Self-Regulatory Organizations; The Nasdaq Stock Market LLC; Notice of Filing of Amendment No. 1 to a Proposed Rule Change To List and Trade Shares of the Valkyrie Bitcoin Fund Under Nasdaq Rule 5711(d), Commodity-Based Trust Shares, 2281-2294 [2024-00507]

Download as PDF Federal Register / Vol. 89, No. 9 / Friday, January 12, 2024 / Notices A proposed rule change filed under Rule 19b–4(f)(6) 23 normally does not become operative prior to 30 days after the date of the filing. However, pursuant to Rule 19b4(f)(6)(iii),24 the Commission may designate a shorter time if such action is consistent with the protection of investors and the public interest. The Exchange has asked the Commission to waive the 30-day operative delay so that the proposal may become operative immediately upon filing. The Exchange states that it wants to implement the RFTY during the first quarter of 2024 and granting the waiver would allow market participants and their customers to benefit more immediately from the increased order handling flexibility provided by the RFTY routing option. In addition, the Exchange stated that the proposed rule change presents no unique or novel issues that have not already been addressed by the Commission. Accordingly, the Commission hereby waives the 30-day operative delay and designates the proposal operative upon filing.25 At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend 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. If the Commission takes such action, the Commission shall institute proceedings under section 19(b)(2)(B) 26 of the Act to determine whether the proposed rule change should be approved or 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: khammond on DSKJM1Z7X2PROD with NOTICES • Use the Commission’s internet comment form (https://www.sec.gov/ rules/sro.shtml); or description and text of the proposed rule change, at least five business days prior to the date of filing of the proposed rule change, or such shorter time as designated by the Commission. The Exchange has satisfied this requirement. 23 17 CFR 240.19b–4(f)(6). 24 17 CFR 240.19b–4(f)(6)(iii). 25 For purposes only of waiving the 30-day operative delay, the Commission has considered the proposed rule’s impact on efficiency, competition, and capital formation. See 15 U.S.C. 78c(f). 26 15 U.S.C. 78s(b)(2)(B). 00:38 Jan 12, 2024 Jkt 262001 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–2023–057. 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–2023–057 and should be submitted on or before February 2, 2024. For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.27 Sherry R. Haywood, Assistant Secretary. Electronic Comments VerDate Sep<11>2014 • Send an email to rule-comments@ sec.gov. Please include file number SR– NASDAQ–2023–057 on the subject line. [FR Doc. 2024–00504 Filed 1–11–24; 8:45 am] BILLING CODE 8011–01–P 27 17 PO 00000 Frm 00084 Fmt 4703 SECURITIES AND EXCHANGE COMMISSION [Release No. 34–99287; File No. SR– NASDAQ–2023–019] Self-Regulatory Organizations; The Nasdaq Stock Market LLC; Notice of Filing of Amendment No. 1 to a Proposed Rule Change To List and Trade Shares of the Valkyrie Bitcoin Fund Under Nasdaq Rule 5711(d), Commodity-Based Trust Shares January 8, 2024. On July 3, 2023, The Nasdaq Stock Market LLC (‘‘Nasdaq’’ 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 list and trade shares of the Valkyrie Bitcoin Fund under Nasdaq Rule 5711(d), Commodity-Based Trust Shares. The proposed rule change was published for comment in the Federal Register on July 21, 2023.3 On August 31, 2023, pursuant to section 19(b)(2) of the Act,4 the Commission designated a longer period within which to approve the proposed rule change, disapprove the proposed rule change, or institute proceedings to determine whether to disapprove the proposed rule change.5 On September 28, 2023, the Commission instituted proceedings to determine whether to disapprove the proposed rule change.6 On January 5, 2024, the Exchange filed Amendment No. 1 to the proposed rule change as described in Items I and II below, which Items have been prepared by the Exchange. Amendment No. 1 amended and replaced the proposed rule change in its entirety. The Commission is publishing this notice to solicit comments on the proposed rule change, as modified by Amendment No. 1, from interested persons. I. Self-Regulatory Organization’s Statement of the Terms of Substance of the Proposed Rule Change The Exchange proposes to list and trade shares of the Valkyrie Bitcoin Fund (the ‘‘Trust’’) under Nasdaq Rule 5711(d) (‘‘Commodity-Based Trust 1 15 U.S.C. 78s(b)(1). CFR 240.19b–4. 3 See Securities Exchange Act Release No. 97922 (July 17, 2023), 88 FR 47214. Comments on the proposed rule change are available at: https:// www.sec.gov/comments/sr-nasdaq-2023-019/ srnasdaq2023019.htm. 4 15 U.S.C. 78s(b)(2). 5 See Securities Exchange Act Release No. 98262, 88 FR 61658 (Sept. 7, 2023). 6 See Securities Exchange Act Release No. 98606, 88 FR 68894 (Oct. 4, 2023). 2 17 CFR 200.30–3(a)(12). Sfmt 4703 2281 E:\FR\FM\12JAN1.SGM 12JAN1 2282 Federal Register / Vol. 89, No. 9 / Friday, January 12, 2024 / Notices Shares’’). The shares of the Trust are referred to herein as the ‘‘Shares.’’ This Amendment No. 1 supersedes the original filing in its entirety. 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 The Exchange proposes to list and trade Shares of the Trust under Nasdaq Rule 5711(d), which governs the listing and trading of Commodity-Based Trust Shares on the Exchange.7 khammond on DSKJM1Z7X2PROD with NOTICES Description of the Trust The Shares will be issued by the Trust, a Delaware statutory trust. The Trust will operate pursuant to a trust agreement (the ‘‘Trust Agreement’’) between Valkyrie Digital Assets, LLC (the ‘‘Sponsor’’) and Delaware Trust Company, as the Trust’s trustee (the ‘‘Trustee’’). The Shares will be registered with the Commission by means of the Trust’s registrations statement on Form S–1 (the ‘‘Registration Statement’’).8 Pursuant to 7 Nasdaq Rule 5711(d)(iv)(A) defines CommodityBased Trust Shares as ‘‘a security (1) that is issued by a trust that holds (a) a specified commodity deposited with the trust, or (b) a specified commodity and, in addition to such specified commodity, cash; (2) that is issued by such trust in a specified aggregate minimum number in return for a deposit of a quantity of the underlying commodity and/or cash; and (3) that, when aggregated in the same specified minimum number, may be redeemed at a holder’s request by such trust which will deliver to the redeeming holder the quantity of the underlying commodity and/or cash.’’ 8 See Amendment No. 5 to Registration Statement on Form S–1, dated December 29, 2023 filed with the Commission by the Sponsor on behalf of the Trust (File No. 333–252344). The descriptions of the Trust contained herein are based, in part, on information in the Registration Statement. The VerDate Sep<11>2014 00:38 Jan 12, 2024 Jkt 262001 the Trust Agreement, the Sponsor will enter into a custodian agreement (the ‘‘Custodian Agreement’’) with Coinbase Custody Trust Company, LLC (the ‘‘Custodian’’) to act as custodian for the Trust’s bitcoins. The Custodian is not an affiliate of the Trust or the Sponsor. Pursuant to the Custodian Agreement, the Custodian will establish accounts that hold the bitcoins deposited with the Custodian on behalf of the Trust. U.S. Bancorp Fund Services, LLC will act as the transfer agent for the Trust (the ‘‘Transfer Agent’’) and as the administrator of the Trust (the ‘‘Administrator’’) to perform various administrative, accounting and recordkeeping functions on behalf of the Trust. One or more cash custodians (each, a ‘‘Cash Custodian’’) will act as custodian for the cash held by the Trust. The investment objective of the Trust is for the Shares to reflect the performance of the value of a bitcoin as represented by the CME CF Bitcoin Reference Rate—New York Variant (the ‘‘Index’’), less the Trust’s liabilities and expenses. The purpose of the Trust is to provide investors with a cost-effective and convenient way to invest in bitcoin in a manner that is more efficient and convenient than the purchase of a standalone bitcoin, while also mitigating some of the risk by reducing the volatility typically associated with the purchase of stand-alone bitcoin and without the uncertain and often complex requirements relating to acquiring and/or holding bitcoin. The Trust will only hold bitcoin and cash, and will, from time to time, issue a block of 5,000 Shares (a ‘‘Basket’’) in exchange for deposits of cash to the Trust. The Trust intends to hold cash only to the extent necessary to pay Trust expenses, when receiving cash in connection the creation of Baskets, or when distributing cash in connection with redemptions of Baskets. The Shares of the Trust represent units of fractional undivided beneficial interest in, and ownership of, the Trust. The bitcoins held by the Custodian on behalf of the Trust will be transferred out of its custody only to be sold on an as-needed basis in connection with the redemption of Baskets, to pay additional trust expenses, or in the event the Trust terminates and liquidates its assets or as otherwise required by law or regulation. Custody of the Trust’s Bitcoins The Custodian will custody all of the Trust’s bitcoin, other than that which may be maintained in a trading account Registration Statement in not yet effective and the Shares will not trade on the Exchange until such time that the Registration Statement is effective. PO 00000 Frm 00085 Fmt 4703 Sfmt 4703 (the ‘‘Trading Balance’’) with Coinbase, Inc. (‘‘Coinbase,’’ which is an affiliate of the Custodian), in accounts that are required to be segregated from the assets held by the Custodian as principal and the assets of its other customers (the ‘‘Vault Balance’’). The Custodian will keep all of the private keys associated with the Trust’s bitcoin held by the Custodian in the Vault Balance in ‘‘cold storage’’, which refers to a safeguarding method by which the private keys corresponding to the Trust’s bitcoins are generated and stored in an offline manner using computers or devices that are not connected to the internet, which is intended to make them more resistant to hacking. By contrast, in hot storage, the private keys are held online, where they are more accessible, leading to more efficient transfers, though they are potentially more vulnerable to being hacked. While the Custodian will generally keep a substantial portion of the Trust’s bitcoin in cold storage on an ongoing basis, from time to time, portions of the Trust’s bitcoin will be held outside of cold storage temporarily in the Trading Balance maintained by Coinbase as part of trade facilitation in connection with creations and redemptions of Baskets or to sell bitcoins including to pay Trust expenses. The Trust’s bitcoin held in the Vault Balance by the Custodian are held in segregated wallets and therefore are not commingled with the Custodian’s or other customer assets. All bitcoins exist and are stored on the decentralized transaction ledger of the Bitcoin network (the ‘‘Blockchain’’). The Blockchain records most transactions (including mining of new bitcoins) for all bitcoins in existence, and in doing so verifies the location of each bitcoin (or fraction thereof) in a particular digital wallet. Each digital wallet of the Custodian may be accessed using its corresponding private key. The Custodian’s custodial operations will maintain custody of the private keys that have been deposited in cold storage at its various vaulting premises which are located in geographically dispersed locations across the world, including but not limited to the United States, Europe, including Switzerland and South America. The locations of the vaulting premises may change regularly and are kept confidential by the Custodian for security purposes. The Custodian is the custodian of the Trust’s private keys corresponding to the Trust’s bitcoins in accordance with the terms and provisions of the Custodian Agreement and will utilize the certain security procedures such as algorithms, codes, passwords, encryption or telephone call-backs E:\FR\FM\12JAN1.SGM 12JAN1 Federal Register / Vol. 89, No. 9 / Friday, January 12, 2024 / Notices khammond on DSKJM1Z7X2PROD with NOTICES (together, the ‘‘Security Procedures’’) in the administration and operation of the Trust and the safekeeping of its bitcoins and private keys. The Custodian will create a Vault Balance for the Trust assets in which private keys are placed in cold storage. The Custodian will segregate the private keys stored with it from any other assets it holds or holds for others. Further, multiple distinct private keys must sign any transaction in order to transfer the Trust’s bitcoins from a multi-signature address to any other address on the bitcoin blockchain. Distinct private keys required for multisignature address transfers reside in geographically dispersed vault locations, known as ‘‘signing vaults.’’ In addition to multiple signing vaults, the Custodian maintains multiple ‘‘back-up vaults’’ in which backup private keys are stored. In the event that one or more of the ‘‘signing vaults’’ is compromised, the back-up vaults would be activated and used as signing vaults to complete a transaction within 72 hours. As such, if any one signing vault is compromised, it would have no impact on the ability of the Trust to access its bitcoins, other than a possible delay in operations of 72 hours, while one or more of the ‘‘backup vaults’’ is transitioned to a signing vault. These Security Procedures ensure that there is no single point of failure in the protection of the Trust’s assets. Calculation of Net Asset Value The Trust’s net asset value (‘‘NAV’’) per Share is calculated by taking the current market value of its total assets, less any liabilities of the Trust (including accrued by unpaid expenses) and dividing that total by the total number of outstanding Shares. The bitcoin held by the Trust will typically be valued based on the price set by the Index (the ‘‘Bitcoin Index Price’’). The Sponsor holds full discretion to change either the index used for calculating NAV or the index provider subject to proper notification to shareholders (such notification will be made via a prospectus supplement to the Registration Statement and/or a current report filed with the SEC and will occur in advance of any such change). Shareholder approval is not required to effect such change. Any permanent change to the Index and/or calculation of the NAV will require a 19b–4 filing. The Administrator will calculate the NAV of the Trust once each Exchange trading day. The Exchange’s Regular Market Session closes at 4:00 p.m. ET. The NAV for a normal trading day will be released after the end of the Regular Market Session. However, NAVs are not officially struck until later in the day (often by 5:30 p.m. Eastern Time and VerDate Sep<11>2014 00:38 Jan 12, 2024 Jkt 262001 almost always by 8:00 p.m. Eastern Time). The pause between 4:00 p.m. Eastern Time and 5:30 p.m. Eastern Time provides an opportunity to detect, flag, investigate, and correct unusual pricing should it occur. The Sponsor anticipates that the Bitcoin Index Price will be reflective of a reasonable valuation of the average spot price of bitcoin. However, in the event the Bitcoin Index Price is not available or determined by the Sponsor to not be reliable, the Sponsor would ‘‘fair value’’ the Trust’s bitcoin holdings on a temporary basis. The Sponsor will monitor for significant events related to crypto assets that may impact the value of bitcoin and will determine in good faith, and in accordance with its valuation policies and procedures, whether to fair value the Trust’s bitcoin on a given day (e.g., if the Index is not available the Sponsor). In certain circumstances, the Sponsor will determine whether to fair value the Trust’s bitcoin on a given day on whether certain pre-determined criteria have been met. For example, if the Index deviates by more than a predetermined amount from an alternate benchmark available to the Sponsor, then the Sponsor may determine to utilize the alternate benchmark. The Trust and the Sponsor have licensed use of the Lukka Prime Reference Rate as such an alternative benchmark. The Sponsor may also fair value the Trust’s bitcoin using observed market transactions from various platforms, including some or all of the Constituent Bitcoin Platforms (as defined below) included in the Index. The Sponsor may also fair value the Trust’s bitcoin using a combination of inputs in certain situations (e.g., using observed market transactions, OTC quotations from brokers, etc.). The NAV for the Trust’s Shares will be disseminated daily to all market participants at the same time. The Sponsor will publish the NAV and NAV per Share at https://valkyrieinvest.com/ BRRR as soon as practicable after their determination and availability. Intraday Indicative Value In order to provide updated information relating to the Trust for use by shareholders and market professionals, an updated intraday indicative value (‘‘IIV’’) per Share updated every 15 seconds will be disseminated by one of more major market data vendors during the Exchange’s Regular Market Session through the facilities of the relevant securities information processor and Consolidated Quotation System (CQS) high speed lines. In addition, the IIV PO 00000 Frm 00086 Fmt 4703 Sfmt 4703 2283 will be available through on-line information services such as Bloomberg and Reuters.9 The IIV will be calculated by a third-party financial data provider during the Exchange’s Regular Market Session. The IIV will be calculated by using the prior day’s closing NAV per Share of the Trust as a base and updating that value throughout the trading day to reflect changes in the most recently reported price level of the CME CF Bitcoin Real-Time Index (‘‘BRTI’’), as reported by CME Group, Inc., Bloomberg, L.P. or another reporting service. The BRTI is a real time index of the U.S. dollar price of one bitcoin, published once per second, 24 hours per day, 7 days per week, and 365 days per year. The BRTI is calculated once per second in real time based on the Relevant Order Books of all Constituent Bitcoin Platforms. A ‘‘Relevant Order Book’’ is the universe of the currently unmatched limit orders to buy or sell in the BTC/USD pair that is reported and disseminated by CF Benchmarks Ltd., as the BRTI. calculation agent. Creation and Redemption of Shares The Trust will issue Shares on an ongoing basis, but only in one or more Baskets. The creation and redemption of a Basket requires the delivery to the Trust, or the distribution by the Trust, of the cash value of the amount of bitcoin represented by each Basket being created or redeemed, which is calculated pursuant to the same procedures used to calculate the Trust’s NAV (the ‘‘Basket Amount’’). The amount of bitcoin represented by each Basket is determined by dividing the number of bitcoins owned by the Trust at 4:00 p.m. ET, on the trade date of a creation or redemption order, as adjusted for the number of whole and fractional bitcoins constituting accrued but unpaid fees and expenses of the Trust, by the number of Shares outstanding at such time (the quotient so obtained calculated to one-hundredmillionth of one bitcoin) and multiplying such quotient by 5,000. The Basket Amount multiplied by the number of Baskets being created or redeemed is the ‘‘Total Basket Amount.’’ The only persons that may place orders to create or redeem Baskets are authorized participants (‘‘Authorized Participants’’). Each Authorized Participant must (i) be a registered broker-dealer or similar exempt 9 Several major market data vendors display and/ or make widely available IIVs taken from the relevant securities information processor or other data feeds. In addition, the indicative fund value will be available through on-line information services such as Bloomberg and Reuters. E:\FR\FM\12JAN1.SGM 12JAN1 2284 Federal Register / Vol. 89, No. 9 / Friday, January 12, 2024 / Notices khammond on DSKJM1Z7X2PROD with NOTICES financial institution and (ii) enter into a participant agreement with the Sponsor, the Administrator, and the marketing agent (the ‘‘Marketing Agent’’). Authorized Participants may act for their own accounts or as agents for broker-dealers, custodians and other securities market participants that wish to create or redeem Baskets. Shareholders who are not Authorized Participants will only be able to redeem their Shares through an Authorized Participant. The Authorized Participants will deliver only cash to create Shares and will receive only cash when redeeming Shares. Further, Authorized Participants will not directly or indirectly purchase, hold, deliver, or receive bitcoin as part of the creation or redemption process or otherwise direct the trust or a third party with respect to purchasing, holding, delivering, or receiving bitcoin as part of the creation or redemption process. The Sponsor will maintain ownership and control of the bitcoin in a manner consistent with good delivery requirements for spot commodity transactions. Creation Procedures On any ‘‘Business Day’’ (defined as any day other than a day when the Exchange is closed for regular trading), an Authorized Participant may order one or more Baskets (each a ‘‘Creation Basket’’) from the Trust by placing a creation order with the Administrator. Creation orders may only be placed in exchange for cash. Creation orders must be placed no later than 12:59:59 p.m. Eastern Time on each Business Day. Authorized Participants may only create Baskets and cannot create any Shares in an amount less than a Basket. Upon receiving instruction from the Administrator that a creation order has been accepted by the Transfer Agent, the Authorized Participant will on the same day send the U.S. Dollar value of the Total Basket Amount, which will be based on the NAV per Share multiplied by the number of Shares. The Authorized Participant will also be responsible for any difference in the price of bitcoin used to calculate the NAV per Share and the actual price at which the Trust purchases bitcoin in connection with such order, as well as any brokerage fees, transfer fees, network fees or other costs of the Trust in purchasing bitcoin in connection with the creation order. After the Administrator receives the Total Basket Amount, the Administrator will instruct the Transfer Agent to deliver the Creation Baskets to the Authorized Participant on the day following the creation order date. VerDate Sep<11>2014 00:38 Jan 12, 2024 Jkt 262001 Redemption Procedures The procedures by which an Authorized Participant can redeem one or more Baskets (each, a ‘‘Redemption Basket’’) mirror the procedures for the creation of Creation Baskets. On any Business Day, an Authorized Participant may place a redemption order specifying the number of Redemption Baskets to be redeemed. Redemption orders may only be placed in exchange for cash. Redemption orders must be placed no later than 12:59:59 p.m. ET, on each Business Day. Authorized Participants may only redeem Redemption Baskets and cannot redeem any Shares in an amount less than a Basket. To redeem Redemption Baskets, Authorized Participants will send the Administrator a redemption order. The Transfer Agent will accept or reject the redemption order on that same date. On the date following the redemption order date, the Administrator will send the Total Basket Amount to the Authorized Participant and the Transfer Agent will cancel the Shares once the Authorized Participant delivers the Redemption Baskets to the Transfer Agent. The amount of the redemption proceeds will be calculated in the same manner as the determination of the creation basket deposits discussed above. With respect to the Authorized Participant involved with a creation or redemption order, the following conditions apply to such Authorized Participant and the Trust: • The Trust will create Shares by receiving bitcoin from a third party that is not the Authorized Participant and the Trust—not the Authorized Participant—is responsible for selecting the third party to deliver the bitcoin. Further, the third party will not be acting as an agent of the Authorized Participant with respect to the delivery of the bitcoin to the Trust or acting at the direction of the Authorized Participant with respect to the delivery of the bitcoin to the Trust. • The Trust will redeem Shares by delivering bitcoin to a third party that is not the Authorized Participant and the Trust—not the Authorized Participant—is responsible for selecting the third party to receive the bitcoin. Further, the third party will not be acting as an agent of the Authorized Participant with respect to the receipt of the bitcoin from the Trust or acting at the direction of the Authorized Participant with respect to the receipt of the bitcoin from the Trust. • The third party will be unaffiliated with the Trust and the Sponsor. PO 00000 Frm 00087 Fmt 4703 Sfmt 4703 Overview of the Bitcoin Industry and Market 10 Bitcoin Bitcoin is the digital asset that is native to, and created and transmitted through the operations of, the peer-topeer Bitcoin network, a decentralized network of computers that operates on cryptographic protocols. No single entity owns or operates the Bitcoin network, the infrastructure of which is collectively maintained by a decentralized user base. The Bitcoin network allows people to exchange tokens of value, called bitcoin, which are recorded on a public transaction ledger known as the Blockchain. Bitcoin can be used to pay for goods and services, or it can be converted to fiat currencies, such as the U.S. dollar, at rates determined on bitcoin trading platforms or in individual end-user-toend-user transactions under a barter system. The value of bitcoin is determined by the supply of and demand for bitcoin. New bitcoins are created and rewarded to the parties providing the Bitcoin network’s infrastructure (‘‘miners’’) in exchange for their expending computational power to verifying transactions and add them to the Blockchain. The Blockchain is effectively a decentralized database that includes all blocks that have been solved by miners and it is updated to include new blocks as they are solved. Each bitcoin transaction is broadcast to the Bitcoin network and, when included in a block, recorded in the Blockchain. As each new block records outstanding bitcoin transactions, and outstanding transactions are settled and validated through such recording, the Blockchain represents a complete, transparent and unbroken history of all transactions of the Bitcoin network. Bitcoin Network Bitcoin was first described in a white paper released in 2008 and published under the pseudonym ‘‘Satoshi Nakamoto.’’ The protocol underlying Bitcoin was subsequently released in 2009 as open-source software and currently operates on a worldwide network of computers. The first step in directly using the Bitcoin network for transactions is to download specialized software referred 10 For the purpose of this section, Bitcoin with an upper case ‘‘B’’ is used to describe the system as a whole that is involved in maintaining the ledger of bitcoin ownership and facilitating the transfer of bitcoin among parties. When referring to the digital asset within the bitcoin network, bitcoin is written with a lower case ‘‘b’’ (except, at the beginning of sentences or paragraph sections). E:\FR\FM\12JAN1.SGM 12JAN1 Federal Register / Vol. 89, No. 9 / Friday, January 12, 2024 / Notices khammond on DSKJM1Z7X2PROD with NOTICES to as a ‘‘bitcoin wallet.’’ A user’s bitcoin wallet can run on a computer or smartphone and can be used both to send and to receive bitcoin. Within a bitcoin wallet, a user can generate one or more unique ‘‘bitcoin addresses,’’ which are conceptually similar to bank account numbers. After establishing a bitcoin address, a user can send or receive bitcoin from his or her bitcoin address to another user’s address. Sending bitcoin from one bitcoin address to another is similar in concept to sending a bank wire from one person’s bank account to another person’s bank account; provided, however, that such transactions are not managed by an intermediary and erroneous transactions generally may not be reversed or remedied once sent. The amount of bitcoin associated with each bitcoin address, as well as each bitcoin transaction to or from such address, is transparently reflected in the Blockchain and can be viewed by websites that operate as ‘‘blockchain explorers.’’ Copies of the Blockchain exist on thousands of computers on the Bitcoin network. A user’s bitcoin wallet will either contain a copy of the blockchain or be able to connect with another computer that holds a copy of the blockchain. The innovative design of the Bitcoin network protocol allows each Bitcoin user to trust that their copy of the Blockchain will generally be updated consistent with each other user’s copy. Bitcoin Protocol The Bitcoin protocol is open-source software, meaning any developer can review the underlying code and suggest changes. There is no official company or group that is responsible for making modifications to Bitcoin. There are, however, a number of individual developers that regularly contribute to a specific distribution of Bitcoin software known as the ‘‘Bitcoin Core,’’ which is maintained in an open-source repository on the website Github. There are many other compatible versions of Bitcoin software, but Bitcoin Core provides the de-facto standard for the Bitcoin protocol, also known as the ‘‘reference software.’’ The core developers for Bitcoin Core operate under a volunteer basis and without strict hierarchical administration. Significant changes to the Bitcoin protocol are typically accomplished through a so-called ‘‘Bitcoin Improvement Proposal’’ or ‘‘BIP.’’ Such proposals are generally posted on websites, and the proposals explain technical requirements for the protocol change as well as reasons why the change should be accepted. Upon its VerDate Sep<11>2014 00:38 Jan 12, 2024 Jkt 262001 inclusion in the most recent version of Bitcoin Core, a new BIP becomes part of the reference software’s Bitcoin protocol. Several BIPs have been implemented since 2011 and have provided various new features and scaling improvements. Because Bitcoin has no central authority, updating the reference software’s Bitcoin protocol will not immediately change the Bitcoin network’s operations. Instead, the implementation of a change is achieved by users and miners downloading and running updated versions of Bitcoin Core or other Bitcoin software that abides by the new Bitcoin protocol. Users and miners must accept any changes made to the Bitcoin source code by downloading a version of their Bitcoin software that incorporates the proposed modification of the Bitcoin network’s source code. A modification of the Bitcoin network’s source code is only effective with respect to the Bitcoin users and miners that download it. If an incompatible modification is accepted only by a percentage of users and miners, a division in the Bitcoin network will occur such that one network will run the pre-modification source code and the other network will run the modified source code. Such a division is known as a ‘‘fork’’ in the Bitcoin network. Such a fork in the Bitcoin network occurred on August 1, 2017, when a group of developers and miners accepted certain changes to the Bitcoin network software intended to increase transaction capacity. Blocks mined on this network now diverge from blocks mined on the Bitcoin network, which has resulted in the creation of a new blockchain whose digital asset is referred to as ‘‘bitcoin cash.’’ Bitcoin and bitcoin cash now operate as separate, independent networks, and have distinct related assets (bitcoin and bitcoin cash). Additional forks have followed the Bitcoin Cash fork, including those for Bitcoin Gold and Bitcoin SegWit2X, in the months after the creation of Bitcoin Cash. Bitcoin Transactions A bitcoin transaction contains the sender’s bitcoin address, the recipient’s bitcoin address, the amount of bitcoin to be sent, a transaction fee and the sender’s digital signature. Bitcoin transactions are secured by cryptography known as public-private key cryptography, represented by the bitcoin addresses and digital signature in a transaction’s data file. Each Bitcoin network address, or wallet, is associated with a unique ‘‘public key’’ and ‘‘private key’’ pair, both of which are lengthy PO 00000 Frm 00088 Fmt 4703 Sfmt 4703 2285 alphanumeric codes, derived together and possessing a unique relationship. The public key is visible to the public and analogous to the Bitcoin network address. The private key is a secret and may be used to digitally sign a transaction in a way that proves the transaction has been signed by the holder of the public-private key pair, without having to reveal the private key. The Bitcoin network incorporates a system to prevent double spending of a single bitcoin. To prevent the possibility of double spending a single bitcoin, each validated transaction is recorded, time stamped and publicly displayed in a ‘‘block’’ in the Blockchain, which is publicly available. Any user may validate, through their bitcoin wallet or a blockchain explorer, that each transaction in the Bitcoin network was authorized by the holder of the applicable private key, and Bitcoin network mining software consistent with reference software requirements typically validates each such transaction before including it in the Blockchain. Bitcoin Mining—Creation of New Bitcoins The process by which bitcoins are created and bitcoin transactions are verified is called mining. To begin mining, a user, or ‘‘miner,’’ can download and run a mining client, which, like regular Bitcoin network software, turns the user’s computer into a ‘‘node’’ on the Bitcoin network that validates blocks. Each time transactions are validated and bundled into new blocks added to the Blockchain, the Bitcoin network awards the miner solving such blocks with newly issued bitcoin and any transaction fees paid by bitcoin transaction senders. This reward system is the method by which new bitcoins enter into circulation to the public. Mathematically Controlled Supply The method for creating new bitcoin is mathematically controlled in a manner so that the supply of bitcoin grows at a limited rate pursuant to a preset schedule. The number of bitcoin awarded for solving a new block is automatically halved every 210,000 blocks. Thus, the current fixed reward for solving a new block is 6.25 bitcoin per block; the reward decreased from twenty-five (25) bitcoin in July 2016 and 12.5 in May 2020. It is estimated to halve again at the start of 2024. This deliberately controlled rate of bitcoin creation means that the number of bitcoin in existence will never exceed twenty-one (21) million and that bitcoin cannot be devalued through excessive production unless the Bitcoin network’s E:\FR\FM\12JAN1.SGM 12JAN1 2286 Federal Register / Vol. 89, No. 9 / Friday, January 12, 2024 / Notices source code (and the underlying protocol for bitcoin issuance) is altered. As of January 1, 2023, approximately 19,250,000 bitcoin have been mined. khammond on DSKJM1Z7X2PROD with NOTICES Bitcoin Value The value of bitcoin is determined by the value that various market participants place on bitcoin through their transactions. The most common means of determining the value of a bitcoin is by surveying one or more bitcoin platforms where bitcoin is traded publicly and transparently (e.g., Bitstamp, Coinbase, Kraken, itBit, Gemini and LMAX Digital). Additionally, in parallel to the open bitcoin platforms, informal ‘‘over-thecounter’’ or ‘‘OTC markets’’ for bitcoin trading also exist as a result of the peerto-peer nature of the Bitcoin network, which allows direct transactions between any seller and buyer. On each platform, bitcoin is traded with publicly disclosed valuations for each executed trade, measured by one or more fiat currencies such as the U.S. dollar or Euro. OTC markets do not typically disclose their trade data. Currently, there are many platforms operating worldwide, and each such platform represents a substantial percentage of bitcoin buying and selling activity. The Index As described in the Registration Statement, the Fund will typically use the Index to calculate the Trust’s NAV for days on which the Trust does not trade bitcoin. The Index is not affiliated with the Sponsor and was created and is administered by CF Benchmarks Ltd. (the ‘‘Benchmark Administrator’’), an independent entity, to facilitate financial products based on bitcoin. The Index is designed based on the IOSCO Principals for Financial Benchmarks and serves as a once-a-day benchmark rate of the U.S. dollar price of bitcoin (USD/BTC), calculated as of 4:00 p.m. Eastern Time. The Index is based on materially the same methodology (except calculation time) 11 as the Benchmark Administrator’s CME CF Bitcoin Reference Rate (the ‘‘BRR’’), which was first introduced on November 14, 2016 and is the rate on which bitcoin futures contracts (‘‘Bitcoin Futures’’) are cash-settled in U.S. dollars at the CME. The Index aggregates the trade flow of several bitcoin platforms, during an observation window between 3:00 p.m. and 4:00 p.m. Eastern Time into the U.S. dollar 11 The Index is calculated as of 4 p.m. Eastern Time, whereas the BRR is calculated as of 4 p.m. London Time. VerDate Sep<11>2014 00:38 Jan 12, 2024 Jkt 262001 price of one bitcoin at 4:00 p.m. Eastern Time. The current constituent bitcoin platforms of the Index are Bitstamp, Coinbase, Gemini, itBit, Kraken and LMAX Digital (the ‘‘Constituent Bitcoin Platforms’’). The Index is calculated based on the ‘‘Relevant Transactions’’ 12 of all of its Constituent Bitcoin Platforms, as follows: • All Relevant Transactions are added to a joint list, recording the time of execution, trade price and size for each transaction. • The list is partitioned by timestamp into 12 equally-sized time intervals of 5 (five) minute length. • For each partition separately, the volume-weighted median trade price is calculated from the trade prices and sizes of all Relevant Transactions, i.e., across all Constituent Bitcoin Platforms. A volume-weighted median differs from a standard median in that a weighting factor, in this case trade size, is factored into the calculation. • The Index is then determined by the arithmetic mean of the volumeweighted medians of all partitions. By employing the foregoing steps, the Index thereby seeks to ensure that transactions in bitcoin conducted at outlying prices do not have an undue effect on the value of a specific partition, large trades or clusters of trades transacted over a short period of time will not have an undue influence on the Index level, and the effect of large trades at prices that deviate from the prevailing price are mitigated from having an undue influence on the Index level. In addition, the Sponsor notes that an oversight function is implemented by the Benchmark Administrator in seeking to ensure that the Index is administered through codified policies for Index integrity. The Sponsor believes the Index provides an accurate reference to the average spot price of bitcoin and the methodology employed in constructing the Index, specifically its use of medians in filtering out small trades, makes the Index more resistant to manipulation than other measurements that employ different methodologies. In addition, the Index included over $375 billion in bitcoin trades during the oneyear period ended December 31, 2022. Finally, an oversight committee is 12 A ‘‘Relevant Transaction’’ is any cryptocurrency versus U.S. dollar spot trade that occurs during the observation window between 3:00 p.m. and 4:00 p.m. Eastern Time on a Constituent Bitcoin Platforms in the BTC/USD pair that is reported and disseminated by a Constituent Bitcoin Platforms through its publicly available application programming interface and observed by the Benchmark Administrator, CF Benchmarks Ltd. PO 00000 Frm 00089 Fmt 4703 Sfmt 4703 responsible for regularly reviewing and overseeing the methodology, practice, standards and scope of the Index to ensure that it continues to accurately track the spot prices of bitcoin. Background The Commission has historically approved or disapproved exchange filings to list and trade series of Trust Issued Receipts, including spot-based Commodity-Based Trust Shares, on the basis of whether the listing exchange has in place a comprehensive surveillance sharing agreement with a regulated market of significant size related to the underlying commodity to be held.13 Prior orders from the Commission have pointed out that in every prior approval order for Commodity-Based Trust Shares, there has been a derivatives market that represents the regulated market of significant size, generally a Commodity Futures Trading Commission regulated futures market.14 Further to this point, 13 See Securities Exchange Act Release No. 83723 (July 26, 2018), 83 FR 37579 (August 1, 2018). This proposal was subsequently disapproved by the Commission. See Securities Exchange Act Release No. 83723 (July 26, 2018), 83 FR 37579 (August 1, 2018) (the ‘‘Winklevoss Order’’). 14 See streetTRACKS Gold Shares, Exchange Act Release No. 50603 (Oct. 28, 2004), 69 FR 64614, 64618–19 (Nov. 5, 2004) (SR–NYSE–2004–22) (the ‘‘First Gold Approval Order’’); iShares COMEX Gold Trust, Exchange Act Release No. 51058 (Jan. 19, 2005), 70 FR 3749, 3751, 3754–55 (Jan. 26, 2005) (SR–Amex–2004–38); iShares Silver Trust, Exchange Act Release No. 53521 (Mar. 20, 2006), 71 FR 14967, 14968, 14973–74 (Mar. 24, 2006) (SR– Amex–2005–072); ETFS Gold Trust, Exchange Act Release No. 59895 (May 8, 2009), 74 FR 22993, 22994–95, 22998, 23000 (May 15, 2009) (SR– NYSEArca–2009–40); ETFS Silver Trust, Exchange Act Release No. 59781 (Apr. 17, 2009), 74 FR 18771, 18772, 18775–77 (Apr. 24, 2009) (SR–NYSEArca– 2009–28); ETFS Palladium Trust, Exchange Act Release No. 61220 (Dec. 22, 2009), 74 FR 68895, 68896 (Dec. 29, 2009) (SR–NYSEArca–2009–94) (notice of proposed rule change included NYSE Arca’s representation that ‘‘[t]he most significant palladium futures exchanges are the NYMEX and the Tokyo Commodity Exchange,’’ that ‘‘NYMEX is the largest exchange in the world for trading precious metals futures and options,’’ and that NYSE Arca ‘‘may obtain trading information via the Intermarket Surveillance Group,’’ of which NYMEX is a member, Exchange Act Release No. 60971 (Nov. 9, 2009), 74 FR 59283, 59285–86, 59291 (Nov. 17, 2009)); ETFS Platinum Trust, Exchange Act Release No. 61219 (Dec. 22, 2009), 74 FR 68886, 68887–88 (Dec. 29, 2009) (SR–NYSEArca–2009–95) (notice of proposed rule change included NYSE Arca’s representation that ‘‘[t]he most significant platinum futures exchanges are the NYMEX and the Tokyo Commodity Exchange,’’ that ‘‘NYMEX is the largest exchange in the world for trading precious metals futures and options,’’ and that NYSE Arca ‘‘may obtain trading information via the Intermarket Surveillance Group,’’ of which NYMEX is a member, Exchange Act Release No. 60970 (Nov. 9, 2009), 74 FR 59319, 59321, 59327 (Nov. 17, 2009)); Sprott Physical Gold Trust, Exchange Act Release No. 61496 (Feb. 4, 2010), 75 FR 6758, 6760 (Feb. 10, 2010) (SR–NYSEArca–2009–113) (notice of proposed rule change included NYSE Arca’s representation that the COMEX is one of the ‘‘major E:\FR\FM\12JAN1.SGM 12JAN1 khammond on DSKJM1Z7X2PROD with NOTICES Federal Register / Vol. 89, No. 9 / Friday, January 12, 2024 / Notices 2287 the Commission’s prior orders have noted that the spot commodities and currency markets for which it has previously approved spot ETPs are generally unregulated and that the Commission relied on the underlying futures market as the regulated market of significant size that formed the basis for approving the series of Currency and Commodity-Based Trust Shares, including gold, silver, platinum, palladium, copper, and other commodities and currencies. The Commission specifically noted in the Winklevoss Order that the First Gold Approval Order ‘‘was based on an assumption that the currency market and the spot gold market were largely unregulated.’’ 15 As such, the regulated market of significant size test does not require that the spot bitcoin market be regulated in order for the Commission to approve this proposal, and precedent makes clear that an underlying market for a spot commodity or currency being a regulated market would actually be an exception to the norm. These largely unregulated currency and commodity markets do not provide the same protections as the markets that are subject to the Commission’s oversight, but the Commission has consistently looked to surveillance sharing agreements with the underlying futures market in order to determine whether such products were consistent with the Act. With this in mind, the Bitcoin Futures market, as defined below, is the proper market to consider in determining whether there is a related regulated market of significant size. Further to this point, the Exchange notes that the Commission has recently approved proposals related to the listing and trading of funds that would primarily hold Bitcoin Futures that are registered under the Securities Act of 1933 instead of the Investment Company Act of 1940, as amended (the ‘‘1940 Act’’).16 In the Teucrium Approval, the Commission found the Bitcoin Futures market to be a regulated market of significant size as it relates to Bitcoin Futures, an odd tautological truth that is also inconsistent with prior disapproval orders for exchange traded products (‘‘ETPs’’) that would hold actual bitcoin instead of derivatives contracts (‘‘Spot Bitcoin ETPs’’) that use the exact same pricing methodology as the Bitcoin Futures. As further BILLING CODE 8011–01–P world gold markets,’’ that NYSE Arca ‘‘may obtain trading information via the Intermarket Surveillance Group,’’ and that NYMEX, of which COMEX is a division, is a member of the Intermarket Surveillance Group, Exchange Act Release No. 61236 (Dec. 23, 2009), 75 FR 170, 171, 174 (Jan. 4, 2010)); Sprott Physical Silver Trust, Exchange Act Release No. 63043 (Oct. 5, 2010), 75 FR 62615, 62616, 62619, 62621 (Oct. 12, 2010) (SR– NYSEArca–2010–84); ETFS Precious Metals Basket Trust, Exchange Act Release No. 62692 (Aug. 11, 2010), 75 FR 50789, 50790 (Aug. 17, 2010) (SR– NYSEArca–2010–56) (notice of proposed rule change included NYSE Arca’s representation that ‘‘the most significant gold, silver, platinum and palladium futures exchanges are the COMEX and the TOCOM’’ and that NYSE Arca ‘‘may obtain trading information via the Intermarket Surveillance Group,’’ of which COMEX is a member, Exchange Act Release No. 62402 (Jun. 29, 2010), 75 FR 39292, 39295, 39298 (July 8, 2010)); ETFS White Metals Basket Trust, Exchange Act Release No. 62875 (Sept. 9, 2010), 75 FR 56156, 56158 (Sept. 15, 2010) (SR–NYSEArca–2010–71) (notice of proposed rule change included NYSE Arca’s representation that ‘‘the most significant silver, platinum and palladium futures exchanges are the COMEX and the TOCOM’’ and that NYSE Arca ‘‘may obtain trading information via the Intermarket Surveillance Group,’’ of which COMEX is a member, Exchange Act Release No. 62620 (July 30, 2010), 75 FR 47655, 47657, 47660 (Aug. 6, 2010)); ETFS Asian Gold Trust, Exchange Act Release No. 63464 (Dec. 8, 2010), 75 FR 77926, 77928 (Dec. 14, 2010) (SR–NYSEArca–2010–95) (notice of proposed rule change included NYSE Arca’s representation that ‘‘the most significant gold futures exchanges are the COMEX and the Tokyo Commodity Exchange,’’ that ‘‘COMEX is the largest exchange in the world for trading precious metals futures and options,’’ and that NYSE Arca ‘‘may obtain trading information via the Intermarket Surveillance Group,’’ of which COMEX is a member, Exchange Act Release No. 63267 (Nov. 8, 2010), 75 FR 69494, 69496, 69500–01 (Nov. 12, 2010)); Sprott Physical Platinum and Palladium Trust, Exchange Act Release No. 68430 (Dec. 13, 2012), 77 FR 75239, 75240–41 (Dec. 19, 2012) (SR– NYSEArca–2012–111) (notice of proposed rule change included NYSE Arca’s representation that ‘‘[f]utures on platinum and palladium are traded on two major exchanges: The New York Mercantile Exchange . . . and Tokyo Commodities Exchange’’ and that NYSE Arca ‘‘may obtain trading information via the Intermarket Surveillance Group,’’ of which COMEX is a member, Exchange Act Release No. 68101 (Oct. 24, 2012), 77 FR 65732, 65733, 65739 (Oct. 30, 2012)); APMEX Physical— 1 oz. Gold Redeemable Trust, Exchange Act Release No. 66930 (May 7, 2012), 77 FR 27817, 27818 (May 11, 2012) (SR–NYSEArca–2012–18) (notice of proposed rule change included NYSE Arca’s representation that NYSE Arca ‘‘may obtain trading information via the Intermarket Surveillance Group,’’ of which COMEX is a member, and that gold futures are traded on COMEX and the Tokyo Commodity Exchange, with a cross-reference to the proposed rule change to list and trade shares of the ETFS Gold Trust, in which NYSE Arca represented that COMEX is one of the ‘‘major world gold markets,’’ Exchange Act Release No. 66627 (Mar. 20, 2012), 77 FR 17539, 17542–43, 17547 (Mar. 26, 2012)); JPM XF Physical Copper Trust, Exchange Act Release No. 68440 (Dec. 14, 2012), 77 FR 75468, 75469–70, 75472, 75485–86 (Dec. 20, 2012) (SR– NYSEArca–2012–28); iShares Copper Trust, Exchange Act Release No. 68973 (Feb. 22, 2013), 78 FR 13726, 13727, 13729–30, 13739–40 (Feb. 28, 2013) (SR–NYSEArca–2012–66); First Trust Gold Trust, Exchange Act Release No. 70195 (Aug. 14, 2013), 78 FR 51239, 51240 (Aug. 20, 2013) (SR– NYSEArca–2013–61) (notice of proposed rule change included NYSE Arca’s representation that FINRA, on behalf of the exchange, may obtain trading information regarding gold futures and options on gold futures from members of the Intermarket Surveillance Group, including COMEX, or from markets ‘‘with which [NYSE Arca] has in place a comprehensive surveillance sharing agreement,’’ and that gold futures are traded on COMEX and the Tokyo Commodity Exchange, with a cross-reference to the proposed rule change to list and trade shares of the ETFS Gold Trust, in which NYSE Arca represented that COMEX is one of the ‘‘major world gold markets,’’ Exchange Act Release No. 69847 (June 25, 2013), 78 FR 39399, 39400, 39405 (July 1, 2013)); Merk Gold Trust, Exchange Act Release No. 71378 (Jan. 23, 2014), 79 FR 4786, 4786–87 (Jan. 29, 2014) (SR–NYSEArca–2013–137) (notice of proposed rule change included NYSE Arca’s representation that ‘‘COMEX is the largest gold futures and options exchange’’ and that NYSE Arca ‘‘may obtain trading information via the Intermarket Surveillance Group,’’ including with respect to transactions occurring on COMEX pursuant to CME and NYMEX’s membership, or from exchanges ‘‘with which [NYSE Arca] has in place a comprehensive surveillance sharing agreement,’’ Exchange Act Release No. 71038 (Dec. 11, 2013), 78 FR 76367, 76369, 76374 (Dec. 17, 2013)); Long Dollar Gold Trust, Exchange Act Release No. 79518 (Dec. 9, 2016), 81 FR 90876, 90881, 90886, 90888 (Dec. 15, 2016) (SR– NYSEArca–2016–84). 15 See Winklevoss Order at 37592. 16 See Exchange Act Release No. 94620 (April 6, 2022), 87 FR 21676 (April 12, 2022) (the ‘‘Teucrium Approval’’) and 94853 (May 5, 2022) (collectively, with the Teucrium Approval, the ‘‘Bitcoin Futures Approvals’’). 17 The CME CF Bitcoin Reference Rate is based on a publicly available calculation methodology based on pricing sourced from several crypto and trading platforms, including Bitstamp, Coinbase, Gemini, itBit, Kraken, and LMAX Digital. VerDate Sep<11>2014 00:38 Jan 12, 2024 Jkt 262001 PO 00000 Frm 00090 Fmt 4703 Sfmt 4703 discussed below, both the Exchange and the Sponsor believe that this proposal and the included analysis are sufficient to establish that the Bitcoin Futures market represents a regulated market of significant size as it relates both to the Bitcoin Futures market and to the spot bitcoin market and that this proposal should be approved. Bitcoin Futures CME began offering trading in Bitcoin Futures in 2017. Each contract represents five bitcoin and is based on the CME CF Bitcoin Reference Rate.17 The contracts trade and settle like other cash-settled commodity futures contracts. Nearly every measurable metric related to Bitcoin Futures has generally trended up since launch, although certain notional volume calculations have decreased roughly in line with the decrease in the price of bitcoin. For example, there were 276,542 Bitcoin Futures contracts traded in March 2023 compared to 165,567, 233,345, and 183,131 contracts traded in March 2020, March 2021, and March 2023, respectively. E:\FR\FM\12JAN1.SGM 12JAN1 2288 Federal Register / Vol. 89, No. 9 / Friday, January 12, 2024 / Notices CME Sltroln futures Av<1rrage Dally Volume and Opt1n lnter<1rst Source: CME 4l20/23. @ Large Open Interest Holders of CME Bitcoin Futures 150 :125 75 25 0 2019 2021 SOURCE: CFTC COT 2022 2023 ZOOM- UPDATED: MAY 2, 2023 The number oflarge open interest holders and unique accounts trading Bitcoin Futures halle both increased, even in the face of heightened Bitcoin price volatility. The Sponsor further believes that publicly available research, including research done as part of rule filings proposing to list and trade shares of Spot Bitcoin ETPs, corroborates the overall trend outlined above and supports the thesis that the Bitcoin Futures pricing leads the spot market and, thus, a person attempting to manipulate the Shares would also have to trade on that market to manipulate VerDate Sep<11>2014 00:38 Jan 12, 2024 Jkt 262001 the ETP. Specifically, the Sponsor believes that such research indicates that bitcoin futures lead the bitcoin spot market in price formation.18 18 See Exchange Act Releases No. 94080 (January 27, 2022), 87 FR 5527 (April 12, 2022) (specifically ‘‘Amendment No. 1 to the Proposed Rule Change To List and Trade Shares of the Wise Origin Bitcoin Trust Under BZX Rule 14.11(3)(4), CommodityBased Trust Shares’’); 94982 (May 25, 2022), 87 FR 33250 (June 1, 2022); 94844 (May 4, 2022), 87 FR 28043 (May 10, 2022); and 93445 (October 28, PO 00000 Frm 00091 Fmt 4703 Sfmt 4703 2021), 86 FR 60695 (November 3, 2021). See also Hu, Y., Hou, Y. and Oxley, L. (2019). ‘‘What role do futures markets play in Bitcoin pricing? Causality, cointegration and price discovery from a time-varying perspective’’ (available at: https:// www.ncbi.nlm.nih.gov/pmc/articles/PMC7481826/). This academic research paper concludes that ‘‘There exist no episodes where the Bitcoin spot markets dominates the price discovery processes with regard to Bitcoin futures. This points to a conclusion that the price formation originates solely in the Bitcoin futures market. We can, therefore, conclude that the Bitcoin futures markets dominate E:\FR\FM\12JAN1.SGM 12JAN1 EN12JA24.024</GPH> khammond on DSKJM1Z7X2PROD with NOTICES BILLING CODE 8011–01–C EN12JA24.025</GPH> A large open interest holder in Bitcoin Futures is an entity that holds at least 25 contracts, which is the equivalent of 125 bitcoin. Federal Register / Vol. 89, No. 9 / Friday, January 12, 2024 / Notices (i) Designed To Prevent Fraudulent and Manipulative Acts and Practices In order to meet this standard in a proposal to list and trade a series of Commodity-Based Trust Shares, the Commission requires that an exchange demonstrate that there is a comprehensive surveillance-sharing agreement in place 20 with a regulated market of significant size. Both the Exchange and CME are members of ISG.21 The only remaining issue to be addressed is whether the Bitcoin Futures market constitutes a market of significant size, which both the Exchange and the Sponsor believe that it does. The terms ‘‘significant market’’ and ‘‘market of significant size’’ include a market (or group of markets) as to which: (a) there is a reasonable likelihood that a person attempting to manipulate the ETP would also have to trade on that market to manipulate the ETP, so that a surveillance-sharing agreement would assist the listing exchange in detecting and deterring misconduct; and (b) it is unlikely that trading in the ETP would be the predominant influence on prices in that market.22 The Commission has also recognized that the ‘‘regulated market of significant size’’ standard is not the only means for satisfying section 6(b)(5) of the act, specifically providing that a listing exchange could demonstrate that ‘‘other means to prevent fraudulent and manipulative acts and practices’’ are sufficient to justify dispensing with the requisite surveillance-sharing agreement.23 the dynamic price discovery process based upon time-varying information share measures. Overall, price discovery seems to occur in the Bitcoin futures markets rather than the underlying spot market based upon a time-varying perspective.’’ 19 The Exchange believes that bitcoin is resistant to price manipulation and that ‘‘other means to prevent fraudulent and manipulative acts and practices’’ exist to justify dispensing with the requisite surveillance sharing agreement. The geographically diverse and continuous nature of bitcoin trading render it difficult and prohibitively costly to manipulate the price of bitcoin. The fragmentation across bitcoin platforms, the relatively slow speed of transactions, and the capital necessary to maintain a significant presence on each trading platform make manipulation of bitcoin prices through continuous trading activity challenging. To the extent that there are bitcoin platforms engaged in or allowing wash trading or other activity intended to manipulate the price of bitcoin on other markets, such pricing does not normally impact prices on other platforms because participants will generally ignore markets with quotes that they deem non-executable. Moreover, the linkage between the bitcoin markets and the presence of arbitrageurs in those markets means that the manipulation of the price of bitcoin price on any single venue would require manipulation of the global bitcoin price in order to be effective. Arbitrageurs must have funds distributed across multiple trading platforms in order to take advantage of temporary price dislocations, thereby making it unlikely that there will be strong concentration of funds on any particular bitcoin platform or OTC platform. As a result, the potential for manipulation on a trading platform would require overcoming the liquidity supply of such arbitrageurs who are effectively eliminating any cross-market pricing differences. 20 As previously articulated by the Commission, ‘‘The standard requires such surveillance-sharing agreements since ‘‘they provide a necessary deterrent to manipulation because they facilitate the availability of information needed to fully investigate a manipulation if it were to occur.’’ The Commission has emphasized that it is essential for an exchange listing a derivative securities product to enter into a surveillance-sharing agreement with markets trading underlying securities for the listing exchange to have the ability to obtain information necessary to detect, investigate, and deter fraud and market manipulation, as well as violations of exchange rules and applicable federal securities laws and rules. The hallmarks of a surveillancesharing agreement are that the agreement provides for the sharing of information about market trading activity, clearing activity, and customer identity; that the parties to the agreement have reasonable ability to obtain access to and produce requested information; and that no existing rules, laws, or practices would impede one party to the agreement from obtaining this information from, or producing it to, the other party.’’ The Commission has historically held that joint membership in the Intermarket Surveillance Group (‘‘ISG’’) constitutes such a surveillance sharing agreement. See Securities Exchange Act Release No. 88284 (February 26, 2020), 85 FR 12595 (March 3, 2020) (SR–NYSEArca–2019–39) (the ‘‘Wilshire Phoenix Disapproval’’). 21 For a list of the current members and affiliate members of ISG, see https://www.isgportal.com/. 22 See Wilshire Phoenix Disapproval. 23 See Winklevoss Order at 37580. The Commission has also specifically noted that it ‘‘is not applying a ‘cannot be manipulated’ standard; instead, the Commission is examining whether the proposal meets the requirements of the Exchange Act and, pursuant to its Rules of Practice, places the khammond on DSKJM1Z7X2PROD with NOTICES Preventing Fraudulent and Manipulative Practices In order for any proposed rule change from an exchange to be approved, the Commission must determine that, among other things, the proposal is consistent with the requirements of section 6(b)(5) of the Act, specifically including: (i) the requirement that a national securities exchange’s rules are designed to prevent fraudulent and manipulative acts and practices; 19 and (ii) the requirement that an exchange proposal be designed, in general, to protect investors and the public interest. The Exchange believes that this proposal is consistent with the requirements of section 6(b)(5) of the Act and that this filing sufficiently demonstrates that the Bitcoin Futures market represents a regulated market of significant size and that, on the whole, the manipulation concerns previously articulated by the Commission are sufficiently mitigated to the point that they are outweighed by quantifiable investor protection issues that would be resolved by approving this proposal. VerDate Sep<11>2014 00:38 Jan 12, 2024 Jkt 262001 PO 00000 Frm 00092 Fmt 4703 Sfmt 4703 2289 (A) Reasonable Likelihood That a Person Attempting To Manipulate the ETP Would Also Have To Trade on That Market To Manipulate the ETP Bitcoin Futures represent a growing influence on pricing in the spot bitcoin market as has been laid out above and in other proposals to list and trade Spot Bitcoin ETPs. Pricing in Bitcoin Futures is based on pricing from spot bitcoin markets. As noted above, the statement from the Teucrium Approval that ‘‘CME’s surveillance can reasonably be relied upon to capture the effects on the CME bitcoin futures market caused by a person attempting to manipulate the proposed futures ETP by manipulating the price of CME bitcoin futures contracts . . . indirectly by trading outside of the CME bitcoin futures market,’’ makes clear that the Commission believes that CME’s surveillance can capture the effects of trading on the relevant spot markets on the pricing of Bitcoin Futures. While the Commission makes clear in the Teucrium Approval that the analysis only applies to the Bitcoin Futures market as it relates to an ETP that invests in Bitcoin Futures as its only non-cash or cash equivalent holding, if CME’s surveillance is sufficient to mitigate concerns related to trading in Bitcoin Futures for which the pricing is based directly on pricing from spot bitcoin markets, it’s not clear how such a conclusion could apply only to ETPs based on Bitcoin Futures and not extend to Spot Bitcoin ETPs. (B) Predominant Influence on Prices in Spot and Bitcoin Futures The Exchange and Sponsor also believe that trading in the Shares would not be the predominant force on prices in the Bitcoin Futures market or spot market for a number of reasons, including the significant volume in the Bitcoin Futures market, the size of bitcoin’s market cap, and the significant liquidity available in the spot market. In addition to the Bitcoin Futures market data points cited above, the spot market for bitcoin is also very liquid. According to data from Skew, the cost to buy or sell $5 million worth of bitcoin averages roughly 48 basis points with a market impact of $139.08.24 Stated another way, a market participant could enter a market buy or sell order for $5 million burden on the listing exchange to demonstrate the validity of its contentions and to establish that the requirements of the Exchange Act have been met.’’ Id. at 37582. 24 These statistics are based on samples of bitcoin liquidity in USD (excluding stablecoins or Euro liquidity) based on executable quotes on Coinbase, FTX and Kraken during the one-year period ending May 2022. E:\FR\FM\12JAN1.SGM 12JAN1 2290 Federal Register / Vol. 89, No. 9 / Friday, January 12, 2024 / Notices khammond on DSKJM1Z7X2PROD with NOTICES of bitcoin and only move the market 0.48%. More strategic purchases or sales (such as using limit orders and executing through OTC bitcoin trade desks) would likely have less obvious impact on the market—which is consistent with MicroStrategy, Tesla, and Square being able to collectively purchase billions of dollars in bitcoin. As such, the combination of the Bitcoin Futures leading price discovery, the overall size of the bitcoin market, and the ability for market participants to buy or sell large amounts of bitcoin without significant market impact will help prevent the Shares from becoming the predominant force on pricing in either the bitcoin spot or Bitcoin Futures markets, satisfying part (b) of the test outlined above. (c) Other Means To Prevent Fraudulent and Manipulative Acts and Practices The Exchange is also proposing to take additional steps to those described above to supplement its ability to obtain information that would be helpful in detecting, investigating, and deterring fraud and market manipulation in the Commodity-Based Trust Shares. As noted in the Surveillance section, the surveillance program includes realtime patterns for price and volume movements and post-trade surveillance patterns (e.g., spoofing, marking the close, pinging, phishing). In addition to the Exchange’s existing surveillance, a new pattern will be added to surveil for significant deviation in the CommodityBased Trust Shares’ price from the underlying asset’s price. The Exchange will use the trade data from an external vendor that consolidates the real-time data from multiple bitcoin platforms. Trading of Shares on the Exchange will be subject to the Exchange’s surveillance program for derivative products, as well as cross-market surveillances administered by Financial Industry Regulatory Authority (‘‘FINRA’’), on behalf of the Exchange pursuant to a regulatory services agreement, which are also designed to detect violations of Exchange rules and applicable federal securities laws. The Exchange is responsible for FINRA’s performance under this regulatory services agreement. The Exchange will require the Trust to represent to the Exchange that it will advise the Exchange of any failure by the Trust to comply with the continued listing requirements, and, pursuant to its obligations under section 19(g)(1) of the Exchange Act, the Exchange will surveil for compliance with the continued listing requirements. If the Trust is not in compliance with the applicable listing requirements, the VerDate Sep<11>2014 00:38 Jan 12, 2024 Jkt 262001 Exchange will commence delisting procedures under the Nasdaq 5800 Series. In addition, the Exchange also has a general policy prohibiting the distribution of material, non-public information by its employees. The Exchange will communicate as needed regarding trading in the Shares with other markets and other entities that are members of the ISG, and the Exchange may obtain trading information regarding trading in the Shares from such markets and other entities. Availability of Information The Trust’s website (https://valkyrie invest.com/BRRR) will include, free of charge, quantitative information on a per Share basis updated on a daily basis, including (i) the current NAV per Share daily and the prior business day’s NAV and the reported closing price; (ii) the mid-point of the bid-ask price 25 in relation to the NAV as of the time the NAV is calculated (‘‘Bid-Ask Price’’) and a calculation of the premium or discount of such price against such NAV; (iii) data in chart format displaying the frequency distribution of discounts and premiums of the daily Bid-Ask Price against the NAV, within appropriate ranges, for each of the four previous calendar quarters (or for the life of the Trust, if shorter); and (iv) copies of the Trust’s prospectus in electronic format. In addition, on each business day the Trust’s website will also provide free of charge: (i) the Trust’s NAV and NAV per Share; (ii) information regarding the Trust’s holdings; and (iii) information regarding the Index and the value of a bitcoin as calculated by the Index (which may also be found on the Index’s website (https:// www.cfbenchmarks.com/data/indices/ BRRNY), or, if an alternative fair value methodology is used to value the Trust’s bitcoin, such other pricing source(s) used in such calculation. The Trust’s website will provide an IIV per Share updated every 15 seconds, as calculated by the Exchange or a thirdparty financial data provider during the Exchange’s Regular Market Session (9:30 a.m. to 4:00 p.m. (Eastern Time)).26 The IIV will be calculated by using the prior day’s closing NAV per Share as a base and updating that value throughout the trading day to reflect changes in the most recently reported price level of the 25 The bid-ask price of the Trust is determined using the highest bid and lowest offer on the Consolidated Tape as of the time of calculation of the closing day NAV. 26 The IIV on a per Share basis disseminated during the Regular Market Session should not be viewed as a real-time update of the NAV, which is calculated once a day. PO 00000 Frm 00093 Fmt 4703 Sfmt 4703 BRTI, as reported by CME Group, Inc., Bloomberg, L.P. or another reporting service. The BRTI is calculated in real time once per second based on the Relevant Order Books of all Constituent Bitcoin Platforms. All aspects of the BRTI methodology are publicly available at the website of the Benchmark Administrator. The IIV disseminated during the Exchange’s Regular Market Session should not be viewed as an actual realtime update of the NAV, which will be calculated only once at the end of each trading day. The IIV will be widely disseminated on a per Share basis every 15 seconds during the Exchange’s Regular Market Session by one or more major market data vendors. In addition, the IIV will be available published on the Exchange’s website and through online information services such as Bloomberg and Reuters. The NAV for the Trust will be calculated by the Sponsor once a day and will be disseminated daily to all market participants at the same time. Quotation and last-sale information regarding the Shares will be disseminated through the facilities of the relevant securities information processor. Quotation and last sale information for bitcoin is widely disseminated through a variety of major market data vendors, including Bloomberg and Reuters, as well as CF Benchmarks. Information relating to trading, including price and volume information, in bitcoin is available from major market data vendors and from the platforms on which bitcoin are traded. Depth of book information is also available from bitcoin platforms. The normal trading hours for bitcoin platforms are 24 hours per day, 365 days per year. Information regarding market price and trading volume of the Shares will be continually available on a real-time basis throughout the day on brokers’ computer screens and other electronic services. Information regarding the previous day’s closing price and trading volume information for the Shares will be published daily in the financial section of newspapers. Market prices for the Shares will be available from a variety of sources, including brokerage firms, information websites and other information service providers. Initial and Continued Listing The Shares will be subject to Nasdaq Rule 5711(d)(vi), which sets forth the initial and continued listing criteria applicable to Commodity-Based Trust Shares. The Exchange will obtain a representation that the Trust’s NAV will E:\FR\FM\12JAN1.SGM 12JAN1 khammond on DSKJM1Z7X2PROD with NOTICES Federal Register / Vol. 89, No. 9 / Friday, January 12, 2024 / Notices be calculated daily and will be made available to all market participants at the same time. A minimum of 40,000 Commodity-Based Trust Shares will be required to be outstanding at the time of commencement of trading on the Exchange. The Sponsor expects there to be multiple creation units in circulation at launch of the Trust. Upon termination of the Trust, the Shares will be removed from listing. The Trustee, Delaware Trust Company, is a trust company having substantial capital and surplus and the experience and facilities for handling corporate trust business, as required under Nasdaq Rule 5711(d)(vi)(D) and no change will be made to the trustee without prior notice to and approval of the Exchange. As required in Nasdaq Rule 5711(d)(viii), the Exchange notes that any registered market maker (‘‘Market Maker’’) in the Shares must file with the Exchange, in a manner prescribed by the Exchange, and keep current a list identifying all accounts for trading the underlying commodity, related futures or options on futures, or any other related derivatives, which the registered Market Maker may have or over which it may exercise investment discretion. No registered Market Maker in the Shares shall trade in the underlying commodity, related futures or options on futures, or any other related derivatives, in an account in which a registered Market Maker, directly or indirectly, controls trading activities, or has a direct interest in the profits or losses thereof, which has not been reported to the Exchange as required by Nasdaq Rule 5711(d). In addition to the existing obligations under Exchange rules regarding the production of books and records, the registered Market Maker in the Shares shall make available to the Exchange such books, records or other information pertaining to transactions by such entity or any limited partner, officer or approved person thereof, registered or nonregistered employee affiliated with such entity for its or their own accounts in the underlying commodity, related futures or options on futures, or any other related derivatives, as may be requested by the Exchange. The Exchange is able to obtain information regarding trading in the Shares and the underlying bitcoin, Bitcoin Futures contracts, options on Bitcoin Futures, or any other bitcoin derivative through members acting as registered Market Makers, in connection with their proprietary or customer trades. As a general matter, the Exchange has regulatory jurisdiction over its members, and their associated persons. The VerDate Sep<11>2014 00:38 Jan 12, 2024 Jkt 262001 Exchange also has regulatory jurisdiction over any person or entity controlling a member, as well as a subsidiary or affiliate of a member that is in the securities business. A subsidiary or affiliate of a member organization that does business only in commodities would not be subject to Exchange jurisdiction, but the Exchange could obtain information regarding the activities of such subsidiary or affiliate through surveillance sharing agreements with regulatory organizations of which such subsidiary or affiliate is a member. Trading Rules The Exchange deems the Shares to be equity securities, thus rendering trading in the Shares subject to the Exchange’s existing rules governing the trading of equity securities. The Exchange will allow trading in the Shares from 4:00 a.m. to 8:00 p.m. (Eastern Time). The Exchange has appropriate rules to facilitate transactions in the Shares during all trading sessions. The Shares of the Trust will conform to the initial and continued listing criteria set forth in Nasdaq Rule 5711(d). Trading Halts With respect to trading halts, the Exchange may consider all relevant factors in exercising its discretion to halt or suspend trading in the Shares. The Exchange will halt trading in the Shares under the conditions specified in Nasdaq Rules 4120 and 4121, including without limitation the conditions specified in Nasdaq Rule 4120(a)(9) and (10) and the trading pauses under Nasdaq Rules 4120(a)(11) and (12). Trading may be halted because of market conditions or for reasons that, in the view of the Exchange, make trading in the Shares inadvisable. These may include: (1) the extent to which trading is not occurring in the bitcoin underlying the Shares; or (2) whether other unusual conditions or circumstances detrimental to the maintenance of a fair and orderly market are present. If the IIV or the Index value is not being disseminated as required, the Exchange may halt trading during the day in which the interruption to the dissemination of the IIV or the Index value occurs. If the interruption to the dissemination of the IIV or the Index value persists past the trading day in which it occurred, the Exchange will halt trading no later than the beginning of the trading day following the interruption. In addition, if the Exchange becomes aware that the NAV with respect to the Shares is not disseminated to all market participants at the same time, it will halt trading in PO 00000 Frm 00094 Fmt 4703 Sfmt 4703 2291 the Shares until such time as the NAV is available to all market participants. Surveillance The Exchange believes that its surveillance procedures are adequate to properly monitor the trading of the Shares on the Exchange during all trading sessions and to deter and detect violations of Exchange rules and the applicable federal securities laws. The surveillance program includes real-time patterns for price and volume movements and post-trade surveillance patterns (e.g., spoofing, marking the close, pinging, phishing). In addition to the Exchange’s existing surveillance, a new pattern will be added to surveil for significant deviation in the CommodityBased Trust Shares’ price from the underlying asset’s price. The Exchange will use the trade data from an external vendor that consolidates the real-time data from multiple bitcoin platforms. Trading of Shares on the Exchange will be subject to the Exchange’s surveillance program for derivative products, as well as cross-market surveillances administered by FINRA, on behalf of the Exchange pursuant to a regulatory services agreement, which are also designed to detect violations of Exchange rules and applicable federal securities laws. The Exchange is responsible for FINRA’s performance under this regulatory services agreement. The Exchange will require the Trust to represent to the Exchange that it will advise the Exchange of any failure by the Trust to comply with the continued listing requirements, and, pursuant to its obligations under section 19(g)(1) of the Exchange Act, the Exchange will surveil for compliance with the continued listing requirements. If the Trust is not in compliance with the applicable listing requirements, the Exchange will commence delisting procedures under the Nasdaq 5800 Series. In addition, the Exchange also has a general policy prohibiting the distribution of material, non-public information by its employees. The Exchange or FINRA, on behalf of the Exchange, or both, will communicate as needed regarding trading in the Shares with other markets and other entities that are members of the ISG, and the Exchange or FINRA, on behalf of the Exchange, or both, may obtain trading information regarding trading in the Shares from such markets and other entities. The Exchange also may obtain information regarding trading in the Shares and listed bitcoin derivatives via the ISG, from other exchanges who are members or affiliates of the ISG, or with which the Exchange E:\FR\FM\12JAN1.SGM 12JAN1 2292 Federal Register / Vol. 89, No. 9 / Friday, January 12, 2024 / Notices has entered into a comprehensive surveillance sharing agreement. khammond on DSKJM1Z7X2PROD with NOTICES Information Circular Prior to the commencement of trading, the Exchange will inform its members in an Information Circular of the special characteristics and risks associated with trading the Shares. Specifically, the Information Circular will discuss the following: (1) the procedures for purchases and redemptions of Shares in Creation Units (and that Shares are not individually redeemable); (2) Section 10 of Nasdaq General Rule 9, which imposes suitability obligations on Nasdaq members with respect to recommending transactions in the Shares to customers; (3) how information regarding the IIV is disseminated; (4) the risks involved in trading the Shares during the PreMarket and Post-Market Sessions when an updated IIV will not be calculated or publicly disseminated; (5) the requirement that members deliver a prospectus to investors purchasing newly issued Shares prior to or concurrently with the confirmation of a transaction; and (6) trading information. The Information Circular will also discuss any exemptive, no-action and interpretive relief granted by the Commission from any rules under the Act. The Information Circular will also reference the fact that there is no regulated source of last sale information regarding bitcoin, that the Commission has no jurisdiction over the trading of bitcoin as a commodity, and that the CFTC has regulatory jurisdiction over the trading of Bitcoin Futures contracts and options on Bitcoin Futures contracts. Additionally, the Information Circular will disclose the trading hours of the Shares. The Information Circular will also disclose that information about the Shares will be publicly available on the Trust’s website. 2. Statutory Basis The Exchange believes that the proposal is consistent with section 6(b) of the Act 27 in general and section 6(b)(5) of the Act 28 in particular in that it is designed to prevent fraudulent and manipulative acts and practices, to promote just and equitable principles of trade, to foster cooperation and coordination with persons engaged in facilitating transactions in securities, to remove impediments to and perfect the mechanism of a free and open market and a national market system and, in 27 15 28 15 U.S.C. 78f. U.S.C. 78f(b)(5). VerDate Sep<11>2014 00:38 Jan 12, 2024 Jkt 262001 general, to protect investors and the public interest. The Commission has approved numerous series of Trust Issued Receipts,29 including Commodity-Based Trust Shares,30 to be listed on U.S. national securities exchanges. In order for any proposed rule change from an exchange to be approved, the Commission must determine that, among other things, the proposal is consistent with the requirements of section 6(b)(5) of the Act, specifically including: (i) the requirement that a national securities exchange’s rules are designed to prevent fraudulent and manipulative acts and practices; and (ii) the requirement that an exchange proposal be designed, in general, to protect investors and the public interest. The Exchange believes that this proposal is consistent with the requirements of section 6(b)(5) of the Act because this filing sufficiently demonstrates that the standard that has previously been articulated by the Commission applicable to CommodityBased Trust Shares has been met as outlined below. Designed To Prevent Fraudulent and Manipulative Acts and Practices In order for a proposal to list and trade a series of Commodity-Based Trust Shares to be deemed consistent with the Act, the Commission requires that an exchange demonstrate that there is a comprehensive surveillance-sharing agreement in place with a regulated market of significant size. Both the Exchange and CME are members of ISG.31 As such, the only remaining issue to be addressed is whether the Bitcoin Futures market constitutes a market of significant size, which the Exchange believes that it does. The terms ‘‘significant market’’ and ‘‘market of significant size’’ include a market (or group of markets) as to which: (a) there is a reasonable likelihood that a person attempting to manipulate the ETP would also have to trade on that market to manipulate the ETP, so that a surveillance-sharing agreement would assist the listing exchange in detecting and deterring misconduct; and (b) it is unlikely that trading in the ETP would be the predominant influence on prices in that market.32 The Commission has also recognized that the ‘‘regulated market of significant size’’ standard is not the only means for 29 See Exchange Rule 5720. Trust Shares, as described in Exchange Rule 5711(d), are a type of Trust Issued Receipt. 31 For a list of the current members and affiliate members of ISG, see https://www.isgportal.com/. 32 See Wilshire Phoenix Disapproval. 30 Commodity-Based PO 00000 Frm 00095 Fmt 4703 Sfmt 4703 satisfying section 6(b)(5) of the act, specifically providing that a listing exchange could demonstrate that ‘‘other means to prevent fraudulent and manipulative acts and practices’’ are sufficient to justify dispensing with the requisite surveillance-sharing agreement.33 (a) Reasonable Likelihood That a Person Attempting To Manipulate the ETP Would Also Have To Trade on That Market To Manipulate the ETP Bitcoin Futures represent a growing influence on pricing in the spot bitcoin market as has been laid out above and in other proposals to list and trade Spot Bitcoin ETPs. Pricing in Bitcoin Futures is based on pricing from spot bitcoin markets. As noted above, the statement from the Teucrium Approval that ‘‘CME’s surveillance can reasonably be relied upon to capture the effects on the CME bitcoin futures market caused by a person attempting to manipulate the proposed futures ETP by manipulating the price of CME bitcoin futures contracts . . . indirectly by trading outside of the CME bitcoin futures market,’’ makes clear that the Commission believes that CME’s surveillance can capture the effects of trading on the relevant spot markets on the pricing of Bitcoin Futures. While the Commission makes clear in the Teucrium Approval that the analysis only applies to the Bitcoin Futures market as it relates to an ETP that invests in Bitcoin Futures as its only non-cash or cash equivalent holding, if CME’s surveillance is sufficient to mitigate concerns related to trading in Bitcoin Futures for which the pricing is based directly on pricing from spot bitcoin markets, it’s not clear how such a conclusion could apply only to ETPs based on Bitcoin Futures and not extend to Spot Bitcoin ETPs. (b) Predominant Influence on Prices in Spot and Bitcoin Futures The Exchange and Sponsor also believe that trading in the Shares would not be the predominant force on prices in the Bitcoin Futures market or spot market for a number of reasons, including the significant volume in the Bitcoin Futures market, the size of bitcoin’s market cap, and the significant liquidity available in the spot market. In 33 See Winklevoss Order at 37580. The Commission has also specifically noted that it ‘‘is not applying a ‘‘cannot be manipulated’’ standard; instead, the Commission is examining whether the proposal meets the requirements of the Exchange Act and, pursuant to its Rules of Practice, places the burden on the listing exchange to demonstrate the validity of its contentions and to establish that the requirements of the Exchange Act have been met. Id. at 37582. E:\FR\FM\12JAN1.SGM 12JAN1 Federal Register / Vol. 89, No. 9 / Friday, January 12, 2024 / Notices addition to the Bitcoin Futures market data points cited above, the spot market for bitcoin is also very liquid. As such, the combination of the Bitcoin Futures leading price discovery, the overall size of the bitcoin market, and the ability for market participants to buy or sell large amounts of bitcoin without significant market impact will help prevent the Shares from becoming the predominant force on pricing in either the bitcoin spot or Bitcoin Futures markets, satisfying part (b) of the test outlined above. khammond on DSKJM1Z7X2PROD with NOTICES (c) Other Means To Prevent Fraudulent and Manipulative Acts and Practices The Exchange is also proposing to take additional steps to those described above to supplement its ability to obtain information that would be helpful in detecting, investigating, and deterring fraud and market manipulation in the Commodity-Based Trust Shares. As noted in the Surveillance section, the surveillance program includes realtime patterns for price and volume movements and post-trade surveillance patterns (e.g., spoofing, marking the close, pinging, phishing). In addition to the Exchange’s existing surveillance, a new pattern will be added to surveil for significant deviation in the CommodityBased Trust Shares’ price from the underlying asset’s price. The Exchange will use the trade data from an external vendor that consolidates the real-time data from multiple bitcoin platforms. Trading of Shares on the Exchange will be subject to the Exchange’s surveillance program for derivative products, as well as cross-market surveillances administered by FINRA, on behalf of the Exchange pursuant to a regulatory services agreement, which are also designed to detect violations of Exchange rules and applicable federal securities laws. The Exchange is responsible for FINRA’s performance under this regulatory services agreement. The Exchange will require the Trust to represent to the Exchange that it will advise the Exchange of any failure by the Trust to comply with the continued listing requirements, and, pursuant to its obligations under section 19(g)(1) of the Exchange Act, the Exchange will surveil for compliance with the continued listing requirements. If the Trust is not in compliance with the applicable listing requirements, the Exchange will commence delisting procedures under the Nasdaq 5800 Series. In addition, the Exchange also has a general policy prohibiting the distribution of material, non-public information by its employees. VerDate Sep<11>2014 00:38 Jan 12, 2024 Jkt 262001 The Exchange will communicate as needed regarding trading in the Shares with other markets and other entities that are members of the ISG, and the Exchange may obtain trading information regarding trading in the Shares from such markets and other entities. Commodity-Based Trust Shares The Exchange believes that the proposed rule change is designed to prevent fraudulent and manipulative acts and practices in that the Shares will be listed on the Exchange pursuant to the initial and continued listing criteria in Exchange Rule 5711(d). The Exchange believes that its surveillance procedures are adequate to properly monitor the trading of the Shares on the Exchange during all trading sessions and to deter and detect violations of Exchange rules and the applicable federal securities laws, including Commodity-Based Trust Shares. Trading of the Shares through the Exchange will be subject to the Exchange’s surveillance procedures for derivative products, including Commodity-Based Trust Shares. The issuer has represented to the Exchange that it will advise the Exchange of any failure by the Trust or the Shares to comply with the continued listing requirements, and, pursuant to its obligations under section 19(g)(1) of the Exchange Act, the Exchange will surveil for compliance with the continued listing requirements. If the Trust or the Shares are not in compliance with the applicable listing requirements, the Exchange will commence delisting procedures under Exchange Rule 5800 and following. The Exchange may obtain information regarding trading in the Shares and listed bitcoin derivatives via the ISG, from other exchanges who are members or affiliates of the ISG, or with which the Exchange has entered into a comprehensive surveillance sharing agreement. Availability of Information The Trust’s website (https://valkyrie invest.com/BRRR) will include, free of charge, quantitative information on a per Share basis updated on a daily basis, including (i) the current NAV per Share daily and the prior business day’s NAV and the reported closing price; (ii) the mid-point of the bid-ask price 34 in relation to the NAV as of the time the NAV is calculated (‘‘Bid-Ask Price’’) and a calculation of the premium or discount of such price against such 34 The bid-ask price of the Trust is determined using the highest bid and lowest offer on the Consolidated Tape as of the time of calculation of the closing day NAV. PO 00000 Frm 00096 Fmt 4703 Sfmt 4703 2293 NAV; (iii) data in chart format displaying the frequency distribution of discounts and premiums of the daily Bid-Ask Price against the NAV, within appropriate ranges, for each of the four previous calendar quarters (or for the life of the Trust, if shorter); and (iv) copies of the Trust’s prospectus in electronic format. In addition, on each business day the Trust’s website will also provide free of charge: (i) the Trust’s NAV and NAV per Share; (ii) information regarding the Trust’s holdings; and (iii) information regarding the Index and the value of a bitcoin as calculated by the Index (which may also be found on the Index’s website (https:// www.cfbenchmarks.com/data/indices/ BRRNY), or, if an alternative fair value methodology is used to value the Trust’s bitcoin, such other pricing source(s) used in such calculation. The Trust’s website will provide an IIV per Share updated every 15 seconds, as calculated by the Exchange or a thirdparty financial data provider during the Exchange’s Regular Market Session (9:30 a.m. to 4:00 p.m. (Eastern Time)).35 The IIV will be calculated by using the prior day’s closing NAV per Share as a base and updating that value throughout the trading day to reflect changes in the most recently reported price level of the BRTI, as reported by CME Group, Inc., Bloomberg, L.P. or another reporting service. The BRTI is calculated in real time once per second based on the Relevant Order Books of all Constituent Bitcoin Platforms. All aspects of the BRTI methodology are publicly available at the website of the Benchmark Administrator. The IIV disseminated during the Exchange’s Regular Market Session should not be viewed as an actual realtime update of the NAV, which will be calculated only once at the end of each trading day. The IIV will be widely disseminated on a per Share basis every 15 seconds during the Exchange’s Regular Market Session by one or more major market data vendors. In addition, the IIV will be available published on the Exchange’s website and through online information services such as Bloomberg and Reuters. The NAV for the Trust will be calculated by the Sponsor once a day and will be disseminated daily to all market participants at the same time. Quotation and last-sale information regarding the Shares will be disseminated through the facilities of 35 The IIV on a per Share basis disseminated during the Regular Market Session should not be viewed as a real-time update of the NAV, which is calculated once a day. E:\FR\FM\12JAN1.SGM 12JAN1 2294 Federal Register / Vol. 89, No. 9 / Friday, January 12, 2024 / Notices the relevant securities information processor. Quotation and last sale information for bitcoin is widely disseminated through a variety of major market data vendors, including Bloomberg and Reuters, as well as CF Benchmarks. Information relating to trading, including price and volume information, in bitcoin is available from major market data vendors and from the platforms on which bitcoin are traded. Depth of book information is also available from bitcoin platforms. The normal trading hours for bitcoin platforms are 24 hours per day, 365 days per year. Information regarding market price and trading volume of the Shares will be continually available on a real-time basis throughout the day on brokers’ computer screens and other electronic services. Information regarding the previous day’s closing price and trading volume information for the Shares will be published daily in the financial section of newspapers. Market prices for the Shares will be available from a variety of sources, including brokerage firms, information websites and other information service providers. For the above reasons, the Exchange believes that the proposed rule change is consistent with the requirements of section 6(b)(5) of the Act. 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 that is not necessary or appropriate in furtherance of the purpose of the Act. The Exchange notes that the proposed rule change, rather will facilitate the listing and trading of additional actively-managed exchange-traded products that will enhance competition among both market participants and listing venues, to the benefit of investors and the marketplace. C. Self-Regulatory Organization’s Statement on Comments on the Proposed Rule Change Received From Members, Participants, or Others khammond on DSKJM1Z7X2PROD with NOTICES No written comments were either solicited or received. III. 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: VerDate Sep<11>2014 00:38 Jan 12, 2024 Jkt 262001 Electronic Comments • Use the Commission’s internet comment form (https://www.sec.gov/ rules/sro.shtml); or • Send an email to rule-comments@ sec.gov. Please include file number SR– NASDAQ–2023–019 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–2023–019. 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–2023–019 and should be submitted on or before February 2, 2024. For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.36 Sherry R. Haywood, Assistant Secretary. [FR Doc. 2024–00507 Filed 1–11–24; 8:45 am] BILLING CODE 8011–01–P SECURITIES AND EXCHANGE COMMISSION [Release No. 34–99282; File No. SR– NYSEAMER–2024–01] Self-Regulatory Organizations; NYSE American LLC; Notice of Filing and Immediate Effectiveness of Proposed Change To Amend Certain Transaction Fees and Credits in the NYSE American Equities Price List and Fee Schedule January 8, 2024. Pursuant to Section 19(b)(1) 1 of the Securities Exchange Act of 1934 (the ‘‘Act’’),2 and Rule 19b–4 thereunder,3 notice is hereby given that on January 2, 2024, NYSE American LLC (‘‘NYSE American’’ or the ‘‘Exchange’’) filed with the Securities and Exchange Commission (the ‘‘Commission’’) the proposed rule change as described in Items I and II 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. I. Self-Regulatory Organization’s Statement of the Terms of Substance of the Proposed Rule Change The Exchange proposes to amend certain transaction fees and credits in the NYSE American Equities Price List and Fee Schedule (‘‘Price List’’) pertaining to its optional monthly credits applicable to Electronic Designated Market Makers (‘‘eDMM’’) in assigned securities. The Exchange proposes to implement the fee changes effective January 2, 2024. The proposed rule change is available on the Exchange’s website at www.nyse.com, 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 self-regulatory organization 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 those 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 parts of such statements. 1 15 U.S.C. 78s(b)(1). U.S.C. 78a. 3 17 CFR 240.19b–4. 2 15 36 17 PO 00000 CFR 200.30–3(a)(12). Frm 00097 Fmt 4703 Sfmt 4703 E:\FR\FM\12JAN1.SGM 12JAN1

Agencies

SECURITIES AND EXCHANGE COMMISSION

[Federal Register Volume 89, Number 9 (Friday, January 12, 2024)]
[Notices]
[Pages 2281-2294]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-00507]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-99287; File No. SR-NASDAQ-2023-019]

Self-Regulatory Organizations; The Nasdaq Stock Market LLC;
Notice of Filing of Amendment No. 1 to a Proposed Rule Change To List
and Trade Shares of the Valkyrie Bitcoin Fund Under Nasdaq Rule
5711(d), Commodity-Based Trust Shares

January 8, 2024.
On July 3, 2023, The Nasdaq Stock Market LLC (``Nasdaq'' 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 list and trade shares of the Valkyrie Bitcoin
Fund under Nasdaq Rule 5711(d), Commodity-Based Trust Shares. The
proposed rule change was published for comment in the Federal Register
on July 21, 2023.\3\ On August 31, 2023, pursuant to section 19(b)(2)
of the Act,\4\ the Commission designated a longer period within which
to approve the proposed rule change, disapprove the proposed rule
change, or institute proceedings to determine whether to disapprove the
proposed rule change.\5\ On September 28, 2023, the Commission
instituted proceedings to determine whether to disapprove the proposed
rule change.\6\ On January 5, 2024, the Exchange filed Amendment No. 1
to the proposed rule change as described in Items I and II below, which
Items have been prepared by the Exchange. Amendment No. 1 amended and
replaced the proposed rule change in its entirety. The Commission is
publishing this notice to solicit comments on the proposed rule change,
as modified by Amendment No. 1, from interested persons.
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\1\ 15 U.S.C. 78s(b)(1).
\2\ 17 CFR 240.19b-4.
\3\ See Securities Exchange Act Release No. 97922 (July 17,
2023), 88 FR 47214. Comments on the proposed rule change are
available at: https://www.sec.gov/comments/sr-nasdaq-2023-019/srnasdaq2023019.htm.
\4\ 15 U.S.C. 78s(b)(2).
\5\ See Securities Exchange Act Release No. 98262, 88 FR 61658
(Sept. 7, 2023).
\6\ See Securities Exchange Act Release No. 98606, 88 FR 68894
(Oct. 4, 2023).
---------------------------------------------------------------------------

I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change

The Exchange proposes to list and trade shares of the Valkyrie
Bitcoin Fund (the ``Trust'') under Nasdaq Rule 5711(d) (``Commodity-
Based Trust

[[Page 2282]]

Shares''). The shares of the Trust are referred to herein as the
``Shares.'' This Amendment No. 1 supersedes the original filing in its
entirety.
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
The Exchange proposes to list and trade Shares of the Trust under
Nasdaq Rule 5711(d), which governs the listing and trading of
Commodity-Based Trust Shares on the Exchange.\7\
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\7\ Nasdaq Rule 5711(d)(iv)(A) defines Commodity-Based Trust
Shares as ``a security (1) that is issued by a trust that holds (a)
a specified commodity deposited with the trust, or (b) a specified
commodity and, in addition to such specified commodity, cash; (2)
that is issued by such trust in a specified aggregate minimum number
in return for a deposit of a quantity of the underlying commodity
and/or cash; and (3) that, when aggregated in the same specified
minimum number, may be redeemed at a holder's request by such trust
which will deliver to the redeeming holder the quantity of the
underlying commodity and/or cash.''
---------------------------------------------------------------------------

Description of the Trust
The Shares will be issued by the Trust, a Delaware statutory trust.
The Trust will operate pursuant to a trust agreement (the ``Trust
Agreement'') between Valkyrie Digital Assets, LLC (the ``Sponsor'') and
Delaware Trust Company, as the Trust's trustee (the ``Trustee''). The
Shares will be registered with the Commission by means of the Trust's
registrations statement on Form S-1 (the ``Registration
Statement'').\8\ Pursuant to the Trust Agreement, the Sponsor will
enter into a custodian agreement (the ``Custodian Agreement'') with
Coinbase Custody Trust Company, LLC (the ``Custodian'') to act as
custodian for the Trust's bitcoins. The Custodian is not an affiliate
of the Trust or the Sponsor. Pursuant to the Custodian Agreement, the
Custodian will establish accounts that hold the bitcoins deposited with
the Custodian on behalf of the Trust. U.S. Bancorp Fund Services, LLC
will act as the transfer agent for the Trust (the ``Transfer Agent'')
and as the administrator of the Trust (the ``Administrator'') to
perform various administrative, accounting and recordkeeping functions
on behalf of the Trust. One or more cash custodians (each, a ``Cash
Custodian'') will act as custodian for the cash held by the Trust.
---------------------------------------------------------------------------

\8\ See Amendment No. 5 to Registration Statement on Form S-1,
dated December 29, 2023 filed with the Commission by the Sponsor on
behalf of the Trust (File No. 333-252344). The descriptions of the
Trust contained herein are based, in part, on information in the
Registration Statement. The Registration Statement in not yet
effective and the Shares will not trade on the Exchange until such
time that the Registration Statement is effective.
---------------------------------------------------------------------------

The investment objective of the Trust is for the Shares to reflect
the performance of the value of a bitcoin as represented by the CME CF
Bitcoin Reference Rate--New York Variant (the ``Index''), less the
Trust's liabilities and expenses. The purpose of the Trust is to
provide investors with a cost-effective and convenient way to invest in
bitcoin in a manner that is more efficient and convenient than the
purchase of a stand-alone bitcoin, while also mitigating some of the
risk by reducing the volatility typically associated with the purchase
of stand-alone bitcoin and without the uncertain and often complex
requirements relating to acquiring and/or holding bitcoin.
The Trust will only hold bitcoin and cash, and will, from time to
time, issue a block of 5,000 Shares (a ``Basket'') in exchange for
deposits of cash to the Trust. The Trust intends to hold cash only to
the extent necessary to pay Trust expenses, when receiving cash in
connection the creation of Baskets, or when distributing cash in
connection with redemptions of Baskets. The Shares of the Trust
represent units of fractional undivided beneficial interest in, and
ownership of, the Trust. The bitcoins held by the Custodian on behalf
of the Trust will be transferred out of its custody only to be sold on
an as-needed basis in connection with the redemption of Baskets, to pay
additional trust expenses, or in the event the Trust terminates and
liquidates its assets or as otherwise required by law or regulation.
Custody of the Trust's Bitcoins
The Custodian will custody all of the Trust's bitcoin, other than
that which may be maintained in a trading account (the ``Trading
Balance'') with Coinbase, Inc. (``Coinbase,'' which is an affiliate of
the Custodian), in accounts that are required to be segregated from the
assets held by the Custodian as principal and the assets of its other
customers (the ``Vault Balance''). The Custodian will keep all of the
private keys associated with the Trust's bitcoin held by the Custodian
in the Vault Balance in ``cold storage'', which refers to a
safeguarding method by which the private keys corresponding to the
Trust's bitcoins are generated and stored in an offline manner using
computers or devices that are not connected to the internet, which is
intended to make them more resistant to hacking. By contrast, in hot
storage, the private keys are held online, where they are more
accessible, leading to more efficient transfers, though they are
potentially more vulnerable to being hacked. While the Custodian will
generally keep a substantial portion of the Trust's bitcoin in cold
storage on an ongoing basis, from time to time, portions of the Trust's
bitcoin will be held outside of cold storage temporarily in the Trading
Balance maintained by Coinbase as part of trade facilitation in
connection with creations and redemptions of Baskets or to sell
bitcoins including to pay Trust expenses. The Trust's bitcoin held in
the Vault Balance by the Custodian are held in segregated wallets and
therefore are not commingled with the Custodian's or other customer
assets.
All bitcoins exist and are stored on the decentralized transaction
ledger of the Bitcoin network (the ``Blockchain''). The Blockchain
records most transactions (including mining of new bitcoins) for all
bitcoins in existence, and in doing so verifies the location of each
bitcoin (or fraction thereof) in a particular digital wallet. Each
digital wallet of the Custodian may be accessed using its corresponding
private key. The Custodian's custodial operations will maintain custody
of the private keys that have been deposited in cold storage at its
various vaulting premises which are located in geographically dispersed
locations across the world, including but not limited to the United
States, Europe, including Switzerland and South America. The locations
of the vaulting premises may change regularly and are kept confidential
by the Custodian for security purposes.
The Custodian is the custodian of the Trust's private keys
corresponding to the Trust's bitcoins in accordance with the terms and
provisions of the Custodian Agreement and will utilize the certain
security procedures such as algorithms, codes, passwords, encryption or
telephone call-backs

[[Page 2283]]

(together, the ``Security Procedures'') in the administration and
operation of the Trust and the safekeeping of its bitcoins and private
keys. The Custodian will create a Vault Balance for the Trust assets in
which private keys are placed in cold storage. The Custodian will
segregate the private keys stored with it from any other assets it
holds or holds for others. Further, multiple distinct private keys must
sign any transaction in order to transfer the Trust's bitcoins from a
multi-signature address to any other address on the bitcoin blockchain.
Distinct private keys required for multi-signature address transfers
reside in geographically dispersed vault locations, known as ``signing
vaults.'' In addition to multiple signing vaults, the Custodian
maintains multiple ``back-up vaults'' in which backup private keys are
stored. In the event that one or more of the ``signing vaults'' is
compromised, the back-up vaults would be activated and used as signing
vaults to complete a transaction within 72 hours. As such, if any one
signing vault is compromised, it would have no impact on the ability of
the Trust to access its bitcoins, other than a possible delay in
operations of 72 hours, while one or more of the ``backup vaults'' is
transitioned to a signing vault. These Security Procedures ensure that
there is no single point of failure in the protection of the Trust's
assets.
Calculation of Net Asset Value
The Trust's net asset value (``NAV'') per Share is calculated by
taking the current market value of its total assets, less any
liabilities of the Trust (including accrued by unpaid expenses) and
dividing that total by the total number of outstanding Shares. The
bitcoin held by the Trust will typically be valued based on the price
set by the Index (the ``Bitcoin Index Price''). The Sponsor holds full
discretion to change either the index used for calculating NAV or the
index provider subject to proper notification to shareholders (such
notification will be made via a prospectus supplement to the
Registration Statement and/or a current report filed with the SEC and
will occur in advance of any such change). Shareholder approval is not
required to effect such change. Any permanent change to the Index and/
or calculation of the NAV will require a 19b-4 filing. The
Administrator will calculate the NAV of the Trust once each Exchange
trading day. The Exchange's Regular Market Session closes at 4:00 p.m.
ET. The NAV for a normal trading day will be released after the end of
the Regular Market Session. However, NAVs are not officially struck
until later in the day (often by 5:30 p.m. Eastern Time and almost
always by 8:00 p.m. Eastern Time). The pause between 4:00 p.m. Eastern
Time and 5:30 p.m. Eastern Time provides an opportunity to detect,
flag, investigate, and correct unusual pricing should it occur.
The Sponsor anticipates that the Bitcoin Index Price will be
reflective of a reasonable valuation of the average spot price of
bitcoin. However, in the event the Bitcoin Index Price is not available
or determined by the Sponsor to not be reliable, the Sponsor would
``fair value'' the Trust's bitcoin holdings on a temporary basis. The
Sponsor will monitor for significant events related to crypto assets
that may impact the value of bitcoin and will determine in good faith,
and in accordance with its valuation policies and procedures, whether
to fair value the Trust's bitcoin on a given day (e.g., if the Index is
not available the Sponsor). In certain circumstances, the Sponsor will
determine whether to fair value the Trust's bitcoin on a given day on
whether certain pre-determined criteria have been met. For example, if
the Index deviates by more than a pre-determined amount from an
alternate benchmark available to the Sponsor, then the Sponsor may
determine to utilize the alternate benchmark. The Trust and the Sponsor
have licensed use of the Lukka Prime Reference Rate as such an
alternative benchmark. The Sponsor may also fair value the Trust's
bitcoin using observed market transactions from various platforms,
including some or all of the Constituent Bitcoin Platforms (as defined
below) included in the Index. The Sponsor may also fair value the
Trust's bitcoin using a combination of inputs in certain situations
(e.g., using observed market transactions, OTC quotations from brokers,
etc.).
The NAV for the Trust's Shares will be disseminated daily to all
market participants at the same time. The Sponsor will publish the NAV
and NAV per Share at https://valkyrieinvest.com/BRRR as soon as
practicable after their determination and availability.
Intraday Indicative Value
In order to provide updated information relating to the Trust for
use by shareholders and market professionals, an updated intraday
indicative value (``IIV'') per Share updated every 15 seconds will be
disseminated by one of more major market data vendors during the
Exchange's Regular Market Session through the facilities of the
relevant securities information processor and Consolidated Quotation
System (CQS) high speed lines. In addition, the IIV will be available
through on-line information services such as Bloomberg and Reuters.\9\
The IIV will be calculated by a third-party financial data provider
during the Exchange's Regular Market Session. The IIV will be
calculated by using the prior day's closing NAV per Share of the Trust
as a base and updating that value throughout the trading day to reflect
changes in the most recently reported price level of the CME CF Bitcoin
Real-Time Index (``BRTI''), as reported by CME Group, Inc., Bloomberg,
L.P. or another reporting service. The BRTI is a real time index of the
U.S. dollar price of one bitcoin, published once per second, 24 hours
per day, 7 days per week, and 365 days per year. The BRTI is calculated
once per second in real time based on the Relevant Order Books of all
Constituent Bitcoin Platforms. A ``Relevant Order Book'' is the
universe of the currently unmatched limit orders to buy or sell in the
BTC/USD pair that is reported and disseminated by CF Benchmarks Ltd.,
as the BRTI. calculation agent.
---------------------------------------------------------------------------

\9\ Several major market data vendors display and/or make widely
available IIVs taken from the relevant securities information
processor or other data feeds. In addition, the indicative fund
value will be available through on-line information services such as
Bloomberg and Reuters.
---------------------------------------------------------------------------

Creation and Redemption of Shares
The Trust will issue Shares on an ongoing basis, but only in one or
more Baskets. The creation and redemption of a Basket requires the
delivery to the Trust, or the distribution by the Trust, of the cash
value of the amount of bitcoin represented by each Basket being created
or redeemed, which is calculated pursuant to the same procedures used
to calculate the Trust's NAV (the ``Basket Amount''). The amount of
bitcoin represented by each Basket is determined by dividing the number
of bitcoins owned by the Trust at 4:00 p.m. ET, on the trade date of a
creation or redemption order, as adjusted for the number of whole and
fractional bitcoins constituting accrued but unpaid fees and expenses
of the Trust, by the number of Shares outstanding at such time (the
quotient so obtained calculated to one-hundred-millionth of one
bitcoin) and multiplying such quotient by 5,000. The Basket Amount
multiplied by the number of Baskets being created or redeemed is the
``Total Basket Amount.''
The only persons that may place orders to create or redeem Baskets
are authorized participants (``Authorized Participants''). Each
Authorized Participant must (i) be a registered broker-dealer or
similar exempt

[[Page 2284]]

financial institution and (ii) enter into a participant agreement with
the Sponsor, the Administrator, and the marketing agent (the
``Marketing Agent''). Authorized Participants may act for their own
accounts or as agents for broker-dealers, custodians and other
securities market participants that wish to create or redeem Baskets.
Shareholders who are not Authorized Participants will only be able to
redeem their Shares through an Authorized Participant. The Authorized
Participants will deliver only cash to create Shares and will receive
only cash when redeeming Shares. Further, Authorized Participants will
not directly or indirectly purchase, hold, deliver, or receive bitcoin
as part of the creation or redemption process or otherwise direct the
trust or a third party with respect to purchasing, holding, delivering,
or receiving bitcoin as part of the creation or redemption process.
The Sponsor will maintain ownership and control of the bitcoin in a
manner consistent with good delivery requirements for spot commodity
transactions.
Creation Procedures
On any ``Business Day'' (defined as any day other than a day when
the Exchange is closed for regular trading), an Authorized Participant
may order one or more Baskets (each a ``Creation Basket'') from the
Trust by placing a creation order with the Administrator. Creation
orders may only be placed in exchange for cash. Creation orders must be
placed no later than 12:59:59 p.m. Eastern Time on each Business Day.
Authorized Participants may only create Baskets and cannot create any
Shares in an amount less than a Basket.
Upon receiving instruction from the Administrator that a creation
order has been accepted by the Transfer Agent, the Authorized
Participant will on the same day send the U.S. Dollar value of the
Total Basket Amount, which will be based on the NAV per Share
multiplied by the number of Shares. The Authorized Participant will
also be responsible for any difference in the price of bitcoin used to
calculate the NAV per Share and the actual price at which the Trust
purchases bitcoin in connection with such order, as well as any
brokerage fees, transfer fees, network fees or other costs of the Trust
in purchasing bitcoin in connection with the creation order. After the
Administrator receives the Total Basket Amount, the Administrator will
instruct the Transfer Agent to deliver the Creation Baskets to the
Authorized Participant on the day following the creation order date.
Redemption Procedures
The procedures by which an Authorized Participant can redeem one or
more Baskets (each, a ``Redemption Basket'') mirror the procedures for
the creation of Creation Baskets. On any Business Day, an Authorized
Participant may place a redemption order specifying the number of
Redemption Baskets to be redeemed. Redemption orders may only be placed
in exchange for cash. Redemption orders must be placed no later than
12:59:59 p.m. ET, on each Business Day. Authorized Participants may
only redeem Redemption Baskets and cannot redeem any Shares in an
amount less than a Basket.
To redeem Redemption Baskets, Authorized Participants will send the
Administrator a redemption order. The Transfer Agent will accept or
reject the redemption order on that same date. On the date following
the redemption order date, the Administrator will send the Total Basket
Amount to the Authorized Participant and the Transfer Agent will cancel
the Shares once the Authorized Participant delivers the Redemption
Baskets to the Transfer Agent. The amount of the redemption proceeds
will be calculated in the same manner as the determination of the
creation basket deposits discussed above.
With respect to the Authorized Participant involved with a creation
or redemption order, the following conditions apply to such Authorized
Participant and the Trust:
The Trust will create Shares by receiving bitcoin from a
third party that is not the Authorized Participant and the Trust--not
the Authorized Participant--is responsible for selecting the third
party to deliver the bitcoin. Further, the third party will not be
acting as an agent of the Authorized Participant with respect to the
delivery of the bitcoin to the Trust or acting at the direction of the
Authorized Participant with respect to the delivery of the bitcoin to
the Trust.
The Trust will redeem Shares by delivering bitcoin to a
third party that is not the Authorized Participant and the Trust--not
the Authorized Participant--is responsible for selecting the third
party to receive the bitcoin. Further, the third party will not be
acting as an agent of the Authorized Participant with respect to the
receipt of the bitcoin from the Trust or acting at the direction of the
Authorized Participant with respect to the receipt of the bitcoin from
the Trust.
The third party will be unaffiliated with the Trust and
the Sponsor.
Overview of the Bitcoin Industry and Market \10\
---------------------------------------------------------------------------

\10\ For the purpose of this section, Bitcoin with an upper case
``B'' is used to describe the system as a whole that is involved in
maintaining the ledger of bitcoin ownership and facilitating the
transfer of bitcoin among parties. When referring to the digital
asset within the bitcoin network, bitcoin is written with a lower
case ``b'' (except, at the beginning of sentences or paragraph
sections).
---------------------------------------------------------------------------

Bitcoin
Bitcoin is the digital asset that is native to, and created and
transmitted through the operations of, the peer-to-peer Bitcoin
network, a decentralized network of computers that operates on
cryptographic protocols. No single entity owns or operates the Bitcoin
network, the infrastructure of which is collectively maintained by a
decentralized user base. The Bitcoin network allows people to exchange
tokens of value, called bitcoin, which are recorded on a public
transaction ledger known as the Blockchain. Bitcoin can be used to pay
for goods and services, or it can be converted to fiat currencies, such
as the U.S. dollar, at rates determined on bitcoin trading platforms or
in individual end-user-to-end-user transactions under a barter system.
The value of bitcoin is determined by the supply of and demand for
bitcoin. New bitcoins are created and rewarded to the parties providing
the Bitcoin network's infrastructure (``miners'') in exchange for their
expending computational power to verifying transactions and add them to
the Blockchain. The Blockchain is effectively a decentralized database
that includes all blocks that have been solved by miners and it is
updated to include new blocks as they are solved. Each bitcoin
transaction is broadcast to the Bitcoin network and, when included in a
block, recorded in the Blockchain. As each new block records
outstanding bitcoin transactions, and outstanding transactions are
settled and validated through such recording, the Blockchain represents
a complete, transparent and unbroken history of all transactions of the
Bitcoin network.
Bitcoin Network
Bitcoin was first described in a white paper released in 2008 and
published under the pseudonym ``Satoshi Nakamoto.'' The protocol
underlying Bitcoin was subsequently released in 2009 as open-source
software and currently operates on a worldwide network of computers.
The first step in directly using the Bitcoin network for
transactions is to download specialized software referred

[[Page 2285]]

to as a ``bitcoin wallet.'' A user's bitcoin wallet can run on a
computer or smartphone and can be used both to send and to receive
bitcoin. Within a bitcoin wallet, a user can generate one or more
unique ``bitcoin addresses,'' which are conceptually similar to bank
account numbers. After establishing a bitcoin address, a user can send
or receive bitcoin from his or her bitcoin address to another user's
address. Sending bitcoin from one bitcoin address to another is similar
in concept to sending a bank wire from one person's bank account to
another person's bank account; provided, however, that such
transactions are not managed by an intermediary and erroneous
transactions generally may not be reversed or remedied once sent.
The amount of bitcoin associated with each bitcoin address, as well
as each bitcoin transaction to or from such address, is transparently
reflected in the Blockchain and can be viewed by websites that operate
as ``blockchain explorers.'' Copies of the Blockchain exist on
thousands of computers on the Bitcoin network. A user's bitcoin wallet
will either contain a copy of the blockchain or be able to connect with
another computer that holds a copy of the blockchain. The innovative
design of the Bitcoin network protocol allows each Bitcoin user to
trust that their copy of the Blockchain will generally be updated
consistent with each other user's copy.
Bitcoin Protocol
The Bitcoin protocol is open-source software, meaning any developer
can review the underlying code and suggest changes. There is no
official company or group that is responsible for making modifications
to Bitcoin. There are, however, a number of individual developers that
regularly contribute to a specific distribution of Bitcoin software
known as the ``Bitcoin Core,'' which is maintained in an open-source
repository on the website Github. There are many other compatible
versions of Bitcoin software, but Bitcoin Core provides the de-facto
standard for the Bitcoin protocol, also known as the ``reference
software.'' The core developers for Bitcoin Core operate under a
volunteer basis and without strict hierarchical administration.
Significant changes to the Bitcoin protocol are typically
accomplished through a so-called ``Bitcoin Improvement Proposal'' or
``BIP.'' Such proposals are generally posted on websites, and the
proposals explain technical requirements for the protocol change as
well as reasons why the change should be accepted. Upon its inclusion
in the most recent version of Bitcoin Core, a new BIP becomes part of
the reference software's Bitcoin protocol. Several BIPs have been
implemented since 2011 and have provided various new features and
scaling improvements.
Because Bitcoin has no central authority, updating the reference
software's Bitcoin protocol will not immediately change the Bitcoin
network's operations. Instead, the implementation of a change is
achieved by users and miners downloading and running updated versions
of Bitcoin Core or other Bitcoin software that abides by the new
Bitcoin protocol. Users and miners must accept any changes made to the
Bitcoin source code by downloading a version of their Bitcoin software
that incorporates the proposed modification of the Bitcoin network's
source code. A modification of the Bitcoin network's source code is
only effective with respect to the Bitcoin users and miners that
download it. If an incompatible modification is accepted only by a
percentage of users and miners, a division in the Bitcoin network will
occur such that one network will run the pre-modification source code
and the other network will run the modified source code. Such a
division is known as a ``fork'' in the Bitcoin network.
Such a fork in the Bitcoin network occurred on August 1, 2017, when
a group of developers and miners accepted certain changes to the
Bitcoin network software intended to increase transaction capacity.
Blocks mined on this network now diverge from blocks mined on the
Bitcoin network, which has resulted in the creation of a new blockchain
whose digital asset is referred to as ``bitcoin cash.'' Bitcoin and
bitcoin cash now operate as separate, independent networks, and have
distinct related assets (bitcoin and bitcoin cash). Additional forks
have followed the Bitcoin Cash fork, including those for Bitcoin Gold
and Bitcoin SegWit2X, in the months after the creation of Bitcoin Cash.
Bitcoin Transactions
A bitcoin transaction contains the sender's bitcoin address, the
recipient's bitcoin address, the amount of bitcoin to be sent, a
transaction fee and the sender's digital signature. Bitcoin
transactions are secured by cryptography known as public-private key
cryptography, represented by the bitcoin addresses and digital
signature in a transaction's data file. Each Bitcoin network address,
or wallet, is associated with a unique ``public key'' and ``private
key'' pair, both of which are lengthy alphanumeric codes, derived
together and possessing a unique relationship. The public key is
visible to the public and analogous to the Bitcoin network address. The
private key is a secret and may be used to digitally sign a transaction
in a way that proves the transaction has been signed by the holder of
the public-private key pair, without having to reveal the private key.
The Bitcoin network incorporates a system to prevent double
spending of a single bitcoin. To prevent the possibility of double
spending a single bitcoin, each validated transaction is recorded, time
stamped and publicly displayed in a ``block'' in the Blockchain, which
is publicly available. Any user may validate, through their bitcoin
wallet or a blockchain explorer, that each transaction in the Bitcoin
network was authorized by the holder of the applicable private key, and
Bitcoin network mining software consistent with reference software
requirements typically validates each such transaction before including
it in the Blockchain.
Bitcoin Mining--Creation of New Bitcoins
The process by which bitcoins are created and bitcoin transactions
are verified is called mining. To begin mining, a user, or ``miner,''
can download and run a mining client, which, like regular Bitcoin
network software, turns the user's computer into a ``node'' on the
Bitcoin network that validates blocks. Each time transactions are
validated and bundled into new blocks added to the Blockchain, the
Bitcoin network awards the miner solving such blocks with newly issued
bitcoin and any transaction fees paid by bitcoin transaction senders.
This reward system is the method by which new bitcoins enter into
circulation to the public.
Mathematically Controlled Supply
The method for creating new bitcoin is mathematically controlled in
a manner so that the supply of bitcoin grows at a limited rate pursuant
to a pre-set schedule. The number of bitcoin awarded for solving a new
block is automatically halved every 210,000 blocks. Thus, the current
fixed reward for solving a new block is 6.25 bitcoin per block; the
reward decreased from twenty-five (25) bitcoin in July 2016 and 12.5 in
May 2020. It is estimated to halve again at the start of 2024. This
deliberately controlled rate of bitcoin creation means that the number
of bitcoin in existence will never exceed twenty-one (21) million and
that bitcoin cannot be devalued through excessive production unless the
Bitcoin network's

[[Page 2286]]

source code (and the underlying protocol for bitcoin issuance) is
altered. As of January 1, 2023, approximately 19,250,000 bitcoin have
been mined.
Bitcoin Value
The value of bitcoin is determined by the value that various market
participants place on bitcoin through their transactions. The most
common means of determining the value of a bitcoin is by surveying one
or more bitcoin platforms where bitcoin is traded publicly and
transparently (e.g., Bitstamp, Coinbase, Kraken, itBit, Gemini and LMAX
Digital). Additionally, in parallel to the open bitcoin platforms,
informal ``over-the-counter'' or ``OTC markets'' for bitcoin trading
also exist as a result of the peer-to-peer nature of the Bitcoin
network, which allows direct transactions between any seller and buyer.
On each platform, bitcoin is traded with publicly disclosed
valuations for each executed trade, measured by one or more fiat
currencies such as the U.S. dollar or Euro. OTC markets do not
typically disclose their trade data. Currently, there are many
platforms operating worldwide, and each such platform represents a
substantial percentage of bitcoin buying and selling activity.
The Index
As described in the Registration Statement, the Fund will typically
use the Index to calculate the Trust's NAV for days on which the Trust
does not trade bitcoin. The Index is not affiliated with the Sponsor
and was created and is administered by CF Benchmarks Ltd. (the
``Benchmark Administrator''), an independent entity, to facilitate
financial products based on bitcoin. The Index is designed based on the
IOSCO Principals for Financial Benchmarks and serves as a once-a-day
benchmark rate of the U.S. dollar price of bitcoin (USD/BTC),
calculated as of 4:00 p.m. Eastern Time. The Index is based on
materially the same methodology (except calculation time) \11\ as the
Benchmark Administrator's CME CF Bitcoin Reference Rate (the ``BRR''),
which was first introduced on November 14, 2016 and is the rate on
which bitcoin futures contracts (``Bitcoin Futures'') are cash-settled
in U.S. dollars at the CME. The Index aggregates the trade flow of
several bitcoin platforms, during an observation window between 3:00
p.m. and 4:00 p.m. Eastern Time into the U.S. dollar price of one
bitcoin at 4:00 p.m. Eastern Time. The current constituent bitcoin
platforms of the Index are Bitstamp, Coinbase, Gemini, itBit, Kraken
and LMAX Digital (the ``Constituent Bitcoin Platforms'').
---------------------------------------------------------------------------

\11\ The Index is calculated as of 4 p.m. Eastern Time, whereas
the BRR is calculated as of 4 p.m. London Time.
---------------------------------------------------------------------------

The Index is calculated based on the ``Relevant Transactions'' \12\
of all of its Constituent Bitcoin Platforms, as follows:
---------------------------------------------------------------------------

\12\ A ``Relevant Transaction'' is any cryptocurrency versus
U.S. dollar spot trade that occurs during the observation window
between 3:00 p.m. and 4:00 p.m. Eastern Time on a Constituent
Bitcoin Platforms in the BTC/USD pair that is reported and
disseminated by a Constituent Bitcoin Platforms through its publicly
available application programming interface and observed by the
Benchmark Administrator, CF Benchmarks Ltd.
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All Relevant Transactions are added to a joint list,
recording the time of execution, trade price and size for each
transaction.
The list is partitioned by timestamp into 12 equally-sized
time intervals of 5 (five) minute length.
For each partition separately, the volume-weighted median
trade price is calculated from the trade prices and sizes of all
Relevant Transactions, i.e., across all Constituent Bitcoin Platforms.
A volume-weighted median differs from a standard median in that a
weighting factor, in this case trade size, is factored into the
calculation.
The Index is then determined by the arithmetic mean of the
volume-weighted medians of all partitions.
By employing the foregoing steps, the Index thereby seeks to ensure
that transactions in bitcoin conducted at outlying prices do not have
an undue effect on the value of a specific partition, large trades or
clusters of trades transacted over a short period of time will not have
an undue influence on the Index level, and the effect of large trades
at prices that deviate from the prevailing price are mitigated from
having an undue influence on the Index level. In addition, the Sponsor
notes that an oversight function is implemented by the Benchmark
Administrator in seeking to ensure that the Index is administered
through codified policies for Index integrity.
The Sponsor believes the Index provides an accurate reference to
the average spot price of bitcoin and the methodology employed in
constructing the Index, specifically its use of medians in filtering
out small trades, makes the Index more resistant to manipulation than
other measurements that employ different methodologies. In addition,
the Index included over $375 billion in bitcoin trades during the one-
year period ended December 31, 2022. Finally, an oversight committee is
responsible for regularly reviewing and overseeing the methodology,
practice, standards and scope of the Index to ensure that it continues
to accurately track the spot prices of bitcoin.
Background
The Commission has historically approved or disapproved exchange
filings to list and trade series of Trust Issued Receipts, including
spot-based Commodity-Based Trust Shares, on the basis of whether the
listing exchange has in place a comprehensive surveillance sharing
agreement with a regulated market of significant size related to the
underlying commodity to be held.\13\ Prior orders from the Commission
have pointed out that in every prior approval order for Commodity-Based
Trust Shares, there has been a derivatives market that represents the
regulated market of significant size, generally a Commodity Futures
Trading Commission regulated futures market.\14\ Further to this point,

[[Page 2287]]

the Commission's prior orders have noted that the spot commodities and
currency markets for which it has previously approved spot ETPs are
generally unregulated and that the Commission relied on the underlying
futures market as the regulated market of significant size that formed
the basis for approving the series of Currency and Commodity-Based
Trust Shares, including gold, silver, platinum, palladium, copper, and
other commodities and currencies. The Commission specifically noted in
the Winklevoss Order that the First Gold Approval Order ``was based on
an assumption that the currency market and the spot gold market were
largely unregulated.'' \15\
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\13\ See Securities Exchange Act Release No. 83723 (July 26,
2018), 83 FR 37579 (August 1, 2018). This proposal was subsequently
disapproved by the Commission. See Securities Exchange Act Release
No. 83723 (July 26, 2018), 83 FR 37579 (August 1, 2018) (the
``Winklevoss Order'').
\14\ See streetTRACKS Gold Shares, Exchange Act Release No.
50603 (Oct. 28, 2004), 69 FR 64614, 64618-19 (Nov. 5, 2004) (SR-
NYSE-2004-22) (the ``First Gold Approval Order''); iShares COMEX
Gold Trust, Exchange Act Release No. 51058 (Jan. 19, 2005), 70 FR
3749, 3751, 3754-55 (Jan. 26, 2005) (SR-Amex-2004-38); iShares
Silver Trust, Exchange Act Release No. 53521 (Mar. 20, 2006), 71 FR
14967, 14968, 14973-74 (Mar. 24, 2006) (SR-Amex-2005-072); ETFS Gold
Trust, Exchange Act Release No. 59895 (May 8, 2009), 74 FR 22993,
22994-95, 22998, 23000 (May 15, 2009) (SR-NYSEArca-2009-40); ETFS
Silver Trust, Exchange Act Release No. 59781 (Apr. 17, 2009), 74 FR
18771, 18772, 18775-77 (Apr. 24, 2009) (SR-NYSEArca-2009-28); ETFS
Palladium Trust, Exchange Act Release No. 61220 (Dec. 22, 2009), 74
FR 68895, 68896 (Dec. 29, 2009) (SR-NYSEArca-2009-94) (notice of
proposed rule change included NYSE Arca's representation that
``[t]he most significant palladium futures exchanges are the NYMEX
and the Tokyo Commodity Exchange,'' that ``NYMEX is the largest
exchange in the world for trading precious metals futures and
options,'' and that NYSE Arca ``may obtain trading information via
the Intermarket Surveillance Group,'' of which NYMEX is a member,
Exchange Act Release No. 60971 (Nov. 9, 2009), 74 FR 59283, 59285-
86, 59291 (Nov. 17, 2009)); ETFS Platinum Trust, Exchange Act
Release No. 61219 (Dec. 22, 2009), 74 FR 68886, 68887-88 (Dec. 29,
2009) (SR-NYSEArca-2009-95) (notice of proposed rule change included
NYSE Arca's representation that ``[t]he most significant platinum
futures exchanges are the NYMEX and the Tokyo Commodity Exchange,''
that ``NYMEX is the largest exchange in the world for trading
precious metals futures and options,'' and that NYSE Arca ``may
obtain trading information via the Intermarket Surveillance Group,''
of which NYMEX is a member, Exchange Act Release No. 60970 (Nov. 9,
2009), 74 FR 59319, 59321, 59327 (Nov. 17, 2009)); Sprott Physical
Gold Trust, Exchange Act Release No. 61496 (Feb. 4, 2010), 75 FR
6758, 6760 (Feb. 10, 2010) (SR-NYSEArca-2009-113) (notice of
proposed rule change included NYSE Arca's representation that the
COMEX is one of the ``major world gold markets,'' that NYSE Arca
``may obtain trading information via the Intermarket Surveillance
Group,'' and that NYMEX, of which COMEX is a division, is a member
of the Intermarket Surveillance Group, Exchange Act Release No.
61236 (Dec. 23, 2009), 75 FR 170, 171, 174 (Jan. 4, 2010)); Sprott
Physical Silver Trust, Exchange Act Release No. 63043 (Oct. 5,
2010), 75 FR 62615, 62616, 62619, 62621 (Oct. 12, 2010) (SR-
NYSEArca-2010-84); ETFS Precious Metals Basket Trust, Exchange Act
Release No. 62692 (Aug. 11, 2010), 75 FR 50789, 50790 (Aug. 17,
2010) (SR-NYSEArca-2010-56) (notice of proposed rule change included
NYSE Arca's representation that ``the most significant gold, silver,
platinum and palladium futures exchanges are the COMEX and the
TOCOM'' and that NYSE Arca ``may obtain trading information via the
Intermarket Surveillance Group,'' of which COMEX is a member,
Exchange Act Release No. 62402 (Jun. 29, 2010), 75 FR 39292, 39295,
39298 (July 8, 2010)); ETFS White Metals Basket Trust, Exchange Act
Release No. 62875 (Sept. 9, 2010), 75 FR 56156, 56158 (Sept. 15,
2010) (SR-NYSEArca-2010-71) (notice of proposed rule change included
NYSE Arca's representation that ``the most significant silver,
platinum and palladium futures exchanges are the COMEX and the
TOCOM'' and that NYSE Arca ``may obtain trading information via the
Intermarket Surveillance Group,'' of which COMEX is a member,
Exchange Act Release No. 62620 (July 30, 2010), 75 FR 47655, 47657,
47660 (Aug. 6, 2010)); ETFS Asian Gold Trust, Exchange Act Release
No. 63464 (Dec. 8, 2010), 75 FR 77926, 77928 (Dec. 14, 2010) (SR-
NYSEArca-2010-95) (notice of proposed rule change included NYSE
Arca's representation that ``the most significant gold futures
exchanges are the COMEX and the Tokyo Commodity Exchange,'' that
``COMEX is the largest exchange in the world for trading precious
metals futures and options,'' and that NYSE Arca ``may obtain
trading information via the Intermarket Surveillance Group,'' of
which COMEX is a member, Exchange Act Release No. 63267 (Nov. 8,
2010), 75 FR 69494, 69496, 69500-01 (Nov. 12, 2010)); Sprott
Physical Platinum and Palladium Trust, Exchange Act Release No.
68430 (Dec. 13, 2012), 77 FR 75239, 75240-41 (Dec. 19, 2012) (SR-
NYSEArca-2012–111) (notice of proposed rule change included
NYSE Arca's representation that ``[f]utures on platinum and
palladium are traded on two major exchanges: The New York Mercantile
Exchange . . . and Tokyo Commodities Exchange'' and that NYSE Arca
``may obtain trading information via the Intermarket Surveillance
Group,'' of which COMEX is a member, Exchange Act Release No. 68101
(Oct. 24, 2012), 77 FR 65732, 65733, 65739 (Oct. 30, 2012)); APMEX
Physical--1 oz. Gold Redeemable Trust, Exchange Act Release No.
66930 (May 7, 2012), 77 FR 27817, 27818 (May 11, 2012) (SR-NYSEArca-
2012-18) (notice of proposed rule change included NYSE Arca's
representation that NYSE Arca ``may obtain trading information via
the Intermarket Surveillance Group,'' of which COMEX is a member,
and that gold futures are traded on COMEX and the Tokyo Commodity
Exchange, with a cross-reference to the proposed rule change to list
and trade shares of the ETFS Gold Trust, in which NYSE Arca
represented that COMEX is one of the ``major world gold markets,''
Exchange Act Release No. 66627 (Mar. 20, 2012), 77 FR 17539, 17542-
43, 17547 (Mar. 26, 2012)); JPM XF Physical Copper Trust, Exchange
Act Release No. 68440 (Dec. 14, 2012), 77 FR 75468, 75469-70, 75472,
75485-86 (Dec. 20, 2012) (SR-NYSEArca-2012-28); iShares Copper
Trust, Exchange Act Release No. 68973 (Feb. 22, 2013), 78 FR 13726,
13727, 13729-30, 13739-40 (Feb. 28, 2013) (SR-NYSEArca-2012-66);
First Trust Gold Trust, Exchange Act Release No. 70195 (Aug. 14,
2013), 78 FR 51239, 51240 (Aug. 20, 2013) (SR-NYSEArca-2013-61)
(notice of proposed rule change included NYSE Arca's representation
that FINRA, on behalf of the exchange, may obtain trading
information regarding gold futures and options on gold futures from
members of the Intermarket Surveillance Group, including COMEX, or
from markets ``with which [NYSE Arca] has in place a comprehensive
surveillance sharing agreement,'' and that gold futures are traded
on COMEX and the Tokyo Commodity Exchange, with a cross-reference to
the proposed rule change to list and trade shares of the ETFS Gold
Trust, in which NYSE Arca represented that COMEX is one of the
``major world gold markets,'' Exchange Act Release No. 69847 (June
25, 2013), 78 FR 39399, 39400, 39405 (July 1, 2013)); Merk Gold
Trust, Exchange Act Release No. 71378 (Jan. 23, 2014), 79 FR 4786,
4786-87 (Jan. 29, 2014) (SR-NYSEArca-2013-137) (notice of proposed
rule change included NYSE Arca's representation that ``COMEX is the
largest gold futures and options exchange'' and that NYSE Arca ``may
obtain trading information via the Intermarket Surveillance Group,''
including with respect to transactions occurring on COMEX pursuant
to CME and NYMEX's membership, or from exchanges ``with which [NYSE
Arca] has in place a comprehensive surveillance sharing agreement,''
Exchange Act Release No. 71038 (Dec. 11, 2013), 78 FR 76367, 76369,
76374 (Dec. 17, 2013)); Long Dollar Gold Trust, Exchange Act Release
No. 79518 (Dec. 9, 2016), 81 FR 90876, 90881, 90886, 90888 (Dec. 15,
2016) (SR-NYSEArca-2016-84).
\15\ See Winklevoss Order at 37592.
---------------------------------------------------------------------------

As such, the regulated market of significant size test does not
require that the spot bitcoin market be regulated in order for the
Commission to approve this proposal, and precedent makes clear that an
underlying market for a spot commodity or currency being a regulated
market would actually be an exception to the norm. These largely
unregulated currency and commodity markets do not provide the same
protections as the markets that are subject to the Commission's
oversight, but the Commission has consistently looked to surveillance
sharing agreements with the underlying futures market in order to
determine whether such products were consistent with the Act. With this
in mind, the Bitcoin Futures market, as defined below, is the proper
market to consider in determining whether there is a related regulated
market of significant size.
Further to this point, the Exchange notes that the Commission has
recently approved proposals related to the listing and trading of funds
that would primarily hold Bitcoin Futures that are registered under the
Securities Act of 1933 instead of the Investment Company Act of 1940,
as amended (the ``1940 Act'').\16\ In the Teucrium Approval, the
Commission found the Bitcoin Futures market to be a regulated market of
significant size as it relates to Bitcoin Futures, an odd tautological
truth that is also inconsistent with prior disapproval orders for
exchange traded products (``ETPs'') that would hold actual bitcoin
instead of derivatives contracts (``Spot Bitcoin ETPs'') that use the
exact same pricing methodology as the Bitcoin Futures. As further
discussed below, both the Exchange and the Sponsor believe that this
proposal and the included analysis are sufficient to establish that the
Bitcoin Futures market represents a regulated market of significant
size as it relates both to the Bitcoin Futures market and to the spot
bitcoin market and that this proposal should be approved.
---------------------------------------------------------------------------

\16\ See Exchange Act Release No. 94620 (April 6, 2022), 87 FR
21676 (April 12, 2022) (the ``Teucrium Approval'') and 94853 (May 5,
2022) (collectively, with the Teucrium Approval, the ``Bitcoin
Futures Approvals'').
---------------------------------------------------------------------------

Bitcoin Futures
CME began offering trading in Bitcoin Futures in 2017. Each
contract represents five bitcoin and is based on the CME CF Bitcoin
Reference Rate.\17\ The contracts trade and settle like other cash-
settled commodity futures contracts. Nearly every measurable metric
related to Bitcoin Futures has generally trended up since launch,
although certain notional volume calculations have decreased roughly in
line with the decrease in the price of bitcoin. For example, there were
276,542 Bitcoin Futures contracts traded in March 2023 compared to
165,567, 233,345, and 183,131 contracts traded in March 2020, March
2021, and March 2023, respectively.
---------------------------------------------------------------------------

\17\ The CME CF Bitcoin Reference Rate is based on a publicly
available calculation methodology based on pricing sourced from
several crypto and trading platforms, including Bitstamp, Coinbase,
Gemini, itBit, Kraken, and LMAX Digital.
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BILLING CODE 8011-01-P

[[Page 2288]]

[GRAPHIC] [TIFF OMITTED] TN12JA24.024

[GRAPHIC] [TIFF OMITTED] TN12JA24.025

BILLING CODE 8011-01-C
The Sponsor further believes that publicly available research,
including research done as part of rule filings proposing to list and
trade shares of Spot Bitcoin ETPs, corroborates the overall trend
outlined above and supports the thesis that the Bitcoin Futures pricing
leads the spot market and, thus, a person attempting to manipulate the
Shares would also have to trade on that market to manipulate the ETP.
Specifically, the Sponsor believes that such research indicates that
bitcoin futures lead the bitcoin spot market in price formation.\18\
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\18\ See Exchange Act Releases No. 94080 (January 27, 2022), 87
FR 5527 (April 12, 2022) (specifically ``Amendment No. 1 to the
Proposed Rule Change To List and Trade Shares of the Wise Origin
Bitcoin Trust Under BZX Rule 14.11(3)(4), Commodity-Based Trust
Shares''); 94982 (May 25, 2022), 87 FR 33250 (June 1, 2022); 94844
(May 4, 2022), 87 FR 28043 (May 10, 2022); and 93445 (October 28,
2021), 86 FR 60695 (November 3, 2021). See also Hu, Y., Hou, Y. and
Oxley, L. (2019). ``What role do futures markets play in Bitcoin
pricing? Causality, cointegration and price discovery from a time-
varying perspective'' (available at: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7481826/). This academic research paper concludes
that ``There exist no episodes where the Bitcoin spot markets
dominates the price discovery processes with regard to Bitcoin
futures. This points to a conclusion that the price formation
originates solely in the Bitcoin futures market. We can, therefore,
conclude that the Bitcoin futures markets dominate the dynamic price
discovery process based upon time-varying information share
measures. Overall, price discovery seems to occur in the Bitcoin
futures markets rather than the underlying spot market based upon a
time-varying perspective.''

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[[Page 2289]]

Preventing Fraudulent and Manipulative Practices
In order for any proposed rule change from an exchange to be
approved, the Commission must determine that, among other things, the
proposal is consistent with the requirements of section 6(b)(5) of the
Act, specifically including: (i) the requirement that a national
securities exchange's rules are designed to prevent fraudulent and
manipulative acts and practices; \19\ and (ii) the requirement that an
exchange proposal be designed, in general, to protect investors and the
public interest. The Exchange believes that this proposal is consistent
with the requirements of section 6(b)(5) of the Act and that this
filing sufficiently demonstrates that the Bitcoin Futures market
represents a regulated market of significant size and that, on the
whole, the manipulation concerns previously articulated by the
Commission are sufficiently mitigated to the point that they are
outweighed by quantifiable investor protection issues that would be
resolved by approving this proposal.
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\19\ The Exchange believes that bitcoin is resistant to price
manipulation and that ``other means to prevent fraudulent and
manipulative acts and practices'' exist to justify dispensing with
the requisite surveillance sharing agreement. The geographically
diverse and continuous nature of bitcoin trading render it difficult
and prohibitively costly to manipulate the price of bitcoin. The
fragmentation across bitcoin platforms, the relatively slow speed of
transactions, and the capital necessary to maintain a significant
presence on each trading platform make manipulation of bitcoin
prices through continuous trading activity challenging. To the
extent that there are bitcoin platforms engaged in or allowing wash
trading or other activity intended to manipulate the price of
bitcoin on other markets, such pricing does not normally impact
prices on other platforms because participants will generally ignore
markets with quotes that they deem non-executable. Moreover, the
linkage between the bitcoin markets and the presence of arbitrageurs
in those markets means that the manipulation of the price of bitcoin
price on any single venue would require manipulation of the global
bitcoin price in order to be effective. Arbitrageurs must have funds
distributed across multiple trading platforms in order to take
advantage of temporary price dislocations, thereby making it
unlikely that there will be strong concentration of funds on any
particular bitcoin platform or OTC platform. As a result, the
potential for manipulation on a trading platform would require
overcoming the liquidity supply of such arbitrageurs who are
effectively eliminating any cross-market pricing differences.
---------------------------------------------------------------------------

(i) Designed To Prevent Fraudulent and Manipulative Acts and Practices
In order to meet this standard in a proposal to list and trade a
series of Commodity-Based Trust Shares, the Commission requires that an
exchange demonstrate that there is a comprehensive surveillance-sharing
agreement in place \20\ with a regulated market of significant size.
Both the Exchange and CME are members of ISG.\21\ The only remaining
issue to be addressed is whether the Bitcoin Futures market constitutes
a market of significant size, which both the Exchange and the Sponsor
believe that it does. The terms ``significant market'' and ``market of
significant size'' include a market (or group of markets) as to which:
(a) there is a reasonable likelihood that a person attempting to
manipulate the ETP would also have to trade on that market to
manipulate the ETP, so that a surveillance-sharing agreement would
assist the listing exchange in detecting and deterring misconduct; and
(b) it is unlikely that trading in the ETP would be the predominant
influence on prices in that market.\22\
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\20\ As previously articulated by the Commission, ``The standard
requires such surveillance-sharing agreements since ``they provide a
necessary deterrent to manipulation because they facilitate the
availability of information needed to fully investigate a
manipulation if it were to occur.'' The Commission has emphasized
that it is essential for an exchange listing a derivative securities
product to enter into a surveillance-sharing agreement with markets
trading underlying securities for the listing exchange to have the
ability to obtain information necessary to detect, investigate, and
deter fraud and market manipulation, as well as violations of
exchange rules and applicable federal securities laws and rules. The
hallmarks of a surveillance-sharing agreement are that the agreement
provides for the sharing of information about market trading
activity, clearing activity, and customer identity; that the parties
to the agreement have reasonable ability to obtain access to and
produce requested information; and that no existing rules, laws, or
practices would impede one party to the agreement from obtaining
this information from, or producing it to, the other party.'' The
Commission has historically held that joint membership in the
Intermarket Surveillance Group (``ISG'') constitutes such a
surveillance sharing agreement. See Securities Exchange Act Release
No. 88284 (February 26, 2020), 85 FR 12595 (March 3, 2020) (SR-
NYSEArca-2019-39) (the ``Wilshire Phoenix Disapproval'').
\21\ For a list of the current members and affiliate members of
ISG, see https://www.isgportal.com/.
\22\ See Wilshire Phoenix Disapproval.
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The Commission has also recognized that the ``regulated market of
significant size'' standard is not the only means for satisfying
section 6(b)(5) of the act, specifically providing that a listing
exchange could demonstrate that ``other means to prevent fraudulent and
manipulative acts and practices'' are sufficient to justify dispensing
with the requisite surveillance-sharing agreement.\23\
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\23\ See Winklevoss Order at 37580. The Commission has also
specifically noted that it ``is not applying a `cannot be
manipulated' standard; instead, the Commission is examining whether
the proposal meets the requirements of the Exchange Act and,
pursuant to its Rules of Practice, places the burden on the listing
exchange to demonstrate the validity of its contentions and to
establish that the requirements of the Exchange Act have been met.''
Id. at 37582.
---------------------------------------------------------------------------

(A) Reasonable Likelihood That a Person Attempting To Manipulate the
ETP Would Also Have To Trade on That Market To Manipulate the ETP
Bitcoin Futures represent a growing influence on pricing in the
spot bitcoin market as has been laid out above and in other proposals
to list and trade Spot Bitcoin ETPs. Pricing in Bitcoin Futures is
based on pricing from spot bitcoin markets. As noted above, the
statement from the Teucrium Approval that ``CME's surveillance can
reasonably be relied upon to capture the effects on the CME bitcoin
futures market caused by a person attempting to manipulate the proposed
futures ETP by manipulating the price of CME bitcoin futures contracts
. . . indirectly by trading outside of the CME bitcoin futures
market,'' makes clear that the Commission believes that CME's
surveillance can capture the effects of trading on the relevant spot
markets on the pricing of Bitcoin Futures. While the Commission makes
clear in the Teucrium Approval that the analysis only applies to the
Bitcoin Futures market as it relates to an ETP that invests in Bitcoin
Futures as its only non-cash or cash equivalent holding, if CME's
surveillance is sufficient to mitigate concerns related to trading in
Bitcoin Futures for which the pricing is based directly on pricing from
spot bitcoin markets, it's not clear how such a conclusion could apply
only to ETPs based on Bitcoin Futures and not extend to Spot Bitcoin
ETPs.
(B) Predominant Influence on Prices in Spot and Bitcoin Futures
The Exchange and Sponsor also believe that trading in the Shares
would not be the predominant force on prices in the Bitcoin Futures
market or spot market for a number of reasons, including the
significant volume in the Bitcoin Futures market, the size of bitcoin's
market cap, and the significant liquidity available in the spot market.
In addition to the Bitcoin Futures market data points cited above, the
spot market for bitcoin is also very liquid. According to data from
Skew, the cost to buy or sell $5 million worth of bitcoin averages
roughly 48 basis points with a market impact of $139.08.\24\ Stated
another way, a market participant could enter a market buy or sell
order for $5 million

[[Page 2290]]

of bitcoin and only move the market 0.48%. More strategic purchases or
sales (such as using limit orders and executing through OTC bitcoin
trade desks) would likely have less obvious impact on the market--which
is consistent with MicroStrategy, Tesla, and Square being able to
collectively purchase billions of dollars in bitcoin.
---------------------------------------------------------------------------

\24\ These statistics are based on samples of bitcoin liquidity
in USD (excluding stablecoins or Euro liquidity) based on executable
quotes on Coinbase, FTX and Kraken during the one-year period ending
May 2022.
---------------------------------------------------------------------------

As such, the combination of the Bitcoin Futures leading price
discovery, the overall size of the bitcoin market, and the ability for
market participants to buy or sell large amounts of bitcoin without
significant market impact will help prevent the Shares from becoming
the predominant force on pricing in either the bitcoin spot or Bitcoin
Futures markets, satisfying part (b) of the test outlined above.
(c) Other Means To Prevent Fraudulent and Manipulative Acts and
Practices
The Exchange is also proposing to take additional steps to those
described above to supplement its ability to obtain information that
would be helpful in detecting, investigating, and deterring fraud and
market manipulation in the Commodity-Based Trust Shares.
As noted in the Surveillance section, the surveillance program
includes real-time patterns for price and volume movements and post-
trade surveillance patterns (e.g., spoofing, marking the close,
pinging, phishing). In addition to the Exchange's existing
surveillance, a new pattern will be added to surveil for significant
deviation in the Commodity-Based Trust Shares' price from the
underlying asset's price. The Exchange will use the trade data from an
external vendor that consolidates the real-time data from multiple
bitcoin platforms.
Trading of Shares on the Exchange will be subject to the Exchange's
surveillance program for derivative products, as well as cross-market
surveillances administered by Financial Industry Regulatory Authority
(``FINRA''), on behalf of the Exchange pursuant to a regulatory
services agreement, which are also designed to detect violations of
Exchange rules and applicable federal securities laws. The Exchange is
responsible for FINRA's performance under this regulatory services
agreement.
The Exchange will require the Trust to represent to the Exchange
that it will advise the Exchange of any failure by the Trust to comply
with the continued listing requirements, and, pursuant to its
obligations under section 19(g)(1) of the Exchange Act, the Exchange
will surveil for compliance with the continued listing requirements. If
the Trust is not in compliance with the applicable listing
requirements, the Exchange will commence delisting procedures under the
Nasdaq 5800 Series. In addition, the Exchange also has a general policy
prohibiting the distribution of material, non-public information by its
employees.
The Exchange will communicate as needed regarding trading in the
Shares with other markets and other entities that are members of the
ISG, and the Exchange may obtain trading information regarding trading
in the Shares from such markets and other entities.
Availability of Information
The Trust's website (https://valkyrieinvest.com/BRRR) will include,
free of charge, quantitative information on a per Share basis updated
on a daily basis, including (i) the current NAV per Share daily and the
prior business day's NAV and the reported closing price; (ii) the mid-
point of the bid-ask price \25\ in relation to the NAV as of the time
the NAV is calculated (``Bid-Ask Price'') and a calculation of the
premium or discount of such price against such NAV; (iii) data in chart
format displaying the frequency distribution of discounts and premiums
of the daily Bid-Ask Price against the NAV, within appropriate ranges,
for each of the four previous calendar quarters (or for the life of the
Trust, if shorter); and (iv) copies of the Trust's prospectus in
electronic format. In addition, on each business day the Trust's
website will also provide free of charge: (i) the Trust's NAV and NAV
per Share; (ii) information regarding the Trust's holdings; and (iii)
information regarding the Index and the value of a bitcoin as
calculated by the Index (which may also be found on the Index's website
(https://www.cfbenchmarks.com/data/indices/BRRNY), or, if an
alternative fair value methodology is used to value the Trust's
bitcoin, such other pricing source(s) used in such calculation.
---------------------------------------------------------------------------

\25\ The bid-ask price of the Trust is determined using the
highest bid and lowest offer on the Consolidated Tape as of the time
of calculation of the closing day NAV.
---------------------------------------------------------------------------

The Trust's website will provide an IIV per Share updated every 15
seconds, as calculated by the Exchange or a third-party financial data
provider during the Exchange's Regular Market Session (9:30 a.m. to
4:00 p.m. (Eastern Time)).\26\ The IIV will be calculated by using the
prior day's closing NAV per Share as a base and updating that value
throughout the trading day to reflect changes in the most recently
reported price level of the BRTI, as reported by CME Group, Inc.,
Bloomberg, L.P. or another reporting service. The BRTI is calculated in
real time once per second based on the Relevant Order Books of all
Constituent Bitcoin Platforms. All aspects of the BRTI methodology are
publicly available at the website of the Benchmark Administrator.
---------------------------------------------------------------------------

\26\ The IIV on a per Share basis disseminated during the
Regular Market Session should not be viewed as a real-time update of
the NAV, which is calculated once a day.
---------------------------------------------------------------------------

The IIV disseminated during the Exchange's Regular Market Session
should not be viewed as an actual real-time update of the NAV, which
will be calculated only once at the end of each trading day. The IIV
will be widely disseminated on a per Share basis every 15 seconds
during the Exchange's Regular Market Session by one or more major
market data vendors. In addition, the IIV will be available published
on the Exchange's website and through on-line information services such
as Bloomberg and Reuters.
The NAV for the Trust will be calculated by the Sponsor once a day
and will be disseminated daily to all market participants at the same
time. Quotation and last-sale information regarding the Shares will be
disseminated through the facilities of the relevant securities
information processor.
Quotation and last sale information for bitcoin is widely
disseminated through a variety of major market data vendors, including
Bloomberg and Reuters, as well as CF Benchmarks. Information relating
to trading, including price and volume information, in bitcoin is
available from major market data vendors and from the platforms on
which bitcoin are traded. Depth of book information is also available
from bitcoin platforms. The normal trading hours for bitcoin platforms
are 24 hours per day, 365 days per year.
Information regarding market price and trading volume of the Shares
will be continually available on a real-time basis throughout the day
on brokers' computer screens and other electronic services. Information
regarding the previous day's closing price and trading volume
information for the Shares will be published daily in the financial
section of newspapers. Market prices for the Shares will be available
from a variety of sources, including brokerage firms, information
websites and other information service providers.
Initial and Continued Listing
The Shares will be subject to Nasdaq Rule 5711(d)(vi), which sets
forth the initial and continued listing criteria applicable to
Commodity-Based Trust Shares. The Exchange will obtain a representation
that the Trust's NAV will

[[Page 2291]]

be calculated daily and will be made available to all market
participants at the same time. A minimum of 40,000 Commodity-Based
Trust Shares will be required to be outstanding at the time of
commencement of trading on the Exchange. The Sponsor expects there to
be multiple creation units in circulation at launch of the Trust. Upon
termination of the Trust, the Shares will be removed from listing. The
Trustee, Delaware Trust Company, is a trust company having substantial
capital and surplus and the experience and facilities for handling
corporate trust business, as required under Nasdaq Rule 5711(d)(vi)(D)
and no change will be made to the trustee without prior notice to and
approval of the Exchange.
As required in Nasdaq Rule 5711(d)(viii), the Exchange notes that
any registered market maker (``Market Maker'') in the Shares must file
with the Exchange, in a manner prescribed by the Exchange, and keep
current a list identifying all accounts for trading the underlying
commodity, related futures or options on futures, or any other related
derivatives, which the registered Market Maker may have or over which
it may exercise investment discretion. No registered Market Maker in
the Shares shall trade in the underlying commodity, related futures or
options on futures, or any other related derivatives, in an account in
which a registered Market Maker, directly or indirectly, controls
trading activities, or has a direct interest in the profits or losses
thereof, which has not been reported to the Exchange as required by
Nasdaq Rule 5711(d). In addition to the existing obligations under
Exchange rules regarding the production of books and records, the
registered Market Maker in the Shares shall make available to the
Exchange such books, records or other information pertaining to
transactions by such entity or any limited partner, officer or approved
person thereof, registered or non-registered employee affiliated with
such entity for its or their own accounts in the underlying commodity,
related futures or options on futures, or any other related
derivatives, as may be requested by the Exchange.
The Exchange is able to obtain information regarding trading in the
Shares and the underlying bitcoin, Bitcoin Futures contracts, options
on Bitcoin Futures, or any other bitcoin derivative through members
acting as registered Market Makers, in connection with their
proprietary or customer trades.
As a general matter, the Exchange has regulatory jurisdiction over
its members, and their associated persons. The Exchange also has
regulatory jurisdiction over any person or entity controlling a member,
as well as a subsidiary or affiliate of a member that is in the
securities business. A subsidiary or affiliate of a member organization
that does business only in commodities would not be subject to Exchange
jurisdiction, but the Exchange could obtain information regarding the
activities of such subsidiary or affiliate through surveillance sharing
agreements with regulatory organizations of which such subsidiary or
affiliate is a member.
Trading Rules
The Exchange deems the Shares to be equity securities, thus
rendering trading in the Shares subject to the Exchange's existing
rules governing the trading of equity securities. The Exchange will
allow trading in the Shares from 4:00 a.m. to 8:00 p.m. (Eastern Time).
The Exchange has appropriate rules to facilitate transactions in the
Shares during all trading sessions. The Shares of the Trust will
conform to the initial and continued listing criteria set forth in
Nasdaq Rule 5711(d).
Trading Halts
With respect to trading halts, the Exchange may consider all
relevant factors in exercising its discretion to halt or suspend
trading in the Shares. The Exchange will halt trading in the Shares
under the conditions specified in Nasdaq Rules 4120 and 4121, including
without limitation the conditions specified in Nasdaq Rule 4120(a)(9)
and (10) and the trading pauses under Nasdaq Rules 4120(a)(11) and
(12).
Trading may be halted because of market conditions or for reasons
that, in the view of the Exchange, make trading in the Shares
inadvisable. These may include: (1) the extent to which trading is not
occurring in the bitcoin underlying the Shares; or (2) whether other
unusual conditions or circumstances detrimental to the maintenance of a
fair and orderly market are present.
If the IIV or the Index value is not being disseminated as
required, the Exchange may halt trading during the day in which the
interruption to the dissemination of the IIV or the Index value occurs.
If the interruption to the dissemination of the IIV or the Index value
persists past the trading day in which it occurred, the Exchange will
halt trading no later than the beginning of the trading day following
the interruption. In addition, if the Exchange becomes aware that the
NAV with respect to the Shares is not disseminated to all market
participants at the same time, it will halt trading in the Shares until
such time as the NAV is available to all market participants.
Surveillance
The Exchange believes that its surveillance procedures are adequate
to properly monitor the trading of the Shares on the Exchange during
all trading sessions and to deter and detect violations of Exchange
rules and the applicable federal securities laws. The surveillance
program includes real-time patterns for price and volume movements and
post-trade surveillance patterns (e.g., spoofing, marking the close,
pinging, phishing). In addition to the Exchange's existing
surveillance, a new pattern will be added to surveil for significant
deviation in the Commodity-Based Trust Shares' price from the
underlying asset's price. The Exchange will use the trade data from an
external vendor that consolidates the real-time data from multiple
bitcoin platforms.
Trading of Shares on the Exchange will be subject to the Exchange's
surveillance program for derivative products, as well as cross-market
surveillances administered by FINRA, on behalf of the Exchange pursuant
to a regulatory services agreement, which are also designed to detect
violations of Exchange rules and applicable federal securities laws.
The Exchange is responsible for FINRA's performance under this
regulatory services agreement.
The Exchange will require the Trust to represent to the Exchange
that it will advise the Exchange of any failure by the Trust to comply
with the continued listing requirements, and, pursuant to its
obligations under section 19(g)(1) of the Exchange Act, the Exchange
will surveil for compliance with the continued listing requirements. If
the Trust is not in compliance with the applicable listing
requirements, the Exchange will commence delisting procedures under the
Nasdaq 5800 Series. In addition, the Exchange also has a general policy
prohibiting the distribution of material, non-public information by its
employees.
The Exchange or FINRA, on behalf of the Exchange, or both, will
communicate as needed regarding trading in the Shares with other
markets and other entities that are members of the ISG, and the
Exchange or FINRA, on behalf of the Exchange, or both, may obtain
trading information regarding trading in the Shares from such markets
and other entities. The Exchange also may obtain information regarding
trading in the Shares and listed bitcoin derivatives via the ISG, from
other exchanges who are members or affiliates of the ISG, or with which
the Exchange

[[Page 2292]]

has entered into a comprehensive surveillance sharing agreement.
Information Circular
Prior to the commencement of trading, the Exchange will inform its
members in an Information Circular of the special characteristics and
risks associated with trading the Shares. Specifically, the Information
Circular will discuss the following: (1) the procedures for purchases
and redemptions of Shares in Creation Units (and that Shares are not
individually redeemable); (2) Section 10 of Nasdaq General Rule 9,
which imposes suitability obligations on Nasdaq members with respect to
recommending transactions in the Shares to customers; (3) how
information regarding the IIV is disseminated; (4) the risks involved
in trading the Shares during the Pre-Market and Post-Market Sessions
when an updated IIV will not be calculated or publicly disseminated;
(5) the requirement that members deliver a prospectus to investors
purchasing newly issued Shares prior to or concurrently with the
confirmation of a transaction; and (6) trading information. The
Information Circular will also discuss any exemptive, no-action and
interpretive relief granted by the Commission from any rules under the
Act.
The Information Circular will also reference the fact that there is
no regulated source of last sale information regarding bitcoin, that
the Commission has no jurisdiction over the trading of bitcoin as a
commodity, and that the CFTC has regulatory jurisdiction over the
trading of Bitcoin Futures contracts and options on Bitcoin Futures
contracts.
Additionally, the Information Circular will disclose the trading
hours of the Shares. The Information Circular will also disclose that
information about the Shares will be publicly available on the Trust's
website.
2. Statutory Basis
The Exchange believes that the proposal is consistent with section
6(b) of the Act \27\ in general and section 6(b)(5) of the Act \28\ in
particular in that it is designed to prevent fraudulent and
manipulative acts and practices, to promote just and equitable
principles of trade, to foster cooperation and coordination with
persons engaged in facilitating transactions in securities, 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.
---------------------------------------------------------------------------

\27\ 15 U.S.C. 78f.
\28\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------

The Commission has approved numerous series of Trust Issued
Receipts,\29\ including Commodity-Based Trust Shares,\30\ to be listed
on U.S. national securities exchanges. In order for any proposed rule
change from an exchange to be approved, the Commission must determine
that, among other things, the proposal is consistent with the
requirements of section 6(b)(5) of the Act, specifically including: (i)
the requirement that a national securities exchange's rules are
designed to prevent fraudulent and manipulative acts and practices; and
(ii) the requirement that an exchange proposal be designed, in general,
to protect investors and the public interest. The Exchange believes
that this proposal is consistent with the requirements of section
6(b)(5) of the Act because this filing sufficiently demonstrates that
the standard that has previously been articulated by the Commission
applicable to Commodity-Based Trust Shares has been met as outlined
below.
---------------------------------------------------------------------------

\29\ See Exchange Rule 5720.
\30\ Commodity-Based Trust Shares, as described in Exchange Rule
5711(d), are a type of Trust Issued Receipt.
---------------------------------------------------------------------------

Designed To Prevent Fraudulent and Manipulative Acts and Practices
In order for a proposal to list and trade a series of Commodity-
Based Trust Shares to be deemed consistent with the Act, the Commission
requires that an exchange demonstrate that there is a comprehensive
surveillance-sharing agreement in place with a regulated market of
significant size. Both the Exchange and CME are members of ISG.\31\ As
such, the only remaining issue to be addressed is whether the Bitcoin
Futures market constitutes a market of significant size, which the
Exchange believes that it does. The terms ``significant market'' and
``market of significant size'' include a market (or group of markets)
as to which: (a) there is a reasonable likelihood that a person
attempting to manipulate the ETP would also have to trade on that
market to manipulate the ETP, so that a surveillance-sharing agreement
would assist the listing exchange in detecting and deterring
misconduct; and (b) it is unlikely that trading in the ETP would be the
predominant influence on prices in that market.\32\
---------------------------------------------------------------------------

\31\ For a list of the current members and affiliate members of
ISG, see https://www.isgportal.com/.
\32\ See Wilshire Phoenix Disapproval.
---------------------------------------------------------------------------

The Commission has also recognized that the ``regulated market of
significant size'' standard is not the only means for satisfying
section 6(b)(5) of the act, specifically providing that a listing
exchange could demonstrate that ``other means to prevent fraudulent and
manipulative acts and practices'' are sufficient to justify dispensing
with the requisite surveillance-sharing agreement.\33\
---------------------------------------------------------------------------

\33\ See Winklevoss Order at 37580. The Commission has also
specifically noted that it ``is not applying a ``cannot be
manipulated'' standard; instead, the Commission is examining whether
the proposal meets the requirements of the Exchange Act and,
pursuant to its Rules of Practice, places the burden on the listing
exchange to demonstrate the validity of its contentions and to
establish that the requirements of the Exchange Act have been met.
Id. at 37582.
---------------------------------------------------------------------------

(a) Reasonable Likelihood That a Person Attempting To Manipulate the
ETP Would Also Have To Trade on That Market To Manipulate the ETP
Bitcoin Futures represent a growing influence on pricing in the
spot bitcoin market as has been laid out above and in other proposals
to list and trade Spot Bitcoin ETPs. Pricing in Bitcoin Futures is
based on pricing from spot bitcoin markets. As noted above, the
statement from the Teucrium Approval that ``CME's surveillance can
reasonably be relied upon to capture the effects on the CME bitcoin
futures market caused by a person attempting to manipulate the proposed
futures ETP by manipulating the price of CME bitcoin futures contracts
. . . indirectly by trading outside of the CME bitcoin futures
market,'' makes clear that the Commission believes that CME's
surveillance can capture the effects of trading on the relevant spot
markets on the pricing of Bitcoin Futures. While the Commission makes
clear in the Teucrium Approval that the analysis only applies to the
Bitcoin Futures market as it relates to an ETP that invests in Bitcoin
Futures as its only non-cash or cash equivalent holding, if CME's
surveillance is sufficient to mitigate concerns related to trading in
Bitcoin Futures for which the pricing is based directly on pricing from
spot bitcoin markets, it's not clear how such a conclusion could apply
only to ETPs based on Bitcoin Futures and not extend to Spot Bitcoin
ETPs.
(b) Predominant Influence on Prices in Spot and Bitcoin Futures
The Exchange and Sponsor also believe that trading in the Shares
would not be the predominant force on prices in the Bitcoin Futures
market or spot market for a number of reasons, including the
significant volume in the Bitcoin Futures market, the size of bitcoin's
market cap, and the significant liquidity available in the spot market.
In

[[Page 2293]]

addition to the Bitcoin Futures market data points cited above, the
spot market for bitcoin is also very liquid.
As such, the combination of the Bitcoin Futures leading price
discovery, the overall size of the bitcoin market, and the ability for
market participants to buy or sell large amounts of bitcoin without
significant market impact will help prevent the Shares from becoming
the predominant force on pricing in either the bitcoin spot or Bitcoin
Futures markets, satisfying part (b) of the test outlined above.
(c) Other Means To Prevent Fraudulent and Manipulative Acts and
Practices
The Exchange is also proposing to take additional steps to those
described above to supplement its ability to obtain information that
would be helpful in detecting, investigating, and deterring fraud and
market manipulation in the Commodity-Based Trust Shares.
As noted in the Surveillance section, the surveillance program
includes real-time patterns for price and volume movements and post-
trade surveillance patterns (e.g., spoofing, marking the close,
pinging, phishing). In addition to the Exchange's existing
surveillance, a new pattern will be added to surveil for significant
deviation in the Commodity-Based Trust Shares' price from the
underlying asset's price. The Exchange will use the trade data from an
external vendor that consolidates the real-time data from multiple
bitcoin platforms.
Trading of Shares on the Exchange will be subject to the Exchange's
surveillance program for derivative products, as well as cross-market
surveillances administered by FINRA, on behalf of the Exchange pursuant
to a regulatory services agreement, which are also designed to detect
violations of Exchange rules and applicable federal securities laws.
The Exchange is responsible for FINRA's performance under this
regulatory services agreement.
The Exchange will require the Trust to represent to the Exchange
that it will advise the Exchange of any failure by the Trust to comply
with the continued listing requirements, and, pursuant to its
obligations under section 19(g)(1) of the Exchange Act, the Exchange
will surveil for compliance with the continued listing requirements. If
the Trust is not in compliance with the applicable listing
requirements, the Exchange will commence delisting procedures under the
Nasdaq 5800 Series. In addition, the Exchange also has a general policy
prohibiting the distribution of material, non-public information by its
employees.
The Exchange will communicate as needed regarding trading in the
Shares with other markets and other entities that are members of the
ISG, and the Exchange may obtain trading information regarding trading
in the Shares from such markets and other entities.
Commodity-Based Trust Shares
The Exchange believes that the proposed rule change is designed to
prevent fraudulent and manipulative acts and practices in that the
Shares will be listed on the Exchange pursuant to the initial and
continued listing criteria in Exchange Rule 5711(d). The Exchange
believes that its surveillance procedures are adequate to properly
monitor the trading of the Shares on the Exchange during all trading
sessions and to deter and detect violations of Exchange rules and the
applicable federal securities laws, including Commodity-Based Trust
Shares.
Trading of the Shares through the Exchange will be subject to the
Exchange's surveillance procedures for derivative products, including
Commodity-Based Trust Shares. The issuer has represented to the
Exchange that it will advise the Exchange of any failure by the Trust
or the Shares to comply with the continued listing requirements, and,
pursuant to its obligations under section 19(g)(1) of the Exchange Act,
the Exchange will surveil for compliance with the continued listing
requirements. If the Trust or the Shares are not in compliance with the
applicable listing requirements, the Exchange will commence delisting
procedures under Exchange Rule 5800 and following. The Exchange may
obtain information regarding trading in the Shares and listed bitcoin
derivatives via the ISG, from other exchanges who are members or
affiliates of the ISG, or with which the Exchange has entered into a
comprehensive surveillance sharing agreement.
Availability of Information
The Trust's website (https://valkyrieinvest.com/BRRR) will include,
free of charge, quantitative information on a per Share basis updated
on a daily basis, including (i) the current NAV per Share daily and the
prior business day's NAV and the reported closing price; (ii) the mid-
point of the bid-ask price \34\ in relation to the NAV as of the time
the NAV is calculated (``Bid-Ask Price'') and a calculation of the
premium or discount of such price against such NAV; (iii) data in chart
format displaying the frequency distribution of discounts and premiums
of the daily Bid-Ask Price against the NAV, within appropriate ranges,
for each of the four previous calendar quarters (or for the life of the
Trust, if shorter); and (iv) copies of the Trust's prospectus in
electronic format. In addition, on each business day the Trust's
website will also provide free of charge: (i) the Trust's NAV and NAV
per Share; (ii) information regarding the Trust's holdings; and (iii)
information regarding the Index and the value of a bitcoin as
calculated by the Index (which may also be found on the Index's website
(https://www.cfbenchmarks.com/data/indices/BRRNY), or, if an
alternative fair value methodology is used to value the Trust's
bitcoin, such other pricing source(s) used in such calculation.
---------------------------------------------------------------------------

\34\ The bid-ask price of the Trust is determined using the
highest bid and lowest offer on the Consolidated Tape as of the time
of calculation of the closing day NAV.
---------------------------------------------------------------------------

The Trust's website will provide an IIV per Share updated every 15
seconds, as calculated by the Exchange or a third-party financial data
provider during the Exchange's Regular Market Session (9:30 a.m. to
4:00 p.m. (Eastern Time)).\35\ The IIV will be calculated by using the
prior day's closing NAV per Share as a base and updating that value
throughout the trading day to reflect changes in the most recently
reported price level of the BRTI, as reported by CME Group, Inc.,
Bloomberg, L.P. or another reporting service. The BRTI is calculated in
real time once per second based on the Relevant Order Books of all
Constituent Bitcoin Platforms. All aspects of the BRTI methodology are
publicly available at the website of the Benchmark Administrator.
---------------------------------------------------------------------------

\35\ The IIV on a per Share basis disseminated during the
Regular Market Session should not be viewed as a real-time update of
the NAV, which is calculated once a day.
---------------------------------------------------------------------------

[[Page 2294]]

the relevant securities information processor.
Quotation and last sale information for bitcoin is widely
disseminated through a variety of major market data vendors, including
Bloomberg and Reuters, as well as CF Benchmarks. Information relating
to trading, including price and volume information, in bitcoin is
available from major market data vendors and from the platforms on
which bitcoin are traded. Depth of book information is also available
from bitcoin platforms. The normal trading hours for bitcoin platforms
are 24 hours per day, 365 days per year.
Information regarding market price and trading volume of the Shares
will be continually available on a real-time basis throughout the day
on brokers' computer screens and other electronic services. Information
regarding the previous day's closing price and trading volume
information for the Shares will be published daily in the financial
section of newspapers. Market prices for the Shares will be available
from a variety of sources, including brokerage firms, information
websites and other information service providers.
For the above reasons, the Exchange believes that the proposed rule
change is consistent with the requirements of section 6(b)(5) of the
Act.

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 that is not necessary or appropriate
in furtherance of the purpose of the Act. The Exchange notes that the
proposed rule change, rather will facilitate the listing and trading of
additional actively-managed exchange-traded products that will enhance
competition among both market participants and listing venues, to the
benefit of investors and the marketplace.

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. 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-2023-019 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-2023-019. 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-2023-019 and should
be submitted on or before February 2, 2024.

For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\36\
---------------------------------------------------------------------------

\36\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

Sherry R. Haywood,
Assistant Secretary.
[FR Doc. 2024-00507 Filed 1-11-24; 8:45 am]
BILLING CODE 8011-01-P

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