[Federal Register Volume 86, Number 71 (Thursday, April 15, 2021)]
[Notices]
[Pages 19917-19931]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-07675]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-91521; File No. SR-CboeBZX-2021-024]


Self-Regulatory Organizations; Cboe BZX Exchange, Inc.; Notice of 
Filing of a Proposed Rule Change to List and Trade Shares of the 
WisdomTree Bitcoin Trust Under BZX Rule 14.11(e)(4), Commodity-Based 
Trust Shares

April 9, 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 March 26, 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

    The Exchange rule change to list and trade shares of the WisdomTree 
Bitcoin Trust (the ``Trust''),\3\ under BZX Rule 14.11(e)(4), 
Commodity-Based Trust Shares. The shares of the Trust are referred to 
herein as the ``Shares.''
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    \3\ The Trust was formed as a Delaware statutory trust on March 
8, 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 (http://markets.cboe.com/us/equities/regulation/rule_filings/bzx/), 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.

[[Page 19918]]

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\ WisdomTree Digital Commodity 
Services, LLC is the sponsor of the Trust (the ``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\ The Trust has filed a registration statement on Form S-1 
under the Securities Act of 1933, dated March 9, 2021 (File No. 333-
254134) (``Registration Statement''). The description of the Trust 
and the Shares contained herein are based on the Registration 
Statement. The Registration Statement for the Trust 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's 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 https://bitcoin.org/en/getting-started; https://www.fidelitydigitalassets.com/articles/addressing-bitcoin-criticisms; and https://www.vaneck.com/education/investment-ideas/investing-in-bitcoin-and-digital-assets/.
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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 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 
https://www.dfs.ny.gov/apps_and_licensing/virtual_currency_businesses/regulated_entities.
    \12\ Data as of March 31, 2016 according to publicly available 
filings. See Bitcoin Investment Trust Form S-1, dated May 27, 2016, 
available: https://www.sec.gov/Archives/edgar/data/1588489/000095012316017801/filename1.htm.
    \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 https://www.sec.gov/divisions/investment/noaction/2018/cryptocurrency-011818.htm.
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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

[[Page 19919]]

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: https://www.sec.gov/Archives/edgar/data/1725882/000121390020023202/ea125858-424b1_inxlimited.htm.
    \15\ See Prospectus filed by Stone Ridge Trust VI on behalf of 
NYDIG Bitcoin Strategy Fund Registration, available at: https://www.sec.gov/Archives/edgar/data/1764894/000119312519309942/d693146d497.htm.
    \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: https://www.sec.gov/divisions/marketreg/mr-noaction/2020/finra-ats-role-in-settlement-of-digital-asset-security-trades-09252020.pdf.
    \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: https://www.sec.gov/divisions/marketreg/mr-noaction/2019/paxos-trust-company-102819-17a.pdf.
    \19\ See, e.g., Form TA-1/A filed by Tokensoft Transfer Agent 
LLC (CIK: 0001794142) on January 8, 2021, available at: https://www.sec.gov/Archives/edgar/data/1794142/000179414219000001/xslFTA1X01/primary_doc.xml.
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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 custodian of the Trust (the ``Bitcoin 
Custodian'').\24\ 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,\25\ and has proposed rules 
imposing requirements on entities subject to the BSA that are specific 
to the technological context of virtual currencies.\26\ 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.\27\
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    \20\ All statistics and charts included in this proposal are 
sourced from https://www.cmegroup.com/trading/bitcoin-futures.html.
    \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: https://www.cftc.gov/media/5321/DOE_FY2020_AnnualReport_120120/download. 
Additionally, the CFTC 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: https://www.cftc.gov/PressRoom/PressReleases/8270-20.
    \22\ See OCC News Release 2021-2 (January 4, 2021) available at: 
https://www.occ.gov/news-issuances/news-releases/2021/nr-occ-2021-2.html.
    \23\ See OCC News Release 2021-6 (January 13, 2021) available 
at: https://www.occ.gov/news-issuances/news-releases/2021/nr-occ-2021-6.html and OCC News Release 2021-19 (February 5, 2021) 
available at: https://www.occ.gov/news-issuances/news-releases/2021/nr-occ-2021-19.html.
    \24\ The Exchange notes that the Sponsor is finalizing 
negotiations with the Bitcoin Custodian and it will submit an 
amendment to this proposal upon execution of an agreement with the 
Bitcoin Custodian.
    \25\ See FinCEN Guidance FIN-2019-G001 (May 9, 2019) 
(Application of FinCEN's Regulations to Certain Business Models 
Involving Convertible Virtual Currencies) available at: https://www.fincen.gov/sites/default/files/2019-05/FinCEN%20Guidance%20CVC%20FINAL%20508.pdf.
    \26\ 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: https://home.treasury.gov/news/press-releases/sm1216.
    \27\ 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: https://home.treasury.gov/system/files/126/20201230_bitgo.pdf.
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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,\28\ asset managers,\29\ 
university endowments,\30\ pension funds,\31\ and even historically 
bitcoin skeptical fund managers \32\ 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.\33\ 
Established companies like Tesla, Inc.,\34\ MicroStrategy 
Incorporated,\35\ and Square, Inc.,\36\ 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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    \28\ 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: 
https://www.massmutual.com/about-us/news-and-press-releases/press-releases/2020/12/institutional-bitcoin-provider-nydig-announces-minority-stake-purchase-by-massmutual.
    \29\ 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: https://www.cnbc.com/2021/02/17/blackrock-has-started-to-dabble-in-bitcoin-says-rick-rieder.html and 
``Guggenheim's Scott Minerd Says Bitcoin Should Be Worth $400,000'' 
(December 16, 2020) available at: https://www.bloomberg.com/news/articles/2020-12-16/guggenheim-s-scott-minerd-says-bitcoin-should-be-worth-400-000.
    \30\ See e.g., ``Harvard and Yale Endowments Among Those 
Reportedly Buying Crypto'' (January 25, 2021) available at: https://www.bloomberg.com/news/articles/2021-01-26/harvard-and-yale-endowments-among-those-reportedly-buying-crypto.
    \31\ See e.g., ``Virginia Police Department Reveals Why its 
Pension Fund is Betting on Bitcoin'' (February 14, 2019) available 
at: https://finance.yahoo.com/news/virginia-police-department-reveals-why-194558505.html.
    \32\ See e.g., ``Bridgewater: Our Thoughts on Bitcoin'' (January 
28, 2021) available at: https://www.bridgewater.com/research-and-insights/our-thoughts-on-bitcoin and ``Paul Tudor Jones says he 
likes bitcoin even more now, rally still in the `first inning''' 
(October 22, 2020) available at: https://www.cnbc.com/2020/10/22/-paul-tudor-jones-says-he-likes-bitcoin-even-more-now-rally-still-in-the-first-inning.html.
    \33\ 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) https://www.sec.gov/Archives/edgar/data/1588489/000000000020000953/filename1.pdf.
    \34\ See Form 10-K submitted by Tesla, Inc. for the fiscal year 
ended December 31, 2020 at 23: https://www.sec.gov/ix?doc=/Archives/edgar/data/1318605/000156459021004599/tsla-10k_20201231.htm.
    \35\ See Form 10-Q submitted by MicroStrategy Incorporated for 
the quarterly period ended September 30, 2020 at 8: https://www.sec.gov/ix?doc=/Archives/edgar/data/1050446/000156459020047995/mstr-10q_20200930.htm.
    \36\ See Form 10-Q submitted by Square, Inc. for the quarterly 
period ended September 30, 2020 at 51: https://www.sec.gov/ix?doc=/Archives/edgar/data/1512673/000151267320000012/sq-20200930.htm.
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    Despite these developments, access for U.S. retail investors to 
gain exposure to bitcoin via a transparent and

[[Page 19920]]

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, options for 
bitcoin exposure for U.S. investors remain limited to: (i) Investing in 
over-the-counter bitcoin funds (``OTC Bitcoin Funds'') that are subject 
to high premium/discount volatility (and high management fees) to the 
advantage of more sophisticated investors that are able to create and 
redeem shares at net asset value (``NAV'') directly with the issuing 
trust; (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 with limited disclosure about the associated risks. Meanwhile, 
investors in many other countries, including Canada,\37\ 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.\38\
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    \37\ The Exchange notes that the Purpose Bitcoin ETF, a retail 
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.
    \38\ 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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OTC Bitcoin Funds and Investor Protection
    Over the past year, U.S. investor exposure to bitcoin through OTC 
Bitcoin Funds has grown into the tens of billions of dollars. With that 
growth, so too has grown the potential risk to U.S. investors. As 
described below, premium and 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. 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 and that the growing and quantifiable 
investor protection concerns should be the central consideration as the 
Commission reviews this proposal. 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 limit risk to U.S. investors by: (i) Reducing 
premium and discount volatility; (ii) reducing management fees through 
meaningful competition; (iii) reducing risks associated with investing 
in operating companies that are imperfect 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 a significant premium to 
NAV.\40\
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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.
    \40\ The inability to trade in line with NAV may at some point 
result in OTC Bitcoin Funds trading at a discount to their NAV, 
which has occurred more recently with respect to one prominent OTC 
Bitcoin Fund. While that has not historically been the case, and it 
is not clear whether such discounts will continue, such a prolonged, 
significant discount scenario would give rise to nearly identical 
potential issues related to trading at a premium.
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    Trading at a premium or a discount is not unique to OTC Bitcoin 
Funds and is not in itself problematic, but the size of such premiums/
discounts and volatility thereof highlight the key differences in 
operations and market structure of OTC Bitcoin Funds as compared to 
ETPs. This, combined with the significant increase in AUM for OTC 
Bitcoin Funds over the past year, has given rise to significant and 
quantifiable investor protection issues, as further described below. In 
fact, the largest OTC Bitcoin Fund has grown to $35.0 billion in AUM 
\41\ and has historically traded at a premium of between roughly five 
and forty percent, though it has seen premiums at times above one 
hundred percent.\42\ Recently, however, it has traded at a discount. As 
of March 24, 2021, the discount was approximately 14%,\43\ representing 
around $4.9 billion in market value less than the bitcoin actually held 
by the fund. If premium/discount numbers move back to the middle of its 
historical range to a 20% premium (which historically could occur at 
any time and overnight), it would represent a swing of approximately 
$11.9 billion in value unrelated to the value of bitcoin held by the 
fund and if the premium returns to the upper end of its typical range, 
that number increases to $18.9 billion. These numbers are only 
associated with a single OTC Bitcoin Fund--as more and more OTC Bitcoin 
Funds come to market and more investor assets flood into them to get 
access to bitcoin exposure, the potential dollars at risk will only 
increase.
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    \41\ As of February 19, 2021. Compare to an AUM of approximately 
$2.6 billion on February 26, 2020, the date on which the Commission 
issued the most recent disapproval order for a bitcoin ETP. See 
Securities Exchange Act Release No. 88284 (February 26, 2020), 85 FR 
12595 (March 3, 2020) (SR-NYSEArca-2019-39) (the ``Wilshire Phoenix 
Disapproval''). While the price of one bitcoin has increased 
approximately 400% in the intervening period, the total AUM has 
increased by approximately 1240%, indicating that the increase in 
AUM was created beyond just price appreciation in bitcoin.
    \42\ See ``Traders Piling Into Overvalued Crypto Funds Risk a 
Painful Exit'' (February 4, 2021) available at: https://www.bloomberg.com/news/articles/2021-02-04/bitcoin-one-big-risk-when-investing-in-crypto-funds.
    \43\ This is compared to another OTC Bitcoin Product which had a 
premium of over 60% on the same day, with a premium of over 200% a 
few days earlier.
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    This raises significant investor protection issues in several ways. 
First, the most obvious issue is that investors are buying shares of a 
fund for a price that is not reflective of the per share value of the 
fund's underlying assets. Even operating within the normal premium 
range, it's possible for an investor to buy shares of an OTC Bitcoin 
Fund only to have those shares quickly lose 10% or more in dollar value 
excluding any movement of the price of bitcoin. That is to say--the 
price of bitcoin could have stayed exactly the same from market close 
on one day to market open the next, yet the value of the shares held by 
the investor decreased only because of the fluctuation of the premium/
discount. As

[[Page 19921]]

more investment vehicles, including mutual funds and ETFs, seek to gain 
exposure to bitcoin, the easiest option for a buy and hold strategy is 
often an OTC Bitcoin Fund, meaning that even investors that do not 
directly buy OTC Bitcoin Funds can be disadvantaged by extreme premiums 
(or discounts) and premium volatility.
    The second issue is related to the first and explains how the 
premium in OTC Bitcoin Funds essentially creates a direct payment from 
retail investors to more sophisticated investors. Generally speaking, 
only accredited investors are able to create or redeem shares with the 
issuing trust, which means that they are able to buy or sell shares 
directly with the trust at NAV (in exchange for either cash or bitcoin) 
without having to pay the premium or sell into the discount. While 
there are often minimum holding periods for shares, an investor that is 
allowed to interact directly with the trust is able to hedge their 
bitcoin exposure as needed to satisfy the holding requirements and 
collect on the premium or discount opportunity.
    As noted above, the existence of a premium or discount and the 
premium/discount collection opportunity is not unique to OTC Bitcoin 
Funds and does not in itself warrant the approval of an exchange traded 
product.\44\ What makes this situation unique is that such significant 
and persistent premiums and discounts can exist in a product with $35 
billion in assets under management,\45\ that billions of retail 
investor dollars are constantly under threat of premium/discount 
volatility,\46\ and that premium/discount volatility is generally 
captured by more sophisticated investors on a riskless basis. The 
Exchange understands the Commission's focus on potential manipulation 
of a bitcoin ETP in prior disapproval orders, but now believes that 
current circumstances warrant that this direct, quantifiable investor 
protection issue should be the central consideration as the Commission 
determines whether to approve this proposal, particularly when the 
Trust as a bitcoin ETP is designed to reduce the likelihood of 
significant and prolonged premiums and discounts with its open-ended 
nature as well as the ability of market participants (i.e., market 
makers and authorized participants) to create and redeem on a daily 
basis.
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    \44\ The Exchange notes, for example, that similar premiums/
discounts and premium/discount volatility exist for other non-
bitcoin cryptocurrency related over-the-counter funds, but that the 
size and investor interest in those funds does not give rise to the 
same investor protection concerns that exist for OTC Bitcoin Funds.
    \45\ At $35 billion in AUM, the largest OTC Bitcoin Fund would 
be the 32nd largest out of roughly 2,400 U.S. listed ETPs.
    \46\ The Exchange notes that in two recent incidents, the 
premium dropped from 28.28% to 12.29% from the close on 3/19/20 to 
the close on 3/20/20 and from 38.40% to 21.05% from the close on 5/
13/19 to the close on 5/14/19. Similarly, over the period of 12/21/
20 to 1/21/20, the premium went from 40.18% to 2.79%. While the 
price of bitcoin appreciated significantly during this period and 
NAV per share increased by 41.25%, the price per share increased by 
only 3.58%.
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(ii) Spot and Proxy Exposure
    Exposure to bitcoin through an ETP also presents certain advantages 
for retail investors compared to buying spot bitcoin directly. The most 
notable advantage is the use of the Bitcoin Custodian to custody the 
Trust's bitcoin assets. The Sponsor has carefully selected the Bitcoin 
Custodian, a third-party custodian that carries insurance covering both 
hot and cold storage and is chartered as a trust company under the New 
York Banking Law,\47\ 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 Bitcoin Custodian of a 
certain degree of cybersecurity measures and operational best 
practices.\48\ By contrast, an individual retail investor holding 
bitcoin through a cryptocurrency exchange lacks these protections. 
Typically, retail exchanges hold most, if not all, retail investors' 
bitcoin in ``hot'' (internet-connected) storage and do not make any 
commitments to indemnify retail investors or to observe any particular 
cybersecurity standard. Meanwhile, a retail 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 Bitcoin 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. In 
addition, retail investors will be able to hold the Shares in 
traditional brokerage accounts which provide SIPC protection if a 
brokerage firm fails. Thus, with respect to custody of the Trust's 
bitcoin assets, the Trust presents advantages from an investment 
protection standpoint for retail investors compared to owning spot 
bitcoin directly.
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    \47\ 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.
    \48\ 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 Bitcoin 
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.\49\ Without access to bitcoin exchange-traded products, retail 
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.\50\ 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.\51\ Such operating companies, 
however, are imperfect bitcoin proxies and provide investors with 
partial 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

[[Page 19922]]

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, typically amounting to a few 
sentences of narrative description and a handful of risk factors.\52\ 
In other words, investors seeking bitcoin exposure through publicly 
traded companies are gaining only partial exposure to bitcoin and are 
not fully benefitting from the risk disclosures and associated investor 
protections that come from the securities registration process.
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    \49\ It's been announced that MicroStrategy is currently 
contemplating a $600 million convertible note offering for the 
purpose of acquiring bitcoin. See: https://www.cnbc.com/2021/02/16/microstrategy-shares-rise-after-revealing-plans-to-buy-more-bitcoin.html.
    \50\ 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 https://www.sec.gov/oiea/investor-alerts-and-bulletins/ia_icorelatedclaims.
    \51\ See e.g., ``7 public companies with exposure to bitcoin'' 
(February 8, 2021) available at: https://finance.yahoo.com/news/7-public-companies-with-exposure-to-bitcoin-154201525.html; and ``Want 
to get in the crypto trade without holding bitcoin yourself? Here 
are some investing ideas'' (February 19, 2021) available at: https://www.cnbc.com/2021/02/19/ways-to-invest-in-bitcoin-without-holding-the-cryptocurrency-yourself-.html.
    \52\ See, e.g., Tesla 10-K for the year ended December 31, 2020, 
which mentions bitcoin just nine times: https://www.sec.gov/ix?doc=/Archives/edgar/data/1318605/000156459021004599/tsla-10k_20201231.htm.
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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.\53\ 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.
---------------------------------------------------------------------------

    \53\ 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 https://www.cmegroup.com/trading/cryptocurrency-indices/cf-bitcoin-reference-rate.html?redirect=/trading/cf-bitcoin-reference-rate.html.
[GRAPHIC] [TIFF OMITTED] TN15AP21.006

    Similarly, the number of large open interest holders \54\ has 
continued to increase even as the price of bitcoin has risen, as have 
the number of unique accounts trading Bitcoin Futures.
---------------------------------------------------------------------------

    \54\ 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 19923]]


    [GRAPHIC] [TIFF OMITTED] TN15AP21.007
    
    [GRAPHIC] [TIFF OMITTED] TN15AP21.008
    
    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.\55\
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    \55\ 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: 
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7481826/). This 
academic research paper concludes that ``There exist no episodes 
where the Bitcoin spot markets dominates the price discovery 
processes with regard to Bitcoin futures. This points to a 
conclusion that the price formation originates solely in the Bitcoin 
futures market. We can, therefore, conclude that the Bitcoin futures 
markets dominate the dynamic price discovery process based upon 
time-varying information share measures. Overall, price discovery 
seems to occur in the Bitcoin futures markets rather than the 
underlying spot market based upon a time-varying perspective.''
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Section 6(b)(5) and the Applicable Standards
    The Commission has approved numerous series of Trust Issued

[[Page 19924]]

Receipts,\56\ including Commodity-Based Trust Shares,\57\ 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; 
\58\ 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 to the point that they are 
outweighed by quantifiable investor protection issues that would be 
resolved by approving this proposal. 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 
Reference Rate (as defined below) mitigate potential manipulation 
concerns to the point that the investor protection issues that have 
arisen from the rapid growth of over-the-counter bitcoin funds since 
the Commission last reviewed an exchange proposal to list and trade a 
bitcoin ETP, including premium/discount volatility and management fees, 
should be the central consideration as the Commission determines 
whether to approve this proposal.
---------------------------------------------------------------------------

    \56\ See Exchange Rule 14.11(f).
    \57\ Commodity-Based Trust Shares, as described in Exchange Rule 
14.11(e)(4), are a type of Trust Issued Receipt.
    \58\ 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.
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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 \59\ with a regulated market of significant size. 
Both the Exchange and CME are members of the Intermarket Surveillance 
Group (the ``ISG'').\60\ 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.\61\
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    \59\ 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.
    \60\ For a list of the current members and affiliate members of 
ISG, see www.isgportal.com.
    \61\ See Wilshire Phoenix Disapproval.
---------------------------------------------------------------------------

    The Commission has also recognized that the ``regulated market of 
significant size'' standard is not the only means for satisfying 
Section 6(b)(5) of the act, specifically providing that a listing 
exchange could demonstrate that ``other means to prevent fraudulent and 
manipulative acts and practices'' are sufficient to justify dispensing 
with the requisite surveillance-sharing agreement.\62\
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    \62\ 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 Reference Rate \63\) 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 Reference Rate is based on spot 
prices. Further, the Trust only allows for in-kind creation and 
redemption, which, as further described below, reduces the potential 
for manipulation of the Shares through manipulation of the Reference 
Rate 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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    \63\ As further described below, the Reference Rate for the Fund 
is based on materially the same methodology (except calculation 
time) as the Administrator's BRR, which is the rate on which bitcoin 
futures contracts are cash-settled in U.S. dollars at the CME.
---------------------------------------------------------------------------

(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

[[Page 19925]]

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.\64\ 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.
---------------------------------------------------------------------------

    \64\ 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).\65\ 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.
---------------------------------------------------------------------------

    \65\ 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.
---------------------------------------------------------------------------

    Additionally, offering only in-kind creation and redemption will 
provide unique protections against potential attempts to manipulate the 
Shares. While the Sponsor believes that the Reference Rate 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 only available in-kind makes the 
manipulability of the Reference Rate 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.\66\ 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 independent Reference Rate 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 Reference Rate 
because there is little financial incentive to do so.
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    \66\ While the Reference Rate will not be particularly important 
for the creation and redemption process, it will be used for 
calculating fees.
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WisdomTree Bitcoin Trust
    Delaware Trust Company is the trustee (``Trustee''). The Sponsor is 
responsible for the creation of the Trust and is responsible for the 
ongoing registration of the Shares for their public offering in the 
United States and the listing of Shares on the Exchange. In addition, 
the Sponsor: (i) Selects the Trustee, administrator, transfer Agent, 
Bitcoin Custodian, marketing agent and Trust auditor; (ii) negotiates 
various agreements and fees; and (iii) performs such other services as 
the Sponsor believes that the Trust may from time to time require. A 
third-party administrator, transfer agent, and marketing agent will be 
responsible for the operation and administration of the Trust, for the 
issuance and redemption of Shares of the Trust, and for reviewing and 
approving marketing materials prepared by the Trust, respectively.\67\ 
The Sponsor provides assistance in the marketing of the Shares. The 
Bitcoin Custodian will be a third-party regulated custodian and will be 
responsible for custody of the Trust's bitcoin.\68\
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    \67\ The Exchange notes that the Sponsor is finalizing 
negotiations with the administrator, transfer agent, and marketing 
agent and it will submit an amendment to this proposal upon 
execution of an agreement with the administrator, transfer agent, 
and marketing agent.
    \68\ The Exchange notes that the Sponsor is finalizing 
negotiations with the Bitcoin Custodian and it will submit an 
amendment to this proposal upon execution of an agreement with the 
Bitcoin Custodian.
---------------------------------------------------------------------------

    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 Bitcoin 
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,\69\ 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.
---------------------------------------------------------------------------

    \69\ 15 U.S.C. 80a-1.
---------------------------------------------------------------------------

    When the Trust sells or redeems its Shares, it will do so in ``in-
kind'' transactions in large blocks of aggregations of Shares (a 
``Creation Basket''). Authorized participants will

[[Page 19926]]

deliver, or facilitate the delivery of, bitcoin to the Trust's account 
with the Bitcoin Custodian in exchange for Shares when they purchase 
Shares, and the Trust, through the Bitcoin 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 gain exposure to the 
price of bitcoin, less expenses and liabilities of the Trust's 
operation. In seeking to achieve its investment objective, the Trust 
will hold bitcoin and value its Shares daily based on the value of 
bitcoin as reflected by the CF Bitcoin US Settlement Price (the 
``Reference Rate''), which is an independently calculated value based 
on an aggregation of executed trade flow of major bitcoin spot 
exchanges. The Trust will process all creations and redemptions in-kind 
in transactions with authorized participants. The Trust is not actively 
managed.
The Reference Rate
    As described in the Registration Statement, the Fund will use the 
Reference Rate to calculate the Trust's NAV. The Reference Rate is not 
affiliated with the Sponsor and was created and is administered by CF 
Benchmarks Ltd. (the ``Benchmark Administrator''), an independent 
entity, to facilitate financial products based on bitcoin. The 
Reference Rate is designed based on the IOSCO Principals for Financial 
Benchmarks and serves as a once-a-day benchmark rate of the U.S. dollar 
price of bitcoin (USD/BTC), calculated as of 4 p.m. Eastern time. The 
Reference Rate is based on materially the same methodology (except 
calculation time) \70\ as the Benchmark Administrator's CME CF Bitcoin 
Reference Rate (``BRR''), which was first introduced on November 14, 
2016 and is the rate on which bitcoin futures contracts are cash-
settled in U.S. dollars at the CME. The Reference Rate aggregates the 
trade flow of several bitcoin exchanges, during an observation window 
between 3:00 p.m. and 4:00 p.m. Eastern time into the U.S. dollar price 
of one bitcoin at 4:00 p.m. Eastern time. The current constituent 
bitcoin exchanges of the Reference Rate are Bitstamp, Coinbase, Gemini, 
itBit and Kraken (the ``Constituent Bitcoin Exchanges'').
---------------------------------------------------------------------------

    \70\ The Reference Rate is calculated as of 4 p.m. Eastern Time, 
whereas the BRR is calculated as of 4 p.m. London Time.
---------------------------------------------------------------------------

    The Reference Rate is calculated based on the ``Relevant 
Transactions'' \71\ of all of its Constituent Bitcoin Exchanges, as 
follows:
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    \71\ A ``Relevant Transaction'' is any cryptocurrency versus 
U.S. dollar spot trade that occurs during the observation window 
between 3:00 p.m. and 4:00 p.m. Eastern time on a Constituent 
Bitcoin Exchange in the BTC/USD pair that is reported and 
disseminated by a Constituent Bitcoin Exchange through its publicly 
available API and observed by the Benchmark Administrator, CF 
Benchmarks Ltd.
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     All Relevant Transactions are added to a joint list, 
recording the time of execution, trade price and size for each 
transaction.
     The list is partitioned by timestamp into 12 equally-sized 
time intervals of 5 (five) minute length.
     For each partition separately, the volume-weighted median 
trade price is calculated from the trade prices and sizes of all 
Relevant Transactions, i.e., across all Constituent Bitcoin Exchanges. 
A volume-weighted median differs from a standard median in that a 
weighting factor, in this case trade size, is factored into the 
calculation.
     The Reference Rate is then determined by the arithmetic 
mean of the volume-weighted medians of all partitions.
    By employing the foregoing steps, the Reference Rate thereby seeks 
to ensure that transactions in bitcoin conducted at outlying prices do 
not have an undue effect on the value of a specific partition, large 
trades or clusters of trades transacted over a short period of time 
will not have an undue influence on the index level, and the effect of 
large trades at prices that deviate from the prevailing price are 
mitigated from having an undue influence on the benchmark level. In 
addition, the Sponsor notes that an oversight function is implemented 
by the Benchmark Administrator in seeking to ensure that the Reference 
Rate is administered through codified policies for Reference Rate 
integrity.
Availability of Information
    In addition to the price transparency of the Reference Rate, 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. E.T.). 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 \72\ 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 price of bitcoin 
will be made available by one or more major market data vendors, 
updated at least every 15 seconds during Regular Trading Hours. 
Information about the Reference Rate, including key elements of how the 
Reference Rate is calculated, will be publicly available at https://www.cfbenchmarks.com.
---------------------------------------------------------------------------

    \72\ 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.
---------------------------------------------------------------------------

    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'').

[[Page 19927]]

    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 Reference Rate. 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 cash or other assets, less total liabilities of the 
Trust, each determined on the basis of generally accepted accounting 
principles. In determining the Trust's NAV, the administrator values 
the bitcoin held by the Trust based on the price set by the Reference 
Rate as of 4:00 p.m. Eastern Time. The administrator will determine the 
NAV of the Trust on each day that the Exchange is open for regular 
trading. The NAV for a normal trading day will be released after 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 for the Trust, 
Benchmark Administrator or administrator to detect, flag, investigate, 
and correct unusual pricing should it occur. The Sponsor anticipates 
that the Reference Rate will be reflective of a reasonable valuation of 
the average spot price of bitcoin. However, in the event the Reference 
Rate was not available or determined by the Sponsor to not be reliable, 
the Sponsor would ``fair value'' the Trust's bitcoin holdings. The 
Sponsor does not anticipate that the need to ``fair value'' bitcoin 
will be a common occurrence. The Sponsor will publish the NAV and NAV 
per Share at www.wisdomtree.com as soon as practicable after their 
determination and availability.
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 4:00 p.m. Eastern Time, or 
the close of regular trading on the Exchange, whichever is earlier. 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 unit. 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 \73\ 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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    \73\ 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.
---------------------------------------------------------------------------

    Upon termination of the Trust, the Shares will be removed from 
listing. The Trustee, Delaware Trust Company, is a trust company having 
substantial capital and surplus and the experience and facilities for 
handling corporate trust business, as required under Rule 
14.11(e)(4)(E)(iv)(a) and that 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.

[[Page 19928]]

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 $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.\74\
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    \74\ For a list of the current members and affiliate members of 
ISG, see www.isgportal.com.
---------------------------------------------------------------------------

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 \75\ 
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.
---------------------------------------------------------------------------

    \75\ Regular Trading Hours is the time between 9:30 a.m. and 
4:00 p.m. Eastern Time.
---------------------------------------------------------------------------

    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 \76\ in general and Section 6(b)(5) of the Act \77\ 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.
---------------------------------------------------------------------------

    \76\ 15 U.S.C. 78f.
    \77\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------

    The Commission has approved numerous series of Trust Issued 
Receipts,\78\ including Commodity-Based Trust Shares,\79\ 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; 
\80\ and (ii) the requirement that an exchange proposal be designed, in 
general, to protect investors and the public interest.
---------------------------------------------------------------------------

    \78\ See Exchange Rule 14.11(f).
    \79\ Commodity-Based Trust Shares, as described in Exchange Rule 
14.11(e)(4), are a type of Trust Issued Receipt.
    \80\ 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. 
Furthermore, as noted herein, Sponsor has indicated its belief that 
the Reference Rate is reflective of a reasonable valuation of the 
average spot price of bitcoin and that resistance to manipulation is 
a priority aim of its design methodology.
---------------------------------------------------------------------------

    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

[[Page 19929]]

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, 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 market participants (i.e., market 
makers and 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 to 
the point that they are outweighed by quantifiable investor protection 
issues that would be resolved by approving this proposal. 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 
Reference Rate mitigate potential manipulation concerns to the point 
that the investor protection issues that have arisen from the rapid 
growth of over-the-counter bitcoin funds since the Commission last 
reviewed an exchange proposal to list and trade a bitcoin ETP, 
including premium/discount volatility and management fees, should be 
the central consideration as the Commission determines whether to 
approve this proposal.
(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 \81\ with a regulated market of significant size. 
Both the Exchange and CME are members of ISG.\82\ 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.\83\
---------------------------------------------------------------------------

    \81\ 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.
    \82\ For a list of the current members and affiliate members of 
ISG, see www.isgportal.com.
    \83\ See Wilshire Phoenix Disapproval.
---------------------------------------------------------------------------

    The Commission has also recognized that the ``regulated market of 
significant size'' standard is not the only means for satisfying 
Section 6(b)(5) of the act, specifically providing that a listing 
exchange could demonstrate that ``other means to prevent fraudulent and 
manipulative acts and practices'' are sufficient to justify dispensing 
with the requisite surveillance-sharing agreement.\84\
---------------------------------------------------------------------------

    \84\ See Winklevoss Order at 37580. The Commission has also 
specifically noted that it ``is not applying a ``cannot be 
manipulated'' standard; instead, the Commission is examining whether 
the proposal meets the requirements of the Exchange Act and, 
pursuant to its Rules of Practice, places the burden on the listing 
exchange to demonstrate the validity of its contentions and to 
establish that the requirements of the Exchange Act have been met. 
Id. at 37582.
---------------------------------------------------------------------------

(a) 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 Reference Rate \85\) 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 Reference Rate is based on spot 
prices. Further, the Trust only allows for in-kind creation and 
redemption, which, as further described below, reduces the potential 
for manipulation of the Shares through manipulation of the Reference 
Rate 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.
---------------------------------------------------------------------------

    \85\ As noted above, the Constituent Bitcoin Exchanges are 
Bitstamp, Coinbase, Gemini, itBit and Kraken.
---------------------------------------------------------------------------

(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.\86\ 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

[[Page 19930]]

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.
---------------------------------------------------------------------------

    \86\ 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).\87\ 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.
---------------------------------------------------------------------------

    \87\ 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.
---------------------------------------------------------------------------

    Additionally, offering only in-kind creation and redemption will 
provide unique protections against potential attempts to manipulate the 
Shares. While the Sponsor believes that the independently maintained 
and administered Reference Rate 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 
only available in-kind makes the manipulability of the Reference Rate 
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.\88\ 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 Reference Rate 
because there is little financial incentive to do so.
---------------------------------------------------------------------------

    \88\ While the Reference Rate will not be particularly important 
for the creation and redemption process, it will be used for 
calculating fees.
---------------------------------------------------------------------------

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 Reference 
Rate, 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. E.T.). 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 price of bitcoin 
will be made available

[[Page 19931]]

by one or more major market data vendors, updated at least every 15 
seconds during Regular Trading Hours. Information about the Reference 
Rate, including key elements of how the Reference Rate is calculated, 
will be publicly available at https://www.cfbenchmarks.com.
    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 Reference Rate. 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 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

     Use the Commission's internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an email to rule-comments@sec.gov. Please include 
File Number SR-CboeBZX-2021-024 on the subject line.

Paper Comments

     Send paper comments in triplicate to Secretary, Securities 
and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.

All submissions should refer to File Number SR-CboeBZX-2021-024. This 
file number should be included on the subject line if email is used. To 
help the Commission process and review your comments more efficiently, 
please use only one method. The Commission will post all comments on 
the Commission's internet website (http://www.sec.gov/rules/sro.shtml). 
Copies of the submission, all subsequent amendments, all written 
statements with respect to the proposed rule change that are filed with 
the Commission, and all written communications relating to the proposed 
rule change between the Commission and any person, other than those 
that may be withheld from the public in accordance with the provisions 
of 5 U.S.C. 552, will be available for website viewing and printing in 
the Commission's Public Reference Room, 100 F Street NE, Washington, DC 
20549 on official business days between the hours of 10:00 a.m. and 
3:00 p.m. Copies of the filing also will be available for inspection 
and copying at the principal office of the Exchange. All comments 
received will be posted without change. Persons submitting comments are 
cautioned that we do not redact or edit personal identifying 
information from comment submissions. You should submit only 
information that you wish to make available publicly. All submissions 
should refer to File Number SR-CboeBZX-2021-024 and should be submitted 
on or before May 6, 2021.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\89\
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    \89\ 17 CFR 200.30-3(a)(12).
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J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2021-07675 Filed 4-14-21; 8:45 am]
BILLING CODE 8011-01-P


