for this diversity program (because they are the principal source countries of Family-Sponsored and Employment-Based immigration, or “high admission” countries) are noted after the respective regional lists. Africa Algeria Angola Benin Botswana Burkina Faso Burundi Cameroon Cape Verde Central African Republic Chad Comoros Congo Congo, Democratic Republic of the Cote D'Ivoire (Ivory Coast) Djibouti Egypt Equatorial Guinea Eritrea Ethiopia Gabon Gambia, The Ghana Guinea Guinea-Bissau Kenya Lesotho Liberia Libya Madagascar Malawi Mali Mauritania Mauritius Morocco Mozambique Namibia Niger Nigeria Rwanda Sao Tome and Principe Senegal Seychelles Sierra Leone Somalia South Africa Sudan Swaziland Tanzania Togo Tunisia Uganda Zambia Zimbabwe Asia Afghanistan Bahrain Bangladesh Bhutan Brunei Burma Cambodia East Timor Hong Kong Special Administrative Region Indonesia Iran Iraq Israel Japan Jordon Kuwait Laos Lebanon Malaysia Maldives Mongolia Nepal North Korea Oman Qatar Saudi Arabia Singapore Sri Lanka Syria Taiwan Thailand Unite Arab Emirates Yemen Natives of the following Asian countries do not qualify for this year's diversity program: China [mainland-born], India, Pakistan, South Korea, Philippines, and Vietnam. The Hong Kong S.A.R. and Taiwan do qualify and are listed above. Macau S.A.R. also qualifies and is listed below. Europe Albania Andorra Armenia Austria Azerbaijan Belarus Belgium Bosnia and Herzegovina Bulgaria Croatia Cyprus Czech Republic Denmark (including components and dependent areas overseas) Estonia Finland France (including components and dependent areas overseas) Georgia Germany Greece Hungary Iceland Ireland Italy Kazakhstan Kyrgyzstan Latvia Liechtenstein Lithuania Luxembourg Macau Special Administrative Region Macedonia, the Former Yugoslav Republic Malta Moldova Monaco Netherlands (including components and dependent areas overseas) Northern Ireland Norway Poland Portugal (including components and dependent areas overseas) Romania San Marino Serbia and Montenegro Slovakia Slovenia Spain Sweden Switzerland Tajikistan Turkey Turkmenistan Ukraine Uzbekistan Vatican City Natives of the following European countries do not qualify for this year's diversity program: Great Britain and Russia. Great Britain (United Kingdom) includes the following dependent areas: Anguilla, Bermuda, British Virgin Islands, Cayman Islands, Falkland Islands, Gibraltar, Montserrat, Pitcairn, St. Helena, Turks and Caicos Islands. Note that for purposes of the diversity program only, Northern Ireland is treated separately; Northern Ireland does qualify and is listed among the qualifying areas. North America The Bahamas In North America, natives of Canada and Mexico do not qualify for this year's diversity program. Oceania Australia (including components and dependent areas overseas) Fiji Kiribati Marshall Islands Micronesia, Federated States of Nauru New Zealand (including components and dependent areas overseas) Papua New Guinea Samoa Solomon Islands Tonga Tuvalu Vanuatu South America, Central America, and the Caribbean Antigua and Barbuda Argentina Barbados Belize Bolivia Brazil Chile Costa Rica Cuba Dominica Ecuador Grenada Guatemala Guyana Honduras Nicaragua Panama Paraguay Peru Saint Kitts and Nevis Saint Lucia Saint Vincent and the Grenadines Suriname Trinidad and Tobago Uruguay Venezuela Countries in this region whose natives do not qualify for this year's diversity program: Colombia, Dominican Republic, El Salvador, Haiti, Jamaica, and Mexico. Dated: October 28, 2004. Maura Harty, Assistant Secretary for Consular Affairs, Department of State. [FR Doc. 04-24940 Filed 11-8-04; 8:45 am]
Connectionstraces to 8
5 references not yet in our index
  • 17 CFR 240.19
  • 17 CFR 240.11
  • 15 CFR 240.11
  • 7 CFR 240.19
  • Pub. L. 101-649
Citation graph
cites case law
Notices
Notice of Registration for the Diversity Immigrant Visa Program
U.S.C.§ 78s
U.S.C.§ 78c
U.S.C.§ 78f
U.S.C.§ 552
C.F.R.§ 200.30-3
U.S.C.§ 78o–3
C.F.R.§ 42.33
U.S.C.§ 1151
Cite17 CFR 240.19
Cite17 CFR 240.11
Cite15 CFR 240.11
Cite7 CFR 240.19
Cites 13 · showing 12Cited by 0 across 0 sources
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