[Federal Register Volume 89, Number 141 (Tuesday, July 23, 2024)]
[Notices]
[Pages 59782-59785]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-16105]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-100544; File No. SR-NASDAQ-2024-037]


Self-Regulatory Organizations; The Nasdaq Stock Market LLC; 
Notice of Filing of Proposed Rule Change To Amend Rule 5820 To Codify 
the Standards of Review That Govern Appeals Before the Nasdaq Listing 
and Hearing Review Council and Calls for Review by the Nasdaq Listing 
and Hearing Review Council

July 17, 2024.
    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 July 3, 2024, The Nasdaq Stock Market LLC (``Nasdaq'' or 
``Exchange'') filed with the Securities and Exchange Commission 
(``SEC'' or ``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.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    The Exchange proposes to amend Rule 5820 to codify the standards of 
review that govern appeals before the Nasdaq Listing and Hearing Review 
Council and calls for review by the Nasdaq Listing and Hearing Review 
Council.
    The text of the proposed rule change is available on the Exchange's 
website at https://listingcenter.nasdaq.com/rulebook/nasdaq/rules, at 
the principal office of the Exchange, and at the Commission's Public 
Reference Room.

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
    Nasdaq's Listing Qualifications Department (the ``Listing 
Qualifications Department'') evaluates Company compliance with 
quantitative and qualitative listing standards and determines 
eligibility for initial and continued listing of a company's securities 
under Nasdaq's Listing Rules (the ``Listing Rules''). When the Listing 
Qualifications Department determines that a company does not meet the 
requirements to remain listed, the Listing Qualifications Department 
will issue a Staff Delisting Determination.\3\ Upon receipt of a Staff 
Delisting Determination or a Public Reprimand Letter, or when its 
application for initial listing is denied, a company may request that a 
Hearings Panel review the matter.\4\ After reviewing the written record 
and holding an oral hearing, if one is requested, a Hearings Panel will 
issue a decision, which is reviewed by the Nasdaq Listing and Hearing 
Review Council (the ``Listing Council''), either on appeal or on its 
own initiative.\5\ The use of Hearings Panels and the Listing Council, 
along with the limited discretion given to the Listing Qualifications 
Department, helps address the perception of conflicts that may 
otherwise exist given Nasdaq's status as both a self-regulatory 
organization and a for-profit entity.\6\
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    \3\ See Listing Rule 5810. The Listing Department may also issue 
a Public Reprimand Letter in certain circumstances.
    \4\ See Listing Rule 5815.
    \5\ See Listing Rule 5820. Pursuant to the Nasdaq Stock Market 
LLC By-Laws, the Listing Council is composed of non-Nasdaq-
affiliated members, from both industry and non-industry backgrounds, 
who are nominated by Nasdaq management and approved by a Nominating 
Committee of its Board of Directors. See Bylaws of the Nasdaq Stock 
Market LLC, Article V.
    \6\ The Exchange notes that the Listing Rules also provide an 
opportunity for the Board of Directors to review Listing Council 
decisions on its own initiative. See Listing Rule 5825.
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    Nasdaq's Listing Rules currently do not specify a standard of 
review that applies when the Listing Council reviews Hearings Panel 
decisions. In fact, the Listing Rules are ambiguous on this issue. On 
the one hand, Listing Rule 5820 charges the Listing Council with 
conducting a ``review'' and hearing an ``appeal'' of a Hearings Panel 
decision--language which suggests that the responsibility of the 
Listing Council is to determine whether the Hearings Panel's decisions 
were correct. On the other hand, Listing Rule 5820(d) gives the Listing 
Council broad discretion to ``consider . . . failures previously not 
considered by the Hearings Panel'' and Listing Rule 5820(e) states that 
the Listing Council may request additional evidence and hold additional 
hearings. This language suggests that the Listing Council's mandate is 
broader and that it may render decisions based upon facts and 
circumstances that were not before the Hearings Panels or that arose 
subsequent to the Hearings Panels' decisions.
    The Exchange believes that it is important to address the absence 
of a clear standard of review in Listing Council matters. Doing so 
would provide clarity to all participants in the appeals process as to 
the appropriate role of the Listing Council vis-[agrave]-vis the 
Hearings Panels. It would help the Listing Council to understand 
whether and under what circumstances to consider companies' efforts to 
comply

[[Page 59783]]

with applicable Listing Rules after the Hearings Panel has rendered its 
decision. Likewise, it would inform companies as to whether appeals to 
the Listing Council are likely to be viable or futile. Finally, the 
establishment of a standard of review would promote consistency in the 
Listing Council's decisions, which in turn is important to ensuring 
that the Listing Council is regarded as a fair and reasonable appellate 
body and that its decisions garner respect. For these reasons, the 
Exchange now proposes to amend Listing Rule 5820 to adopt a standard of 
review for appeals of Hearings Panel decisions before the Listing 
Council and a separate standard of review for Hearings Panel decision 
called for review by the Listing Council.
Appeals of Hearings Panel Decisions Before the Listing Council
    Specifically, the proposed standard for appeals would first state a 
general principle that the Listing Council ordinarily shall not 
substitute its judgment for that of the Hearings Panel when reviewing 
Hearings Panels' decisions.\7\ The Exchange believes that deference to 
Hearings Panels is appropriate insofar as the Hearings Panels' 
decisions are based upon fulsome examinations of the law, rules, and 
facts applicable to matters, including through written briefs submitted 
by both parties as well as oral hearings at which Hearings Panels 
scrutinize the parties' assertions. By contrast, the Listing Council 
does not conduct its own independent factual examinations. Although the 
Listing Council has access to the full record of prior Hearings Panel 
proceedings and prior Listing Qualifications Department actions, as 
well as the appellate briefs submitted by both parties, the Listing 
Council typically focuses on discrete questions of law, rule, or fact 
raised in the appellate briefs and does not ordinarily hold oral 
hearings.\8\ Given the limited role that the Listing Council plays in 
the process relative to the Hearings Panels, the Exchange believes that 
the Listing Council should defer to the Hearings Panels' judgment in 
most instances.
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    \7\ In light of the proposed changes described herein, which 
circumscribe the authority of the Listing Council, the Exchange 
proposes to modify the first sentence of Listing Rule 5820(d)(1), 
which presently states that the Listing Council may ``where it deems 
appropriate'' affirm, modify, or reverse a Hearings Panel decision. 
The Exchange proposes to remove the phrase ``where it deems 
appropriate'' insofar as the proposal sets forth elsewhere the 
circumstances in which such actions would be appropriate for the 
Listing Council.
    \8\ See Listing Rule 5820(e)(1), providing that the review 
generally will be on the written record, although the Listing 
Council has the ability, at its discretion, to hold additional 
hearings.
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    The proposed rule also provides that the Listing Council shall 
affirm a Panel Decision unless it determines that: (i) the specific 
grounds on which the Panel Decision is based did not exist, as a matter 
of fact; (ii) the Panel Decision is inconsistent with law or Nasdaq 
Rules; or (iii) there exist extraordinary circumstances that warrant 
reversal, modification or remand, consistent with the public interest 
and protection of investors.\9\ By proposing such standard, the 
Exchange seeks to limit frivolous and baseless appeals. Based on 
Nasdaq's experience, such appeals often consist of companies simply 
pleading to the Listing Council to grant them additional time beyond 
that which the Hearings Panel or Listing Qualifications Department had 
granted them to comply with the Listing Rules. Going forward, absent a 
showing of extraordinary circumstances (as described below), the 
Listing Council would not entertain such appeals, and that standard 
would be transparent to companies.
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    \9\ The Exchange notes that the proposed standard is similar to 
the standard of review with respect to the Commission's review of 
self-regulatory organization decisions, which states that, ``In any 
proceeding to review . . . the prohibition or limitation by a self-
regulatory organization of any person with respect to access to 
services offered by the self-regulatory organization or any member 
thereof, if the appropriate regulatory agency for such applicant or 
person, after notice and opportunity for hearing (which hearing may 
consist solely of consideration of the record before the self-
regulatory organization and opportunity for the presentation of 
supporting reasons to dismiss the proceeding or set aside the action 
of the self-regulatory organization) finds that the specific grounds 
on which such denial, bar, or prohibition or limitation is based 
exist in fact, that such denial, bar, or prohibition or limitation 
is in accordance with the rules of the self-regulatory organization, 
and that such rules are, and were applied in a manner, consistent 
with the purposes of this chapter, such appropriate regulatory 
agency, by order, shall dismiss the proceeding.'' See 15 U.S.C. 
78s(f).
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    Likewise, by limiting the Listing Council's appellate authority to 
the consideration of circumstances that existed as of the time when the 
Hearings Panel rendered its decision, the Exchange would provide 
transparency to the effect of a company gaining compliance with 
applicable Listing Rules after the Hearings Panel has issued its 
decision. The pendency of a Listing Council appeal is not intended to 
be, and should not serve as, a de facto additional extension period 
during which a company may demonstrate compliance with applicable 
listing requirements. Instead, a company should satisfy the initial 
listing requirements and follow the application process if it wishes to 
be listed after it was properly removed by a Hearings Panel for non-
compliance with a listing requirement. The Exchange's proposal will 
adopt this construct by stating that the Listing Council shall affirm a 
Panel Decision unless it determines that the specific grounds on which 
the Panel Decision is based did not exist, as a matter of fact, except 
as described below.
    Notwithstanding the above, the Exchange recognizes that there may 
be certain circumstances that--as a matter of fundamental fairness or 
to protect investors and the market--warrant the Listing Council 
reversing, modifying, or remanding a Hearings Panel decision, even when 
the Hearings Panel decision was based on specific grounds that existed, 
as a matter of fact, and was consistent with law or Nasdaq Rules at the 
time it was rendered. The Exchange believes that such circumstances 
should be limited to those that are extraordinary, lest the exceptions 
will swallow the general rule that limits the scope of the Listing 
Council's review authority.
    The Exchange proposes to define these ``extraordinary 
circumstances,'' for purposes of proposed Listing Rule 5820(d)(1)(A), 
as those that are ``unusual and infrequent''--so opposed to routine and 
common occurrences that a company should be expected to anticipate and 
address them within the normal course of their business.
    Specifically, under proposed Listing Rule 5820(d)(1)(A), 
extraordinary circumstances mean unusual and infrequent circumstances 
that are either: (i) outside of the reasonable control of a company or 
anyone acting on its behalf (such as where non-compliance with a 
Listing Rule is caused by a natural disaster or another force majeure 
event); or (ii) indicative of widespread difficulties among similarly 
situated companies in complying with the relevant Listing Rules, where 
delisting those companies' securities would pose an unnecessary burden 
on investors and the market.
    A circumstance that is beyond the reasonable control of a company 
or someone acting on its behalf (such as an auditor, accountant, 
attorney, consultant, vendor, employee, officer, or director) might 
include, by way of illustration only, a storm, fire, war, terrorist 
act, or other force majeure event that, despite reasonable protective 
measures, destroys, damages, delays, or otherwise impedes the ability 
of a company to meet its obligations under the Listing Rules. By 
contrast, a circumstance that likely would not be beyond the control of 
a company would be an error by a company employee. Even if the 
company's management did

[[Page 59784]]

not know about or specifically authorize the employee's action, a 
company is ordinarily responsible for supervising its employees. 
Likewise, unauthorized malfeasance by a company employee might be 
considered within the company's control if the misconduct occurred due 
to a lack of oversight.
    An example of a widespread difficulty among similarly situated 
companies in complying with the Listing Rules might include a good 
faith misunderstanding or misinterpretation of a new or complex 
accounting standard that impacts a large number of public companies and 
requires them all to restate their financial statements. In such a 
circumstance, the Listing Council may determine that delisting all of 
the impacted companies for the same reason could unduly disrupt the 
market and result in greater harm than good for investors. The Exchange 
notes, however, that if a company knowingly or willfully misapplied the 
accounting standard in the above example, or did not act diligently to 
restate its financial statements, then the Listing Council could 
determine that the company was not ``similarly situated'' with other 
listed companies and that it therefore is ineligible for additional 
time to regain compliance with the Listing Rules.
    The Exchange notes that the question of what particular 
circumstances will qualify as ``extraordinary'' is a fact-specific 
inquiry that cannot be reduced to a comprehensive list. Accordingly, 
the question will be determined by the Listing Council on a case-by-
case basis. In determining this question, the Listing Council will 
consider any recommendation made by the Hearings Panel or Listing 
Qualifications Department as to whether or not the circumstances 
surrounding the appeal are indeed extraordinary.
    The Exchange notes that it proposes to grant the Listing Council 
authority to act in extraordinary circumstances only where the Listing 
Council otherwise has discretion under Listing Rule 5820(d) to provide 
the requested relief. That is, if a company asks the Listing Council 
for additional time to file a delinquent periodic report, but the 
company's report is already more than 360 days late, then the Listing 
Council would be limited by Listing Rule 5820(d)(4) and would not have 
discretion to grant the company's request, pursuant to proposed Listing 
Rule 5820(d)(1)(A), even if the Listing Council might otherwise agree 
that the company's lateness was the result of extraordinary 
circumstances.
Calls for Review of Hearings Panel Decisions by the Listing Council
    The Exchange proposes to adopt a separate standard of review in the 
event the Listing Council calls a matter for review. Specifically, 
proposed Listing Rule 5820(d)(1)(B) provides that if the Listing 
Council calls a matter for review, the Listing Council shall conduct a 
de novo review of the matter and may consider circumstances that did 
not exist when the Hearings Panel rendered its decision. Should the 
Listing Council call a matter for review, the Exchange believes that it 
is appropriate to adopt a de novo review where the Council can consider 
facts and circumstances that did not exist at the time when the Panel 
rendered its decision. Moreover, the de novo standard will allow the 
Listing Council to draw different conclusions based on the facts than 
the Hearings Panel did, which the Exchange believes will best enable 
the Listing Council to perform its oversight responsibilities through 
the call for review function.\10\ Finally, the Exchange notes that 
calls for review are rare and are solely in the control of the 
Council.\11\ Therefore, unlike the appeal process, there is nearly no 
risk of companies exploiting the review process to belatedly regain 
compliance.
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    \10\ For example, the Listing Council could observe in its call 
for review process that a company was granted an exception to remain 
listed based on a plan of compliance where other companies with 
similar plans of compliance were not granted exceptions by different 
Hearings Panels. The ability to review the matter de novo will allow 
the Listing Council to call that matter for review and reverse the 
Hearings Panel's decision even though the Hearings Panel did not 
make a factual error in its decision and Nasdaq's Rules would allow 
the Hearings Panel to grant such an exception.
    \11\ From January 1, 2022 until June 30, 2024, only one matter 
was called for review by the Listing Council. That call for review 
was later withdrawn.
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Clarifying Changes
    Lastly, and in addition to the above, the Exchange proposes to 
reorganize and clarify the existing text of Listing Rule 5820(d) so 
that it is easier to comprehend. Specifically, the Exchange proposes to 
relocate the second sentence of subparagraph (d)(1)--which sets forth 
the general authority of the Listing Council to grant an exception to 
the Listing Rules--to subparagraph (d)(4). As part of this 
reorganization, the Exchange also proposes to insert the existing text 
of subparagraph (d)(4) as subparagraph (d)(4)(A) and the existing text 
of subparagraph (d)(5) as subparagraph (d)(4)(B). Existing subparagraph 
(d)(4) prescribes a maximum time period for Listing Council exceptions 
for companies to regain compliance with periodic filing requirement, 
while existing subparagraph (d)(5) does the same with respect to 
exceptions for companies that fail to hold annual meetings. The 
proposed reorganization of these three provisions will clarify that the 
Listing Council's general authority to grant an exemption under (d)(4) 
will apply except where non-compliance involves delinquencies in filing 
periodic reports or failures to hold annual meetings, in which cases 
subparagraphs (d)(4)(A) or (d)(4)(B) will instead apply, respectively. 
This clarification will help to dispel confusion as to whether the 
Listing Council's authority to grant an exception in cases of filing 
delinquencies and annual meeting deficiencies is in addition to or in 
lieu of the Listing Council's general authority to grant exceptions. 
Finally, the Exchange proposes to relocate the last two sentences of 
existing subparagraph (d)(1)--which concern the issuance by the Listing 
Council of a public reprimand letter--to subparagraph (d)(5). This 
change is also intended to improve clarity.
Implementation
    Following approval of this proposal, the Exchange proposes to apply 
the new standards of review to all matters that thereafter enter the 
Listing Council review process. The Exchange will apply the current 
rules to any matter that is pending Listing Council review at the time 
when the proposal becomes effective.
2. Statutory Basis
    The Exchange believes that its proposal is consistent with Section 
6(b) of the Act,\12\ in general, and furthers the objectives of Section 
6(b)(5) of the Act,\13\ 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.
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    \12\ 15 U.S.C. 78f(b).
    \13\ 15 U.S.C. 78f(b)(5).
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    As discussed above, the Listing Rules presently lack a clear 
standard of review to govern Listing Council reviews of Hearings Panel 
decisions. The absence of a standard of review can lead to inconsistent 
interpretations of the Listing Council's authority over time and has 
led to confusion by companies as to whether actions they take to comply 
with applicable Listing Rules after a Hearings Panel decision can allow 
them to be approved for initial listing or avoid delisting.

[[Page 59785]]

    The Exchange's proposal will address these problems, to the benefit 
of the markets, investors, and the public, by adopting a transparent 
standard of review for Listing Council reviews of Hearings Panel 
decisions, which is consistent with the standard of review imposed on 
the Commission's review of Nasdaq listing decisions in Section 19 of 
the Act.\14\ The adoption of specified standards of review will help 
promote consistency and prevent unfair discrimination in the Listing 
Council's decisions, improve the clarity of the appellate process and 
the respective roles of the Hearings Panels and the Listing Council, 
and also improve the fairness of the process.
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    \14\ 15 U.S.C. 78s(f). See footnote 9, supra.
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    The proposal will also promote the equitable treatment of applicant 
and listed companies, and protect the market and investors, by 
preserving the Listing Council's discretionary authority (to the extent 
it otherwise exists) to grant relief in the appeals process to 
companies when extraordinary circumstances exist. When non-compliance 
with the Listing Rules is the result of unusual and infrequent 
occurrences that were beyond the reasonable control of a company, a 
decision to not approve for initial listing or delist a company's 
securities may be unduly harsh and unnecessarily harm the company's 
investors. Likewise, when a large group of similarly situated companies 
experience a common difficulty that occasions their non-compliance with 
the Listing Rules, delisting the securities of all those companies may 
result in undue disruption to the markets and harm to investors. The 
proposal grants the Listing Council discretion to avoid such unfair and 
imprudent results, albeit in a manner that is itself carefully 
calibrated to avoid granting discretion that is either too broad or too 
narrow.
    In addition, the Exchange believes that its proposal to adopt a de 
novo standard of review in instances where the Listing Council calls a 
matter for review on its own accord will serve to protect the market 
and investors. As described above, calls for review are rare and solely 
under the control of the Council. Therefore, unlike the appeal process, 
there is nearly no risk of companies exploiting the review process to 
belatedly regain compliance.
    Finally, the Exchange believes that it is consistent with the Act 
to amend Listing Rule 5820 to improve its overall clarity and 
organization. In particular, the Exchange believes that its proposal to 
reorganize language pertaining to the Listing Council's authorities to 
grant exceptions to the Listing Rules will help to dispel confusion as 
to the intended relationships between these authorities and thereby 
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.

B. Self-Regulatory Organization's Statement on Burden on Competition

    The Exchange does not believe that the proposed rule change will 
impose any burden on competition not necessary or appropriate in 
furtherance of the purposes of the Act. The proposal will merely 
establish standards of review for Listing Council appeals and calls for 
review that will apply equally to all companies listed on the Exchange 
and all applicants for listing thereupon. If any listed company or 
applicant for listing finds the proposal or the review procedures to be 
unfair or to be otherwise unfavorable, such companies or applicants may 
freely apply to list their securities on other exchanges. In addition, 
this rule proposal does not burden competition with other venues, which 
are similarly free to align their appellate processes.\15\
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    \15\ The Exchange notes that it offers an additional level of 
review via the Listing Council, an appellate layer that is not 
offered by certain competitors of the Exchange.
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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 (https://www.sec.gov/rules/sro.shtml); or
     Send an email to [email protected]. Please include 
file number SR-NASDAQ-2024-037 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-2024-037. 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 (https://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 
a.m. and 3 p.m. Copies of the filing also will be available for 
inspection and copying at the principal office of the Exchange. Do not 
include personal identifiable information in submissions; you should 
submit only information that you wish to make available publicly. We 
may redact in part or withhold entirely from publication submitted 
material that is obscene or subject to copyright protection. All 
submissions should refer to file number SR-NASDAQ-2024-037 and should 
be submitted on or before August 13, 2024.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\16\
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    \16\ 17 CFR 200.30-3(a)(12).
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J. Matthew DeLesDernier,
Deputy Secretary.
[FR Doc. 2024-16105 Filed 7-22-24; 8:45 am]
BILLING CODE 8011-01-P