[Federal Register Volume 86, Number 232 (Tuesday, December 7, 2021)]
[Notices]
[Pages 69322-69335]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-26442]



[[Page 69322]]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-93700; File No. SR-CboeBZX-2021-024])


Self-Regulatory Organizations; Cboe BZX Exchange, Inc.; Order 
Disapproving 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

December 1, 2021.

I. Introduction

    On March 26, 2021, Cboe BZX Exchange, Inc. (``BZX'' or 
``Exchange'') filed with the Securities and Exchange Commission 
(``Commission''), pursuant to Section 19(b)(1) of the Securities 
Exchange Act of 1934 (``Exchange Act'') \1\ and Rule 19b-4 
thereunder,\2\ a proposed rule change to list and trade shares 
(``Shares'') of the WisdomTree Bitcoin Trust (``Trust'') under BZX Rule 
14.11(e)(4), Commodity-Based Trust Shares. The proposed rule change was 
published for comment in the Federal Register on April 15, 2021.\3\
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ See Securities Exchange Act Release No. 91521 (Apr. 9, 
2021), 86 FR 19917 (``Notice''). Comments on the proposed rule 
change can be found at: https://www.sec.gov/comments/sr-cboebzx-2021-024/srcboebzx2021024.htm.
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    On May 26, 2021, pursuant to Section 19(b)(2) of the Exchange 
Act,\4\ the Commission designated a longer period within which to 
approve the proposed rule change, disapprove the proposed rule change, 
or institute proceedings to determine whether to disapprove the 
proposed rule change.\5\ On July 13, 2021, the Commission instituted 
proceedings under Section 19(b)(2)(B) of the Exchange Act \6\ to 
determine whether to approve or disapprove the proposed rule change.\7\ 
On September 29, 2021, the Commission designated a longer period for 
Commission action on the proposed rule change.\8\
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    \4\ 15 U.S.C. 78s(b)(2).
    \5\ See Securities Exchange Act Release No. 92032, 86 FR 29611 
(June 2, 2021).
    \6\ 15 U.S.C. 78s(b)(2)(B).
    \7\ See Securities Exchange Act Release No. 92392, 86 FR 38154 
(July 19, 2021).
    \8\ See Securities Exchange Act Release No. 93173, 86 FR 55065 
(Oct. 5, 2021).
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    This order disapproves the proposed rule change. The Commission 
concludes that BZX has not met its burden under the Exchange Act and 
the Commission's Rules of Practice to demonstrate that its proposal is 
consistent with the requirements of Exchange Act Section 6(b)(5), in 
particular, the requirement that the rules of a national securities 
exchange be ``designed to prevent fraudulent and manipulative acts and 
practices'' and ``to protect investors and the public interest.'' \9\
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    \9\ 15 U.S.C. 78f(b)(5).
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    When considering whether BZX's proposal to list and trade the 
Shares is designed to prevent fraudulent and manipulative acts and 
practices, the Commission applies the same standard used in its orders 
considering previous proposals to list bitcoin \10\-based commodity 
trusts and bitcoin-based trust issued receipts.\11\ As the Commission 
has explained, an exchange that lists bitcoin-based exchange-traded 
products (``ETPs'') can meet its obligations under Exchange Act Section 
6(b)(5) by demonstrating that the exchange has a comprehensive 
surveillance-sharing agreement with a regulated market of significant 
size related to the underlying or reference bitcoin assets.\12\
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    \10\ Bitcoins are digital assets that are issued and transferred 
via a decentralized, open-source protocol used by a peer-to-peer 
computer network through which transactions are recorded on a public 
transaction ledger known as the ``bitcoin blockchain.'' The bitcoin 
protocol governs the creation of new bitcoins and the cryptographic 
system that secures and verifies bitcoin transactions. See, e.g., 
Notice, 86 FR at 19918.
    \11\ See Order Setting Aside Action by Delegated Authority and 
Disapproving a Proposed Rule Change, as Modified by Amendments No. 1 
and 2, To List and Trade Shares of the Winklevoss Bitcoin Trust, 
Securities Exchange Act Release No. 83723 (July 26, 2018), 83 FR 
37579 (Aug. 1, 2018) (SR-BatsBZX-2016-30) (``Winklevoss Order''); 
Order Disapproving a Proposed Rule Change, as Modified by Amendment 
No. 1, To Amend NYSE Arca Rule 8.201-E (Commodity-Based Trust 
Shares) and To List and Trade Shares of the United States Bitcoin 
and Treasury Investment Trust Under NYSE Arca Rule 8.201-E, 
Securities Exchange Act Release No. 88284 (Feb. 26, 2020), 85 FR 
12595 (Mar. 3, 2020) (SR-NYSEArca-2019-39) (``USBT Order''). See 
also Order Disapproving a Proposed Rule Change, as Modified by 
Amendment No. 1, Relating to the Listing and Trading of Shares of 
the SolidX Bitcoin Trust Under NYSE Arca Equities Rule 8.201, 
Securities Exchange Act Release No. 80319 (Mar. 28, 2017), 82 FR 
16247 (Apr. 3, 2017) (SR-NYSEArca-2016-101) (``SolidX Order''). The 
Commission also notes that orders were issued by delegated authority 
on the following matters: Order Disapproving a Proposed Rule Change 
To List and Trade the Shares of the ProShares Bitcoin ETF and the 
ProShares Short Bitcoin ETF, Securities Exchange Act Release No. 
83904 (Aug. 22, 2018), 83 FR 43934 (Aug. 28, 2018) (NYSEArca-2017-
139) (``ProShares Order''); Order Disapproving a Proposed Rule 
Change To List and Trade the Shares of the GraniteShares Bitcoin ETF 
and the GraniteShares Short Bitcoin ETF, Securities Exchange Act 
Release No. 83913 (Aug. 22, 2018), 83 FR 43923 (Aug. 28, 2018) (SR-
CboeBZX-2018-001) (``GraniteShares Order''); Order Disapproving a 
Proposed Rule Change To List and Trade Shares of the VanEck Bitcoin 
Trust under BZX Rule 14.11(e)(4), Commodity-Based Trust Shares, 
Securities Exchange Act Release No. 93559 (Nov. 12, 2021), 86 FR 
64539 (Nov. 18, 2021) (SR-CboeBZX-2021-019).
    \12\ See USBT Order, 85 FR at 12596. See also Winklevoss Order, 
83 FR at 37592 n.202 and accompanying text (discussing previous 
Commission approvals of commodity-trust ETPs); GraniteShares Order, 
83 FR at 43925-27 nn.35-39 and accompanying text (discussing 
previous Commission approvals of commodity-futures ETPs).
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    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.'' \13\ 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 the underlying assets 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.\14\ 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.\15\
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    \13\ See Amendment to Rule Filing Requirements for Self-
Regulatory Organizations Regarding New Derivative Securities 
Products, Securities Exchange Act Release No. 40761 (Dec. 8, 1998), 
63 FR 70952, 70959 (Dec. 22, 1998) (``NDSP Adopting Release''). See 
also Winklevoss Order, 83 FR at 37594; ProShares Order, 83 FR at 
43936; GraniteShares Order, 83 FR at 43924; USBT Order, 85 FR at 
12596.
    \14\ See NDSP Adopting Release, 63 FR at 70959.
    \15\ See Winklevoss Order, 83 FR at 37592-93; Letter from 
Brandon Becker, Director, Division of Market Regulation, Commission, 
to Gerard D. O'Connell, Chairman, Intermarket Surveillance Group 
(June 3, 1994), available at https://www.sec.gov/divisions/marketreg/mr-noaction/isg060394.htm.
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    In the context of this standard, 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 successfully manipulate the ETP, so that a surveillance-
sharing agreement would assist 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.\16\ A surveillance-sharing 
agreement must be entered into with a ``significant market'' to assist 
in

[[Page 69323]]

detecting and deterring manipulation of the ETP, because a person 
attempting to manipulate the ETP is reasonably likely to also engage in 
trading activity on that ``significant market.'' \17\
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    \16\ See Winklevoss Order, 83 FR at 37594. This definition is 
illustrative and not exclusive. There could be other types of 
``significant markets'' and ``markets of significant size,'' but 
this definition is an example that will provide guidance to market 
participants. See id.
    \17\ See USBT Order, 85 FR at 12597.
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    Consistent with this standard, for the commodity-trust ETPs 
approved to date for listing and trading, there has been in every case 
at least one significant, regulated market for trading futures on the 
underlying commodity--whether gold, silver, platinum, palladium, or 
copper--and the ETP listing exchange has entered into surveillance-
sharing agreements with, or held Intermarket Surveillance Group 
(``ISG'') membership in common with, that market.\18\ Moreover, the 
surveillance-sharing agreements have been consistently present whenever 
the Commission has approved the listing and trading of derivative 
securities, even where the underlying securities were also listed on 
national securities exchanges--such as options based on an index of 
stocks traded on a national securities exchange--and were thus subject 
to the Commission's direct regulatory authority.\19\
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    \18\ See Winklevoss Order, 83 FR at 37594.
    \19\ See USBT Order, 85 FR at 12597; Securities Exchange Act 
Release No. 33555 (Jan. 31, 1994), 59 FR 5619, 5621 (Feb. 7, 1994) 
(SR-Amex-93-28) (order approving listing of options on American 
Depository Receipts). The Commission has also required a 
surveillance-sharing agreement in the context of index options even 
when (i) all of the underlying index component stocks were either 
registered with the Commission or exempt from registration under the 
Exchange Act; (ii) all of the underlying index component stocks 
traded in the U.S. either directly or as ADRs on a national 
securities exchange; and (iii) effective international ADR arbitrage 
alleviated concerns over the relatively smaller ADR trading volume, 
helped to ensure that ADR prices reflected the pricing on the home 
market, and helped to ensure more reliable price determinations for 
settlement purposes, due to the unique composition of the index and 
reliance on ADR prices. See Securities Exchange Act Release No. 
26653 (Mar. 21, 1989), 54 FR 12705, 12708 (Mar. 28, 1989) (SR-Amex-
87-25) (stating that ``surveillance-sharing agreements between the 
exchange on which the index option trades and the markets that trade 
the underlying securities are necessary'' and that ``[t]he exchange 
of surveillance data by the exchange trading a stock index option 
and the markets for the securities comprising the index is important 
to the detection and deterrence of intermarket manipulation.''). And 
the Commission has required a surveillance-sharing agreement even 
when approving options based on an index of stocks traded on a 
national securities exchange. See Securities Exchange Act Release 
No. 30830 (June 18, 1992), 57 FR 28221, 28224 (June 24, 1992) (SR-
Amex-91-22) (stating that surveillance-sharing agreements ``ensure 
the availability of information necessary to detect and deter 
potential manipulations and other trading abuses'').
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    Listing exchanges have also attempted to demonstrate that other 
means besides surveillance-sharing agreements will be sufficient to 
prevent fraudulent and manipulative acts and practices, including that 
the bitcoin market as a whole or the relevant underlying bitcoin market 
is ``uniquely'' and ``inherently'' resistant to fraud and 
manipulation.\20\ In response, the Commission has agreed that, if a 
listing exchange could establish that the underlying market inherently 
possesses a unique resistance to manipulation beyond the protections 
that are utilized by traditional commodity or securities markets, it 
would not necessarily need to enter into a surveillance-sharing 
agreement with a regulated significant market.\21\ Such resistance to 
fraud and manipulation, however, must be novel and beyond those 
protections that exist in traditional commodity markets or equity 
markets for which the Commission has long required surveillance-sharing 
agreements in the context of listing derivative securities products. No 
listing exchange has satisfied its burden to make such 
demonstration.\22\
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    \20\ See USBT Order, 85 FR at 12597.
    \21\ See Winklevoss Order, 83 FR at 37580, 37582-91 (addressing 
assertions that ``bitcoin and bitcoin [spot] markets'' generally, as 
well as one bitcoin trading platform specifically, have unique 
resistance to fraud and manipulation); see also USBT Order, 85 FR at 
12597.
    \22\ See supra note 11.
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    Here, BZX contends that approval of the proposal is consistent with 
Section 6(b)(5) of the Exchange Act, in particular Section 6(b)(5)'s 
requirement that the rules of a national securities exchange be 
designed to prevent fraudulent and manipulative acts and practices and 
to protect investors and the public interest.\23\ As discussed in more 
detail below, BZX asserts that the proposal is consistent with Section 
6(b)(5) of the Exchange Act because the Exchange has a comprehensive 
surveillance-sharing agreement with a regulated market of significant 
size,\24\ and there exist other means to prevent fraudulent and 
manipulative acts and practices that are sufficient to justify 
dispensing with the requisite surveillance-sharing agreement.\25\
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    \23\ See Notice, 86 FR at 19924.
    \24\ See id. at 19929-30.
    \25\ See id. at 19930.
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    Although BZX recognizes the Commission's focus on potential 
manipulation of bitcoin ETPs in prior disapproval orders, BZX argues 
that such manipulation concerns have been sufficiently mitigated, and 
that the growing and quantifiable investor protection concerns should 
be the central consideration of the Commission.\26\ Specifically, as 
discussed in more detail below, the Exchange asserts that the 
significant increase in trading volume in bitcoin futures on the 
Chicago Mercantile Exchange (``CME''), the growth of liquidity in the 
spot market for bitcoin, and certain features of the Shares and the 
Reference Rate (as defined herein) mitigate potential manipulation 
concerns to the point that the investor protection issues that have 
arisen from the rapid growth of over-the-counter (``OTC'') bitcoin 
funds, including premium/discount volatility and management fees, 
should be the central consideration as the Commission determines 
whether to approve this proposal.\27\
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    \26\ See id. at 19920.
    \27\ See id. at 19929.
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    Further, BZX believes that the proposal would give U.S. investors 
access to bitcoin in a regulated and transparent exchange-traded 
vehicle that would act to limit risk to U.S. investors. According to 
BZX, the proposed listing and trading of the Shares would mitigate risk 
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.\28\
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    \28\ See id. at 19920.
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    In the analysis that follows, the Commission examines whether the 
proposed rule change is consistent with Section 6(b)(5) of the Exchange 
Act by addressing: in Section III.B.1 assertions that other means 
besides surveillance-sharing agreements will be sufficient to prevent 
fraudulent and manipulative acts and practices; in Section III.B.2 
assertions that BZX has entered into a comprehensive surveillance-
sharing agreement with a regulated market of significant size related 
to bitcoin; and in Section III.C assertions that the proposal is 
consistent with the protection of investors and the public interest. As 
discussed further below, BZX repeats various assertions made in prior 
bitcoin-based ETP proposals that the Commission has previously 
addressed and rejected and more importantly, BZX does not respond to 
the Commission's reasons for rejecting those assertions but merely 
repeats them. The Commission concludes that BZX has not established 
that other means to prevent fraudulent and manipulative acts and 
practices are sufficient to justify dispensing with the requisite 
surveillance-sharing agreement. The Commission further concludes that 
BZX has not established that it has a comprehensive surveillance-
sharing agreement with a regulated market of significant size related 
to bitcoin. As a result, the Commission is unable to find that the

[[Page 69324]]

proposed rule change is consistent with the statutory requirements of 
Exchange Act Section 6(b)(5).
    The Commission again emphasizes that its disapproval of this 
proposed rule change does not rest on an evaluation of whether bitcoin, 
or blockchain technology more generally, has utility or value as an 
innovation or an investment. Rather, the Commission is disapproving 
this proposed rule change because, as discussed below, BZX has not met 
its burden to demonstrate that its proposal is consistent with the 
requirements of Exchange Act Section 6(b)(5).

II. Description of the Proposed Rule Change

    As described in more detail in the Notice,\29\ the Exchange 
proposes to list and trade the Shares of the Trust under BZX Rule 
14.11(e)(4), which governs the listing and trading of Commodity-Based 
Trust Shares on the Exchange.
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    \29\ See Notice, supra note 3. See also Registration Statement 
on Form S-1, dated March 11, 2021 (File No. 333-254134), filed with 
the Commission on behalf of the Trust (``Registration Statement'').
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    The investment objective of the Trust is to gain exposure to the 
price of bitcoin, less expenses and liabilities of the Trust's 
operation.\30\ The Trust would hold bitcoin, and it would calculate the 
Trust's net asset value (``NAV'') daily based on the value of bitcoin 
as reflected by the CF Bitcoin US Settlement Price (``Reference 
Rate''). The Reference Rate was created, and is administered, by CF 
Benchmarks Ltd. (``Benchmark Administrator''). The Reference Rate 
aggregates the trade flow of several bitcoin spot platforms, the 
composition of which currently includes Bitstamp, Coinbase, Gemini, 
itBit, and Kraken. In calculating the Reference Rate, the methodology 
creates a joint list of the trade prices and sizes from the Constituent 
Bitcoin Platforms (as defined herein) between 3:00 p.m. E.T. and 4:00 
p.m. E.T. The methodology divides this list into 12 equally-sized time 
intervals of five minutes and calculates the volume-weighted median 
trade price for each of those time intervals.\31\ The Reference Rate is 
the arithmetic mean of these 12 volume-weighted median trade 
prices.\32\
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    \30\ WisdomTree Digital Commodity Services, LLC (``Sponsor'') is 
the sponsor of the Trust, and Delaware Trust Company is the trustee. 
A third-party regulated custodian (``Bitcoin Custodian'') will be 
responsible for custody of the Trust's bitcoin. The Sponsor is 
responsible for selecting the Bitcoin Custodian as well as an 
administrator, a transfer agent, a marketing agent, and an auditor 
for the Trust. See Notice, 86 FR at 19918, 19925-26.
    \31\ According to BZX, the Reference Rate is based on materially 
the same methodology (except calculation time, as described herein) 
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 on CME. The Reference Rate is calculated as of 4:00 p.m. 
E.T., whereas the CME CF BRR is calculated as of 4:00 p.m. London 
Time. The Reference Rate aggregates the trade flow of several 
bitcoin platforms during an observation window between 3:00 p.m. and 
4:00 p.m. E.T. into the U.S. dollar price of one bitcoin at 4:00 
p.m. E.T. The current constituent bitcoin platforms of the Reference 
Rate are Bitstamp, Coinbase, Gemini, itBit, and Kraken 
(``Constituent Bitcoin Platforms''). See Notice, 86 FR at 19926 & 
n.70.
    \32\ See id. at 19926.
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    Each Share represents 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.\33\
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    \33\ See id. at 19925.
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    The administrator will determine the NAV and NAV per Share of the 
Trust on each day that the Exchange is open for regular trading after 
4:00 p.m. E.T. (often by 5:30 p.m. E.T. and almost always by 8:00 p.m. 
E.T.). The NAV of the Trust is the aggregate value of the Trust's 
assets, less total liabilities of the Trust. 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. E.T.\34\
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    \34\ See id. at 19927.
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    The Trust will provide information regarding the Trust's bitcoin 
holdings, as well as 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.\35\
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    \35\ See id. at 19926.
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    When the Trust sells or redeems its Shares, it will do so in ``in-
kind'' transactions in blocks of aggregations of Shares. When creating 
the Shares, authorized participants will deliver, or facilitate the 
delivery of, bitcoin to the Trust's account with the Bitcoin Custodian 
in exchange for the Shares, and, when redeeming the Shares, the Trust, 
through the Bitcoin Custodian, will deliver bitcoin to such authorized 
participants.\36\
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    \36\ See id. at 19925-26.
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III. Discussion

A. The Applicable Standard for Review

    The Commission must consider whether BZX's proposal is consistent 
with the Exchange Act. Section 6(b)(5) of the Exchange Act requires, in 
relevant part, that the rules of a national securities exchange be 
designed ``to prevent fraudulent and manipulative acts and practices'' 
and ``to protect investors and the public interest.'' \37\ Under the 
Commission's Rules of Practice, the ``burden to demonstrate that a 
proposed rule change is consistent with the Exchange Act and the rules 
and regulations issued thereunder . . . is on the self-regulatory 
organization [`SRO'] that proposed the rule change.'' \38\
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    \37\ 15 U.S.C. 78f(b)(5). Pursuant to Section 19(b)(2) of the 
Exchange Act, 15 U.S.C. 78s(b)(2), the Commission must disapprove a 
proposed rule change filed by a national securities exchange if it 
does not find that the proposed rule change is consistent with the 
applicable requirements of the Exchange Act. Exchange Act Section 
6(b)(5) states that an exchange shall not be registered as a 
national securities exchange unless the Commission determines that 
``[t]he rules of the exchange are 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 regulating, clearing, settling, processing 
information with respect to, and 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; and are not designed 
to permit unfair discrimination between customers, issuers, brokers, 
or dealers, or to regulate by virtue of any authority conferred by 
this title matters not related to the purposes of this title or the 
administration of the exchange.'' 15 U.S.C. 78f(b)(5).
    \38\ Rule 700(b)(3), Commission Rules of Practice, 17 CFR 
201.700(b)(3).
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    The description of a proposed rule change, its purpose and 
operation, its effect, and a legal analysis of its consistency with 
applicable requirements must all be sufficiently detailed and specific 
to support an affirmative Commission finding,\39\ and any failure of an 
SRO to provide this information may result in the Commission not having 
a sufficient basis to make an affirmative finding that a proposed rule 
change is consistent with the Exchange Act and the applicable rules and 
regulations.\40\ Moreover, ``unquestioning reliance'' on an SRO's 
representations in a proposed rule change is not sufficient to justify 
Commission approval of a proposed rule change.\41\
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    \39\ See id.
    \40\ See id.
    \41\ Susquehanna Int'l Group, LLP v. Securities and Exchange 
Commission, 866 F.3d 442, 447 (D.C. Cir. 2017) (``Susquehanna'').

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[[Page 69325]]

B. Whether BZX Has Met its Burden To Demonstrate That the Proposal Is 
Designed To Prevent Fraudulent and Manipulative Acts and Practices

    (1) Assertions That Other Means Besides Surveillance-Sharing 
Agreements Will Be Sufficient To Prevent Fraudulent and Manipulative 
Acts and Practices
    As stated above, the Commission has recognized that a listing 
exchange could demonstrate that other means to prevent fraudulent and 
manipulative acts and practices are sufficient to justify dispensing 
with a comprehensive surveillance-sharing agreement with a regulated 
market of significant size, including by demonstrating that the bitcoin 
market as a whole or the relevant underlying bitcoin market is uniquely 
and inherently resistant to fraud and manipulation.\42\ Such resistance 
to fraud and manipulation must be novel and beyond those protections 
that exist in traditional commodities or securities markets.\43\
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    \42\ See USBT Order, 85 FR at 12597 n.23. The Commission 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. See id.
    \43\ See id. at 12597.
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    BZX asserts that bitcoin is resistant to price manipulation. 
According to BZX, the geographically diverse and continuous nature of 
bitcoin trading render it difficult and prohibitively costly to 
manipulate the price of bitcoin.\44\ 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.\45\ To the extent that there are bitcoin platforms engaged 
in or allowing wash trading or other activity intended to manipulate 
the price of bitcoin on other markets, such pricing does not normally 
impact prices on other platforms because participants will generally 
ignore markets with quotes that they deem non-executable.\46\ BZX 
further argues that the linkage between the bitcoin markets and the 
presence of arbitrageurs in those markets means that the manipulation 
of the price of bitcoin on any single venue would require manipulation 
of the global bitcoin price in order to be effective.\47\ 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 trading venue.\48\ As a result, BZX concludes that 
the potential for manipulation on a bitcoin trading platform would 
require overcoming the liquidity supply of such arbitrageurs who are 
effectively eliminating any cross-market pricing differences.\49\
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    \44\ See Notice, 86 FR at 19924 n.58.
    \45\ See id.
    \46\ See id.
    \47\ See id.
    \48\ See id.
    \49\ See id.
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    As with the previous proposals, the Commission here concludes that 
the record does not support a finding that the bitcoin market is 
inherently and uniquely resistant to fraud and manipulation.\50\ BZX 
asserts that, because of how bitcoin trades occur, including through 
continuous means and through fragmented platforms, arbitrage across the 
bitcoin platforms essentially helps to keep global bitcoin prices 
aligned with one another, thus hindering manipulation. The Exchange, 
however, does not provide any data or analysis to support its 
assertions, either in terms of how closely bitcoin prices are aligned 
across different bitcoin trading venues or how quickly price 
disparities may be arbitraged away.\51\ As stated above, 
``unquestioning reliance'' on an SRO's representations in a proposed 
rule change is not sufficient to justify Commission approval of a 
proposed rule change.\52\
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    \50\ Two commenters also question the bitcoin market's 
resistance to fraud and manipulation. One commenter asserts that the 
bitcoin network is the preferred network for global criminals, and a 
pyramid scheme in which the top holders encourage existing holders 
to keep holding and entice new retail investors to invest. See 
letter from Maulik Patel, dated July 4, 2021 (``Patel Letter''). 
Another commenter describes digital assets such as bitcoin, and the 
blockchains on which they rely, as having complexity that makes 
users vulnerable to fraud. See letter from Lourdes Ciao, dated June 
24, 2021 (``Ciao Letter 3'').
    \51\ For example, the Registration Statement states that ``[i]f 
increases in throughput on the Bitcoin network lag behind growth in 
usage of bitcoin, average fees and settlement times may increase 
considerably . . . . which could adversely impact the value of the 
Shares.'' See Registration Statement at 21. BZX does not provide 
data or analysis to address, among other things, whether such risks 
of increased fees and bitcoin transaction settlement times may 
affect the arbitrage effectiveness that BZX asserts. See also infra 
note 65 and accompanying text (referencing statements made in the 
Registration Statement that contradict assertions made by BZX).
    \52\ See supra note 41.
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    Efficient price arbitrage, moreover, is not sufficient to support 
the finding that a market is uniquely and inherently resistant to 
manipulation such that the Commission can dispense with surveillance-
sharing agreements.\53\ The Commission has stated, for example, that 
even for equity options based on securities listed on national 
securities exchanges, the Commission relies on surveillance-sharing 
agreements to detect and deter fraud and manipulation.\54\ Here, the 
Exchange provides no evidence to support its assertion of efficient 
price arbitrage across bitcoin platforms, let alone any evidence that 
price arbitrage in the bitcoin market is novel or unique so as to 
warrant the Commission dispensing with the requirement of a 
surveillance-sharing agreement. Moreover, BZX does not take into 
account that a market participant with a dominant ownership position 
would not find it prohibitively expensive to overcome the liquidity 
supplied by arbitrageurs and could use dominant market share to engage 
in manipulation.\55\
---------------------------------------------------------------------------

    \53\ See Winklevoss Order, 83 FR at 37586; SolidX Order, 82 FR 
at 16256-57; USBT Order, 85 FR at 12601.
    \54\ See, e.g., USBT Order, 85 FR at 12601.
    \55\ See, e.g., Winklevoss Order, 83 FR at 37584; USBT Order, 85 
FR at 12600-01.
---------------------------------------------------------------------------

    In addition, the Exchange makes the unsupported claim that bitcoin 
prices on platforms with wash trades or other activity intended to 
manipulate the price of bitcoin do not influence the ``real'' price of 
bitcoin. The Exchange also asserts that, to the extent that there are 
bitcoin platforms engaged in or allowing wash trading or other 
manipulative activities, market participants will generally ignore 
those platforms. However, without the necessary data, such as lead-lag 
or other similar analyses, or other evidence, the Commission has no 
basis on which to conclude that bitcoin platforms are insulated from 
prices of others that engage in or permit fraud or manipulation.\56\
---------------------------------------------------------------------------

    \56\ See USBT Order, 85 FR at 12601. See also infra notes 131-
132 and accompanying text (explaining the lead-lag analysis as 
central to understanding whether it is reasonably likely that a 
would-be manipulator of the proposed ETP would have to trade on the 
CME bitcoin futures market to successfully manipulate the proposed 
ETP).
---------------------------------------------------------------------------

    Additionally, the continuous nature of bitcoin trading does not 
eliminate manipulation risk, and neither does linkages among markets, 
as BZX asserts.\57\ Even in the presence of continuous trading or 
linkages among markets, formal (such as those with consolidated 
quotations or routing requirements) or otherwise (such as in the 
context of the fragmented, global bitcoin markets), manipulation of 
asset prices, as a general matter, can occur simply through trading 
activity that

[[Page 69326]]

creates a false impression of supply or demand.\58\
---------------------------------------------------------------------------

    \57\ See Winklevoss Order, 83 FR at 37585 n.92 and accompanying 
text.
    \58\ See id. at 37585.
---------------------------------------------------------------------------

    BZX also argues that the significant liquidity in the bitcoin 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.\59\ According to BZX, 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 February 2021) with a market impact of 50 basis points (compared to 
30 basis points in February 2021). For a $10 million market order, the 
cost to buy or sell was roughly 50 basis points (compared to 20 basis 
points in February 2021) with a market impact of 80 basis points 
(compared to 50 basis points in February 2021). BZX contends that 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.\60\
---------------------------------------------------------------------------

    \59\ See Notice, 86 FR at 19925.
    \60\ See id.
---------------------------------------------------------------------------

    However, the data furnished by BZX regarding the cost to move the 
price of bitcoin, and the market impact of such attempts, are 
incomplete. BZX does not provide meaningful analysis pertaining to how 
these figures compare to other markets or why one must conclude, based 
on the numbers provided, that the bitcoin market is costly to 
manipulate. Further, BZX's analysis of the market impact of a mere two 
sample transactions is not sufficient evidence to conclude that the 
bitcoin market is resistant to manipulation.\61\ Even assuming that the 
Commission agreed with BZX's premise, that it is costly to manipulate 
the bitcoin market and it is becoming increasingly so, any such 
evidence speaks only to establish that there is some resistance to 
manipulation, not that it establishes unique resistance to manipulation 
to warrant dispensing with the standard surveillance-sharing 
agreement.\62\ The Commission thus concludes that the record does not 
demonstrate that the nature of bitcoin trading renders the bitcoin 
market inherently and uniquely resistant to fraud and manipulation.
---------------------------------------------------------------------------

    \61\ Aside from stating that the ``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,'' the Exchange provides no other information 
pertaining to the methodology used to enable the Commission to 
evaluate these findings or their significance. See id. at 19925 
nn.64-65.
    \62\ See USBT Order, 85 FR at 12601.
---------------------------------------------------------------------------

    Moreover, BZX does not sufficiently contest the presence of 
possible sources of fraud and manipulation in the bitcoin spot market 
generally that the Commission has raised in previous orders, which have 
included (1) ``wash'' trading,\63\ (2) persons with a dominant position 
in bitcoin manipulating bitcoin pricing, (3) hacking of the bitcoin 
network and trading platforms, (4) malicious control of the bitcoin 
network, (5) trading based on material, non-public information, 
including the dissemination of false and misleading information, (6) 
manipulative activity involving the purported ``stablecoin'' Tether 
(USDT), and (7) fraud and manipulation at bitcoin trading 
platforms.\64\
---------------------------------------------------------------------------

    \63\ See supra note 56 and accompanying text.
    \64\ See USBT Order, 85 FR at 12600-01 & nn.66-67 (discussing J. 
Griffin & A. Shams, Is Bitcoin Really Untethered? (October 28, 
2019), available at https://ssrn.com/abstract=3195066 and published 
in 75 J. Finance 1913 (2020)); Winklevoss Order, 83 FR at 37585-86.
---------------------------------------------------------------------------

    In addition, BZX does not address risk factors specific to the 
bitcoin blockchain and bitcoin platforms, described in the Trust's 
Registration Statement, that undermine the argument that the bitcoin 
market is inherently resistant to fraud and manipulation. For example, 
the Registration Statement acknowledges that ``bitcoin [platforms] on 
which bitcoin trades are relatively new and, in some cases, 
unregulated, and, therefore, may be more exposed to fraud and security 
breaches than established, regulated exchanges for other financial 
assets or instruments''; that ``as an intangible asset without 
centralized issuers or governing bodies, bitcoin has been, and may in 
the future be, subject to security breaches, cyberattacks or other 
malicious activities''; that ``[t]he trading for bitcoin occurs on 
multiple trading venues that have various levels and types of 
regulation, but are not regulated in the same manner as traditional 
stock and bond exchanges'' and if these spot markets ``do not operate 
smoothly or face technical, security or regulatory issues, that could 
impact the ability of Authorized Participants to make markets in the 
Shares'' which could lead to ``trading in the Shares [to] occur at a 
material premium or discount against the NAV''; that the bitcoin 
blockchain could be vulnerable to a ``51% attack,'' in which a bad 
actor that controls a majority of the processing power dedicated to 
mining on the bitcoin network may be able to alter the bitcoin 
blockchain on which the bitcoin network and bitcoin transactions rely; 
that the nature of the assets held at bitcoin platforms makes them 
``appealing targets for hackers'' and that ``a number of bitcoin 
[platforms] have been victims of cybercrimes''; and that bitcoin 
trading platforms ``have been closed or faced issues due to fraud, 
failure'' and ``security breaches.'' \65\
---------------------------------------------------------------------------

    \65\ See Registration Statement at 11, 18-20, 38. See also 
Winklevoss Order, 83 FR at 37585.
---------------------------------------------------------------------------

    BZX also asserts that other means to prevent fraud and manipulation 
are sufficient to justify dispensing with the requisite surveillance-
sharing agreement. The Exchange mentions that the Reference Rate, which 
is used to value the Trust's bitcoin, is itself resistant to 
manipulation based on the Reference Rate's methodology.\66\ The 
Exchange states that the Reference Rate is calculated based on the 
``Relevant Transactions'' \67\ of all of its Constituent Bitcoin 
Platforms. All Relevant Transactions are added to a joint list, 
recording the time of execution, trade price, and size for each 
transaction, and the list is partitioned by timestamp into 12 equally-
sized time intervals of five minute length.\68\ For each partition 
separately, the volume-weighted median trade price is calculated from 
the trade prices and sizes of all Relevant Transactions.\69\ The 
Reference Rate is then determined by the arithmetic mean of the volume-
weighted medians of all partitions.\70\ According to BZX, ``[b]y 
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.'' \71\ BZX 
concludes its analysis of the Reference Rate by noting 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.'' \72\
---------------------------------------------------------------------------

    \66\ See Notice, 86 FR at 19925.
    \67\ According to the Exchange, 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. E.T. on a 
Constituent Bitcon Platform in the BTC/USD pair that is reported and 
disseminated by a Constituent Bitcoin Platform and observed by the 
Benchmark Administrator. See id. at 19926 n.71.
    \68\ See id. at 19926.
    \69\ See id. According to the Exchange, a volume-weighted median 
differs from a standard median in that a weighting factor, in this 
case trade size, is factored into the calculation. See id.
    \70\ See id.
    \71\ See id.
    \72\ See id.
---------------------------------------------------------------------------

    The Benchmark Administrator, in a comment letter, elaborates on 
how, in

[[Page 69327]]

its view, its oversight of the Reference Rate helps to prevent fraud 
and manipulation.\73\ The Benchmark Administrator states that it is 
subject to the UK Benchmarks Regulation (``BMR''), which is enforced by 
the UK Financial Conduct Authority (``FCA''), including requirements to 
surveil for attempted and actual manipulation.\74\ The Benchmark 
Administrator further states that, in order to fulfil its regulatory 
obligations under the UK BMR: It only includes as ``Constituent Bitcoin 
Platforms'' those trading platforms that conform to certain criteria, 
including assessment of a platform's risks to market participants, 
compliance with law, and policies to identify and impede manipulative 
trading practices; \75\ it has in place information-sharing agreements 
with each of the Constituent Bitcoin Platforms; \76\ and it operates a 
Benchmark Surveillance Program, over which the UK FCA has authority, 
whereby it monitors for, investigates, and reports signs of 
manipulation.\77\
---------------------------------------------------------------------------

    \73\ See letter from CF Benchmarks, dated April 2021 (``CF 
Benchmarks Letter'').
    \74\ See id. at 2.
    \75\ See id. at 3. The Benchmark Administrator further states 
that the same Constituent Bitcoin Platforms are used to compute the 
CME CF BRR, which it also administers, and which is used to settle 
the bitcoin-USD futures contracts listed for trading on CME. See id. 
at 2.
    \76\ See id. at 2.
    \77\ See id. at 4.
---------------------------------------------------------------------------

    In addition, in its comment letter, the Benchmark Administrator 
asserts that CME, in the course of operating and overseeing its bitcoin 
futures market under the regulatory oversight of the Commodity Futures 
Trading Commission (``CFTC''), has in place information-sharing 
agreements with the Constituent Bitcoin Platforms for the purposes of 
impeding and detecting any attempted manipulation of the futures 
contracts, as they are the platforms from which trade data is gathered 
to compute the CME CF BRR; \78\ and that given such agreements, ``this 
would allow for [potentially manipulative acts to] be detected and 
deterred by CME.'' \79\ The Benchmark Administrator further asserts 
that, because the CME and BZX are both members of the ISG, BZX would 
also have access to this information to allow for detection and 
deterrence of manipulation should it occur.\80\
---------------------------------------------------------------------------

    \78\ See id. at 2.
    \79\ See id. at 7.
    \80\ See id.
---------------------------------------------------------------------------

    Simultaneously with the Exchange's and the Benchmark 
Administrator's assertions regarding the Reference Rate, the Exchange 
also states that, because the Trust will engage in in-kind creations 
and redemptions only, the ``manipulability of the Reference Rate [is] 
significantly less important.'' \81\ The Exchange elaborates further 
that, ``because the Trust will not accept cash to buy bitcoin in order 
to create new shares or . . . 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.'' \82\ According to BZX, when 
authorized participants create Shares with the Trust, they would need 
to deliver a certain number of bitcoin per share (regardless of the 
valuation used), and when they redeem with the Trust, they would 
similarly expect to receive a certain number of bitcoin per share.\83\ 
As such, BZX argues that even if the price used to value the Trust's 
bitcoin is manipulated, 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.\84\ 
This, according to BZX, 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.\85\
---------------------------------------------------------------------------

    \81\ See Notice, 86 FR at 19925.
    \82\ See id.
    \83\ See id.
    \84\ See id.
    \85\ See id.
---------------------------------------------------------------------------

    Based on assertions made and the information provided, the 
Commission can find no basis to conclude that BZX has articulated other 
means to prevent fraud and manipulation that are sufficient to justify 
dispensing with the requisite surveillance-sharing agreement. First, 
the record does not demonstrate that the proposed methodology for 
calculating the Reference Rate would make the proposed ETP resistant to 
fraud or manipulation such that a surveillance-sharing agreement with a 
regulated market of significant size is unnecessary. Specifically, the 
Exchange has not assessed the possible influence that spot platforms 
not included among the Constituent Bitcoin Platforms would have on 
bitcoin prices used to calculate the Reference Rate.\86\ And as 
discussed above, the record does not establish that the broader bitcoin 
market is inherently and uniquely resistant to fraud and manipulation. 
Accordingly, to the extent that trading on platforms not directly used 
to calculate the Reference Rate affects prices on the Constituent 
Bitcoin Platforms, the characteristics of those other platforms--where 
various kinds of fraud and manipulation from a variety of sources may 
be present and persist--affect whether the Reference Rate is resistant 
to manipulation.
---------------------------------------------------------------------------

    \86\ As discussed above, while the Exchange asserts that bitcoin 
prices on platforms with wash trades or other activity intended to 
manipulate the price of bitcoin do not influence the ``real'' price 
of bitcoin, the Commission has no basis on which to conclude that 
bitcoin platforms are insulated from prices of others that engage in 
or permit fraud or manipulation. See supra note 56 and accompanying 
text.
---------------------------------------------------------------------------

    Moreover, the Exchange's assertions that the Reference Rate's 
methodology helps make the Reference Rate resistant to manipulation are 
contradicted by the Registration Statement's own statements. 
Specifically, the Registration Statement states that ``[b]itcoin 
[platforms] on which bitcoin trades . . . may be more exposed to fraud 
and security breaches than established, regulated exchanges for other 
financial assets or instruments, which could have a negative impact on 
the performance of the Trust.'' \87\ Constituent Bitcoin Platforms are 
a subset of the bitcoin platforms currently in existence. Although the 
Sponsor raises concerns regarding fraud and security of bitcoin 
platforms in the Registration Statement, the Exchange does not explain 
how or why such concerns are consistent with its assertion that the 
Reference Rate is resistant to fraud and manipulation.
---------------------------------------------------------------------------

    \87\ See Registration Statement at 19.
---------------------------------------------------------------------------

    BZX also has not shown that its proposed use of 12 equally-sized 
time intervals of five minute length over the observation window 
between 3:00 p.m. and 4:00 p.m. E.T. to calculate the Reference Rate 
would effectively be able to eliminate fraudulent or manipulative 
activity that is not transient. Fraud and manipulation in the bitcoin 
spot market could persist for a ``significant duration.'' \88\ The 
Exchange does not connect the use of such partitions to the duration of 
the effects of the wash and fictitious trading that may exist in the 
bitcoin spot market.\89\
---------------------------------------------------------------------------

    \88\ See USBT Order, 85 FR at 12601 n.66; see also id. at 12607.
    \89\ The Commission has previously considered and rejected 
similar arguments about the valuation of bitcoin according to a 
benchmark or reference price. See id.; SolidX Order, 82 FR at 16258; 
Winklevoss Order, 83 FR at 37589-90.
---------------------------------------------------------------------------

    The Commission thus concludes that the Exchange has not 
demonstrated that its Reference Rate methodology makes the proposed ETP 
resistant to manipulation. While the proposed procedures for 
calculating the Reference Rate using only prices from the Constituent 
Bitcoin Platforms are intended to provide some degree of protection 
against attempts to manipulate the Reference Rate, these procedures are 
not sufficient for the Commission to dispense with the

[[Page 69328]]

requisite surveillance-sharing agreement with a regulated market of 
significant size.
    Second, the Benchmark Administrator argues that its oversight of 
the Reference Rate and the CME's information-sharing agreements with 
the Constituent Bitcoin Platforms help to prevent fraud and 
manipulation.\90\ However, the level of oversight of the Constituent 
Bitcoin Platforms, whose trade flows contribute to the Reference Rate, 
is not equivalent to the obligations, authority, and oversight of 
national securities exchanges or futures exchanges and therefore is not 
an appropriate substitute.\91\ National securities exchanges are 
required to have rules that are ``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 regulating, clearing, settling, processing 
information with respect to, and 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.'' \92\ Moreover, national 
securities exchanges must file proposed rules with the Commission 
regarding certain material aspects of their operations,\93\ and the 
Commission has the authority to disapprove any such rule that is not 
consistent with the requirements of the Exchange Act.\94\ Thus, 
national securities exchanges are subject to Commission oversight of, 
among other things, their governance, membership qualifications, 
trading rules, disciplinary procedures, recordkeeping, and fees.\95\
---------------------------------------------------------------------------

    \90\ See CF Benchmarks Letter at 2-4.
    \91\ See also USBT Order, 85 FR at 12603-05.
    \92\ See 15 U.S.C. 78f(b)(5).
    \93\ 17 CFR 240.19b-4(a)(6)(i).
    \94\ Section 6 of the Exchange Act, 15 U.S.C. 78f, requires 
national securities exchanges to register with the Commission and 
requires an exchange's registration to be approved by the 
Commission, and Section 19(b) of the Exchange Act, 15 U.S.C. 78s(b), 
requires national securities exchanges to file proposed rules 
changes with the Commission and provides the Commission with the 
authority to disapprove proposed rule changes that are not 
consistent with the Exchange Act. Designated contract markets 
(``DCMs'') (commonly called ``futures markets'') registered with and 
regulated by the CFTC must comply with, among other things, a 
similarly comprehensive range of regulatory principles and must file 
rule changes with the CFTC. See, e.g., Designated Contract Markets 
(DCMs), CFTC, available at http://www.cftc.gov/IndustryOversight/TradingOrganizations/DCMs/index.htm.
    \95\ See Winklevoss Order, 83 FR at 37597. The Commission notes 
that the New York State Department of Financial Services 
(``NYSDFS'') has issued ``guidance'' to supervised virtual currency 
business entities, stating that these entities must ``implement 
measures designed to effectively detect, prevent, and respond to 
fraud, attempted fraud, and similar wrongdoing.'' See Maria T. 
Vullo, Superintendent of Financial Services, NYSDFS, Guidance on 
Prevention of Market Manipulation and Other Wrongful Activity (Feb. 
7, 2018), available at https://www.dfs.ny.gov/docs/legal/industry/il180207.pdf. The NYSDFS recognizes that its ``guidance is not 
intended to limit the scope or applicability of any law or 
regulation'' (id.), which would include the Exchange Act. Nothing in 
the record evidences whether the Constituent Bitcoin Platforms have 
complied with this NYSDFS guidance. Further, as stated previously, 
there are substantial differences between the NYSDFS and the 
Commission's regulation. AML and KYC policies and procedures, for 
example, have been referenced in other bitcoin-based ETP proposals 
as a purportedly alternative means by which such ETPs would be 
uniquely resistant to manipulation. The Commission has previously 
concluded that such AML and KYC policies and procedures do not serve 
as a substitute for, and are not otherwise dispositive in the 
analysis regarding the importance of, having a surveillance sharing 
agreement with a regulated market of significant size relating to 
bitcoin. For example, AML and KYC policies and procedures do not 
substitute for the sharing of information about market trading 
activity or clearing activity and do not substitute for regulation 
of a national securities exchange. See USBT Order, 85 FR at 12603 
n.101.
---------------------------------------------------------------------------

    The Constituent Bitcoin Platforms, on the other hand, have none of 
these requirements (none are registered as a national securities 
exchange) \96\--even if they may have, as the Benchmark Administrator 
asserts, AML/KYC compliance policies and prohibitions against wash 
trading and fraudulent claims of trading volume.\97\ In addition, 
although the Commission recognizes that the CFTC maintains some 
jurisdiction over the bitcoin spot market, under the Commodity Exchange 
Act, the CFTC does not have regulatory authority over bitcoin spot 
trading platforms, including the Constituent Bitcoin Platforms.\98\ 
Except in certain limited circumstances, bitcoin spot trading platforms 
are not required to register with the CFTC, and the CFTC does not set 
standards for, approve the rules of, examine, or otherwise regulate 
bitcoin spot markets.\99\ As the CFTC itself stated, while the CFTC 
``has an important role to play,'' U.S. law ``does not provide for 
direct, comprehensive Federal oversight of underlying Bitcoin or 
virtual currency spot markets.'' \100\
---------------------------------------------------------------------------

    \96\ See 15 U.S.C. 78e, 78f.
    \97\ See CF Benchmarks Letter at 5.
    \98\ See USBT Order, 85 FR at 12604.
    \99\ See id.
    \100\ See Winklevoss Order, 83 FR at 37599 n.288.
---------------------------------------------------------------------------

    And while the Benchmark Administrator asserts that the CME has in 
place information-sharing agreements with the Constituent Bitcoin 
Platforms, it does not provide any information on the scope, terms, or 
enforcement authority for such information-sharing agreements. Nor has 
BZX put any information in the record as to whether and how it would 
use or enforce such agreements. Moreover, such agreements are 
contractual in nature and do not satisfy the regulatory requirements or 
purposes of national securities exchanges and the Exchange Act. The CME 
(and the CFTC, as discussed above) does not have regulatory authority 
over the spot bitcoin trading platforms,\101\ and, while the CME is 
regulated by the CFTC, the CFTC's regulations do not extend to the 
Constituent Bitcoin Platforms by virtue of such contractual agreements.
---------------------------------------------------------------------------

    \101\ See supra notes 98-100 and accompanying text.
---------------------------------------------------------------------------

    In addition, although the Benchmark Administrator states that its 
oversight of the Reference Rate helps prevent fraud and manipulation, 
the oversight by the Benchmark Administrator does not represent a 
unique measure to resist manipulation beyond mechanisms that exist in 
securities or commodities markets. Other commodity-based and equity 
index ETPs approved by the Commission for listing and trading utilize 
reference rates or indices administered by similar benchmark 
administrators,\102\ and the Commission has not, in those instances, 
dispensed with the need for a surveillance-sharing agreement with a 
significant regulated market.\103\
---------------------------------------------------------------------------

    \102\ See, e.g., Securities Exchange Act Release Nos. 80840 
(June 1, 2017) 82 FR 26534 (June 7, 2017) (SR-NYSEArca-2017-33) 
(approving the listing and trading of shares of exchange traded 
funds seeking to track the Solactive GLD EUR Gold Index, Solactive 
GLD GBP Gold Index, and the Solactive GLD JPY Gold Index); and 83046 
(Apr. 13, 2018) 83 FR 17462 (Apr. 19, 2018) (SR-Nasdaq-2018-012) 
(approving the listing and trading of shares of an exchange-traded 
fund that seeks to track an equity index, the CBOE Russell 2000 30-
Delta BuyWrite V2 Index).
    \103\ See USBT Order, 85 FR at 12605. See also supra note 19.
---------------------------------------------------------------------------

    Furthermore, the Benchmark Administrator does not itself exercise 
governmental regulatory authority. Rather, the Benchmark Administrator 
is a registered, privately-held company in England.\104\ The Benchmark 
Administrator's relationship with the Constituent Bitcoin Platforms is 
based on their participation in the determination of reference rates, 
such as the Reference Rate. While the Benchmark Administrator is 
regulated

[[Page 69329]]

by the UK FCA as a benchmark administrator, the UK FCA's regulations do 
not extend to the Constituent Bitcoin Platforms by virtue of their 
trade prices serving as input data underlying the Reference Rate.\105\
---------------------------------------------------------------------------

    \104\ See https://blog.cfbenchmarks.com/legal/ (stating that the 
Benchmark Administrator is authorized and regulated by the UK FCA as 
a registered Benchmark Administrator (FRN 847100) under the EU 
benchmark regulation, and further noting that the Benchmark 
Administrator is a member of the Crypto Facilities group of 
companies which is in turn a member of the Payward, Inc. group of 
companies, and Payward, Inc. is the owner and operator of the Kraken 
Exchange, a venue that facilitates the trading of cryptocurrencies). 
The Commission notes that the Kraken is one of the Constituent 
Bitcoin Platforms underlying the Reference Rate.
    \105\ See USBT Order, 85 FR at 12604. The Benchmark 
Administrator is also not required to apply certain provisions of EU 
benchmark regulation to the Constituent Bitcoin Platforms because 
the Reference Rate's input data is not ``contributed.'' See 
Benchmark Statement, at 5 available at https://docs-cfbenchmarks.s3.amazonaws.com/CME+CF+Benchmark+Statement.pdf.
---------------------------------------------------------------------------

    Further, the oversight performed by the Benchmark Administrator of 
the Constituent Bitcoin Platforms is for the purpose of ensuring the 
accuracy and integrity of the Reference Rate.\106\ Such oversight 
serves a fundamentally different purpose as compared to the regulation 
of national securities exchanges and the requirements of the Exchange 
Act. While the Commission recognizes that this may be an important 
function in ensuring the integrity of the Reference Rate, such 
requirements do not imbue either the Benchmark Administrator or the 
Constituent Bitcoin Platforms with regulatory authority similar to that 
the Exchange Act confers upon self-regulatory organizations such as 
national securities exchanges.\107\
---------------------------------------------------------------------------

    \106\ See supra note 72 and accompanying text.
    \107\ See 15 U.S.C. 78f(b).
---------------------------------------------------------------------------

    And although the Benchmark Administrator states that it has 
information-sharing agreements with each Constituent Bitcoin Platform, 
it does not describe the scope of such agreements or what authority the 
Benchmark Administrator would have to compel the platforms' compliance 
with such agreements. Moreover, even assuming that the Constituent 
Bitcoin Platforms are as vigilant towards fraud and manipulation as the 
Benchmark Administrator describes, neither the Exchange nor the 
Benchmark Administrator attempts to establish that only the Constituent 
Bitcoin Platforms' ability to detect and deter fraud and manipulation 
would matter, exclusive of other bitcoin spot markets. In other words, 
neither addresses how fraud and manipulation on other bitcoin spot 
markets may influence the price of bitcoin.
    Third, the Exchange does not explain the significance of the 
Reference Rate's purported resistance to manipulation to the overall 
analysis of whether the proposal to list and trade the Shares is 
designed to prevent fraud and manipulation. Even assuming that the 
Exchange's argument is that, if the Reference Rate is resistant to 
manipulation, the Trust's NAV, and thereby the Shares as well, would be 
resistant to manipulation, the Exchange has not established in the 
record a basis for such conclusion. That assumption aside, the 
Commission notes that the Shares would trade at market-based prices in 
the secondary market, not at NAV, which then raises the question of the 
significance of the NAV calculation to the manipulation of the 
Shares.\108\
---------------------------------------------------------------------------

    \108\ One commenter states that BZX's statement that the price 
used to value the Trust's bitcoin ``is not particularly important'' 
focuses on the primary market and transactions with authorized 
participants. The commenter asserts that, for secondary market 
participants (e.g., retail investors), the price source used by the 
Sponsor should be viewed as important because the ETP's value (i.e., 
its NAV) ``has a relationship to the secondary market trading price, 
including for market makers and other liquidity participants in 
determining ET[P] pricing levels with respect to order flow, as well 
as for calculating premiums/discounts between NAV and the secondary 
market price.'' The commenter asserts that this is true for any ETP 
in the marketplace, but ``arguably the price source is even more 
important for a bitcoin ET[P]'' given the number of platforms 
worldwide where bitcoin is traded, the price differences between 
them, and the Commission's concerns regarding potential bitcoin 
price manipulation. See letter from Global Digital Finance, dated 
August 9, 2021 (``GDF Letter''), at 6. The commenter, however, 
provides no further information on the relationship between NAV and 
secondary market prices in general, nor specifically in the context 
of ETPs with only in-kind create/redeem processes, nor how market 
makers or other liquidity participants would use NAV to determine 
such an ETP's ``pricing levels with respect to order flow.'' As for 
the assertion that the price source is even more important for 
bitcoin ETPs because of the number of platforms and the price 
differences between them, the commenter does not elaborate further 
and does not explain why the opposite conclusion is not equally 
valid--that the price source (i.e., the Constituent Bitcoin 
Platforms) is less important in light of other bitcoin platforms 
with different prices.
---------------------------------------------------------------------------

    Fourth, the Exchange's arguments are contradictory. While arguing 
that the Reference Rate is resistant to manipulation, the Exchange 
simultaneously downplays the importance of the Reference Rate in light 
of the Trust's in-kind creation and redemption mechanism.\109\ The 
Exchange points out that the Trust will create and redeem Shares in-
kind, not in cash, which renders the NAV calculation, and thereby the 
ability to manipulate NAV, ``significantly less important.'' \110\ In 
BZX's own words, the Trust will not accept cash to buy bitcoin in order 
to create shares or sell bitcoin to pay cash for redeemed shares, so 
the price that the Sponsor uses to value the Trust's bitcoin ``is not 
particularly important.'' \111\ If the Reference Rate that the Trust 
uses to value the Trust's bitcoin ``is not particularly important,'' it 
follows that the Reference Rate's resistance to manipulation is not 
material to the Shares' susceptibility to fraud and manipulation. As 
the Exchange does not address or provide any analysis with respect to 
these issues, the Commission cannot conclude that the Reference Rate 
aids in the determination that the proposal to list and trade the 
Shares is designed to prevent fraudulent and manipulative acts and 
practices.
---------------------------------------------------------------------------

    \109\ See supra notes 81-85 and accompanying text.
    \110\ See Notice, 86 FR at 19925 (``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.'').
    \111\ See id. (concluding that ``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.'').
---------------------------------------------------------------------------

    Finally, the Commission finds that BZX has not demonstrated that 
in-kind creations and redemptions provide the Shares with a unique 
resistance to manipulation. The Commission has previously addressed 
similar assertions.\112\ As the Commission stated before, in-kind 
creations and redemptions are a common feature of ETPs, and the 
Commission has not previously relied on the in-kind creation and 
redemption mechanism as a basis for excusing exchanges that list ETPs 
from entering into surveillance-sharing agreements with significant, 
regulated markets related to the portfolio's assets.\113\ Accordingly, 
the Commission is not persuaded here that the Trust's in-kind creations 
and redemptions afford it a unique resistance to manipulation.\114\
---------------------------------------------------------------------------

    \112\ See Winklevoss Order, 83 FR at 37589-90; USBT Order, 85 FR 
at 12607-08.
    \113\ See, e.g., iShares COMEX Gold Trust, Securities Exchange 
Act Release No. 51058 (Jan. 19, 2005), 70 FR 3749, 3751-55 (Jan. 26, 
2005) (SR-Amex-2004-38); iShares Silver Trust, Securities Exchange 
Act Release No. 53521 (Mar. 20, 2006), 71 FR 14969, 14974 (Mar. 24, 
2006) (SR-Amex-2005-072).
    \114\ Putting aside the Exchange's various assertions about the 
nature of bitcoin and the bitcoin market, the Reference Rate, and 
the Shares, the Exchange also does not address concerns the 
Commission has previously identified, including the susceptibility 
of bitcoin markets to potential trading on material, non-public 
information (such as plans of market participants to significantly 
increase or decrease their holdings in bitcoin; new sources of 
demand for bitcoin; the decision of a bitcoin-based investment 
vehicle on how to respond to a ``fork'' in the bitcoin blockchain, 
which would create two different, non-interchangeable types of 
bitcoin), or to the dissemination of false or misleading 
information. See Winklevoss Order, 83 FR at 37585. See also USBT 
Order, 85 FR at 12600-01.

---------------------------------------------------------------------------

[[Page 69330]]

(2) Assertions That BZX Has Entered Into a Comprehensive Surveillance-
Sharing Agreement With a Regulated Market of Significant Size
    As BZX has not demonstrated that other means besides surveillance-
sharing agreements will be sufficient to prevent fraudulent and 
manipulative acts and practices, the Commission next examines whether 
the record supports the conclusion that BZX has entered into a 
comprehensive surveillance-sharing agreement with a regulated market of 
significant size relating to the underlying assets. In this context, 
the term ``market of significant size'' includes a market (or group of 
markets) as to which (i) there is a reasonable likelihood that a person 
attempting to manipulate the ETP would also have to trade on that 
market to successfully manipulate the ETP, so that a surveillance-
sharing agreement would assist in detecting and deterring misconduct, 
and (ii) it is unlikely that trading in the ETP would be the 
predominant influence on prices in that market.\115\
---------------------------------------------------------------------------

    \115\ See Winklevoss Order, 83 FR at 37594. This definition is 
illustrative and not exclusive. There could be other types of 
``significant markets'' and ``markets of significant size,'' but 
this definition is an example that provides guidance to market 
participants. See id.
---------------------------------------------------------------------------

    As the Commission has stated in the past, it considers two markets 
that are members of the ISG to have a comprehensive surveillance-
sharing agreement with one another, even if they do not have a separate 
bilateral surveillance-sharing agreement.\116\ Accordingly, based on 
the common membership of BZX and the CME in the ISG,\117\ BZX has the 
equivalent of a comprehensive surveillance-sharing agreement with CME. 
However, while the Commission recognizes that the CFTC regulates the 
CME futures market,\118\ including the CME bitcoin futures market, and 
thus such market is ``regulated,'' in the context of the proposed ETP, 
the record does not, as explained further below, establish that the CME 
bitcoin futures market is a ``market of significant size'' as that term 
is used in the context of the applicable standard here.\119\
---------------------------------------------------------------------------

    \116\ See id. at 37580 n.19.
    \117\ See Notice, 86 FR at 19924 n.60 and accompanying text.
    \118\ While the Commission recognizes that the CFTC regulates 
the CME, the CFTC is not responsible for direct, comprehensive 
regulation of the underlying bitcoin spot market. See Winklevoss 
Order, 83 FR at 37587, 37599. See also supra notes 98-100 and 
accompanying text.
    \119\ A commenter asserts that CME, Bakkt, and Crypto Facilities 
are the only venues that offer bitcoin futures trading under 
``relevant capital markets regulation.'' See CF Benchmarks Letter at 
6. BZX, however, argues only that the CME is a regulated market of 
significant size. In addition, as described above (see supra notes 
91-100 and accompanying text), in the context of the proposed ETP, 
the Constituent Bitcoin Platforms are not ``regulated.'' They are 
not registered as ``exchanges'' and lack the obligations, authority, 
and oversight of national securities exchanges. Thus the Commission 
limits the scope of its analysis to CME.
---------------------------------------------------------------------------

(i) Whether There Is a Reasonable Likelihood That a Person Attempting 
To Manipulate the ETP Would Also Have To Trade on the CME Bitcoin 
Futures Market To Successfully Manipulate the ETP
    The first prong in establishing whether the CME bitcoin futures 
market constitutes a ``market of significant size'' is the 
determination that there is a reasonable likelihood that a person 
attempting to manipulate the ETP would have to trade on the CME bitcoin 
futures market to successfully manipulate the ETP.
    BZX notes that the CME began to offer trading in bitcoin futures in 
2017.\120\ According to BZX, nearly every measurable metric related to 
CME bitcoin futures contracts, which trade and settle like other cash-
settled commodity futures contracts, has ``trended consistently up 
since launch and/or accelerated upward in the past year.'' \121\ For 
example, according to BZX, there was approximately $28 billion in 
trading in 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.\122\ 
Additionally, CME 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.\123\ Similarly, BZX contends that the 
number of large open interest holders \124\ has continued to increase, 
even as the price of bitcoin has risen, as have the number of unique 
accounts trading CME bitcoin futures.\125\
---------------------------------------------------------------------------

    \120\ According to BZX, each contract represents five bitcoin 
and is based on the CME CF BRR. See Notice, 86 FR at 19922.
    \121\ See id.
    \122\ See id.
    \123\ See id.
    \124\ BZX represents that a large open interest holder in CME 
bitcoin futures is an entity that holds at least 25 contracts, which 
is the equivalent of 125 bitcoin. According to BZX, at a price of 
approximately $30,000 per bitcoin on December 31, 2020, more than 80 
firms had outstanding positions of greater than $3.8 million in CME 
bitcoin futures. See id. at 19922 n.54.
    \125\ See id. at 19922.
---------------------------------------------------------------------------

    BZX argues that the significant growth in CME bitcoin futures 
across each of trading volumes, open interest, large open interest 
holders, and total market participants since the USBT Order was issued 
is reflective of that market's growing influence on the spot price. BZX 
asserts that where CME bitcoin futures lead the price in the spot 
market such that a potential manipulator of the bitcoin spot market 
(beyond just the Constituent Bitcoin Platforms) would have to 
participate in the CME bitcoin futures market, it follows that a 
potential manipulator of the Shares would similarly have to transact in 
the CME bitcoin futures market.\126\
---------------------------------------------------------------------------

    \126\ See id. at 19924, 19929.
---------------------------------------------------------------------------

    BZX further states that academic research corroborates the overall 
trend outlined above and supports the thesis that CME bitcoin futures 
pricing leads the spot market. BZX asserts that academic research 
demonstrates that the CME bitcoin futures market was already leading 
the spot price in 2018 and 2019.\127\ BZX concludes that a person 
attempting to manipulate the Shares would also have to trade on that 
market to manipulate the ETP.\128\
---------------------------------------------------------------------------

    \127\ See id. at 19923 & n.55 (citing Y. Hu, Y. Hou & L. Oxley, 
What role do futures markets play in Bitcoin pricing? Causality, 
cointegration and price discovery from a time-varying perspective, 
72 Int'l Rev. of Fin. Analysis 101569 (2020) (available at: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7481826/) (``Hu, Hou & 
Oxley'')).
    \128\ See id. at 19923.
---------------------------------------------------------------------------

    The Commission disagrees. The record does not demonstrate that 
there is a reasonable likelihood that a person attempting to manipulate 
the proposed ETP would have to trade on the CME bitcoin futures market 
to successfully manipulate it. Specifically, BZX's assertions about the 
general upward trends from 2018 to February 2021 in trading volume and 
open interest of, and in the number of large open interest holders and 
number of unique accounts trading in, CME bitcoin futures do not 
establish that the CME bitcoin futures market is of significant size. 
As the Commission has previously articulated, the interpretation of the 
term ``market of significant size'' or ``significant market'' depends 
on the interrelationship between the market with which the listing 
exchange has a surveillance-sharing agreement and the proposed 
ETP.\129\ BZX's recitation of data reflecting the size of the CME 
bitcoin futures market, alone, either currently or in relation to 
previous years, is not sufficient to establish an interrelationship 
between the CME bitcoin futures market and the proposed ETP.\130\
---------------------------------------------------------------------------

    \129\ See USBT Order, 85 FR at 12611.
    \130\ See id. at 12612.
---------------------------------------------------------------------------

    Further, the evidence in the record for this proposal also does not 
support a conclusion that the CME bitcoin futures market leads the 
bitcoin spot market in such a manner that the CME bitcoin

[[Page 69331]]

futures market is a ``market of significant size.'' As the Commission 
has previously explained, establishing a lead-lag relationship between 
the bitcoin futures market and the spot market is ``central to 
understanding whether it is reasonably likely that a would-be 
manipulator of the ETP would need to trade on the bitcoin futures 
market to successfully manipulate prices on those spot platforms that 
feed into the proposed ETP's pricing mechanism.'' \131\ The Commission 
has previously stated that, in particular, if the spot market leads the 
futures market, this would indicate that it would not be necessary to 
trade on the futures market to manipulate the proposed ETP, because the 
futures price would move to meet the spot price.\132\
---------------------------------------------------------------------------

    \131\ See id.
    \132\ See id.
---------------------------------------------------------------------------

    While BZX states that CME bitcoin futures pricing leads the spot 
market,\133\ it relies on the findings of a price discovery analysis in 
one section of a single academic paper to support the overall 
thesis.\134\ However, the findings of that paper's Granger causality 
analysis, which is widely used to formally test for lead-lag 
relationships, are concededly mixed.\135\ In addition, the Commission 
considered an unpublished version of the paper in the USBT Order, as 
well as a comment letter submitted by the authors on that record.\136\ 
In the USBT Order, as part of the Commission's conclusion that ``mixed 
results'' in academic studies failed to demonstrate that the CME 
bitcoin futures market constitutes a market of significant size, the 
Commission noted the paper's inconclusive evidence that CME bitcoin 
futures prices lead spot prices--in particular that the months at the 
end of the paper's sample period showed that the spot market was the 
leading market--and stated that the record did not include evidence to 
explain why this would not indicate a shift towards prices in the spot 
market leading the futures market that would be expected to persist 
into the future.\137\ The Commission also stated that the paper's use 
of daily price data, as opposed to intraday prices, may not be able to 
distinguish which market incorporates new information faster.\138\ BZX 
has not addressed either issue.
---------------------------------------------------------------------------

    \133\ See Notice, 86 FR at 19923.
    \134\ See supra note 127 and accompanying text. BZX references 
the following conclusion from the ``time-varying price discovery'' 
section of Hu, Hou & Oxley: ``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 . . .'' See Notice, 86 
FR at 19923 n.55.
    \135\ The paper finds that the CME bitcoin futures market 
dominates the spot markets in terms of Granger causality, but that 
the causal relationship is bi-directional, and a Granger causality 
episode from March 2019 to June/July 2019 runs from bitcoin spot 
prices to CME bitcoin futures prices. The paper concludes: ``[T]he 
Granger causality episodes are not constant throughout the whole 
sample period. Via our causality detection methods, market 
participants can identify when markets are being led by futures 
prices and when they might not be.'' See Hu, Hou & Oxley, supra note 
127.
    \136\ See USBT Order, 85 FR at 12609.
    \137\ See id. at 12613 n.244.
    \138\ See id.
---------------------------------------------------------------------------

    Moreover, BZX does not provide results of its own analysis and does 
not present any other data supporting its conclusion. BZX's unsupported 
representations constitute an insufficient basis for approving a 
proposed rule change in circumstances where, as here, the Exchange's 
assertion would form such an integral role in the Commission's analysis 
and the assertion is subject to several challenges.\139\ In this 
context, BZX's reliance on a single paper, whose own lead-lag results 
are inconclusive, is especially lacking because the academic literature 
on the lead-lag relationship and price discovery between bitcoin spot 
and futures markets is unsettled.\140\ In the USBT Order, the 
Commission responded to multiple academic papers that were cited and 
concluded that, in light of the mixed results found, the exchange there 
had not demonstrated that it is reasonably likely that a would-be 
manipulator of the proposed ETP would transact on the CME bitcoin 
futures market.\141\ Likewise, here, given the body of academic 
literature to indicate to the contrary, the Commission concludes that 
the information that BZX provides is not a sufficient basis to support 
a determination that it is reasonably likely that a would-be 
manipulator of the proposed ETP would have to trade on the CME bitcoin 
futures market.\142\
---------------------------------------------------------------------------

    \139\ See Susquehanna, 866 F.3d at 447.
    \140\ See, e.g., D. Baur & T. Dimpfl, Price discovery in bitcoin 
spot or futures?, 39 J. Futures Mkts. 803 (2019) (finding that the 
bitcoin spot market leads price discovery); O. Entrop, B. Frijns & 
M. Seruset, The determinants of price discovery on bitcoin markets, 
40 J. Futures Mkts. 816 (2020) (finding that price discovery 
measures vary significantly over time without one market being 
clearly dominant over the other); J. Hung, H. Liu & J. Yang, Trading 
activity and price discovery in Bitcoin futures markets, 62 J. 
Empirical Finance 107 (2021) (finding that the bitcoin spot market 
dominates price discovery); B. Kapar & J. Olmo, An analysis of price 
discovery between Bitcoin futures and spot markets, 174 Econ. 
Letters 62 (2019) (finding that bitcoin futures dominate price 
discovery); E. Akyildirim, S. Corbet, P. Katsiampa, N. Kellard & A. 
Sensoy, The development of Bitcoin futures: Exploring the 
interactions between cryptocurrency derivatives, 34 Fin. Res. 
Letters 101234 (2020) (finding that bitcoin futures dominate price 
discovery); A. Fassas, S. Papadamou, & A. Koulis, Price discovery in 
bitcoin futures, 52 Res. Int'l Bus. Fin. 101116 (2020) (finding that 
bitcoin futures play a more important role in price discovery) 
(``Fassas et al''); S. Aleti & B. Mizrach, Bitcoin spot and futures 
market microstructure, 41 J. Futures Mkts. 194 (2021) (finding that 
relatively more price discovery occurs on the CME as compared to 
four spot exchanges); J. Wu, K. Xu, X. Zheng & J. Chen, Fractional 
cointegration in bitcoin spot and futures markets, 41 J. Futures 
Mkts. 1478 (2021) (finding that CME bitcoin futures dominate price 
discovery). See also C. Alexander & D. Heck, Price discovery in 
Bitcoin: The impact of unregulated markets, 50 J. Financial 
Stability 100776 (2020) (finding that, in a multi-dimensional 
setting, including the main price leaders within futures, 
perpetuals, and spot markets, CME bitcoin futures have a very minor 
effect on price discovery; and that faster speed of adjustment and 
information absorption occurs on the unregulated spot and 
derivatives platforms than on CME bitcoin futures) (``Alexander & 
Heck'').
    \141\ See USBT Order, 85 FR at 12613 nn.239-244 and accompanying 
text.
    \142\ In addition, the Exchange fails to address the lead-lag 
relationship (if any) between prices on other bitcoin futures 
markets and the CME bitcoin futures market, the bitcoin spot market, 
and/or the particular Constituent Bitcoin Platforms, or where price 
formation occurs when the entirety of bitcoin futures markets, not 
just CME, is considered.
---------------------------------------------------------------------------

    The Benchmark Administrator, in a comment letter, also asserts that 
a body of research from both academic and commercial sources ``has 
amply demonstrated that price discovery for bitcoin is largely achieved 
through the CME BTC-USD futures market as opposed to the spot 
markets,'' and that such conclusions ``have not been widely challenged 
in the academic literature.'' \143\ This commenter argues that the 
combination of (1) the CME bitcoin futures market leading price 
formation, (2) the CME bitcoin futures market constituting a 
``significant proportion'' of the bitcoin futures

[[Page 69332]]

market,\144\ (3) the Constituent Bitcoin Platforms accounting for a 
``significant proportion'' of the bitcoin spot markets,\145\ (4) the 
Trust striking its NAV to the Reference Rate, which is calculated using 
transaction data from the Constituent Bitcoin Platforms, and (5) the 
Shares being traded by authorized participants who will use the CME 
bitcoin futures market and underlying bitcoin spot markets as 
``liquidity rails'' for pricing and arbitrage, means that any attempted 
manipulator of the Trust will have to undertake trading on both the CME 
and at least one, likely more than one, of the five Constituent Bitcoin 
Platforms to engage in potentially manipulative acts.\146\ The 
commenter states that this demonstrates that the CME bitcoin futures 
market can be considered a ``significant market.'' \147\
---------------------------------------------------------------------------

    \143\ See CF Benchmarks Letter at 6 (citing Fassas et al and A. 
Chang, W. Herrmann & W. Cai, Efficient Price Discovery in the 
Bitcoin Markets, Wilshire Phoenix, Oct. 14, 2020 (``Wilshire 
Phoenix'')). Another commenters also argues that the CME is a market 
of significant size. See GDF Letter at 5. This commenter states that 
there is ``no doubt'' that the CME represents a market of 
significant size because, as of May 2021, it had the second-largest 
amount of open interest, and represented roughly 15.5 percent of 
total open interest in bitcoin futures. The commenter also 
references the Wilshire Phoenix working paper which suggests that 
the CME bitcoin futures market contribute more to price discovery 
than its related spot markets. The commenter, however, also states 
that ``the crypto markets do change rapidly,'' and cites Alexander & 
Heck (see also supra note 140) for an opposing view that the CME 
bitcoin futures contribute far less than spot markets to price 
discovery. The Commission finds that this additional information is 
not sufficient to establish that the CME is a market of 
``significant size.'' As noted above, data reflecting the size of 
the CME bitcoin futures market, alone, is not sufficient to 
establish an interrelationship between the CME bitcoin futures 
market and the proposed ETP, and the papers cited by the commenter 
evidences the unsettled nature of the academic literature.
    \144\ The commenter states that the CME accounts for 
approximately 15 percent of all bitcoin futures open interest, and 
asserts that, while it is difficult to ascertain what proportion of 
the total bitcoin derivatives market is represented by CME, it is 
likely that it constitutes significantly more than the 15 percent--
``very likely 30 percent plus''--of all bona fide bitcoin futures 
trading. See CF Benchmarks Letter at 6.
    \145\ The commenter states that, although difficult to fully 
verify due to the distributed nature of cryptocurrency trading and 
the difficulting identifying bona fide trading volumes, the BTC-USD 
markets of the Constituent Bitcoin Platforms constitute roughly 76 
percent of all BTC-USD trading from cryptocurrency trading platforms 
whose volumes are publicly available during the period January 2020-
March 2021. The commenter further estimates that the Constituent 
Bitcoin Platforms account for 15 percent of all bitcoin trading and 
``very likely 25 percent plus'' of all bona fide bitcoin trading 
conducted on trading platforms. See id. at 4-5.
    \146\ See id. at 7.
    \147\ See id.
---------------------------------------------------------------------------

    The Commission does not agree. The Commission has already addressed 
and rejected three of these assertions--that CME bitcoin futures lead 
price discovery,\148\ the size of the CME bitcoin futures market,\149\ 
and the relevance of using the Reference Rate to compute NAV.\150\ As 
with the size of the CME market, data reflecting the size of the 
Constituent Bitcoin Platforms as a proportion of all bitcoin spot 
trading also does not help to establish an interrelationship between 
the CME bitcoin futures market and the proposed ETP. Nor does it 
establish how fraud and manipulation on other bitcoin spot markets may 
influence the price of bitcoin. Finally, the commenter assumes, without 
any supporting evidence, that authorized participants will use the CME 
bitcoin futures market (as well as underlying bitcoin spot market) 
``for pricing and arbitrage.'' Even assuming the commenter is correct 
that authorized participants would transact on bitcoin futures markets, 
the commenter does not explain why they would transact on the CME 
rather than on any other bitcoin futures markets.
---------------------------------------------------------------------------

    \148\ See supra notes 134-142 and accompanying text.
    \149\ See supra notes 129-130 and accompanying text.
    \150\ See supra notes 86-111 and accompanying text.
---------------------------------------------------------------------------

    The Commission accordingly concludes that the information provided 
in the record does not establish a reasonable likelihood that a would-
be manipulator of the proposed ETP would have to trade on the CME 
bitcoin futures market to successfully manipulate the proposed ETP. 
Therefore, the information in the record also does not establish that 
the CME bitcoin futures market is a ``market of significant size'' with 
respect to the proposed ETP.
(ii) Whether It Is Unlikely That Trading in the Proposed ETP Would Be 
the Predominant Influence on Prices in the CME Bitcoin Futures Market
    The second prong in establishing whether the CME bitcoin futures 
market constitutes a ``market of significant size'' is the 
determination that it is unlikely that trading in the proposed ETP 
would be the predominant influence on prices in the CME bitcoin futures 
market.\151\
---------------------------------------------------------------------------

    \151\ See Winklevoss Order, 83 FR at 37594; USBT Order, 85 FR at 
12596-97.
---------------------------------------------------------------------------

    BZX asserts that trading in the Shares would not be the predominant 
force on prices in the CME bitcoin futures market (or spot market) 
because of the significant volume in the CME bitcoin futures market, 
the size of bitcoin's market capitalization, which is approximately $1 
trillion, and the significant liquidity available in the spot 
market.\152\ BZX provides that, according to February 2021 data, the 
cost to buy or sell $5 million worth of bitcoin averages roughly 10 
basis points with a market impact of 30 basis points.\153\ 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, BZX 
states that a market participant could enter a market buy or sell order 
for $10 million of bitcoin and only move the market 0.5 percent.\154\ 
BZX further asserts that 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.\155\ Thus, BZX concludes that the 
combination of CME 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 the CME 
bitcoin futures market.\156\
---------------------------------------------------------------------------

    \152\ See Notice, 86 FR at 19925.
    \153\ See id. According to BZX, these statistics are based on 
samples of bitcoin liquidity in U.S. dollars (excluding stablecoins 
or Euro liquidity) based on executable quotes on Coinbase Pro, 
Gemini, Bitstamp, Kraken, LMAX Exchange, BinanceUS, and OKCoin 
during February 2021. See id. nn.64-65.
    \154\ See id. at 19925.
    \155\ See id.
    \156\ See id.
---------------------------------------------------------------------------

    The Commission does not agree. The record does not demonstrate that 
it is unlikely that trading in the proposed ETP would be the 
predominant influence on prices in the CME bitcoin futures market. As 
the Commission has already addressed and rejected one of the bases of 
BZX's assertion--that CME bitcoin futures leads price discovery \157\--
it will only address below the other two bases: The overall size of, 
and the impact of buys and sells on, the bitcoin market.
---------------------------------------------------------------------------

    \157\ See supra notes 134-142 and accompanying text.
---------------------------------------------------------------------------

    BZX's assertions about the potential effect of trading in the 
Shares on the CME bitcoin futures market and bitcoin spot market are 
general and conclusory, repeating the aforementioned trade volume of 
the CME bitcoin futures market and the size and liquidity of the 
bitcoin spot market, as well as the market impact of a large 
transaction, without any analysis or evidence to support these 
assertions. For example, there is no limit on the amount of mined 
bitcoin that the Trust may hold. Yet BZX does not provide any 
information on the expected growth in the size of the Trust and the 
resultant increase in the amount of bitcoin held by the Trust over 
time, or on the overall expected number, size, and frequency of 
creations and redemptions--or how any of the foregoing could (if at 
all) influence prices in the CME bitcoin futures market. Moreover, in 
the Trust's Registration Statement, the Sponsor acknowledges that the 
Trust may acquire large size positions in bitcoin, which would increase 
the risk of illiquidity in the underlying bitcoin. Specifically, the 
Sponsor, in the Registration Statement, states that the Trust may 
acquire large size positions in bitcoin, which will increase the risk 
of illiquidity by both making the positions more difficult to liquidate 
and increasing the losses incurred while

[[Page 69333]]

trying to do so, or by making it more difficult for authorized 
participants to acquire or liquidate bitcoin as part of the creation 
and/or redemption of Shares of the Trust.\158\ Although the Trust's 
Registration Statement concedes that the Trust could negatively affect 
the liquidity of bitcoin, BZX does not address this in the proposal or 
discuss how impacting the liquidity of bitcoin can be consistent with 
the assertion that the Shares are unlikely to be the predominant 
influence on the prices of the CME bitcoin futures market. Thus, the 
Commission cannot conclude, based on BZX's statements alone and absent 
any evidence or analysis in support of BZX's assertions, that it is 
unlikely that trading in the ETP would be the predominant influence on 
prices in the CME bitcoin futures market.
---------------------------------------------------------------------------

    \158\ See Registration Statement at 32.
---------------------------------------------------------------------------

    The Commission also is not persuaded by BZX's assertions about the 
minimal effect a large market order to buy or sell bitcoin would have 
on the bitcoin market.\159\ While BZX concludes by way of a $10 million 
market order example that buying or selling large amounts of bitcoin 
would have insignificant market impact, the conclusion does not analyze 
the extent of any impact on the CME bitcoin futures market. Even 
assuming that BZX is suggesting that a single $10 million order in 
bitcoin would have immaterial impact on the prices in the CME bitcoin 
futures market, this prong of the ``market of significant size'' 
determination concerns the influence on prices from trading in the 
proposed ETP, which is broader than just trading by the proposed ETP. 
While authorized participants of the Trust might only transact in the 
bitcoin spot market as part of their creation or redemption of Shares, 
the Shares themselves would be traded in the secondary market on BZX. 
The record does not discuss the expected number or trading volume of 
the Shares, or establish the potential effect of the Shares' trade 
prices on CME bitcoin futures prices. For example, BZX does not provide 
any data or analysis about the potential effect the quotations or trade 
prices of the Shares might have on market-maker quotations in CME 
bitcoin futures contracts and whether those effects would constitute a 
predominant influence on the prices of those futures contracts.
---------------------------------------------------------------------------

    \159\ See Notice, 86 FR at 19929 (``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%.'').
---------------------------------------------------------------------------

    Thus, because BZX has not provided sufficient information to 
establish both prongs of the ``market of significant size'' 
determination, the Commission cannot conclude that the CME bitcoin 
futures market is a ``market of significant size'' such that BZX would 
be able to rely on a surveillance-sharing agreement with the CME to 
provide sufficient protection against fraudulent and manipulative acts 
and practices.
    The requirements of Section 6(b)(5) of the Exchange Act apply to 
the rules of national securities exchanges. Accordingly, the relevant 
obligation for a comprehensive surveillance-sharing agreement with a 
regulated market of significant size, or other means to prevent 
fraudulent and manipulative acts and practices that are sufficient to 
justify dispensing with the requisite surveillance-sharing agreement, 
resides with the listing exchange. Because there is insufficient 
evidence in the record demonstrating that BZX has satisfied this 
obligation, the Commission cannot approve the proposed ETP for listing 
and trading on BZX.

C. Whether BZX Has Met Its Burden To Demonstrate That the Proposal Is 
Designed To Protect Investors and the Public Interest

    BZX contends that, if approved, the proposed ETP would protect 
investors and the public interest. However, the Commission must 
consider these potential benefits in the broader context of whether the 
proposal meets each of the applicable requirements of the Exchange 
Act.\160\ Because BZX has not demonstrated that its proposed rule 
change is designed to prevent fraudulent and manipulative acts and 
practices, the Commission must disapprove the proposal.
---------------------------------------------------------------------------

    \160\ See Winklevoss Order, 83 FR at 37602. See also 
GraniteShares Order, 83 FR at 43931; ProShares Order, 83 FR at 
43941; USBT Order, 85 FR at 12615.
---------------------------------------------------------------------------

    BZX asserts that, with the growth of U.S. investor exposure to 
bitcoin through OTC bitcoin funds, so too has grown the potential risk 
to U.S. investors.\161\ Specifically, BZX argues that premium and 
discount volatility, high fees, insufficient disclosures, and technical 
hurdles are putting U.S. investor money at risk on a daily basis and 
that such risk could potentially be eliminated through access to a 
bitcoin ETP.\162\ As such, the Exchange believes that approving this 
proposal (and comparable proposals submitted hereafter) would give U.S. 
investors 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) providing an alternative to 
custodying spot bitcoin; and (iv) reducing risks associated with 
investing in operating companies that are imperfect proxies for bitcoin 
exposure.\163\
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    \161\ See Notice, 86 FR at 19920.
    \162\ See id. BZX states that while it understands the 
Commission's previous focus on potential manipulation of a bitcoin 
ETP in prior disapproval orders, it 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.'' See id.
    \163\ See id.
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    According to BZX, OTC bitcoin funds are generally designed to 
provide exposure to bitcoin in a manner similar to the Shares. However, 
unlike the Shares, BZX states that ``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 and, 
as such, frequently trade at a price that is out-of-line with the value 
of their assets held.'' \164\ BZX represents that, historically, OTC 
bitcoin funds have traded at a significant premium to NAV.\165\ 
Although the Exchange concedes that trading at a premium (or 
potentially a discount) is not unique to OTC bitcoin funds and not 
inherently problematic, BZX believes that it raises certain investor 
protections issues. First, according to BZX, 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.\166\ Second, according to BZX, 
because only accredited investors, generally, are able to create or 
redeem shares with the issuing trust and can 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, these 
investors that are allowed to interact directly with the trust are able 
to hedge their bitcoin exposure as needed to satisfy holding

[[Page 69334]]

requirements and collect on the premium or discount opportunity. BZX 
argues, therefore, that the premium in OTC bitcoin funds essentially 
creates a direct payment from retail investors to more sophisticated 
investors.\167\
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    \164\ See id. BZX also states that, unlike the Shares, because 
OTC bitcoin funds are not listed on an exchange, they are not 
subject to the same transparency and regulatory oversight by a 
listing exchange. BZX further asserts that the existence of a 
surveillance-sharing agreement between BZX and the CME bitcoin 
futures market would result in increased investor protections for 
the Shares compared to OTC bitcoin funds. See id. at 19920 n.39.
    \165\ See id. at 19920. BZX further represents that the 
inability to trade in line with NAV may at some point result in OTC 
bitcoin funds trading at a discount to their NAV. According to BZX, 
while that has not historically been the case, trading at a discount 
would give rise to nearly identical potential issues related to 
trading at a premium. See id. at 19920 n.40.
    \166\ See id. at 19920.
    \167\ See id. at 19921.
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    One commenter expresses support for the approval of bitcoin ETPs 
because they believe such ETPs would have lower premium/discount 
volatility and lower management fees than an OTC bitcoin fund.\168\ 
Another commenter asserts that the reality is that many U.S. investors 
are investing in products overseas, which complicates U.S. regulatory 
reach, or investing in U.S. bitcoin products that have historically 
exhibited significant premiums or discounts to net asset value, among 
other issues; and that to the extent that U.S. investors are able to 
use U.S. regulated products, that should increase investor 
protection.\169\
---------------------------------------------------------------------------

    \168\ See letter from Anonymous, dated June 17, 2021 
(``Anonymous Letter'').
    \169\ See GDF Letter at 4.
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    BZX also asserts that exposure to bitcoin through an ETP also 
presents advantages for retail investors compared to buying spot 
bitcoin directly.\170\ BZX asserts that, without the advantages of an 
ETP, an individual retail investor holding bitcoin through a 
cryptocurrency trading platform lacks protections.\171\ BZX explains 
that, typically, retail platforms 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.\172\ 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.\173\ BZX represents that the Bitcoin 
Custodian would, by contrast, use ``cold'' (offline) storage to hold 
private keys, employ a certain degree of cybersecurity measures and 
operational best practices, be highly experienced in bitcoin custody, 
and be accountable for failures.\174\ In addition, BZX explains that 
retail investors would be able to hold the Shares in traditional 
brokerage accounts, which provide SIPC protection if a brokerage firm 
fails.\175\ Thus, with respect to custody of the Trust's bitcoin 
assets, BZX concludes that, compared to owning spot bitcoin directly, 
the Trust presents advantages from an investment protection standpoint 
for retail investors.\176\
---------------------------------------------------------------------------

    \170\ See Notice, 86 FR at 19921.
    \171\ See id.
    \172\ See id.
    \173\ See id.
    \174\ See id.
    \175\ See id.
    \176\ See id. One commeter agrees that there are certain 
advantages, particularly for ``average'' and first-time crypto 
investors, to bitcoin ETPs, including not having to secure keys or 
digital wallets, and greater protection from online hacking or theft 
if funds are secured offline in cold storage. See GDF Letter at 1-2. 
Another commenter is a NYSDFS-chartered trust company for purposes 
of providing non-discretionary fiduciary custody of digital assets. 
This commenter agrees that regulated, secure custodial solutions 
exist in the marketplace to support the Trust's operations. The 
commenter states that NYSDFS subjects it to additional controls 
tailored to the risks presented by digital asset custody, including 
robust review of its wallet environment, capitalization, AML 
procedures, confidentiality, security, and storage architecture. The 
commenter states that its cold storage solution is the same 
architecture used by its affiliated trading platform, is built on 
best practices across both cyber and physical security, and has not 
lost any customer funds due to a security breach over the past eight 
years. The commenter specifies that this solution employs 
proprietary key generation ceremonies, a geographically distributed 
network of vaults to store the keys, and multiple levels of 
technical and protocol-specific consensus and security requirements. 
According to the commenter, it offers broad and deep digital asset 
insurance, and is regularly audited by major financial and security 
audit firms. See letter from Coinbase Custody Trust Company, LLC, 
dated May 7, 2021.
---------------------------------------------------------------------------

    BZX further asserts that a number of operating companies engaged in 
unrelated businesses have announced investments as large as $1.5 
billion in bitcoin.\177\ Without access to bitcoin ETPs, BZX argues 
that retail investors seeking investment exposure to bitcoin may 
purchase shares in these companies in order to gain the exposure to 
bitcoin that they seek.\178\ BZX contends that such operating 
companies, however, are imperfect bitcoin proxies and provide investors 
with partial bitcoin exposure paired with additional risks associated 
with whichever operating company they decide to purchase. BZX concludes 
that 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.\179\
---------------------------------------------------------------------------

    \177\ See Notice, 86 FR at 19921.
    \178\ See id.
    \179\ See id. at 19922.
---------------------------------------------------------------------------

    BZX also states that investors in many other countries, including 
Canada, are able to use more traditional exchange-listed and traded 
products to gain exposure to bitcoin, disadvantaging U.S. investors and 
leaving them with more risky means of getting bitcoin exposure.\180\
---------------------------------------------------------------------------

    \180\ See id. at 19920. BZX represents that the Purpose Bitcoin 
ETF, a retail bitcoin-based ETP launched in Canada, reportedly 
reached $421.8 million in assets under management in two days, 
demonstrating the demand for a North American market listed bitcoin 
ETP. BZX contends that the Purpose Bitcoin ETF also offers a class 
of units that is U.S. dollar denominated, which could appeal to U.S. 
investors. BZX also argues that 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. 
BZX believes that, 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. See id. at 19920 n.37. BZX also notes that regulators in other 
countries have either approved or otherwise allowed the listing and 
trading of bitcoin-based ETPs. See id. at 19920 n.38.
---------------------------------------------------------------------------

    In essence, BZX asserts that the risky nature of direct investment 
in the underlying bitcoin and the unregulated markets on which bitcoin 
and OTC bitcoin funds trade compel approval of the proposed rule 
change. BZX, however, offers no limiting principle to this argument, 
under which, by logical extension, the Commission would be required to 
approve the listing and trading of any ETP that arguably presents 
marginally less risk to investors than a direct investment in the 
underlying asset or in an OTC-traded product.
    The Commission disagrees with this reading of the Exchange Act. 
Pursuant to Section 19(b)(2) of the Exchange Act, the Commission must 
approve a proposed rule change filed by a national securities exchange 
if it finds that the proposed rule change is consistent with the 
applicable requirements of the Exchange Act--including the requirement 
under Section 6(b)(5) that the rules of a national securities exchange 
be designed to prevent fraudulent and manipulative acts and practices--
and it must disapprove the filing if it does not make such a 
finding.\181\ Thus, even if a proposed rule change purports to protect 
investors from a particular type of investment risk--such as the 
susceptibility of an asset to loss or theft--the proposed rule change 
may still fail to meet the requirements under the Exchange Act.\182\
---------------------------------------------------------------------------

    \181\ See Exchange Act Section 19(b)(2)(C), 15 U.S.C. 
78s(b)(2)(C).
    \182\ See SolidX Order, 82 FR at 16259.
---------------------------------------------------------------------------

    Here, even if it were true that, compared to trading in unregulated 
bitcoin spot markets, trading a bitcoin-based ETP on a national 
securities exchange provides some additional protection to investors, 
the Commission must consider this potential benefit in the broader 
context of whether the proposal meets each of the applicable 
requirements of the Exchange Act.\183\ As explained above, for bitcoin-
based ETPs, the Commission has consistently

[[Page 69335]]

required that the listing exchange have a comprehensive surveillance-
sharing agreement with a regulated market of significant size related 
to bitcoin, or demonstrate that other means to prevent fraudulent and 
manipulative acts and practices are sufficient to justify dispensing 
with the requisite surveillance-sharing agreement. The listing exchange 
has not met that requirement here. Therefore, the Commission is unable 
to find that the proposed rule change is consistent with the statutory 
standard.
---------------------------------------------------------------------------

    \183\ See supra note 160.
---------------------------------------------------------------------------

    Pursuant to Section 19(b)(2) of the Exchange Act, the Commission 
must disapprove a proposed rule change filed by a national securities 
exchange if it does not find that the proposed rule change is 
consistent with the applicable requirements of the Exchange Act--
including the requirement under Section 6(b)(5) that the rules of a 
national securities exchange be designed to prevent fraudulent and 
manipulative acts and practices.\184\
---------------------------------------------------------------------------

    \184\ See 15 U.S.C. 78s(b)(2)(C).
---------------------------------------------------------------------------

    For the reasons discussed above, BZX has not met its burden of 
demonstrating that the proposal is consistent with Exchange Act Section 
6(b)(5),\185\ and, accordingly, the Commission must disapprove the 
proposal.\186\
---------------------------------------------------------------------------

    \185\ 15 U.S.C. 78f(b)(5).
    \186\ In disapproving the proposed rule change, the Commission 
has considered its impact on efficiency, competition, and capital 
formation. See 15 U.S.C. 78c(f). A commenter argues, for efficiency 
reasons, against approving a bitcoin ETP. This commenter asserts 
that the adoption of multiple digital assets would force merchants 
to deal with ``complexity [that] doesn't foster [the] modularity 
which is needed to gain economic efficiency.'' See Ciao Letter 3 at 
1. For the reasons discussed throughout, however, see supra note 37, 
the Commission is disapproving the proposed rule change because it 
does not find that the proposed rule change is consistent with the 
Exchange Act. See also USBT Order, 85 FR at 12615.
---------------------------------------------------------------------------

D. Other Comments

    Comment letters also address the general nature and uses of 
bitcoin; \187\ the state of development of bitcoin as a digital asset; 
\188\ the state of regulation of bitcoin markets; \189\ the inherent 
value of, and risks of investing in, bitcoin; \190\ the desire of 
investors to gain access to bitcoin through an ETP; \191\ the potential 
impact of Commission approval of the proposed ETP on the price of 
bitcoin and on bitcoin markets; \192\ the potential impact of 
Commission approval of bitcoin ETPs on the economy, U.S. monetary 
policy, U.S. innovation, and/or U.S. geopolitical position; \193\ the 
tax and/or retirement investment benefits or risks of a bitcoin ETP; 
\194\ and the bitcoin network's effect on the environment.\195\ 
Ultimately, however, additional discussion of these topics is 
unnecessary, as they do not bear on the basis for the Commission's 
decision to disapprove the proposal.
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    \187\ See, e.g., Ciao Letter 3; Patel Letter; letters from: 
Lourdes Ciao, dated June 2, 2021 (``Ciao Letter 1''); Lourdes Ciao, 
dated June 2, 2021 (``Ciao Letter 2'').
    \188\ See, e.g., GDF Letter.
    \189\ See, e.g., GDF Letter; letter from Douglas Slemmer, dated 
July 23, 2021 (``Slemmer Letter'').
    \190\ See, e.g., Ciao Letter 1; Ciao Letter 3; Patel Letter; 
Slemmer Letter; letters from: Sam Ahn, dated April 12, 2021; Bradley 
M. Kuhn, dated April 25, 2021 (``Kuhn Letter'').
    \191\ See, e.g., Kuhn Letter; GDF Letter.
    \192\ See, e.g., GDF Letter.
    \193\ See, e.g., Ciao Letter 1; Ciao Letter 2; Ciao Letter 3.
    \194\ See, e.g., Kuhn Letter; Ciao Letter 2; Ciao Letter 3.
    \195\ See, e.g., Patel Letter.
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IV. Conclusion

    For the reasons set forth above, the Commission does not find, 
pursuant to Section 19(b)(2) of the Exchange Act, that the proposed 
rule change is consistent with the requirements of the Exchange Act and 
the rules and regulations thereunder applicable to a national 
securities exchange, and in particular, with Section 6(b)(5) of the 
Exchange Act.
    It is therefore ordered, pursuant to Section 19(b)(2) of the 
Exchange Act, that proposed rule change SR-CboeBZX-2021-024 be, and 
hereby is, disapproved.

    By the Commission.
J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2021-26442 Filed 12-6-21; 8:45 am]
BILLING CODE 8011-01-P


