79556 Federal Register / Vol. 85, No. 238 / Thursday, December 10, 2020 / Notices 

1 15 U.S.C. 78s(b)(1). 

2 17 CFR 240.19b–4. 

3SR-Nasdaq-2020–081(December 1, 2020) 

available at https://listingcenter.nasdaq.com/assets/ 

Board%20Diversity%20Disclosure%20Rule%20

Filing.pdf (the ‘‘Nasdaq Diversity Proposal’’). 

4As defined in the proposed rule change, 

‘‘female’’ means an individual who self-identifies 

her gender as a woman, without regard to the 

individual’s designated sex at birth; and ‘‘LGBTQ+’’ 

means an individual who self-identifies as any of 

the following: lesbian, gay, bisexual, transgender or 

a member of the queer community. 

5See Nasdaq Diversity Proposal at Section II, 

Academic Research: The Relationship between 

Diversity and Shareholder Value, Investor 

Protection and Decision Making. 

6See Ferdinand A. Gul et al., Does board gender 

diversity improve the informativeness of stock 

prices?, 51(3) J. Acct. & Econ. 314 (April 2011) 

(analyzing 4,084 firm years during the period from 

2002 to 2007, excluding companies in the utilities 

and financial industries, measuring public 

information disclosure using ‘‘voluntary continuous 

disclosure of ‘other’ events in 8K reports’’ and 

measuring stock price informativeness by 

‘‘idiosyncratic volatility,’’ or volatility that cannot 

be explained to systematic factors and can be 

diversified away). 

7See David Abad et al., Does Gender Diversity on 

Corporate Boards Reduce Information Asymmetry 

in Equity Markets? 20(3) BRQ Business Research 

Quarterly 192 at 202 (July 2017) (analyzing 531 

company-year observations from 2004 to 2009 of 

non-financial companies traded on the electronic 

trading platform of the Spanish Stock Exchange 

(SIBE)). 

8See Bin Srinidhi et al., Female Directors and 

Earnings Quality, 28(5) Contemporary Accounting 

Research 1610 at 1612–16 (Winter 2011) (analyzing 

3,132 firm years during the period from 2001 to 

2007 based on S&P COMPUSTAT, Corporate 

Library’s Board Analyst, and IRRC databases; 

‘‘choos[ing] the accruals quality as the metric that 

best reflects the ability of current earnings to reflect 

future cash flows’’ (noting that it ‘‘best predicts the 

incidence and magnitude of fraud relative to other 

commonly used measures of earnings quality’’) and 

analyzing surprise earnings results that exceeded 

previous earnings or analyst forecasts, because 

‘‘managers of firms whose unmanaged earnings fall 

marginally below the benchmarks have [an] 

incentive to manage earnings upwards so as to meet 

or beat previous earnings’’). 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–90571; File No. SR– 

NASDAQ–2020–082] 

Self-Regulatory Organizations; The 

Nasdaq Stock Market LLC; Notice of 

Filing of Proposed Rule Change To 

Adopt Listing Rule IM–5900–9 To Offer 

Certain Listed Companies Access to a 

Complimentary Board Recruiting 

Solution To Help Advance Diversity on 

Company Boards 

December 4, 2020. 

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 December 

1, 2020, The Nasdaq Stock Market LLC 

(‘‘Nasdaq’’ or ‘‘Exchange’’) filed with the 

Securities and Exchange Commission 

(‘‘Commission’’) the proposed rule 

change as described in Items I and II 

below, which Items have been prepared 

by the Exchange. The Commission is 

publishing this notice to solicit 

comments on the proposed rule change 

from interested persons. 

I. Self-Regulatory Organization’s 

Statement of the Terms of Substance of 

the Proposed Rule Change 

The Exchange proposes to adopt 

Listing Rule IM–5900–9 to offer certain 

listed companies access to a 

complimentary board recruiting 

solution to help advance diversity on 

company boards. 

The text of the proposed rule change 

is detailed below: proposed new 

language is italicized and proposed 

deletions are in brackets. 

* * * * * 

IM–5900–9. Board Diversity Services 

On December 1, 2020, Nasdaq filed a 

proposal (SR–Nasdaq–2020–081) to require 

each listed Company, subject to certain 

exceptions, to have, or explain why it does 

not have, at least two diverse directors on its 

board (the ‘‘Diversity Rule’’). In order to help 

advance diversity on Company boards and to 

help Companies prepare for and, if approved, 

comply with the Diversity Rule, Nasdaq offers 

Eligible Companies complimentary access to 

two seats of a board recruiting solution, 

which will allow Companies to identify and 

evaluate diverse board candidates. Until 

December 1, 2022, any Eligible Company that 

requests access to this service through the 

Nasdaq Listing Center will receive 

complimentary access for one-year from the 

initiation of the service. This service has a 

retail value of approximately $10,000 per 

year. 

An Eligible Company is: 

(a) Any listed Company, except as 

described below, that represents to Nasdaq 

that it does not have (i) at least one director 

who self-identifies as female; and (ii) at least 

one director who self-identifies as one or 

more of the following: Black or African 

American, Hispanic or Latinx, Asian, Native 

American or Alaska Native, Native Hawaiian 

or Pacific Islander, or Two or More Races or 

Ethnicities, or who self-identifies as lesbian, 

gay, bisexual, transgender or as a member of 

the queer community; 

(b) a listed Company that (i) is a Foreign 

Private Issuer (as defined in Rule 5005(a)(19), 

or (ii) is considered a foreign issuer under 

Rule 3b–4(b) under the Act and has its 

principal executive offices located outside of 

the United States, if it represents to Nasdaq 

that it does not have (i) at least one director 

who self-identifies as female; and (ii) at least 

one director who self-identifies as one or 

more of the following: female, an 

underrepresented individual based on 

national, racial, ethnic, indigenous, cultural, 

religious or linguistic identity in the 

company’s home country jurisdiction, or 

lesbian, gay, bisexual, transgender or as a 

member of the queer community; or 

(c) a listed Company that is a Smaller 

Reporting Company (as defined in Rule 12b2 under the Act), if it represents to Nasdaq 

that it does not have (i) at least one director 

who self-identifies as female, and (ii) at least 

one director who self-identifies as one or 

more of the following: female, Black or 

African American, Hispanic or Latinx, Asian, 

Native American or Alaska Native, Native 

Hawaiian or Pacific Islander, or Two or More 

Races or Ethnicities, or who self-identifies as 

lesbian, gay, bisexual, transgender or as a 

member of the queer community. 

* * * * * 

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 on the 

proposed rule change. The text of these 

statements may be examined at the 

places specified in Item IV below. The 

Exchange 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 

In a separate rule filing,3 Nasdaq is 

proposing to require each of its listed 

companies, subject to certain 

exceptions, to: (i) Provide statistical 

information regarding diversity among 

the members of the company’s board of 

directors; and (ii) to have, or explain 

why the company does not have, at least 

one director who self-identifies as a 

female, and at least one director who 

self-identifies as Black or African 

American, Hispanic or Latinx, Asian, 

Native American or Alaska Native, 

Native Hawaiian or Pacific Islander, two 

or more races or ethnicities, or as 

LGBTQ+.4 Nasdaq is proposing herein 

to provide companies that would need 

to take action to satisfy that 

requirement, if approved, with a service 

to help them recruit diverse directors. 

In researching the Diversity Proposal, 

Nasdaq reviewed dozens of empirical 

studies and found that an extensive 

body of academic research demonstrates 

that diverse boards are positively 

associated with improved corporate 

governance and financial performance.5

In particular, studies have found that 

companies with gender-diverse boards 

or audit committees are associated with: 

more transparent public disclosures 6

and less information asymmetry; 7 better 

reporting discipline by management; 8 a 

lower likelihood of manipulated 


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9See Ammar Gull et al., Beyond gender diversity: 

How specific attributes of female directors affect 

earnings management, 50(3) British Acct. Rev. 255 

(Sept. 2017), available at: https://ideas.repec.org/a/ 

eee/bracre/v50y2018i3p255-274.html (analyzing 

394 French companies belonging to the CAC AllShares index listed on Euronext Paris from 2001 to 

2010, prior to the implementation of France’s 

gender mandate law that required women to 

comprise 20% of a company’s board of directors by 

2014 and 40% by 2016). 

10See Francisco Bravo and Maria Dolores 

Alcaide-Ruiz, The disclosure of financial forwardlooking information, 34(2) Gender in Mgmt. 140 at 

142–44 (2019) (analyzing companies included in 

the S&P 100 Index in 2016, ‘‘focus[ing] on the 

disclosure of financial forward-looking information 

(which is likely to require financial expertise), such 

as earnings forecasts, expected revenues, 

anticipated cash flows or any other financial 

indicator’’). 

11See Maria Consuelo Pucheta-Martı ́nez et al., 

Corporate governance, female directors and quality 

of financial information. 25(4) Bus. Ethics: A 

European Rev. 363 at 368 (2016) (analyzing a 

sample of non-financial companies listed on the 

Madrid Stock Exchange during 2004–2011). 

12 Id. at 363. 

13See Douglas J. Cumming et al., Gender Diversity 

and Securities Fraud, Academy of Management 

Journal 34 (forthcoming) (Feb. 2, 2015), available at 

https://ssrn.com/abstract=2562399 (analyzing 

China Securities Regulatory Commission data from 

2001 to 2010, including 742 companies with 

enforcement actions for fraud, and 742 nonfraudulent companies for a control group). 

14See Yu Chen et al., Board Gender Diversity and 

Internal Control Weaknesses, 33 Advances in Acct. 

11 (2016) (analyzing a sample of 4267 firm-year 

observations during the period from 2004 to 2013, 

beginning ‘‘the first year internal control 

weaknesses were required to be disclosed under 

section 404 of SOX’’). 

15See Lawrence J. Abbott et al., Female Board 

Presence and the Likelihood of Financial 

Restatement, 26(4) Accounting Horizons 607, 626 

(2012) (analyzing a sample of 278 pre-SOX annual 

financial restatements and 187 pre-SOX quarterly 

financial restatements of U.S. companies from 

January 1, 1997 through June 30, 2002 identified by 

the U.S. General Accounting Office restatement 

report 03–138 (which only included ‘‘material 

misstatements of financial results’’), and 75 postSOX annual financial restatements from July 1, 

2002, to September 30, 2005 identified by U.S. 

General Accounting Office restatement report 06– 

678 (which only included ‘‘restatements that were 

being made to correct material misstatements of 

previously reported financial information’’), 

consisting almost exclusively of non-Fortune 1000 

companies); See also Aida Sijamic Wahid, The 

Effects and the Mechanisms of Board Gender 

Diversity: Evidence from Financial Manipulation, J. 

Bus. Ethics (forthcoming) (Dec. 2017) Rotman 

School of Management Working Paper No. 2930132 

at 1, available at: https://ssrn.com/ 

abstract=2930132 (analyzing 6,132 U.S. public 

companies during the period from 2000 to 2010, for 

a total of 38,273 firm-year observations). 

16See, generally, FCLTGlobal, The Long-term 

Habits of a Highly Effective Corporate Board 11 

(March 2019), available at: https://

www.fcltglobal.org/wp-content/uploads/long-termhabits-of-highly-effective-corporate-boards.pdf 

(analyzing 2017 MSCI ACWI constituents from 2010 

to 2017 using Bloomberg data); Credit Suisse, The 

CS Gender 3000: Women in Senior Management 16 

(Sept. 2014), available at: https://www.creditsuisse.com/media/assets/corporate/docs/about-us/ 

research/publications/the-cs-gender-3000-womenin-senior-management.pdf (analyzing 3,000 

companies across 40 countries from the period from 

2005 to 2013); Meggin Thwing Eastman et al., 

MSCI, The tipping point: Women on boards and 

financial performance 3 (December 2016), available 

at: https://www.msci.com/documents/10199/ 

fd1f8228-cc07-4789-acee-3f9ed97ee8bb (analyzing 

of U.S. companies that were constituents of the 

MSCI World Index for the entire period from July 

1, 2011 to June 30, 2016); Harvey M. Wagner, 

Catalyst, The Bottom Line: Corporate Performance 

and Women’s Representation on Boards (2004– 

2008) (March 1, 2011), available at: https://

www.catalyst.org/research/the-bottom-linecorporate-performance-and-womensrepresentation-on-boards-2004-2008/ (analyzing 

gender diversity data from Catalyst’s annual 

Fortune 500 Census of Women Board Directors 

report series for the years 2005 to 2009, and 

corresponding financial data from S&P’s Compustat 

database for the years 2004 to 2008); Credit Suisse 

ESG Research, LGBT: the value of diversity 1 (April 

15, 2016), available at: https://research-doc.creditsuisse.com/docView?language=ENG&source=

emfromsendlink&format=PDF&document_

id=807075590&extdocid=807075590_1_eng_

pdf&serialid=evu4wNcHexx7kusNLaZQphUkT9nax

i1PvptZQvPjr1k%3d; McKinsey & Company, 

Diversity wins: How inclusion matters 13 (May 

2020), available at: https://www.mckinsey.com/∼/ 

media/McKinsey/Featured%20Insights/ 

Diversity%20and%20Inclusion/Diversity%20

wins%20How%20inclusion%20matters/Diversitywins-How-inclusion-matters-vF.pdf (analyzing 

1,039 companies across 15 countries for the period 

from December 2018 to November 2019); and 

Moody’s Investors Service, Gender diversity is 

correlated with higher ratings, but mandates pose 

short-term risk 2 (Sept. 11, 2019), available at: 

https://www.moodys.com/research/MoodysCorporate-board-gender-diversity-associated-withhigher-credit-ratings-PBC_1193768 (analyzing 1,109 

publicly traded North American companies rated by 

Moody’s). 

17 Vanguard announced in 2020 it would begin 

asking companies about the race and ethnicity of 

directors. See Vanguard, Investment Stewardship 

2020 Annual Report (2020), available at: https://

about.vanguard.com/investment-stewardship/ 

perspectives-and-commentary/2020_investment_

stewardship_annual_report.pdf. Starting in 2020, 

State Street Global Advisors will vote against the 

entire nominating committee of companies that do 

not have at least one woman on their boards and 

have not addressed questions on gender diversity 

within the last three years. See State Street Global 

Advisors, Summary of Material Changes to State 

Street Global Advisors’ 2020 Proxy Voting and 

Engagement Guidelines (2020), available at: https:// 

www.ssga.com/library-content/pdfs/global/proxyvoting-and-engagement-guidelines.pdf. Beginning 

in 2018, BlackRock stated in proxy voting 

guidelines they ‘‘would normally expect to see at 

least 2 women directors on every board.’’ See 

BlackRock Investment Stewardship, Corporate 

governance and proxy voting guidelines for U.S. 

securities (Jan. 2020), available at: https://

www.blackrock.com/corporate/literature/fact-sheet/ 

blk-responsible-investment-guidelines-us.pdf. The 

NYC Comptroller’s Office in 2019 asked companies 

to adopt policies to ensure women and people of 

color are on the initial list for every open board 

seat. See Scott M. Stringer, Remarks at the Bureau 

of Asset Management ‘Emerging Managers and 

MWBE Managers Conference (Oct. 11, 2019), 

available at: https://comptroller.nyc.gov/wpcontent/uploads/2019/10/10.11.19-SMS-BAMremarks_distro.pdf. 

18For example, California requires companies 

headquartered in the state to have at least one 

director who self-identifies as a Female and one 

from an Underrepresented Community. See Cal. 

S.B. 826 (Sept. 30, 2018); Cal. A.B. 979 (Sept. 30, 

2020). Washington requires companies 

headquartered in the state to have at least 25% 

women on the board by 2022 or provide certain 

disclosures. See Wash. Subst. S.B. 6037 (June 11, 

2020). At least eleven states have proposed 

diversity-related requirements. See Michael Hatcher 

and Weldon Latham, States are Leading the Charge 

to Corporate Boards: Diversify!, Harv. L. Sch. Forum 

on Corp. Governance (May 12, 2020), available at: 

https://corpgov.law.harvard.edu/2020/05/12/statesare-leading-the-charge-to-corporate-boardsdiversify/. 

earnings through earnings 

management; 9 an increased likelihood 

of voluntarily disclosing forwardlooking information; 10 a lower 

likelihood of receiving audit 

qualifications due to errors,11 noncompliance or omission of 

information; 12 and a lower likelihood of 

securities fraud.13 In addition, studies 

found that having at least one woman 

on the board is associated with a lower 

likelihood of material weaknesses in 

internal control over financial 

reporting,14 and a lower likelihood of 

material financial restatements.15

Studies also identified positive 

relationships between board diversity 

and commonly used financial metrics, 

including higher returns on invested 

capital, returns on equity, earnings per 

share, earnings before interest and 

taxation margin, asset valuation 

multiples and credit ratings.16

In addition, investors and investor 

groups are calling for diversification in 

the boardroom 17 and legislators at the 

federal and state level are increasingly 

taking action to encourage or mandate 

corporations to diversify their boards 

and improve diversity disclosures.18

Given the positive attributes 

associated with diverse boards and 

investor desire for greater diversity in 

the boardroom, Nasdaq wants to 

advance board diversity among its listed 

companies. Nasdaq believes that 

offering a board recruiting solution will 

assist and encourage listed companies to 

increase diverse representation on their 

boards, which can result in improved 

corporate governance, thus 

strengthening the integrity of the market 

and building investor confidence. 

Nasdaq also believes that offering this 

service will help aid compliance with 

the Nasdaq Diversity Proposal, if it is 

approved. Nasdaq therefore is proposing 

to provide companies that have not yet 

achieved a certain level of diversity 

with one-year complimentary access for 

two users to a board recruiting solution, 

which will provide access to a network 

of board-ready diverse candidates, 

allowing companies to identify and 

evaluate diverse board candidates, and 

a tool to support board benchmarking. 

This service has an approximate retail 

value of $10,000. 

Nasdaq will offer this service to any 

Eligible Company, which is a listed 

company (except as described below) 


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19A company that is not an Eligible Company is 

able to receive a complimentary 90-day trial of the 

board recruiting solution, which is being offered by 

Nasdaq’s partner to all clients of Nasdaq, Inc., 

including non-listed companies. 

20 15 U.S.C. 78f(b). 

21 15 U.S.C. 78f(b)(5). 

22 15 U.S.C. 78f(4). 

23 15 U.S.C. 78f(8). 

24The Justice Department has noted the intense 

competitive environment for exchange listings. See 

‘‘NASDAQ OMX Group Inc. and Intercontinental 

Exchange Inc. Abandon Their Proposed Acquisition 

Of NYSE Euronext After Justice Department 

Threatens Lawsuit’’ (May 16, 2011), available at 

http://www.justice.gov/atr/public/press_releases/ 

2011/271214.htm. 

25 15 U.S.C. 78s(b). 

26See Exchange Act Release No. 72669 (July 24, 

2014), 79 FR 44234 (July 30, 2014) (SR–NASDAQ– 

2014–058) (footnote 39 and accompanying text: 

‘‘We would expect Nasdaq, consistent with Section 

19(b) of the Exchange Act, to periodically update 

the retail values of services offered should they 

change. This will help to provide transparency to 

listed companies on the value of the free services 

they receive and the actual costs associated with 

listing on Nasdaq.’’) 

27See Exchange Act Release No. 79366, 81 FR 

85663 at 85665 (citing Securities Exchange Act 

Release No. 65127 (August 12, 2011), 76 FR 51449, 

51452 (August 18, 2011) (approving NYSE–2011– 

20)). 

that represents to Nasdaq that it does 

not have: (i) At least one director who 

self-identifies as female; and (ii) at least 

one director who self-identifies as one 

or more of the following: Black or 

African American, Hispanic or Latinx, 

Asian, Native American or Alaska 

Native, Native Hawaiian or Pacific 

Islander, or Two or More Races or 

Ethnicities or who self-identifies as 

lesbian, gay, bisexual, transgender or as 

a member of the queer community. A 

company that is a Foreign Private Issuer 

(as defined in Rule 5005(a)(19)) or, (i) is 

considered a foreign issuer under Rule 

3b–4(b) under the Act and (ii) has its 

principal executive offices located 

outside of the United States, will be an 

Eligible Company if the company 

represents to Nasdaq that it does not 

have: (i) At least one director who selfidentifies as female; and (ii) at least one 

director who self-identifies as one or 

more of the following: Female, an 

underrepresented individual based on 

national, racial, ethnic, indigenous, 

cultural, religious or linguistic identity 

in the company’s home country 

jurisdiction, or lesbian, gay, bisexual, 

transgender or as a member of the queer 

community. A company that is a 

Smaller Reporting Company (as defined 

in Rule 12b–2 under the Act), will be an 

Eligible Company if the company 

represents to Nasdaq that it does not 

have: (i) At least one director who selfidentifies as female, and (ii) at least one 

director who self-identifies as one or 

more of the following: female, Black or 

African American, Hispanic or Latinx, 

Asian, Native American or Alaska 

Native, Native Hawaiian or Pacific 

Islander, or Two or More Races or 

Ethnicities, or who self-identifies as 

lesbian, gay, bisexual, transgender or as 

a member of the queer community.19

Nasdaq will offer this one-year service 

to Eligible Companies that request it on 

or before December 1, 2022. Nasdaq 

intends to evaluate the service and the 

progress made in enhancing diversity 

and may extend the program prior to its 

expiration through another rule filing. 

Nasdaq notes that no other company 

will be required to pay higher fees as a 

result of this proposal and represents 

that providing this service will have no 

impact on the resources available for its 

regulatory programs. 

2. Statutory Basis 

The Exchange believes that its 

proposal is consistent with Section 6(b) 

of the Exchange Act,20 in general, and 

furthers the objectives of Section 6(b)(5) 

of the Exchange Act,21 in particular, in 

that 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. It is also consistent with 

this provision because it is not designed 

to permit unfair discrimination between 

issuers. Nasdaq also believes that the 

proposed rule change is consistent with 

the provisions of Sections 6(b)(4) 22 and 

6(b)(8),23 in that the proposal is 

designed, among other things, to 

provide for the equitable allocation of 

reasonable dues, fees, and other charges 

among Exchange members and issuers 

and other persons using its facilities and 

that the rules of the Exchange do not 

impose any burden on competition not 

necessary or appropriate in furtherance 

of the purposes of the Exchange Act. 

Nasdaq believes that research 

surrounding the value of diversity on a 

company’s board and investor interest 

in more diverse boards supports the fact 

that the proposal to offer access to a 

board recruiting solution promotes just 

and equitable principles of trade and 

protects investors and the public 

interest. Nasdaq believes that by making 

this service available more companies 

will seek to enhance the diversity of 

their boards to achieve these benefits. 

However, no company is required to use 

this service. 

Nasdaq also believes it is reasonable, 

and not unfairly discriminatory, to offer 

the board recruiting solution only to 

Eligible Companies because these 

companies have the greatest need to 

identify diverse board candidates. In 

addition, if the Nasdaq Diversity 

Proposal is approved, these companies 

will need to identify diverse board 

candidates if they wish to satisfy that 

requirement instead of explaining why 

they do not satisfy it. Further, Nasdaq 

believes that companies that already 

have two diverse directors will already 

be familiar with the benefits of board 

diversity and have demonstrated that 

they do not need Nasdaq’s assistance in 

identifying diverse candidates. 

Nasdaq faces competition in the 

market for listing services,24 and 

competes, in part, by offering valuable 

services to companies. Nasdaq believes 

that it is reasonable to offer this 

complimentary service as a tool to 

attract and retain listings as part of this 

competition. In particular, Nasdaq 

believes some companies will view the 

proposed board recruiting solution as a 

valuable tool to help achieve diversity, 

to the potential benefit of the company 

and its investors. Nasdaq also believes 

that offering this complimentary service 

will help it compete to attract and retain 

listings in light of the additional 

requirements contained in the Nasdaq 

Diversity Proposal. 

For these reasons, Nasdaq believes it 

is not an inequitable allocation of fees, 

unfairly discriminatory, nor an 

unnecessary or inappropriate burden on 

competition to offer the board recruiting 

solution only to Eligible Companies. 

The Commission has previously 

indicated pursuant to Section 19(b) of 

the Exchange Act 25 that providing and 

updating the value of services offered to 

certain listed companies within the 

rulebook is necessary,26 and Nasdaq 

does not believe this indication of value 

has an effect on the allocation of fees 

nor does it permit unfair discrimination, 

as all companies with fewer than two 

diverse directors will receive the same 

services. Further, this provision will 

enhance the transparency of Nasdaq’s 

rules and the value of the services it 

offers, thus promoting just and equitable 

principles of trade. As such, the 

proposed rule change is consistent with 

the requirements of Section 6(b)(4) and 

(5) of the Exchange Act. 

Nasdaq represents, and this proposed 

rule change will help ensure, that 

individual listed companies are not 

given specially negotiated packages of 

products or services to list, or remain 

listed, which the Commission has 

previously stated would raise unfair 

discrimination issues under the 

Exchange Act.27


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28 17 CFR 200.30–3(a)(12). 

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. 

As noted above, Nasdaq faces 

competition in the market for listing 

services, and competes, in part, by 

offering valuable services to companies. 

The proposed rule change reflects that 

competition, but does not impose any 

burden on the competition with other 

exchanges. Rather, Nasdaq believes that 

some companies will find the proposed 

board recruiting solution an attractive 

offering and therefore make listing or 

remaining listed on Nasdaq more 

attractive, which will enhance 

competition for listings. 

Other exchanges can also offer similar 

services to companies, thereby 

increasing competition to the benefit of 

those companies and their shareholders. 

Accordingly, Nasdaq does not believe 

the proposed rule change will impose 

any burden on competition that is not 

necessary or appropriate in furtherance 

of the purposes of the Exchange Act, as 

amended. 

C. Self-Regulatory Organization’s 

Statement on Comments on 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 

Within 45 days of the date of 

publication of this notice in the Federal 

Register or within such longer period 

up to 90 days (i) as the Commission may 

designate if it finds such longer period 

to be appropriate and publishes its 

reasons for so finding or (ii) as to which 

the self-regulatory organization 

consents, the Commission will: 

(A) By order approve or disapprove 

the proposed rule change, or 

(B) institute proceedings to determine 

whether the proposed rule change 

should be disapproved. 

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 email to rule-comments@

sec.gov. Please include File Number SR– 

NASDAQ–2020–082 on the subject line. 

Paper Comments 

• Send paper comments in triplicate 

to Secretary, Securities and Exchange 

Commission, 100 F Street, NE, 

Washington, DC 20549–1090. 

All submissions should refer to File 

Number SR–NASDAQ–2020–082. This 

file number should be included on the 

subject line if email 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 website (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 website viewing and 

printing in the Commission’s Public 

Reference Room, 100 F Street NE, 

Washington, DC 20549, on official 

business days between the hours of 

10:00 a.m. and 3:00 p.m. Copies of the 

filing also will be available for 

inspection and copying at the principal 

office of the Exchange. All comments 

received will be posted without change. 

Persons submitting comments are 

cautioned that we do not redact or edit 

personal identifying information from 

comment submissions. You should 

submit only information that you wish 

to make available publicly. All 

submissions should refer to File 

Number SR–NASDAQ–2020–082, and 

should be submitted on or before 

December 31, 2020. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.28

J. Matthew DeLesDernier, 

Assistant Secretary. 

[FR Doc. 2020–27089 Filed 12–9–20; 8:45 am] 

BILLING CODE 8011–01–P 

DEPARTMENT OF TRANSPORTATION 

Federal Railroad Administration 

[Docket No. FRA–2020–0027–N–35] 

Proposed Agency Information 

Collection Activities; Comment 

Request 

AGENCY: Federal Railroad 

Administration (FRA), U.S. Department 

of Transportation (DOT). 

ACTION: Notice of information collection; 

request for comment. 

SUMMARY: Under the Paperwork 

Reduction Act of 1995 (PRA) and its 

implementing regulations, FRA seeks 

approval of the Information Collection 

Request (ICR) abstracted below. Before 

submitting this ICR to the Office of 

Management and Budget (OMB) for 

approval, FRA is soliciting public 

comment on specific aspects of the 

activities identified below. 

DATES: Interested persons are invited to 

submit comments on or before February 

8, 2021. 

ADDRESSES: Submit written comments 

and recommendations for the proposed 

ICR to Ms. Kim Toone, Information 

Collection Clearance Officer, Office of 

Information Technology, at Kim.Toone@

dot.gov. Please refer to the assigned 

OMB control number in any 

correspondence submitted. FRA will 

summarize comments received in 

response to this notice in a subsequent 

notice and include them in its 

information collection submission to 

OMB for approval. 

SUPPLEMENTARY INFORMATION: The PRA, 

44 U.S.C. 3501–3520, and its 

implementing regulations, 5 CFR part 

1320, require Federal agencies to 

provide 60-days’ notice to the public to 

allow comment on information 

collection activities before seeking OMB 

approval of the activities. See 44 U.S.C. 

3506, 3507; 5 CFR 1320.8 through 

1320.12. Specifically, FRA invites 

interested parties to comment on the 

following ICR regarding: (1) Whether the 

information collection activities are 

necessary for FRA to properly execute 

its functions, including whether the 

activities will have practical utility; (2) 

the accuracy of FRA’s estimates of the 

burden of the information collection 

activities, including the validity of the 

methodology and assumptions used to 

determine the estimates; (3) ways for 

FRA to enhance the quality, utility, and 

clarity of the information being 

collected; and (4) ways for FRA to 

minimize the burden of information 

collection activities on the public, 

including the use of automated 


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