
[Federal Register Volume 88, Number 245 (Friday, December 22, 2023)]
[Notices]
[Pages 88687-88689]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-28196]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-99200; File No. SR-NASDAQ-2023-035]


Self-Regulatory Organizations; The Nasdaq Stock Market LLC; Order 
Instituting Proceedings To Determine Whether To Approve or Disapprove a 
Proposed Rule Change To List and Trade Shares of the Hashdex Nasdaq 
Ethereum ETF Under Nasdaq Rule 5711(i) (Trust Units)

December 18, 2023.
    On September 20, 2023, The Nasdaq Stock Market LLC (``Nasdaq'' or 
``Exchange'') filed with the Securities and Exchange Commission 
(``Commission''), pursuant to Section 19(b)(1) of the Securities 
Exchange Act of 1934 (``Act'') \1\ and Rule 19b-4 thereunder,\2\ a 
proposed rule change to list and trade shares (``Shares'') of the 
Hashdex Nasdaq Ethereum ETF (``Fund'') under Nasdaq Rule 5711(i) (Trust 
Units). The proposed rule change was published for comment in the 
Federal Register on October 3, 2023.\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. 98563 (Sept. 27, 
2023), 88 FR 68214 (``Notice''). The Commission has received no 
comments on the proposal.
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    On November 15, 2023, pursuant to Section 19(b)(2) of the Act,\4\ 
the Commission designated a longer period within which to approve the 
proposed rule change, disapprove the proposed rule change, or institute 
proceedings to determine whether to disapprove the proposed rule 
change.\5\ This order institutes proceedings under Section 19(b)(2)(B) 
of the Act \6\ to determine whether to approve or disapprove the 
proposed rule change.
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    \4\ 15 U.S.C. 78s(b)(2).
    \5\ See Securities Exchange Act Release No. 98948, 88 FR 81156 
(Nov. 21, 2023). The Commission designated January 1, 2024, as the 
date by which the Commission shall approve or disapprove, or 
institute proceedings to determine whether to disapprove, the 
proposed rule change.
    \6\ 15 U.S.C. 78s(b)(2)(B).
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I. Summary of the Proposal

    As described in more detail in the Notice,\7\ the Exchange proposes 
to list and trade the Shares of the Fund, a series of the Tidal 
Commodities Trust I (``Trust''), under Nasdaq Rule 5711(i), which 
governs the listing and trading of Trust Units on the Exchange.
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    \7\ See Notice, supra note 3.
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    The investment objective of the Fund is to have the daily changes 
in the net asset value (``NAV'') of the Shares reflect the daily 
changes in the price of the Nasdaq Ether Reference Price (NQETH) 
(``Benchmark''), less expenses from the Fund's operations.\8\ The 
Benchmark is designed to track the price performance of ether.\9\ Under 
normal market conditions, the Fund will invest in ether, ether futures 
contracts listed on the Chicago Mercantile Exchange, Inc. 
(``CME''),\10\ and in cash and cash equivalents.\11\ The Fund will use 
the CME's Exchange for Physical (``EFP'') transactions to acquire and 
dispose of spot ether.\12\ The Fund will be subject to investment 
restrictions on spot ether which cap the Fund's exposure to the ether 
spot market to a specified proportion of the Fund's NAV and restrict 
the Fund's notional exposure to ether to a set proportion.\13\ The sub-
administrator of the Fund will calculate the NAV of the Fund once each 
trading day, as of the earlier of the close of the Nasdaq or 4:00 p.m. 
New York time.\14\ To determine the value of Ether Futures Contracts, 
the Fund's sub-administrator will use the Ether Futures Contract 
settlement price on the exchange on which the contract is traded, 
except that the fair value of Ether Futures Contracts may be used when 
Ether Futures Contracts close at their price fluctuation limit for the 
day. The value of spot ether held by the Fund would be determined by 
the Sponsor and by Hashdex Asset Management Ltd. (``Digital Asset 
Adviser'') in good faith based on a methodology that is entirely 
derived from the settlement prices of Ether Futures Contracts on the 
CME and that considers all available facts and all available 
information on the valuation

[[Page 88688]]

date.\15\ When the Fund sells or redeems its Shares, it will do so in 
cash transactions with authorized participants in blocks of 10,000 
Shares.\16\
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    \8\ See Notice, 88 FR at 68215. The Fund is managed and 
controlled by Toroso Investments LLC (``Sponsor''). See id. at 
68214.
    \9\ See id.
    \10\ According to the Exchange, the CME currently offers two 
ether futures contracts: one contract representing 50 ether (``ETH 
Contracts'') and another contract representing 0.10 ether (``MET 
Contracts,'' and collectively, ``Ether Futures Contracts''). See id. 
at 68214.
    \11\ See id. at 68214. The Fund will hold a mix of Ether Futures 
Contracts, spot ether, and cash and cash equivalents, subject to 
certain investment restrictions. See id. at 68219.
    \12\ See id. at 68219. According to the Exchange, EFP 
transactions are a type of private agreement between two parties to 
trade a futures position for the underlying asset. In an EFP 
transaction, two parties exchange equivalent but offsetting 
positions in an Ether Futures Contract and the underlying physical 
ether. In the context of the Fund, these transactions will be used 
to purchase and sell spot ether by delivering or receiving the 
equivalent futures position. See id. at 68229.
    \13\ See id. at 68227-28.
    \14\ See id. at 68231. The Fund's NAV will include any 
unrealized profit or loss on open ether futures contacts and any 
other credit or debit accruing to the Fund but unpaid or not 
received by the Fund. See id.
    \15\ See id. at 68222, 68231-32. According to the Exchange, this 
``futures-based spot price'' methodology involves a calculation that 
is sensitive to both the length of time (``tenor'') until each Ether 
Futures Contract is due for settlement and the final settlement 
price for each contract. The calculation takes into account each 
contract's tenor and the tenor squared. This approach is designed to 
give more importance to contracts that are due for settlement in the 
near term. The calculation produces a set of weighting factors, with 
each factor indicating the contribution of the corresponding Ether 
Futures Contract to the estimated current spot price of ether. The 
estimated spot price is the component of the result corresponding to 
a tenor of zero days. The Sponsor and Digital Asset Advisor do not 
use data from ether trading platforms or directly from spot ether 
trading activity in determining the value of spot ether held by the 
Fund. See id. at 68222-23.
    \16\ See id. at 68232-33.
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II. Proceedings To Determine Whether To Approve or Disapprove SR-
NASDAQ-2023-035 and Grounds for Disapproval Under Consideration

    The Commission is instituting proceedings pursuant to Section 
19(b)(2)(B) of the Act \17\ to determine whether the proposed rule 
change should be approved or disapproved. Institution of proceedings is 
appropriate at this time in view of the legal and policy issues raised 
by the proposed rule change, as discussed below. Institution of 
proceedings does not indicate that the Commission has reached any 
conclusions with respect to any of the issues involved. Rather, as 
described below, the Commission seeks and encourages interested persons 
to provide comments on the proposed rule change.
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    \17\ 15 U.S.C. 78s(b)(2)(B).
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    Pursuant to Section 19(b)(2)(B) of the Act,\18\ the Commission is 
providing notice of the grounds for disapproval under consideration. 
The Commission is instituting proceedings to allow for additional 
analysis of the proposed rule change's consistency with Section 6(b)(5) 
of the Act, which requires, among other things, 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.'' \19\
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    \18\ Id.
    \19\ 15 U.S.C. 78f(b)(5).
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    The Commission asks that commenters address the sufficiency of the 
Exchange's statements in support of the proposal, which are set forth 
in the Notice, in addition to any other comments they may wish to 
submit about the proposed rule change. In particular, the Commission 
seeks comment on the following questions and asks commenters to submit 
data where appropriate to support their views:
    1. Given the nature of the underlying assets held by the Fund, has 
the Exchange properly filed its proposal to list and trade the Shares 
under Nasdaq Rule 5711(i) (Trust Units)? \20\
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    \20\ Nasdaq Rule 5711(i)(3)(B) defines the term ``Trust Units'' 
as a security that is issued by a trust or other similar entity that 
is constituted as a commodity pool that holds investments comprising 
or otherwise based on any combination of futures contracts, options 
on futures contracts, forward contracts, swap contracts, commodities 
and/or securities.
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    2. The Exchange raises similar arguments to support the listing and 
trading of the Shares as those made in proposals to list and trade spot 
bitcoin exchange-traded products (``Bitcoin ETPs''). Do commenters 
agree that arguments to support the listing of Bitcoin ETPs apply 
equally to the Shares? Are there particular features related to ether 
and its ecosystem, including its proof of stake consensus mechanism and 
concentration of control or influence by a few individuals or entities, 
that raise unique concerns about ether's susceptibility to fraud and 
manipulation?
    3. What are commenters' views on whether the proposed Fund and 
Shares would be susceptible to manipulation? What are commenters' views 
generally on whether the Exchange's proposal is designed to prevent 
fraudulent and manipulative acts and practices? What are commenters' 
views generally with respect to the liquidity and transparency of the 
ether markets and the ether markets' susceptibility to manipulation?
    4. Based on data and analysis provided by the Exchange,\21\ what 
are commenters views on whether the CME, on which CME ether futures 
trade and through which the Fund intends to engage in EFP transactions 
to purchase or sell spot ether, represents a regulated market of 
significant size related to spot ether? \22\ What are commenters' views 
on whether there is a reasonable likelihood that a person attempting to 
manipulate the Shares would also have to trade on the CME to manipulate 
the Shares? \23\ Do commenters agree with the Exchange that trading in 
the Shares would not be the predominant influence on prices in the CME 
ether futures market? \24\
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    \21\ See Notice, 88 FR at 68218, 68220-21, 68226-27.
    \22\ See id. at 68219.
    \23\ See id. at 68219-20.
    \24\ See id. at 68220-21.
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    5. The Exchange states that the Fund intends to adopt ``an 
innovative approach to mitigate the risks of fraud and manipulation 
that are unique to the Fund'' by ``structur[ing] the operation of the 
Fund such that the regulated market of significant size in relation to 
the Fund is the [CME] because it is the same market on which the Fund 
trades its non-cash assets.'' \25\ The Exchange further states that the 
Fund has features that underscore its significant interrelationship 
with the CME, including that the Fund (i) utilizes futures-based 
pricing for spot ether such that the NAV calculation for the spot ether 
holdings of the Fund will be derived from the CME ether futures curve; 
(ii) is subject to investment restrictions on spot ether; (iii) will 
use CME EFP transactions to acquire and dispose of spot ether ``instead 
of transactions on unregulated spot exchanges''; and (iv) will utilize 
only cash creations and redemptions.\26\ Based on the structure and 
operation of the Fund and the Fund's investments as described in the 
filing, what are commenters' views on whether the CME represents a 
regulated market of significant size related to spot ether? \27\
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    \25\ See id. at 68219.
    \26\ See id.
    \27\ See id.
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    6. The Fund will only use CME EFP transactions to acquire and 
dispose of spot ether.\28\ The Exchange states that ``trading activity 
in EFP transactions is sporadic'' but that, ``[n]onetheless, the 
Sponsor believes that a large number of liquidity providers are ready 
to execute this type of transaction and can provide enough liquidity to 
support the [Fund's] demand.'' \29\ Do commenters agree? Why or why 
not?
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    \28\ See, e.g., id. at 68229-30.
    \29\ See id. at 68230.
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    7. The value of spot ether held by the Fund would be determined 
using a futures-based spot price methodology that is derived from the 
settlement prices of ether futures contracts on the CME.\30\ The 
Exchange presents data \31\ that it states ``strongly suggests that 
[futures-based spot pricing] is a suitable choice for the NAV 
calculation.'' \32\ The Exchange states that futures-based spot pricing 
``could create some level of uncertainty due to the potential 
divergences between the [futures-based spot price] and the spot prices 
observed in unregulated markets'' but that authorized participants 
``will always be in a position to hedge their exposure using 
exclusively the [CME ether futures market], which will make them more 
likely to provide liquidity to the Fund

[[Page 88689]]

thus making its market price converge to its NAV.'' \33\ Do commenters 
agree with the Exchange? Why or why not?
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    \30\ See id. at 68231.
    \31\ See id. at 68222-25.
    \32\ See id. at 68225.
    \33\ See id.
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    8. Some sponsors of proposed ether exchange-traded products have 
made statements regarding the correlation between ether spot markets 
and the CME ether futures market.\34\ What are commenters' views on the 
correlation between the ether spot market and the CME ether futures 
market? What are commenters' views on the extent to which a 
surveillance-sharing agreement with the CME would assist in detecting 
and deterring fraud and manipulation that impacts an exchange-traded 
product (``ETP'') that also holds spot ether, and on whether 
correlation analysis provides any evidence to this effect? What are 
commenters' views on the Sponsor's own statistical analysis of the 
relationship between prices in certain unregulated ether markets and 
prices of CME ether futures contracts? \35\ What are commenters' views 
generally on whether an ETP that holds only CME ether futures and an 
ETP that also holds spot ether are similar products?
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    \34\ See, e.g., Notice of Filing of a Proposed Rule Change to 
List and Trade Shares of the VanEck Ethereum ETF under BZX Rule 
14.11(e)(4), Commodity-Based Trust Shares, Securities Exchange Act 
Release No. 98457 (Sept. 20, 2023), 88 FR 66076 (Sept. 26, 2023), 
66081 (stating that ``The Sponsor's research indicates daily 
correlation between the spot ETH and the CME ETH Futures is 0.998 
from the period of 9/1/22 through 9/1/23.'').
    \35\ See Notice, 88 FR at 68226-27.
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III. Procedure: Request for Written Comments

    The Commission requests that interested persons provide written 
submissions of their views, data, and arguments with respect to the 
issues identified above, as well as any other concerns they may have 
with the proposal. In particular, the Commission invites the written 
views of interested persons concerning whether the proposal is 
consistent with Section 6(b)(5) or any other provision of the Act, and 
the rules and regulations thereunder. Although there do not appear to 
be any issues relevant to approval or disapproval that would be 
facilitated by an oral presentation of views, data, and arguments, the 
Commission will consider, pursuant to Rule 19b-4, any request for an 
opportunity to make an oral presentation.\36\
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    \36\ Section 19(b)(2) of the Act, as amended by the Securities 
Acts Amendments of 1975, Public Law 94-29 (June 4, 1975), grants the 
Commission flexibility to determine what type of proceeding--either 
oral or notice and opportunity for written comments--is appropriate 
for consideration of a particular proposal by a self-regulatory 
organization. See Securities Acts Amendments of 1975, Senate Comm. 
on Banking, Housing & Urban Affairs, S. Rep. No. 75, 94th Cong., 1st 
Sess. 30 (1975).
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    Interested persons are invited to submit written data, views, and 
arguments regarding whether the proposed rule change should be approved 
or disapproved by January 12, 2024. Any person who wishes to file a 
rebuttal to any other person's submission must file that rebuttal by 
January 26, 2024.
    Comments may be submitted by any of the following methods:

Electronic Comments

     Use the Commission's internet comment form (https://www.sec.gov/rules/sro.shtml); or
     Send an email to [email protected]. Please include 
file number SR-NASDAQ-2023-035 on the subject line.

Paper Comments

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

All submissions should refer to file number SR-NASDAQ-2023-035. This 
file number should be included on the subject line if email is used. To 
help the Commission process and review your comments more efficiently, 
please use only one method. The Commission will post all comments on 
the Commission's internet website (https://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent amendments, all 
written statements with respect to the proposed rule change that are 
filed with the Commission, and all written communications relating to 
the proposed rule change between the Commission and any person, other 
than those that may be withheld from the public in accordance with the 
provisions of 5 U.S.C. 552, will be available for website viewing and 
printing in the Commission's Public Reference Room, 100 F Street NE, 
Washington, DC 20549, on official business days between the hours of 10 
a.m. and 3 p.m. Copies of the filing also will be available for 
inspection and copying at the principal office of the Exchange. Do not 
include personal identifiable information in submissions; you should 
submit only information that you wish to make available publicly. We 
may redact in part or withhold entirely from publication submitted 
material that is obscene or subject to copyright protection. All 
submissions should refer to file number SR-NASDAQ-2023-035 and should 
be submitted on or before January 12, 2024. Rebuttal comments should be 
submitted by January 26, 2024.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\37\
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    \37\ 17 CFR 200.30-3(a)(57).
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Sherry R. Haywood,
Assistant Secretary.
[FR Doc. 2023-28196 Filed 12-21-23; 8:45 am]
BILLING CODE 8011-01-P


