Notice2021-11402
Self-Regulatory Organizations; Cboe BZX Exchange, Inc.; Notice of Filing of a Proposed Rule Change To List and Trade Shares of the Wise Origin Bitcoin Trust Under BZX Rule 14.11(e)(4), Commodity-Based Trust Shares
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
June 1, 2021
Issuing agencies
Securities and Exchange Commission
Full Text
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<title>Federal Register, Volume 86 Issue 103 (Tuesday, June 1, 2021)</title>
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[Federal Register Volume 86, Number 103 (Tuesday, June 1, 2021)]
[Notices]
[Pages 29321-29334]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-11402]
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SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-91994; File No. SR-CboeBZX-2021-039]
Self-Regulatory Organizations; Cboe BZX Exchange, Inc.; Notice of
Filing of a Proposed Rule Change To List and Trade Shares of the Wise
Origin Bitcoin Trust Under BZX Rule 14.11(e)(4), Commodity-Based Trust
Shares
May 25, 2021.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(the ``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given
that on May 10, 2021, Cboe BZX Exchange, Inc. (the ``Exchange'' or
``BZX'') filed with the Securities and Exchange Commission (the
``Commission'') the proposed rule change as described in Items I, II,
and III below, which Items have been prepared by the Exchange. The
Commission is publishing this notice to solicit comments on the
proposed rule change from interested persons.
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\1\ 15 U.S.C. 78s(b)(1).
\2\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change
Cboe BZX Exchange, Inc. (the ``Exchange'' or ``BZX'') is filing
with the Securities and Exchange Commission (``Commission'') a proposed
rule change to list and trade shares of the Wise Origin Bitcoin Trust
(the ``Trust''),\3\ under BZX Rule 14.11(e)(4), Commodity-Based Trust
Shares.
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\3\ The Trust was formed as a Delaware statutory trust on March
17, 2021 and is operated as a grantor trust for U.S. federal tax
purposes. The Trust has no fixed termination date.
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The text of the proposed rule change is also available on the
Exchange's website (<a href="http://markets.cboe.com/us/equities/regulation/rule_filings/bzx/">http://markets.cboe.com/us/equities/regulation/rule_filings/bzx/</a>), at the Exchange's Office of the Secretary, 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 the Shares under BZX Rule
14.11(e)(4),\4\ which governs the listing and trading of Commodity-
Based Trust Shares on the Exchange.\5\ FD Funds Management LLC is the
sponsor of the Trust (``Sponsor''). The Shares will be registered with
the Commission by means of the Trust's registration statement on Form
S-1 (the ``Registration Statement'').\6\
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\4\ The Commission approved BZX Rule 14.11(e)(4) in Securities
Exchange Act Release No. 65225 (August 30, 2011), 76 FR 55148
(September 6, 2011) (SR-BATS-2011-018).
\5\ All statements and representations made in this filing
regarding (a) the description of the portfolio, (b) limitations on
portfolio holdings or reference assets, or (c) the applicability of
Exchange rules and surveillance procedures shall constitute
continued listing requirements for listing the Shares on the
Exchange.
\6\ See draft Registration Statement on Form S-1, dated March
24, 2021 submitted to the Commission by the Sponsor on behalf of the
Trust. The descriptions of the Trust, the Shares, and the Index (as
defined below) contained herein are based, in part, on information
in the Registration Statement. The Registration Statement is not yet
effective and the Shares will not trade on the Exchange until such
time that the Registration Statement is effective.
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Background
Bitcoin is a digital asset based on the decentralized, open source
protocol of the peer-to-peer computer network launched in 2009 that
governs the creation, movement, and ownership of bitcoin and hosts the
public ledger, or ``blockchain,'' on which all bitcoin transactions are
recorded (the ``Bitcoin Network'' or ``Bitcoin''). The decentralized
nature of the Bitcoin Network allows parties to transact directly with
one another based on cryptographic proof instead of relying on a
trusted third party. The protocol also lays out the rate of issuance of
new bitcoin within the Bitcoin Network, a rate that is reduced by half
approximately every four years with an eventual hard cap of 21 million.
It is generally understood that the combination of these two features--
a systemic hard cap of 21 million bitcoin and the ability to transact
trustlessly with anyone connected to the Bitcoin Network--gives bitcoin
its value.\7\
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\7\ For additional information about bitcoin and the Bitcoin
Network, see <a href="https://bitcoin.org/en/getting-started">https://bitcoin.org/en/getting-started</a>; <a href="https://www.fidelitydigitalassets.com/articles/addressing-bitcoin-criticisms">https://www.fidelitydigitalassets.com/articles/addressing-bitcoin-criticisms</a>; and <a href="https://www.vaneck.com/education/investment-ideas/investing-in-bitcoin-and-digital-assets/">https://www.vaneck.com/education/investment-ideas/investing-in-bitcoin-and-digital-assets/</a>.
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The first rule filing proposing to list an exchange-traded product
to provide exposure to bitcoin in the U.S. was submitted by the
Exchange on June 30, 2016.\8\ At that time, blockchain technology, and
digital assets that utilized it, were relatively new to the broader
public. The market cap of all bitcoin in existence at that time was
approximately $10 billion. No registered offering of digital asset
securities or shares in an investment vehicle with exposure to bitcoin
or any other cryptocurrency had yet been conducted, and the regulated
infrastructure for conducting a digital asset securities offering had
not begun to develop.\9\ Similarly, regulated U.S. bitcoin futures
contracts did not exist. The Commodity Futures Trading Commission (the
``CFTC'') had determined that bitcoin is a commodity,\10\ but had not
engaged in
[[Page 29322]]
significant enforcement actions in the space. The New York Department
of Financial Services (``NYDFS'') adopted its final BitLicense
regulatory framework in 2015, but had only approved four entities to
engage in activities relating to virtual currencies (whether through
granting a BitLicense or a limited-purpose trust charter) as of June
30, 2016.\11\ While the first over-the-counter bitcoin fund launched in
2013, public trading was limited and the fund had only $60 million in
assets.\12\ There were very few, if any, traditional financial
institutions engaged in the space, whether through investment or
providing services to digital asset companies. In January 2018, the
Staff of the Commission noted in a letter to the Investment Company
Institute and SIFMA that it was not aware, at that time, of a single
custodian providing fund custodial services for digital assets.\13\
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\8\ 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'').
\9\ Digital assets that are securities under U.S. law are
referred to throughout this proposal as ``digital asset
securities.'' All other digital assets, including bitcoin, are
referred to interchangeably as ``cryptocurrencies'' or ``virtual
currencies.'' The term ``digital assets'' refers to all digital
assets, including both digital asset securities and
cryptocurrencies, together.
\10\ See ``In the Matter of Coinflip, Inc.'' (``Coinflip'')
(CFTC Docket 15-29 (September 17, 2015)) (order instituting
proceedings pursuant to Sections 6(c) and 6(d) of the CEA, making
findings and imposing remedial sanctions), in which the CFTC stated:
``Section 1a(9) of the CEA defines `commodity' to include,
among other things, `all services, rights, and interests in which
contracts for future delivery are presently or in the future dealt
in.' 7 U.S.C. 1a(9). The definition of a `commodity' is broad. See,
e.g., Board of Trade of City of Chicago v. SEC, 677 F. 2d 1137, 1142
(7th Cir. 1982). Bitcoin and other virtual currencies are
encompassed in the definition and properly defined as commodities.''
\11\ A list of virtual currency businesses that are entities
regulated by the NYDFS is available on the NYDFS website. See
<a href="https://www.dfs.ny.gov/apps_and_licensing/virtual_currency_businesses/regulated_entities">https://www.dfs.ny.gov/apps_and_licensing/virtual_currency_businesses/regulated_entities</a>.
\12\ Data as of March 31, 2016 according to publicly available
filings. See Bitcoin Investment Trust Form S-1, dated May 27, 2016,
available: <a href="https://www.sec.gov/Archives/edgar/data/1588489/000095012316017801/filename1.htm">https://www.sec.gov/Archives/edgar/data/1588489/000095012316017801/filename1.htm</a>.
\13\ See letter from Dalia Blass, Director, Division of
Investment Management, U.S. Securities and Exchange Commission to
Paul Schott Stevens, President & CEO, Investment Company Institute
and Timothy W. Cameron, Asset Management Group--Head, Securities
Industry and Financial Markets Association (January 18, 2018),
available at <a href="https://www.sec.gov/divisions/investment/noaction/2018/cryptocurrency-011818.htm">https://www.sec.gov/divisions/investment/noaction/2018/cryptocurrency-011818.htm</a>.
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Fast forward to the first quarter of 2021 and the digital assets
financial ecosystem, including bitcoin, has progressed significantly.
The development of a regulated market for digital asset securities has
significantly evolved, with market participants having conducted
registered public offerings of both digital asset securities \14\ and
shares in investment vehicles holding bitcoin futures.\15\
Additionally, licensed and regulated service providers have emerged to
provide fund custodial services for digital assets, among other
services. For example, in December 2020, the Commission adopted a
conditional no-action position permitting certain special purpose
broker-dealers to custody digital asset securities under Rule 15c3-3
under the Exchange Act; \16\ in September 2020, the Staff of the
Commission released a no-action letter permitting certain broker-
dealers to operate a non-custodial Alternative Trading System (``ATS'')
for digital asset securities, subject to specified conditions; \17\ in
October 2019, the Staff of the Commission granted temporary relief from
the clearing agency registration requirement to an entity seeking to
establish a securities clearance and settlement system based on
distributed ledger technology,\18\ and multiple transfer agents who
provide services for digital asset securities registered with the
Commission.\19\
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\14\ See Prospectus supplement filed pursuant to Rule 424(b)(1)
for INX Tokens (Registration No. 333-233363), available at: <a href="https://www.sec.gov/Archives/edgar/data/1725882/000121390020023202/ea125858-424b1_inxlimited.htm">https://www.sec.gov/Archives/edgar/data/1725882/000121390020023202/ea125858-424b1_inxlimited.htm</a>.
\15\ See Prospectus filed by Stone Ridge Trust VI on behalf of
NYDIG Bitcoin Strategy Fund Registration, available at: <a href="https://www.sec.gov/Archives/edgar/data/1764894/000119312519309942/d693146d497.htm">https://www.sec.gov/Archives/edgar/data/1764894/000119312519309942/d693146d497.htm</a>.
\16\ See Securities Exchange Act Release No. 90788, 86 FR 11627
(February 26, 2021) (File Number S7-25-20) (Custody of Digital Asset
Securities by Special Purpose Broker-Dealers).
\17\ See letter from Elizabeth Baird, Deputy Director, Division
of Trading and Markets, U.S. Securities and Exchange Commission to
Kris Dailey, Vice President, Risk Oversight & Operational
Regulation, Financial Industry Regulatory Authority (September 25,
2020), available at: <a href="https://www.sec.gov/divisions/marketreg/mr-noaction/2020/finra-ats-role-in-settlement-of-digital-asset-security-trades-09252020.pdf">https://www.sec.gov/divisions/marketreg/mr-noaction/2020/finra-ats-role-in-settlement-of-digital-asset-security-trades-09252020.pdf</a>.
\18\ See letter from Jeffrey S. Mooney, Associate Director,
Division of Trading and Markets, U.S. Securities and Exchange
Commission to Charles G. Cascarilla & Daniel M. Burstein, Paxos
Trust Company, LLC (October 28, 2019), available at: <a href="https://www.sec.gov/divisions/marketreg/mr-noaction/2019/paxos-trust-company-102819-17a.pdf">https://www.sec.gov/divisions/marketreg/mr-noaction/2019/paxos-trust-company-102819-17a.pdf</a>.
\19\ See, e.g., Form TA-1/A filed by Tokensoft Transfer Agent
LLC (CIK: 0001794142) on January 8, 2021, available at: <a href="https://www.sec.gov/Archives/edgar/data/1794142/000179414219000001/xslFTA1X01/primary_doc.xml">https://www.sec.gov/Archives/edgar/data/1794142/000179414219000001/xslFTA1X01/primary_doc.xml</a>.
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Outside the Commission's purview, the regulatory landscape has
changed significantly since 2016, and cryptocurrency markets have grown
and evolved as well. The market for bitcoin is approximately 100 times
larger, having recently reached a market cap of over $1 trillion. As of
February 27, 2021, bitcoin's market cap is greater than companies such
as Facebook, Inc., Berkshire Hathaway Inc., and JP Morgan Chase & Co.
CFTC regulated bitcoin futures represented approximately $28 billion in
notional trading volume on Chicago Mercantile Exchange (``CME'')
(``Bitcoin Futures'') in December 2020 compared to $737 million, $1.4
billion, and $3.9 billion in total trading in December 2017, December
2018, and December 2019, respectively. Bitcoin Futures traded over $1.2
billion per day in December 2020 and represented $1.6 billion in open
interest compared to $115 million in December 2019, which the Exchange
believes represents a regulated market of significant size, as further
discussed below.\20\ The CFTC has exercised its regulatory jurisdiction
in bringing a number of enforcement actions related to bitcoin and
against trading platforms that offer cryptocurrency trading.\21\ The
U.S. Office of the Comptroller of the Currency (the ``OCC'') has made
clear that federally-chartered banks are able to provide custody
services for cryptocurrencies and other digital assets.\22\ The OCC
recently granted conditional approval of two charter conversions by
state-chartered trust companies to national banks, both of which
provide cryptocurrency custody services.\23\ NYDFS has granted no fewer
than twenty-five BitLicenses, including to established public payment
companies like PayPal Holdings, Inc. and Square, Inc., and limited
purpose trust charters to entities providing cryptocurrency custody
services, including the Trust's Custodian. The U.S. Treasury Financial
Crimes Enforcement Network (``FinCEN'') has released extensive guidance
regarding the applicability of the Bank Secrecy Act (``BSA'') and
implementing regulations to virtual currency businesses,\24\ and has
proposed rules
[[Page 29323]]
imposing requirements on entities subject to the BSA that are specific
to the technological context of virtual currencies.\25\ In addition,
the Treasury's Office of Foreign Assets Control (``OFAC'') has brought
enforcement actions over apparent violations of the sanctions laws in
connection with the provision of wallet management services for digital
assets.\26\
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\20\ All statistics and charts included in this proposal are
sourced from <a href="https://www.cmegroup.com/trading/bitcoin-futures.html">https://www.cmegroup.com/trading/bitcoin-futures.html</a>.
\21\ The CFTC's annual report for Fiscal Year 2020 (which ended
on September 30, 2020) noted that the CFTC ``continued to
aggressively prosecute misconduct involving digital assets that fit
within the CEA's definition of commodity'' and ``brought a record
setting seven cases involving digital assets.'' See CFTC FY2020
Division of Enforcement Annual Report, available at: <a href="https://www.cftc.gov/media/5321/DOE_FY2020_AnnualReport_120120/download">https://www.cftc.gov/media/5321/DOE_FY2020_AnnualReport_120120/download</a>. The
CFTC also filed on October 1, 2020, a civil enforcement action
against the owner/operators of the BitMEX trading platform, which
was one of the largest bitcoin derivative exchanges. See CFTC
Release No. 8270-20 (October 1, 2020) available at: <a href="https://www.cftc.gov/PressRoom/PressReleases/8270-20">https://www.cftc.gov/PressRoom/PressReleases/8270-20</a>. The CFTC also ordered
Coinbase Inc. to pay $6.5 million for false, misleading, or
inaccurate reporting and wash trading on March 19, 2021. See CFTC
Release No. 8369-21 (March 19, 2021) available at: <a href="https://cftc.gov/PressRoom/PressReleases/8369-21">https://cftc.gov/PressRoom/PressReleases/8369-21</a>.
\22\ See OCC News Release 2021-2 (January 4, 2021) available at:
<a href="https://www.occ.gov/news-issuances/news-releases/2021/nr-occ-2021-2.html">https://www.occ.gov/news-issuances/news-releases/2021/nr-occ-2021-2.html</a>.
\23\ See OCC News Release 2021-6 (January 13, 2021) available
at: <a href="https://www.occ.gov/news-issuances/news-releases/2021/nr-occ-2021-6.html">https://www.occ.gov/news-issuances/news-releases/2021/nr-occ-2021-6.html</a> and OCC News Release 2021-19 (February 5, 2021)
available at: <a href="https://www.occ.gov/news-issuances/news-releases/2021/nr-occ-2021-19.html">https://www.occ.gov/news-issuances/news-releases/2021/nr-occ-2021-19.html</a>.
\24\ See FinCEN Guidance FIN-2019-G001 (May 9, 2019)
(Application of FinCEN's Regulations to Certain Business Models
Involving Convertible Virtual Currencies) available at: <a href="https://www.fincen.gov/sites/default/files/2019-05/FinCEN%20Guidance%20CVC%20FINAL%20508.pdf">https://www.fincen.gov/sites/default/files/2019-05/FinCEN%20Guidance%20CVC%20FINAL%20508.pdf</a>.
\25\ See U.S. Department of the Treasury Press Release: ``The
Financial Crimes Enforcement Network Proposes Rule Aimed at Closing
Anti-Money Laundering Regulatory Gaps for Certain Convertible
Virtual Currency and Digital Asset Transactions'' (December 18,
2020), available at: <a href="https://home.treasury.gov/news/press-releases/sm1216">https://home.treasury.gov/news/press-releases/sm1216</a>.
\26\ See U.S. Department of the Treasury Enforcement Release:
``OFAC Enters Into $98,830 Settlement with BitGo, Inc. for Apparent
Violations of Multiple Sanctions Programs Related to Digital
Currency Transactions'' (December 30, 2020) available at: <a href="https://home.treasury.gov/system/files/126/20201230_bitgo.pdf">https://home.treasury.gov/system/files/126/20201230_bitgo.pdf</a>.
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In addition to the regulatory developments laid out above, more
traditional financial market participants appear to be embracing
cryptocurrency: Large insurance companies,\27\ asset managers,\28\
university endowments,\29\ pension funds,\30\ and even historically
bitcoin skeptical fund managers \31\ are allocating to bitcoin. The
largest over-the-counter bitcoin fund previously filed a Form 10
registration statement, which the Staff of the Commission reviewed and
which took effect automatically, and is now a reporting company.\32\
Established companies like Tesla, Inc.,\33\ MicroStrategy
Incorporated,\34\ and Square, Inc.,\35\ among others, have recently
announced substantial investments in bitcoin in amounts as large as
$1.5 billion (Tesla) and $425 million (MicroStrategy). Suffice to say,
bitcoin is on its way to gaining mainstream usage.
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\27\ On December 10, 2020, Massachusetts Mutual Life Insurance
Company (MassMutual) announced that it had purchased $100 million in
bitcoin for its general investment account. See MassMutual Press
Release ``Institutional Bitcoin provider NYDIG announces minority
stake purchase by MassMutual'' (December 10, 2020) available at:
<a href="https://www.massmutual.com/about-us/news-and-press-releases/press-releases/2020/12/institutional-bitcoin-provider-nydig-announces-minority-stake-purchase-by-massmutual">https://www.massmutual.com/about-us/news-and-press-releases/press-releases/2020/12/institutional-bitcoin-provider-nydig-announces-minority-stake-purchase-by-massmutual</a>.
\28\ See, e.g., ``BlackRock's Rick Rieder says the world's
largest asset manager has `started to dabble' in bitcoin'' (February
17, 2021) available at: <a href="https://www.cnbc.com/2021/02/17/blackrock-has-started-to-dabble-in-bitcoin-says-rick-rieder.html">https://www.cnbc.com/2021/02/17/blackrock-has-started-to-dabble-in-bitcoin-says-rick-rieder.html</a> and
``Guggenheim's Scott Minerd Says Bitcoin Should Be Worth $400,000''
(December 16, 2020) available at: <a href="https://www.bloomberg.com/news/articles/2020-12-16/guggenheim-s-scott-minerd-says-bitcoin-should-be-worth-400-000">https://www.bloomberg.com/news/articles/2020-12-16/guggenheim-s-scott-minerd-says-bitcoin-should-be-worth-400-000</a>.
\29\ See, e.g., ``Harvard and Yale Endowments Among Those
Reportedly Buying Crypto'' (January 25, 2021) available at: <a href="https://www.bloomberg.com/news/articles/2021-01-26/harvard-and-yale-endowments-among-those-reportedly-buying-crypto">https://www.bloomberg.com/news/articles/2021-01-26/harvard-and-yale-endowments-among-those-reportedly-buying-crypto</a>.
\30\ See, e.g., ``Virginia Police Department Reveals Why its
Pension Fund is Betting on Bitcoin'' (February 14, 2019) available
at: <a href="https://finance.yahoo.com/news/virginia-police-department-reveals-why-194558505.html">https://finance.yahoo.com/news/virginia-police-department-reveals-why-194558505.html</a>.
\31\ See, e.g., ``Bridgewater: Our Thoughts on Bitcoin''
(January 28, 2021) available at: <a href="https://www.bridgewater.com/research-and-insights/our-thoughts-on-bitcoin">https://www.bridgewater.com/research-and-insights/our-thoughts-on-bitcoin</a> and ``Paul Tudor Jones
says he likes bitcoin even more now, rally still in the `first
inning' '' (October 22, 2020) available at: <a href="https://www.cnbc.com/2020/10/22/-paul-tudor-jones-says-he-likes-bitcoin-even-more-now-rally-still-in-the-first-inning.html">https://www.cnbc.com/2020/10/22/-paul-tudor-jones-says-he-likes-bitcoin-even-more-now-rally-still-in-the-first-inning.html</a>.
\32\ See Letter from Division of Corporation Finance, Office of
Real Estate & Construction to Barry E. Silbert, Chief Executive
Officer, Grayscale Bitcoin Trust (January 31, 2020) <a href="https://www.sec.gov/Archives/edgar/data/1588489/000000000020000953/filename1.pdf">https://www.sec.gov/Archives/edgar/data/1588489/000000000020000953/filename1.pdf</a>.
\33\ See Form 10-K submitted by Tesla, Inc. for the fiscal year
ended December 31, 2020 at 23: <a href="https://www.sec.gov/ix?doc=/Archives/edgar/data/1318605/000156459021004599/tsla-10k_20201231.htm">https://www.sec.gov/ix?doc=/Archives/edgar/data/1318605/000156459021004599/tsla-10k_20201231.htm</a>.
\34\ See Form 10-Q submitted by MicroStrategy Incorporated for
the quarterly period ended September 30, 2020 at 8: <a href="https://www.sec.gov/ix?doc=/Archives/edgar/data/1050446/000156459020047995/mstr-10q_20200930.htm">https://www.sec.gov/ix?doc=/Archives/edgar/data/1050446/000156459020047995/mstr-10q_20200930.htm</a>.
\35\ See Form 10-Q submitted by Square, Inc. for the quarterly
period ended September 30, 2020 at 51: <a href="https://www.sec.gov/ix?doc=/Archives/edgar/data/1512673/000151267320000012/sq-20200930.htm">https://www.sec.gov/ix?doc=/Archives/edgar/data/1512673/000151267320000012/sq-20200930.htm</a>.
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Despite these developments, access for U.S. investors to gain
exposure to bitcoin via a transparent and regulated exchange-traded
vehicle remains limited. As investors and advisors increasingly utilize
ETPs to manage diversified portfolios (including equities, fixed income
securities, commodities, and currencies) quickly, easily, relatively
inexpensively, and without having to hold directly any of the
underlying assets, alternatives for bitcoin exposure for U.S. investors
are instead limited to: (i) Buying over-the-counter bitcoin funds
(``OTC Bitcoin Funds'') that are subject to premium/discount
volatility; (ii) facing the technical risk, complexity and generally
high fees associated with buying spot bitcoin; or (iii) purchasing
shares of operating companies that they believe will provide proxy
exposure to bitcoin. Meanwhile, investors in many other countries,
including Canada,\36\ are able to use more traditional exchange listed
and traded products to gain exposure to bitcoin, disadvantaging U.S.
investors and leaving them with riskier and more expensive means of
getting bitcoin exposure.\37\
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\36\ The Exchange notes that the Purpose Bitcoin ETF, a publicly
listed physical bitcoin ETP recently launched in Canada, reportedly
reached $421.8 million in assets under management (``AUM'') in two
days, demonstrating the demand for a North American market listed
bitcoin exchange-traded product (``ETP''). The Purpose Bitcoin ETF
also offers a class of units that is U.S. dollar denominated, which
could appeal to U.S. investors. Without an approved bitcoin ETP in
the U.S. as a viable alternative, U.S. investors could seek to
purchase these shares in order to get access to bitcoin exposure.
Given the separate regulatory regime and the potential difficulties
associated with any international litigation, such an arrangement
would create more risk exposure for U.S. investors than they would
otherwise have with a U.S. exchange listed ETP.
\37\ The Exchange notes that securities regulators in a number
of other countries have either approved or otherwise allowed the
listing and trading of bitcoin ETPs. Specifically, these funds
include the Purpose Bitcoin ETF, Bitcoin ETF, VanEck Vectors Bitcoin
ETN, WisdomTree Bitcoin ETP, Bitcoin Tracker One, BTCetc bitcoin
ETP, Amun Bitcoin ETP, Amun Bitcoin Suisse ETP, 21Shares Short
Bitcoin ETP, CoinShares Physical Bitcoin ETP.
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Institutional Adoption and Investor Interest in Bitcoin
As noted above, institutional adoption and investor interest in
bitcoin has increased significantly over the last two years. A recent
independent investor survey, The Institutional Investors Digital Asset
Survey (the ``Survey'') \38\ conducted by Fidelity Digital Assets,
Fidelity Center for Applied Technology and Fidelity Consulting in
collaboration with Greenwich Associates from November 2019 to early
March 2020 found that i. 36% of institutional investors surveyed
currently invest in digital assets; ii. almost 60% of all investors
surveyed have a neutral or positive perception toward digital assets;
and iii. more than 80% of investors indicated they would be interested
in institutional investment products that hold digital assets. The
Survey reported that the portion of U.S. investors who have an
allocation to digital assets increased to 27% from 22% in 2019 and
cited multiple factors that may be driving ownership including, but not
limited to, the entrance of incumbent custody, trading and derivatives
service providers; and the expansion of the types of regulated
derivatives available to institutional investors, which fueled
awareness of digital assets.
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\38\ The Survey included interviews with 774 institutional
investors. 393 respondents were based in the U.S. and 381
respondents were based in Europe. The Survey spanned a variety of
investor segments, including high-net worth individuals, financial
advisors, family offices, crypto hedge and venture funds,
traditional hedge funds, endowments and foundations. The first
installment of The Institutional Investors Digital Assets Survey
covered the period of November 2018 to January 2019 and surveyed
over 400 U.S. investors. Thus, the year-over-year comparisons
compare only the responses of U.S. investors. The Survey is
available at the following link: <a href="https://www.fidelitydigitalassets.com/bin-public/060_www_fidelity_com/documents/FDAS/institutional-investors-digital-asset-survey.pdf">https://www.fidelitydigitalassets.com/bin-public/060_www_fidelity_com/documents/FDAS/institutional-investors-digital-asset-survey.pdf</a>.
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The Survey reported that exposure to digital assets continues to
grow with
[[Page 29324]]
22% of U.S. respondents invested in digital assets having exposure via
futures, a substantial increase relative to 9% of U.S. investors
surveyed in 2019. The Survey also reported that 91% of institutional
investors that plan to make an allocation to digital assets expect to
have at least 0.5% of their portfolio in digital assets within five
years. The increase in institutional use and interest in the digital
asset market is a benefit to all investors. As institutional
participation increases, this helps to solidify the market for digital
assets and assists in maturing the ecosystem for digital assets,
creating a more sound structure for this asset class. ETPs are well
established vehicles with a structure that has proven to be beneficial
to investors based on the transparency, competition with respect to
fees charged, and disclosures to help educate investors on risks
associated with investment.
The Exchange understands the Commission's previous focus on
potential manipulation of a bitcoin ETP in prior disapproval orders,
but now believes that such concerns have been sufficiently mitigated.
The Exchange believes that the significant increase in investor
participation in and institutional adoption of bitcoin have facilitated
the maturation of the bitcoin trading ecosystem. As such, the Exchange
believes that approving this proposal (and comparable proposals
submitted hereafter) provides the Commission with the opportunity to
allow U.S. investors with access to bitcoin in a regulated and
transparent exchange-traded vehicle that would act to reduce risk to
U.S. investors by: (i) Reducing premium and discount volatility; (ii)
reducing management fees through meaningful competition; (iii) reducing
certain risks associated with investing in operating companies that are
proxies for bitcoin exposure; and (iv) providing an alternative to
custodying spot bitcoin.
(i) OTC Bitcoin Funds and Premium/Discount Volatility
OTC Bitcoin Funds are generally designed to provide exposure to
bitcoin in a manner similar to the Shares. However, unlike the Shares,
OTC Bitcoin Funds are unable to freely offer creation and redemption in
a way that incentivizes market participants to keep their shares
trading in line with their NAV \39\ and, as such, frequently trade at a
price that is out of line with the value of their assets held.
Historically, OTC Bitcoin Funds have traded at significant premiums or
discounts compared to their NAV. A bitcoin ETP would provide an
alternative to OTC Bitcoin Funds that would offer investors access to
direct bitcoin exposure with real time trading and transparency on
pricing/valuation, liquidity and active arbitrage--advantages of the
ETP structure.
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\39\ Because OTC Bitcoin Funds are not listed on an exchange,
they are also not subject to the same transparency and regulatory
oversight by a listing exchange as the Shares would be. In the case
of the Trust, the existence of a surveillance-sharing agreement
between the Exchange and the Bitcoin Futures market results in
increased investor protections compared to OTC Bitcoin Funds.
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(ii) Spot and Proxy Exposure
Exposure to bitcoin through an ETP also presents certain advantages
for investors compared to buying spot bitcoin directly. The most
notable advantage is the use of the Custodian to custody the Trust's
bitcoin assets. The Sponsor has carefully selected the Custodian, a New
York state limited liability trust,\40\ due to its manner of holding
the Trust's bitcoin. This includes, among others, the use of ``cold''
(offline) storage to hold private keys and the employment by the
Custodian of a certain degree of cybersecurity measures and operational
best practices.\41\ By contrast, an investor holding bitcoin through a
cryptocurrency exchange lacks these protections. Typically,
cryptocurrency exchanges hold most, if not all, investors' bitcoin in
``hot'' (internet-connected) storage and do not make any commitments to
indemnify investors or to observe any particular cybersecurity
standard. Meanwhile, an investor holding spot bitcoin directly in a
self-hosted wallet may suffer from inexperience in private key
management (e.g., insufficient password protection, lost key, etc.),
which could cause them to lose some or all of their bitcoin holdings.
In the Custodian, the Trust has engaged a regulated and licensed entity
highly experienced in bitcoin custody, with dedicated, trained
employees and procedures to manage the private keys to the Trust's
bitcoin, and which is accountable for failures. Thus, with respect to
custody of the Trust's bitcoin assets, the Trust presents advantages
for investors compared to owning spot bitcoin directly.
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\40\ New York state trust companies are subject to rigorous
oversight similar to other types of entities, such as nationally
chartered banking entities, that hold customer assets. Like national
banks, they must obtain specific approval of their primary regulator
for the exercise of their fiduciary powers. Moreover, limited
purpose trust companies engaged in the custody of digital assets are
subject to even more stringent requirements than national banks
which, following initial approval of trust powers, generally can
exercise those powers broadly without further approval of the OCC.
In contrast, NYDFS requires in their approval orders that limited
purpose trust companies obtain separate approval for all material
changes in business.
\41\ In addition to enforcing specific regulatory reporting
requirements, NYDFS consistently exercises its broad authority to
examine trust companies for compliance with law, risk management and
general safety and soundness considerations, including to assess
items such as the internal controls, client records and segregation
of assets topics that are typically important to the ability of an
entity to act as a qualified custodian. In this regard, the
Custodian is subject to annual examination, with specific attention
to its internal controls and risk management systems.
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Finally, as described in the Background section above, recently a
number of operating companies engaged in unrelated businesses--such as
Tesla (a car manufacturer) and MicroStrategy (an enterprise software
company)--have announced investments as large as $1.5 billion in
bitcoin.\42\ Without access to bitcoin exchange-traded products,
investors seeking investment exposure to bitcoin may end up purchasing
shares in these companies in order to gain the exposure to bitcoin that
they seek.\43\ In fact, mainstream financial news networks have written
a number of articles providing investors with guidance for obtaining
bitcoin exposure through publicly traded companies (such as
MicroStrategy, Tesla, and bitcoin mining companies, among others)
instead of dealing with the complications associated with buying spot
bitcoin in the absence of a bitcoin ETP.\44\ Such operating companies,
however, are imperfect bitcoin proxies and provide investors with
partial or indirect bitcoin exposure paired with a host of additional
risks associated with whichever operating company they decide to
purchase. Additionally, the disclosures provided by the aforementioned
operating companies with respect to risks relating to their bitcoin
holdings are generally substantially smaller than the registration
statement of a bitcoin ETP, including the Registration Statement,
[[Page 29325]]
typically amounting to a few sentences of narrative description and a
handful of risk factors.\45\
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\42\ It has been announced that MicroStrategy is currently
contemplating a $600 million convertible note offering for the
purpose of acquiring bitcoin. See: <a href="https://www.cnbc.com/2021/02/16/microstrategy-shares-rise-after-revealing-plans-to-buy-more-bitcoin.html">https://www.cnbc.com/2021/02/16/microstrategy-shares-rise-after-revealing-plans-to-buy-more-bitcoin.html</a>.
\43\ In August 2017, the Commission's Office of Investor
Education and Advocacy warned investors about situations where
companies were publicly announcing events relating to digital coins
or tokens in an effort to affect the price of the company's publicly
traded common stock. See <a href="https://www.sec.gov/oiea/investor-alerts-and-bulletins/ia_icorelatedclaims">https://www.sec.gov/oiea/investor-alerts-and-bulletins/ia_icorelatedclaims</a>.
\44\ See, e.g., ``7 public companies with exposure to bitcoin''
(February 8, 2021) available at: <a href="https://finance.yahoo.com/news/7-public-companies-with-exposure-to-bitcoin-154201525.html">https://finance.yahoo.com/news/7-public-companies-with-exposure-to-bitcoin-154201525.html</a>; and ``Want
to get in the crypto trade without holding bitcoin yourself? Here
are some investing ideas'' (February 19, 2021) available at: <a href="https://www.cnbc.com/2021/02/19/ways-to-invest-in-bitcoin-without-holding-the-cryptocurrency-yourself-.html">https://www.cnbc.com/2021/02/19/ways-to-invest-in-bitcoin-without-holding-the-cryptocurrency-yourself-.html</a>.
\45\ See, e.g., Tesla 10-K for the year ended December 31, 2020,
which mentions bitcoin just nine times: <a href="https://www.sec.gov/ix?doc=/Archives/edgar/data/1318605/000156459021004599/tsla-10k_20201231.htm">https://www.sec.gov/ix?doc=/Archives/edgar/data/1318605/000156459021004599/tsla-10k_20201231.htm</a>
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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.\46\ The contracts trade and settle like other cash-
settled commodity futures contracts. Nearly every measurable metric
related to Bitcoin Futures has trended consistently up since launch
and/or accelerated upward in the past year. For example, there was
approximately $28 billion in trading in Bitcoin Futures in December
2020 compared to $737 million, $1.4 billion, and $3.9 billion in total
trading in December 2017, December 2018, and December 2019,
respectively. Bitcoin Futures traded over $1.2 billion per day on the
CME in December 2020 and represented $1.6 billion in open interest
compared to $115 million in December 2019. This general upward trend in
trading volume and open interest is captured in the following chart.
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\46\ According to CME, the CME CF Bitcoin Reference Rate
aggregates the trade flow of major bitcoin spot exchanges during a
specific calculation window into a once-a-day reference rate of the
U.S. dollar price of bitcoin. Calculation rules are geared toward
maximum transparency and real-time replicability in underlying spot
markets, including Bitstamp, Coinbase, Gemini, itBit, and Kraken.
For additional information, refer to <a href="https://www.cmegroup.com/trading/cryptocurrency-indices/cf-bitcoin-reference-rate.html?redirect=/trading/cf-bitcoin-reference-rate.html">https://www.cmegroup.com/trading/cryptocurrency-indices/cf-bitcoin-reference-rate.html?redirect=/trading/cf-bitcoin-reference-rate.html</a>.
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BILLING CODE 8011-01-P
[GRAPHIC] [TIFF OMITTED] TN01JN21.000
Similarly, the number of large open interest holders \47\ has
continued to increase even as the price of bitcoin has risen, as have
the number of unique accounts trading Bitcoin Futures.
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\47\ A large open interest holder in Bitcoin Futures is an
entity that holds at least 25 contracts, which is the equivalent of
125 bitcoin. At a price of approximately $30,000 per bitcoin on 12/
31/20, more than 80 firms had outstanding positions of greater than
$3.8 million in Bitcoin Futures.
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[[Page 29326]]
[GRAPHIC] [TIFF OMITTED] TN01JN21.001
BILLING CODE 8011-01-C
[[Page 29327]]
The Sponsor further believes that academic research 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.\48\
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\48\ See 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:
<a href="https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7481826/">https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7481826/</a>). 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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Section 6(b)(5) and the Applicable Standards
The Commission has approved numerous series of Trust Issued
Receipts,\49\ including Commodity-Based Trust Shares,\50\ 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;
\51\ 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 it has sufficiently demonstrated
that, on the whole, the manipulation concerns previously articulated by
the Commission are sufficiently mitigated. Specifically, the Exchange
lays out below why it believes that the significant increase in trading
volume in Bitcoin Futures, the growth of liquidity at the inside in the
spot market for bitcoin, and certain features of the Shares and the
Index \52\ mitigate potential manipulation concerns since the
Commission last reviewed an exchange proposal to list and trade a
bitcoin ETP should be the central consideration as the Commission
determines whether to approve this proposal.
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\49\ See Exchange Rule 14.11(f).
\50\ Commodity-Based Trust Shares, as described in Exchange Rule
14.11(e)(4), are a type of Trust Issued Receipt.
\51\ As the Exchange has stated in a number of other public
documents, it continues to believe 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 exchanges 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 exchange 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 exchange 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.
\52\ The ``Index'' refers to the Fidelity Bitcoin Index PR.
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(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 \53\ with a regulated market of significant size.
Both the Exchange and CME are members of the Intermarket Surveillance
Group (the ``ISG'').\54\ 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.\55\
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\53\ 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 ISG
constitutes such a surveillance sharing agreement. See Wilshire
Phoenix Disapproval.
\54\ For a list of the current members and affiliate members of
ISG, see <a href="http://www.isgportal.com">www.isgportal.com</a>.
\55\ 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.\56\
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\56\ 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.
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(a) Manipulation of the ETP
The significant growth in Bitcoin Futures across each of trading
volumes, open interest, large open interest holders, and total market
participants since the Wilshire Phoenix Disapproval was issued are
reflective of that market's growing influence on the spot price, which
according to the academic research cited above, was already leading the
spot price in 2018 and 2019. Where Bitcoin Futures lead the price in
the spot market such that a potential manipulator of the bitcoin spot
market (beyond just the constituents of the Index \57\) would have to
participate in the Bitcoin Futures market, it follows that a potential
manipulator of the Shares would similarly have to transact in the
Bitcoin Futures market because
[[Page 29328]]
the Index is based on spot prices. Further, the Trust receives and
holds only bitcoin, which, as further described below, reduces the
potential for manipulation of the Shares through manipulation of the
Index or any of its individual constituents, again emphasizing that a
potential manipulator of the Shares would have to manipulate the
entirety of the bitcoin spot market, which is led by the Bitcoin
Futures market. As such, the Exchange believes that part (a) of the
significant market test outlined above is satisfied and that common
membership in ISG between the Exchange and CME would assist the listing
exchange in detecting and deterring misconduct in the Shares.
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\57\ As further described below, the ``Index'' for the Fund is
the Fidelity Bitcoin Index PR. The Index is constructed using
bitcoin price feeds from eligible bitcoin spot markets. The current
exchange composition of the Index is Bitstamp, Coinbase, Gemini,
itBit and Kraken.
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(b) Predominant Influence on Prices in Spot and Bitcoin Futures
The Exchange also believes 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
(approximately $1 trillion), 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 CoinRoutes from February 2021, the cost to buy or sell $5
million worth of bitcoin averages roughly 10 basis points with a market
impact of 30 basis points.\58\ For a $10 million market order, the cost
to buy or sell is roughly 20 basis points with a market impact of 50
basis points. Stated another way, a market participant could enter a
market buy or sell order for $10 million of bitcoin and only move the
market 0.5%. 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 Bitcoin
Futures leading price discovery, the overall size of the bitcoin
market, and the ability for market participants, including authorized
participants creating and redeeming with the Trust, 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.
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\58\ These statistics are based on samples of bitcoin liquidity
in USD (excluding stablecoins or Euro liquidity) based on executable
quotes on Coinbase Pro, Gemini, Bitstamp, Kraken, LMAX Exchange,
BinanceUS, and OKCoin during February 2021.
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(c) Other Means To Prevent Fraudulent and Manipulative Acts and
Practices
As noted above, the Commission also permits a listing exchange to
demonstrate that ``other means to prevent fraudulent and manipulative
acts and practices'' are sufficient to justify dispensing with the
requisite surveillance-sharing agreement. The Exchange believes that
such conditions are present. Specifically, the significant liquidity in
the spot market and the impact of market orders on the overall price of
bitcoin mean that attempting to move the price of bitcoin is costly and
has grown more expensive over the past year. In January 2020, for
example, the cost to buy or sell $5 million worth of bitcoin averaged
roughly 30 basis points (compared to 10 basis points in 2/2021) with a
market impact of 50 basis points (compared to 30 basis points in 2/
2021).\59\ For a $10 million market order, the cost to buy or sell was
roughly 50 basis points (compared to 20 basis points in 2/2021) with a
market impact of 80 basis points (compared to 50 basis points in 2/
2021). As the liquidity in the bitcoin spot market increases, it
follows that the impact of $5 million and $10 million orders will
continue to decrease the overall impact in spot price.
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\59\ These statistics are based on samples of bitcoin liquidity
in USD (excluding stablecoins or Euro liquidity) based on executable
quotes on Coinbase Pro, Gemini, Bitstamp, Kraken, LMAX Exchange,
BinanceUS, and OKCoin during February 2021.
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Additionally, offering in-kind creation and redemption will provide
unique protections against potential attempts to manipulate the Shares.
While the Sponsor believes that the Index which it uses to value the
Trust's bitcoin is itself resistant to manipulation based on the
methodology further described below, the fact that creations and
redemptions are available in-kind makes the manipulability of the Index
significantly less important. Specifically, because the Trust will not
accept cash to buy bitcoin in order to create new shares or, barring a
forced redemption of the Trust or under other extraordinary
circumstances, be forced to sell bitcoin to pay cash for redeemed
shares, the price that the Sponsor uses to value the Trust's bitcoin is
not particularly important.\60\ When authorized participants are
creating with the Trust, they need to deliver a certain number of
bitcoin per share (regardless of the valuation used) and when they're
redeeming, they can similarly expect to receive a certain number of
bitcoin per share. As such, even if the price used to value the Trust's
bitcoin is manipulated (which the Sponsor believes that the Index
methodology is resistant to), the ratio of bitcoin per Share does not
change and the Trust will either accept (for creations) or distribute
(for redemptions) the same number of bitcoin regardless of the value.
This not only mitigates the risk associated with potential
manipulation, but also discourages and disincentivizes manipulation of
the Index because there is little financial incentive to do so.
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\60\ While the Index will not be particularly important for the
creation and redemption process, it will be used for calculating
fees.
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Wise Origin Bitcoin Trust
Delaware Trust Company is the trustee (``Trustee''). Fidelity
Service Company, Inc. (``FSC'') will be the administrator
(``Administrator'') A third-party transfer agent (the ``Transfer
Agent'') will facilitate the issuance and redemption of Shares of the
Trust, respond to correspondence by Trust Shareholders and others
relating to its duties, maintain Shareholder accounts, and make
periodic reports to the Trust.\61\ An affiliate of the Sponsor,
Fidelity Distributors Corporation, will be the marketing agent
(``Marketing Agent'') in connection with the creation and redemption of
``Baskets'' of Shares. The Sponsor provides assistance in the marketing
of the Shares. Fidelity Digital Assets Services, LLC will serve as the
Trust's custodian (the ``Custodian'').
---------------------------------------------------------------------------
\61\ The Exchange notes that the Sponsor is finalizing
negotiations with several service providers and it will submit an
amendment to this proposal upon finalization of those arrangements.
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According to the Registration Statement, each Share will represent
a fractional undivided beneficial interest in and ownership of the
Trust. The Trust's assets will consist of bitcoin held by the Custodian
on behalf of the Trust. The Trust generally does not intend to hold
cash or cash equivalents. However, there may be situations where the
Trust will unexpectedly hold cash on a temporary basis.
According to the Registration Statement, the Trust is neither an
investment company registered under the Investment Company Act of 1940,
as amended,\62\ nor a commodity pool for purposes of the Commodity
Exchange Act (``CEA''), and neither the Trust nor the Sponsor is
subject to regulation as a commodity pool operator or a commodity
trading adviser in connection with the Shares.
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\62\ 15 U.S.C. 80a-1.
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When the Trust sells or redeems its Shares, it will do so in ``in-
kind'' transactions in blocks of Shares (a
[[Page 29329]]
``Creation Basket'') at the Trust's NAV. Authorized participants will
deliver, or facilitate the delivery of, bitcoin to the Trust's account
with the Custodian in exchange for Shares when they purchase Shares,
and the Trust, through the Custodian, will deliver bitcoin to such
authorized participants when they redeem Shares with the Trust.
Authorized participants may then offer Shares to the public at prices
that depend on various factors, including the supply and demand for
Shares, the value of the Trust's assets, and market conditions at the
time of a transaction. Shareholders who buy or sell Shares during the
day from their broker may do so at a premium or discount relative to
the NAV of the Shares of the Trust.
Investment Objective
According to the Registration Statement and as further described
below, the investment objective of the Trust is to seek to track the
performance of bitcoin, as measured by the Index, adjusted for the
Trust's expenses and other liabilities.
In seeking to achieve its investment objective, the Trust will hold
bitcoin and will value its Shares daily as of 4:00 p.m. Eastern time
using the same methodology used to calculate the Index and process all
creations and redemptions in transactions with authorized participants.
The Trust is not actively managed.
The Index
As described in the Registration Statement, for purposes of
calculating the Trust's NAV per Share, the Trust's holdings of bitcoin
will be valued using the same methodology as used to calculate the
Index. The Index is designed to reflect the performance of bitcoin in
U.S. dollars. The Index is constructed using bitcoin price feeds from
eligible bitcoin spot markets and the VWMP methodology, calculated
every 15 seconds based on VWMP spot market data over rolling 5-minute
increments to develop a bitcoin price composite. The current exchange
composition of the Index is Bitstamp, Coinbase, Gemini, itBit and
Kraken. The Index methodology was developed by Fidelity Product
Services, LLC (the ``Index Provider'') and is administered by the
Fidelity Index Committee. Coin Metrics, Inc. is the third-party
calculation agent for the Index.\63\
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\63\ The Sponsor's affiliates have an ownership interest in Coin
Metrics, Inc.
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The Index is calculated using a volume-weighted median price
approach. The Index market value is the volume-weighted median price of
bitcoin in U.S. dollars over the previous five minutes, which is
calculated by (1) ordering all individual transactions on eligible spot
markets over the previous five minutes by price, and then (2) selecting
the price associated with the 50th percentile of total volume. Using
rolling five-minute segments means malicious actors would need to
sustain efforts to manipulate the market over an extended period of
time, or would need to replicate efforts multiple times across
exchanges, potentially triggering review. This extended period also
supports authorized participant activity by capturing volume over a
longer time period, rather than forcing authorized participants to mark
an individual close or auction. The use of a median price reduces the
ability of outlier prices to impact the NAV, as it systematically
excludes those prices from the NAV calculation. The use of a volume-
weighted median (as opposed to a traditional median) serves as an
additional protection against attempts to manipulate the NAV by
executing a large number of low-dollar trades, because any manipulation
attempt would have to involve a majority of global spot bitcoin volume
in a three-minute window to have any influence on the NAV. Further,
removing the highest and lowest prices further protects against
attempts to manipulate the NAV, requiring bad actors to act on multiple
exchanges at once to have any ability to influence the price.
Availability of Information
In addition to the price transparency of the Index, the Trust will
provide information regarding the Trust's bitcoin holdings as well as
additional data regarding the Trust. The Trust will provide an Intraday
Indicative Value (``IIV'') per Share updated every 15 seconds, as
calculated by the Exchange or a third-party financial data provider
during the Exchange's Regular Trading Hours (9:30 a.m. to 4:00 p.m.
Eastern time). The IIV will be calculated by using the prior day's
closing NAV per Share as a base and updating that value during Regular
Trading Hours to reflect changes in the value of the Trust's bitcoin
holdings during the trading day.
The IIV disseminated during Regular Trading Hours 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 Trading Hours by one or more major market data
vendors. In addition, the IIV will be available through on-line
information services.
The website for the Trust, which will be publicly accessible at no
charge, will contain the following information: (a) The current NAV per
Share daily and the prior business day's NAV and the reported closing
price; (b) the BZX Official Closing Price \64\ in relation to the NAV
as of the time the NAV is calculated and a calculation of the premium
or discount of such price against such NAV; (c) data in chart form
displaying the frequency distribution of discounts and premiums of the
Official Closing Price against the NAV, within appropriate ranges for
each of the four previous calendar quarters (or for the life of the
Trust, if shorter); (d) the prospectus; and (e) other applicable
quantitative information. The Trust will also disseminate the Trust's
holdings on a daily basis on the Trust's website. The value of the
Index will be made available by one or more major market data vendors,
updated at least every 15 seconds during Regular Trading Hours.
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\64\ As defined in Rule 11.23(a)(3), the term ``BZX Official
Closing Price'' shall mean the price disseminated to the
consolidated tape as the market center closing trade.
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The NAV for the Trust will be calculated by the Administrator 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 Consolidated Tape
Association (``CTA'').
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 the Index. Information relating to
trading, including price and volume information, in bitcoin is
available from major market data vendors and from the exchanges on
which bitcoin are traded. Depth of book information is also available
from bitcoin exchanges. The normal trading hours for bitcoin exchanges
are 24 hours per day, 365 days per year.
Net Asset Value
NAV means the total assets of the Trust including, but not limited
to, all bitcoin and cash, if any, less total liabilities of the Trust,
each determined on the basis of generally accepted accounting
principles. The NAV of the Trust is calculated by taking the fair
market value of its total assets based on the volume-weighted median
price of bitcoin used for the calculation of the Index, subtracting any
liabilities (which include accrued expenses), and dividing that total
by the total number of
[[Page 29330]]
outstanding Shares. The Administrator calculates the NAV of the Trust
once each Exchange trading day. The NAV for a normal trading day will
be released after 4:00 p.m. Eastern time. Trading during the core
trading session on the Exchange typically closes at 4:00 p.m. Eastern
time. 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 (or later) provides an opportunity to algorithmically detect,
flag, investigate, and correct unusual pricing should it occur. Eastern
time [sic].
Creation and Redemption of Shares
According to the Registration Statement, on any business day, an
authorized participant may place an order to create one or more
baskets. Purchase orders must be placed by the time noted in the
Authorized Participant Agreement or as provided separately to all
Authorized Participants. The day on which an order is received is
considered the purchase order date. The total deposit of bitcoin
required is an amount of bitcoin that is in the same proportion to the
total assets of the Trust, net of accrued expenses and other
liabilities, on the date the order to purchase is properly received, as
the number of Shares to be created under the purchase order is in
proportion to the total number of Shares outstanding on the date the
order is received. Each night, the Sponsor will publish the amount of
bitcoin that will be required in exchange for each creation order. The
Administrator determines the required deposit for a given day by
dividing the number of bitcoin held by the Trust as of the opening of
business on that business day, adjusted for the amount of bitcoin
constituting estimated accrued but unpaid fees and expenses of the
Trust as of the opening of business on that business day, by the
quotient of the number of Shares outstanding at the opening of business
divided by the aggregation of Shares associated with a Creation Basket.
The procedures by which an authorized participant can redeem one or
more Creation Baskets mirror the procedures for the creation of
Creation Baskets.
Rule 14.11(e)(4)--Commodity-Based Trust Shares
The Shares will be subject to BZX Rule 14.11(e)(4), 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 be calculated daily and that these values and
information about the assets of the Trust will be made available to all
market participants at the same time. The Exchange notes that, as
defined in Rule 14.11(e)(4)(C)(i), the Shares will be: (a) Issued by a
trust that holds a specified commodity \65\ deposited with the trust;
(b) issued by such trust in a specified aggregate minimum number in
return for a deposit of a quantity of the underlying commodity; and (c)
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.
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\65\ For purposes of Rule 14.11(e)(4), the term commodity takes
on the definition of the term as provided in the Commodity Exchange
Act. As noted above, the CFTC has opined that Bitcoin is a commodity
as defined in Section 1a(9) of the Commodity Exchange Act. See
Coinflip.
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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. The Delaware Trust Company also has
the experience and facilities for handling corporate trust business, as
required under Rule 14.11(e)(4)(E)(iv)(a). No change will be made to
the trustee without prior notice to and approval of the Exchange. The
Exchange also notes that, pursuant to Rule 14.11(e)(4)(F), neither the
Exchange nor any agent of the Exchange shall have any liability for
damages, claims, losses or expenses caused by any errors, omissions or
delays in calculating or disseminating any underlying commodity value,
the current value of the underlying commodity required to be deposited
to the Trust in connection with issuance of Commodity-Based Trust
Shares; resulting from any negligent act or omission by the Exchange,
or any agent of the Exchange, or any act, condition or cause beyond the
reasonable control of the Exchange, its agent, including, but not
limited to, an act of God; fire; flood; extraordinary weather
conditions; war; insurrection; riot; strike; accident; action of
government; communications or power failure; equipment or software
malfunction; or any error, omission or delay in the reports of
transactions in an underlying commodity. Finally, as required in Rule
14.11(e)(4)(G), 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 in an underlying commodity, related commodity
futures or options on commodity futures, or any other related commodity
derivatives, which the registered Market Maker may have or over which
it may exercise investment discretion. No registered Market Maker shall
trade in an underlying commodity, related commodity futures or options
on commodity futures, or any other related commodity 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 this Rule. In addition to the existing obligations under Exchange
rules regarding the production of books and records (see, e.g., Rule
4.2), the registered Market Maker in Commodity-Based Trust Shares shall
make available to the Exchange such books, records or other information
pertaining to transactions by such entity or registered or non-
registered employee affiliated with such entity for its or their own
accounts for trading the underlying physical commodity, related
commodity futures or options on commodity futures, or any other related
commodity derivatives, as may be requested by the Exchange.
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 BZX Rule 11.18. 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. Trading in the Shares also will be subject to Rule
14.11(e)(4)(E)(ii), which sets forth circumstances under which trading
in the Shares may be halted.
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. BZX will allow
trading in the Shares during all trading sessions on the Exchange. The
Exchange has appropriate rules to facilitate transactions in the Shares
during all trading sessions. As provided in BZX Rule 11.11(a) the
minimum price variation for quoting and entry of orders in securities
traded on the Exchange is $0.01 where the price is greater than
[[Page 29331]]
$1.00 per share or $0.0001 where the price is less than $1.00 per
share.
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. 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 14.12. The Exchange may obtain information regarding
trading in the Shares and Bitcoin Futures via 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.\66\
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\66\ For a list of the current members and affiliate members of
ISG, see <a href="http://www.isgportal.com">www.isgportal.com</a>.
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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: (i) The procedures for the
creation and redemption of Baskets (and that the Shares are not
individually redeemable); (ii) BZX Rule 3.7, which imposes suitability
obligations on Exchange members with respect to recommending
transactions in the Shares to customers; (iii) how information
regarding the IIV and the Trust's NAV are disseminated; (iv) the risks
involved in trading the Shares outside of Regular Trading Hours \67\
when an updated IIV will not be calculated or publicly disseminated;
(v) the requirement that members deliver a prospectus to investors
purchasing newly issued Shares prior to or concurrently with the
confirmation of a transaction; and (vi) trading information.
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\67\ Regular Trading Hours is the time between 9:30 a.m. and
4:00 p.m. Eastern Time.
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In addition, the Information Circular will advise members, prior to
the commencement of trading, of the prospectus delivery requirements
applicable to the Shares. Members purchasing the Shares for resale to
investors will deliver a prospectus to such investors. The Information
Circular will also discuss any exemptive, no-action and interpretive
relief granted by the Commission from any rules under the Act.
2. Statutory Basis
The Exchange believes that the proposal is consistent with Section
6(b) of the Act \68\ in general and Section 6(b)(5) of the Act \69\ 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.
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\68\ 15 U.S.C. 78f.
\69\ 15 U.S.C. 78f(b)(5).
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The Commission has approved numerous series of Trust Issued
Receipts,\70\ including Commodity-Based Trust Shares,\71\ 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;
\72\ and (ii) the requirement that an exchange proposal be designed, in
general, to protect investors and the public interest.
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\70\ See Exchange Rule 14.11(f).
\71\ Commodity-Based Trust Shares, as described in Exchange Rule
14.11(e)(4), are a type of Trust Issued Receipt.
\72\ As the Exchange has stated in a number of other public
documents, it continues to believe 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 exchanges 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 exchanges 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 exchange 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.
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The Exchange believes that the proposal is, in particular, designed
to protect investors and the public interest. With the growth of OTC
Bitcoin Funds over the past year, so too has grown the potential risk
to U.S. investors. Significant and prolonged premiums and discounts,
significant premium/discount volatility, high fees, insufficient
disclosures, and technical hurdles are putting U.S. investor money at
risk on a daily basis that could potentially be eliminated through
access to a bitcoin ETP. As such, the Exchange believes that this
proposal acts to limit the risk to U.S. investors that are increasingly
seeking exposure to bitcoin through the elimination of significant and
prolonged premiums and discounts, the reduction of significant premium/
discount volatility, the reduction of management fees through
meaningful competition, the avoidance of risks associated with
investing in operating companies that are imperfect proxies for bitcoin
exposure, and protection from risk associated with custodying spot
bitcoin by providing direct, 1-for-1 exposure to bitcoin in a
regulated, transparent, exchange-traded vehicle designed to reduce the
likelihood of significant and prolonged premiums and discounts with its
open-ended nature as well as the ability of authorized participants to
create and redeem on a daily basis.
The Exchange also believes that this proposal is consistent with
the requirements of Section 6(b)(5) of the Act and that it has
sufficiently demonstrated that, on the whole, the manipulation concerns
previously articulated by the Commission are sufficiently mitigated.
Specifically, the Exchange believes that the significant increase in
trading volume in Bitcoin Futures, the growth of liquidity at the
inside in the spot market for bitcoin, and certain features of the
Shares and the Index mitigate potential manipulation concerns should be
the central consideration as the Commission determines whether to
approve this proposal.
[[Page 29332]]
(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 \73\ with a regulated market of significant size.
Both the Exchange and CME are members of ISG.\74\ 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.\75\
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\73\ 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 ISG
constitutes such a surveillance sharing agreement. See Wilshire
Phoenix Disapproval.
\74\ For a list of the current members and affiliate members of
ISG, see <a href="http://www.isgportal.com">www.isgportal.com</a>.
\75\ 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.\76\
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\76\ 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.
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(a) Manipulation of the ETP
The significant growth in Bitcoin Futures across each of trading
volumes, open interest, large open interest holders, and total market
participants since the Wilshire Phoenix Disapproval was issued are
reflective of that market's growing influence on the spot price, which
according to the academic research cited above, was already leading the
spot price in 2018 and 2019. Where Bitcoin Futures lead the price in
the spot market such that a potential manipulator of the bitcoin spot
market (beyond just the constituents of the Index) would have to
participate in the Bitcoin Futures market, it follows that a potential
manipulator of the Shares would similarly have to transact in the
Bitcoin Futures market because the Index is based on spot prices.
Further, the Trust allows for in-kind creation and redemption, which,
as further described below, reduces the potential for manipulation of
the Shares through manipulation of the Index or any of its individual
constituents, again emphasizing that a potential manipulator of the
Shares would have to manipulate the entirety of the bitcoin spot
market, which is led by the Bitcoin Futures market. As such, the
Exchange believes that part (a) of the significant market test outlined
above is satisfied and that common membership in ISG between the
Exchange and CME would assist the listing exchange in detecting and
deterring misconduct in the Shares.
(b) Predominant Influence on Prices in Spot and Bitcoin Futures
The Exchange also believes 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
(approximately $1 trillion), 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 CoinRoutes from February 2021, the cost to buy or sell $5
million worth of bitcoin averages roughly 10 basis points with a market
impact of 30 basis points.\77\ For a $10 million market order, the cost
to buy or sell is roughly 20 basis points with a market impact of 50
basis points. Stated another way, a market participant could enter a
market buy or sell order for $10 million of bitcoin and only move the
market 0.5%. 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 Bitcoin
Futures leading price discovery, the overall size of the bitcoin
market, and the ability for market participants, including authorized
participants creating and redeeming in-kind with the Trust, 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.
---------------------------------------------------------------------------
\77\ These statistics are based on samples of bitcoin liquidity
in USD (excluding stablecoins or Euro liquidity) based on executable
quotes on Coinbase Pro, Gemini, Bitstamp, Kraken, LMAX Exchange,
BinanceUS, and OKCoin during February 2021.
---------------------------------------------------------------------------
(c) Other Means To Prevent Fraudulent and Manipulative Acts and
Practices
As noted above, the Commission also permits a listing exchange to
demonstrate that ``other means to prevent fraudulent and manipulative
acts and practices'' are sufficient to justify dispensing with the
requisite surveillance-sharing agreement. The Exchange believes that
such conditions are present. Specifically, the significant liquidity in
the spot market and the impact of market orders on the overall price of
bitcoin mean that attempting to move the price of bitcoin is costly and
has grown more expensive over the past year. In January 2020, for
example, the cost to buy or sell $5 million worth of bitcoin averaged
roughly 30 basis points (compared to 10 basis points in 2/2021) with a
market impact of 50 basis points (compared to 30 basis points in 2/
2021).\78\ For a $10 million market order, the cost to buy or sell was
roughly 50 basis points (compared to 20 basis points in 2/2021) with a
market impact of 80 basis points (compared to 50 basis points in 2/
2021). As the liquidity in the bitcoin spot market increases, it
follows that the impact of $5 million and $10 million orders will
continue to decrease the overall impact in spot price.
---------------------------------------------------------------------------
\78\ These statistics are based on samples of bitcoin liquidity
in USD (excluding stablecoins or Euro liquidity) based on executable
quotes on Coinbase Pro, Gemini, Bitstamp, Kraken, LMAX Exchange,
BinanceUS, and OKCoin during February 2021.
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[[Page 29333]]
Additionally, offering in-kind creation and redemption will provide
unique protections against potential attempts to manipulate the Shares.
While the Sponsor believes that the independently calculated Index
which it uses to value the Trust's bitcoin is itself resistant to
manipulation based on the methodology further described below, the fact
that creations and redemptions are available in-kind makes the
manipulability of the Index significantly less important. Specifically,
because the Trust will not accept cash to buy bitcoin in order to
create new shares or, barring a forced redemption of the Trust or under
other extraordinary circumstances, be forced to sell bitcoin to pay
cash for redeemed shares, the price that the Sponsor uses to value the
Trust's bitcoin is not particularly important.\79\ When authorized
participants are creating with the Trust, they need to deliver a
certain number of bitcoin per share (regardless of the valuation used)
and when they're redeeming, they can similarly expect to receive a
certain number of bitcoin per share. As such, even if the price used to
value the Trust's bitcoin is manipulated (which the Sponsor believes
that its methodology is resistant to), the ratio of bitcoin per Share
does not change and the Trust will either accept (for creations) or
distribute (for redemptions) the same number of bitcoin regardless of
the value. This not only mitigates the risk associated with potential
manipulation, but also discourages and disincentivizes manipulation of
the Index because there is little financial incentive to do so.
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\79\ While the Index will not be particularly important for the
creation and redemption process, it will be used for calculating
fees.
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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 14.11(e)(4). 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. 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 14.12. 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 Exchange also believes that the proposal promotes market
transparency in that a large amount of information is currently
available about bitcoin and will be available regarding the Trust and
the Shares. In addition to the price transparency of the Index, the
Trust will provide information regarding the Trust's bitcoin holdings
as well as additional data regarding the Trust. The Trust 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 Trading Hours (9:30 a.m. to 4:00 p.m. Eastern time). The IIV
will be calculated by using the prior day's closing NAV per Share as a
base and updating that value during Regular Trading Hours to reflect
changes in the value of the Trust's bitcoin holdings during the trading
day.
The IIV disseminated during Regular Trading Hours 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 Trading Hours by one or more major market data
vendors. In addition, the IIV will be available through on-line
information services.
The website for the Trust, which will be publicly accessible at no
charge, will contain the following information: (a) The current NAV per
Share daily and the prior business day's NAV and the reported closing
price; (b) the BZX Official Closing Price in relation to the NAV as of
the time the NAV is calculated and a calculation of the premium or
discount of such price against such NAV; (c) data in chart form
displaying the frequency distribution of discounts and premiums of the
Official Closing Price against the NAV, within appropriate ranges for
each of the four previous calendar quarters (or for the life of the
Trust, if shorter); (d) the prospectus; and (e) other applicable
quantitative information. The Trust will also disseminate the Trust's
holdings on a daily basis on the Trust's website. The value of the
Index will be made available by one or more major market data vendors,
updated at least every 15 seconds during Regular Trading Hours.
The NAV for the Trust will be calculated by the Administrator 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 CTA.
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 the Index. Information relating to
trading, including price and volume information, in bitcoin is
available from major market data vendors and from the exchanges on
which bitcoin are traded. Depth of book information is also available
from bitcoin exchanges. The normal trading hours for bitcoin exchanges
are 24 hours per day, 365 days per year.
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
an additional exchange-traded product 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
The Exchange has neither solicited nor received written comments on
the proposed rule change.
III. Date of Effectiveness of the Proposed Rule Change and Timing for
Commission Action
Within 45 days of the date of publication of this notice in the
Federal Register or within such longer period up to 90 days (i) as the
Commission may designate if it finds such longer period to be
appropriate and publishes its
[[Page 29334]]
reasons for so finding or (ii) as to which the Exchange consents, the
Commission will:
A. By order approve or disapprove such proposed rule change, or
B. institute proceedings to determine whether the proposed rule
change should be disapproved.
IV. Solicitation of Comments
Interested persons are invited to submit written data, views, and
arguments concerning the foregoing, including whether the proposed rule
change is consistent with the Act. Comments may be submitted by any of
the following methods:
Electronic Comments
<bullet> Use the Commission's internet comment form (<a href="http://www.sec.gov/rules/sro.shtml">http://www.sec.gov/rules/sro.shtml</a>); or
<bullet> Send an email to <a href="/cdn-cgi/l/email-protection#493b3c252c642a2624242c273d3a093a2c2a672e263f"><span class="__cf_email__" data-cfemail="156760797038767a7878707b6166556670763b727a63">[email protected]</span></a>. Please include
File Number SR-CboeBZX-2021-039 on the subject line.
Paper Comments
<bullet> 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-CboeBZX-2021-039. 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 (<a href="http://www.sec.gov/rules/sro.shtml">http://www.sec.gov/rules/sro.shtml</a>).
Copies of the submission, all subsequent amendments, all written
statements with respect to the proposed rule change that are filed with
the Commission, and all written communications relating to the proposed
rule change between the Commission and any person, other than those
that may be withheld from the public in accordance with the provisions
of 5 U.S.C. 552, will be available for website viewing and printing in
the Commission's Public Reference Room, 100 F Street NE, Washington, DC
20549 on official business days between the hours of 10:00 a.m. and
3:00 p.m. Copies of the filing also will be available for inspection
and copying at the principal office of the Exchange. All comments
received will be posted without change. Persons submitting comments are
cautioned that we do not redact or edit personal identifying
information from comment submissions. You should submit only
information that you wish to make available publicly. All submissions
should refer to File Number SR-CboeBZX-2021-039 and should be submitted
on or before June 22, 2021.
For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\80\
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\80\ 17 CFR 200.30-3(a)(12).
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J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2021-11402 Filed 5-28-21; 8:45 am]
BILLING CODE 8011-01-P
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</html>Indexed from Federal Register on June 1, 2021.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.