[Federal Register Volume 86, Number 246 (Tuesday, December 28, 2021)]
[Notices]
[Pages 73826-73829]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-28112]


=======================================================================
-----------------------------------------------------------------------

SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-93840; File No. SR-NYSEArca-2021-67]


Self-Regulatory Organizations; NYSE Arca, Inc.; Order Instituting 
Proceedings To Determine Whether To Approve or Disapprove a Proposed 
Rule Change To List and Trade Shares of the One River Carbon Neutral 
Bitcoin Trust Under NYSE Arca Rule 8.201-E

December 21, 2021.
    On September 20, 2021, NYSE Arca, Inc. (``NYSE Arca'' 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 One 
River Carbon Neutral Bitcoin Trust (``Trust'') under NYSE Arca Rule 
8.201-E (Commodity-Based Trust Shares). The proposed rule change was 
published for comment in the Federal Register on October 5, 2021.\3\
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ See Securities Exchange Act Release No. 93171 (Sept. 29, 
2021), 86 FR 55073 (``Notice''). Comments on the proposed rule 
change can be found at: https://www.sec.gov/comments/sr-nysearca-2021-67/srnysearca202167.htm.
---------------------------------------------------------------------------

    On November 10, 2021, 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.
---------------------------------------------------------------------------

    \4\ 15 U.S.C. 78s(b)(2).
    \5\ See Securities Exchange Act Release No. 93553, 86 FR 64276 
(Nov. 17, 2021). The Commission designated January 3, 2022, as the 
date by which it should approve, disapprove, or institute 
proceedings to determine whether to disapprove the proposed rule 
change.
    \6\ 15 U.S.C. 78s(b)(2)(B).
---------------------------------------------------------------------------

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 Trust under NYSE Arca Rule 8.201-E, 
which governs the listing and trading of Commodity-Based Trust Shares 
on the Exchange.
---------------------------------------------------------------------------

    \7\ See Notice, supra note 3.
---------------------------------------------------------------------------

    The investment objective of the Trust is to track the performance 
of bitcoin, as measured by the performance of the MVIS One River Carbon 
Neutral Bitcoin Index (``Index''), adjusted for the Trust's expenses 
and other liabilities.\8\ As discussed further below, the Index is 
designed to reflect the performance of bitcoin in U.S. dollars on a 
carbon neutral basis. In seeking to achieve its investment objective, 
the Trust will hold bitcoin and will value its Shares based on the same 
methodology used to calculate the Index, as adjusted to reflect the 
expenses associated with offsetting carbon credits.\9\ The Trust will 
not purchase or sell bitcoin directly, although the Trust may direct 
the Custodian to sell or transfer bitcoin to pay certain expenses.\10\ 
The Trust will not hold cash or cash equivalents; however, there may be 
situations where the Trust will hold cash on a temporary basis.\11\ The 
Fund will not hold futures, options, or options on futures.\12\
---------------------------------------------------------------------------

    \8\ See id. at 55073. The sponsor of the Trust is One River 
Digital Asset Management, LLC (``Sponsor''), a Delaware limited 
liability company and a wholly-owned subsidiary of One River Asset 
Management, LLC. The trustee for the Trust is Delaware Trust 
Company. The marketing agent for the Trust is Foreside Global 
Services, LLC. The Bank of New York Mellon (``BNY Mellon'') will act 
as the Trust's administrator and transfer agent. The custodian for 
the Trust, Coinbase Custody Trust Company, LLC (``Custodian''), will 
hold all of the Trust's bitcoin on the Trust's behalf and will 
retain custody of the Trust's bitcoin in an account for the Trust 
(``Bitcoin Account''). See id.
    \9\ See id. at 55074.
    \10\ See id.
    \11\ See id. The Trust has entered into a cash custody agreement 
with BNY Mellon under which BNY Mellon will act as custodian of the 
Trust's cash and cash equivalents. See id.
    \12\ See id.
---------------------------------------------------------------------------

    The Trust intends to offset the carbon footprint associated with 
bitcoin once a quarter by paying for the instantaneous retirement of 
voluntary carbon credits equal to the daily estimated carbon emissions 
associated with the bitcoins held by the Trust.\13\ According to the 
Exchange, voluntary carbon credits are certified and standardized under 
the Verra Verified Carbon Standard (``Verra''), an organization that 
establishes and manages standards and programs in connection with 
voluntary carbon credits, and the Trust will only utilize carbon 
credits that meet the Verra standards.\14\ The Trust has entered into 
an agreement with LIRDES S.A., d/b/a Moss Earth (``Moss''), a company 
located in Uruguay, to pay for carbon credit tokens created by Moss 
(``MCO2 Tokens'') representing certified reductions in greenhouse gas 
emissions.\15\ The MCO2 Tokens issued by Moss are carbon offsets 
encrypted and tokenized utilizing blockchain technology and are stored 
on a registry managed by Verra.\16\ The Trust will

[[Page 73827]]

purchase MCO2 Tokens from Moss at the end of March, June, September, 
and December at pre-negotiated prices, and Moss will instantaneously 
retire the tokens to the Ethereum blockchain.\17\ The number of MCO2 
Tokens paid for by the Trust will equal the aggregated sum of offsets 
implied by the daily carbon emissions for a single bitcoin over the 
preceding quarter multiplied by the average number of bitcoins held in 
the Trust's portfolio during the quarter, with a view towards tracking 
the carbon footprint offset estimate calculated by the Index.\18\ The 
Trust does not hold the carbon offset MCO2 Tokens as an asset. Instead, 
the Trust pays for the MCO2 Tokens carbon offsets from Moss, who then 
instantaneously retires the tokens to the Ethereum blockchain, to 
reduce global carbon emissions by the carbon dioxide tonnage (or 
tonnage of other similar greenhouse gases) corresponding to such 
tokens.\19\
---------------------------------------------------------------------------

    \13\ See id. at 55073, 55074.
    \14\ See id. at 55074-75.
    \15\ See id. at 55075. Upon expiration of its agreement with 
Moss in April 2031, the Trust will either enter into a replacement 
agreement, or alternatively pay for the retirement of MCO2 Tokens or 
similar carbon credits at then current spot prices for such 
instruments. See id.
    \16\ See id. According to the Exchange, the MCO2 Token is a 
digital representation of a carbon credit that is stored on a 
registry by Verra and can be acquired in over-the-counter or 
publicly-traded markets. Moss purchases carbon credits from projects 
that are certified under Verra's Verified Carbon Standard. Each 
circulating MCO2 Token is intended to represent a claim on a 
certified carbon credit held in an aggregated pool of carbon credits 
within the Moss account on the Verra registry. Tokenized carbon 
credits are fungible and do not represent a claim on a specific 
underlying carbon credit issued to a specific carbon reduction 
project. See id.
    \17\ See id. at 55075 & n.10.
    \18\ See id. at 55075.
    \19\ See id. at 55075 & n.10.
---------------------------------------------------------------------------

    The Index value is the benchmark value of the bitcoin less the 
estimated daily cost of offsetting the carbon emissions of a single 
bitcoin.\20\ The Index is constructed using bitcoin price feeds from 
eligible bitcoin spot markets and volume weighted median price average, 
calculated over 20 intervals in rolling three-minute increments, less 
the estimated cost of offsetting the daily carbon emissions 
attributable to each bitcoin in the network.\21\
---------------------------------------------------------------------------

    \20\ See id. at 55075. The Index methodology was developed by MV 
Index Solutions GmbH (``MVIS'') and is monitored by the One River 
Index Committee, an independent, third-party calculation agent for 
the Index. MVIS, with the assistance of its affiliates, is also the 
calculation agent for the Index and for the MVIS[supreg] 
CryptoCompare Bitcoin Benchmark Rate (``BBR''), which measures the 
value of the underlying bitcoin represented by, and is the bitcoin 
benchmark component for, the Index. The current constituent bitcoin 
platforms of the BBR are Coinbase, Gemini, Bitstamp, Kraken, and 
itBit. See id. at 55074-75.
    \21\ See id.
---------------------------------------------------------------------------

    The cost of the carbon offset used in the Index is calculated in 
the following steps. First, electricity consumption for the bitcoin 
mining network is recorded daily. Second, geolocation of bitcoin miners 
identifies the location of electricity usage. Third, for each location, 
the average production of electricity by its source of production 
(e.g., solar, coal) is recorded. This estimates the carbon emission 
intensity of electricity consumption in the bitcoin network. Fourth, 
total electricity consumption is multiplied by the carbon intensity of 
the bitcoin network to estimate total carbon emissions. These steps 
allow MVIS to obtain a daily estimate of the carbon emissions necessary 
to run the bitcoin network. The total carbon emissions of the bitcoin 
network are divided by the total number of bitcoins in circulation to 
estimate the carbon emissions attributable to each bitcoin on each day. 
Finally, the carbon emission attributable to each bitcoin is multiplied 
by the MCO2 Token market price of a carbon offset.\22\ The daily 
accumulation of the carbon offset component of the Index measures the 
totality of the cost of the carbon offset required for holding a single 
bitcoin over the accumulation period.\23\
---------------------------------------------------------------------------

    \22\ See id. at 55074.
    \23\ See id. at 55075.
---------------------------------------------------------------------------

    BNY Mellon will calculate the net asset value (``NAV'') of the 
Trust once each Exchange trading day. The NAV for a normal trading day 
will be released 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.).\24\ The NAV per Share of the Trust 
will be equal to the median price of the bitcoin used in the 
calculation of the Index less the Trust's liabilities, including the 
cost of carbon measured in the Index, divided by the total number of 
outstanding Shares. The accumulation of the daily carbon offset costs 
calculated in the Index act as an expense to the Trust. The payment for 
the retirement of carbon offsets by the Trust will occur once per 
quarter of the calendar year, and the number of MCO2 Tokens retired 
will equal the aggregated sum of offsets implied by the daily carbon 
footprint for each bitcoin held by the Trust during the quarter. The 
NAV will accrue the estimated carbon cost daily.\25\
---------------------------------------------------------------------------

    \24\ See id. at 55076-77.
    \25\ See id. at 55076.
---------------------------------------------------------------------------

    The Trust will provide website disclosure of its bitcoin holdings 
daily.\26\ The Intraday Indicative Value (``IIV'') per Share will be 
widely disseminated every 15 seconds during the NYSE Arca Core Trading 
Session (normally 9:30 a.m. E.T. to 4:00 p.m. E.T.) by the Trust and by 
one or more major market data vendors, and will be available through 
on-line information services. The IIV will be calculated by using the 
prior day's closing NAV per Share of the Trust as a base and updating 
that value throughout the trading day to reflect changes in the most 
recently reported price level of the Index as reported by Bloomberg, 
L.P. or another reporting service.\27\
---------------------------------------------------------------------------

    \26\ See id. at 55082.
    \27\ See id. at 55077.
---------------------------------------------------------------------------

    The Trust will process all creations and redemptions in-kind and 
only in one or more blocks of 50,000 Shares (``Baskets'').\28\ When 
creating Shares, authorized participants will deliver, or facilitate 
the delivery of, bitcoin to the Bitcoin Account in exchange for Shares, 
and when redeeming Shares, the Trust, through the Custodian, will 
deliver bitcoin to authorized participants. Although the Trust will 
create Baskets only upon the receipt of bitcoins, and will redeem 
Baskets only by distributing bitcoins, a separate cash exchange process 
will be made available to authorized participants. Under the cash 
exchange process, an authorized participant may deposit cash with BNY 
Mellon, which will facilitate the purchase or sale of bitcoins through 
a liquidity provider (``Liquidity Provider'') on behalf of an 
authorized participant. The bitcoin purchased (or sold) by the 
Liquidity Provider in connection with the cash exchange process will, 
in turn, be delivered to (or from, as appropriate) the Custodian, on 
behalf of the Trust, in exchange for Baskets.\29\
---------------------------------------------------------------------------

    \28\ See id. at 55074; 55077
    \29\ See id. at 55074.
---------------------------------------------------------------------------

II. Proceedings To Determine Whether To Approve or Disapprove SR-
NYSEArca-2021-67 and Grounds for Disapproval Under Consideration

    The Commission is instituting proceedings pursuant to Section 
19(b)(2)(B) of the Act \30\ 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.
---------------------------------------------------------------------------

    \30\ 15 U.S.C. 78s(b)(2)(B).
---------------------------------------------------------------------------

    Pursuant to Section 19(b)(2)(B) of the Act,\31\ 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,

[[Page 73828]]

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.'' \32\
---------------------------------------------------------------------------

    \31\ Id.
    \32\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------

    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,\33\ 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:
---------------------------------------------------------------------------

    \33\ See Notice, supra note 3.
---------------------------------------------------------------------------

    1. What are commenters' views on whether the proposed Trust 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 
bitcoin markets, the bitcoin markets' susceptibility to manipulation, 
and thus the suitability of bitcoin as an underlying asset for an 
exchange-traded product?
    2. The Exchange asserts that ``[a]longside the growth in users, 
active wallets and market capitalization, institutional ratings of 
various [digital assets] have increased substantially'' and ``[b]itcoin 
ranks as one of the most widely used, if not the most widely used, 
[digital asset] in the global [digital asset] market.'' \34\ According 
to the Exchange, the bitcoin ``marketplace is maturing with increased 
institutional participation'' and the ``rise in the digital economy has 
led to an increase in activity within the regulated banking system, 
reflecting increased institutional demand.'' \35\ The Exchange also 
asserts that ``licensed and regulated service providers have emerged to 
provide fund custodial services for digital assets, among other 
services.'' The Exchange concludes that ``[t]hese are substantial 
developments since the Commission last reviewed a bitcoin [exchange-
traded product] proposal.'' \36\ Do commenters agree or disagree with 
these assertions? Are the changes that the Exchange identifies 
sufficient to support the determination that the proposal to list and 
trade the Shares is designed to protect investors and the public 
interest and is consistent with the other applicable requirements of 
Section 6(b)(5) of the Act?
---------------------------------------------------------------------------

    \34\ See id. at 55078.
    \35\ See id.
    \36\ See id.
---------------------------------------------------------------------------

    3. The Exchange states certain ``regulatory and enforcement actions 
acknowledge the increasing use of bitcoin and other [digital assets] 
within the broader global financial sector generally, and represent 
ongoing efforts to regularize the use of such [digital assets] within 
existing regulatory frameworks.'' \37\ The Exchange also asserts that 
``[t]echnological advancements on the bitcoin protocol are also 
progressing and will broaden institutional adoption of the bitcoin 
protocol as a technology'' and that there ``have also been advancements 
in regulatory frameworks, both on a global and national scale, on 
[digital asset] exposures.'' \38\ The Exchange concludes that its 
proposal is ``aimed at financial stability, protecting consumers, and 
promoting innovation in the payments system.'' \39\ What are 
commenters' views regarding the Exchange's assertions?
---------------------------------------------------------------------------

    \37\ See id. at 55079.
    \38\ See id.
    \39\ See id. at 55080.
---------------------------------------------------------------------------

    4. The Exchange asserts that the use of the Index ``eliminates 
those bitcoin spot markets with indicia of suspicious, fake, or non-
economic volume from the NAV calculation methodology'' and the Index's 
use of multiple bitcoin spot markets mitigates ``the potential for 
idiosyncratic market risk, as the failure of any individual bitcoin 
spot market should not materially impact pricing for the Trust.'' \40\ 
In addition, the Exchange states that the Index's use of median prices 
``limits the ability of outlier prices, which may have been caused by 
attempts to manipulate the price on a particular market, to impact the 
NAV and that ``[a]ny attempt to manipulate the NAV would require a 
substantial amount of capital distributed across a majority of the 
eligible spot markets, and potentially coordinated activity across 
those markets, making it more difficult to conduct, profit from, or 
avoid the detection of market manipulation.'' \41\ What are commenters' 
views regarding these assertions?
---------------------------------------------------------------------------

    \40\ See id. at 55080.
    \41\ See id.
---------------------------------------------------------------------------

    5. The Exchange argues that because the Trust will process all 
creations and redemptions in in-kind transactions with authorized 
participants, the ``Trust is uniquely protected against potential 
attempts by bad actors to manipulate the price of bitcoin on sport 
markets contributing to the Index and thereby the Trust's NAV 
calculation.'' \42\ Do commenters agree with the Exchange's analysis 
and conclusion?
---------------------------------------------------------------------------

    \42\ See id.
---------------------------------------------------------------------------

    6. What are commenters' views generally with respect to the Trust's 
investment objectives? What are commenter's view regarding how the 
Trust intends to meet its investment objectives? Specifically, the 
Exchange states that ``[i]n establishing the Index, MVIS and the 
Sponsor created a robust, transparent process for quantifying the 
carbon footprint of bitcoin in a clear, repeatable manner.'' \43\ The 
Exchange also states that ``the creation of the Index and tokenization 
of the carbon offsets will provide additional transparency to investors 
with respect to the NAV of the Trust vis-[agrave]-vis the estimated 
carbon footprint of the bitcoin retired by the Trust, and will thus 
give investors an opportunity to independently monitor the Trust's 
efforts to offset the carbon emissions associated with its bitcoin 
holdings.'' \44\ What are commenters' views about the Exchange's 
assertions?
---------------------------------------------------------------------------

    \43\ See id. at 55074.
    \44\ See id. at 55076.
---------------------------------------------------------------------------

    7. Has the Exchange described the Trust in sufficient detail to 
support the finding that the proposal is consistent with the Exchange 
Act, including the requirement that it be designed to prevent 
fraudulent and manipulative acts and practices and to protect investors 
and the public interest? For example, according to the Exchange, the 
investment objective of the Trust is to track the performance of 
bitcoin, as measured by the Index, which represents the daily value of 
bitcoin less the estimated daily cost of offsetting carbon emission of 
a single bitcoin based on the MCO2 Token market price. The Exchange, 
however, also states that the Trust will purchase MCO2 Tokens on a 
quarterly basis at pre-negotiated prices.\45\ Given that the Trust will 
purchase and retire MCO2 Tokens on a quarterly basis, has the Exchange 
provided sufficient information regarding how the Trust will calculate 
its NAV daily, how its daily NAV calculations will relate to the 
Trust's quarterly settlements, or how the Share prices may be impacted 
by either the daily or quarterly accounting and any MCO2 Token price 
differentials between them? Moreover, according to the Exchange, the 
Trust will purchase the MCO2 Tokens at pre-negotiated prices but 
provides no further information regarding the price of MCO2 Tokens or 
carbon credits generally. The Exchange also contemplates that MCO2 
Tokens may not be available in some circumstances and that the 
agreement

[[Page 73829]]

with Moss will expire in 2023. Given that carbon mitigation is a key 
characteristic of the Trust and that both the Trust's daily NAV 
calculations and quarterly settlements incorporate costs of MCO2 
Tokens, is the information the Exchange provides sufficient to support 
the finding that the proposal is consistent with the Exchange Act?
---------------------------------------------------------------------------

    \45\ See id. at 55075.
---------------------------------------------------------------------------

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.\46\
---------------------------------------------------------------------------

    \46\ Section 19(b)(2) of the Act, as amended by the Securities 
Act 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 Act Amendments of 1975, Senate Comm. on 
Banking, Housing & Urban Affairs, S. Rep. No. 75, 94th Cong., 1st 
Sess. 30 (1975).
---------------------------------------------------------------------------

    Interested persons are invited to submit written data, views, and 
arguments regarding whether the proposal should be approved or 
disapproved by January 18, 2022. Any person who wishes to file a 
rebuttal to any other person's submission must file that rebuttal by 
February 1, 2022.
    Comments may be submitted by any of the following methods:

Electronic Comments

     Use the Commission's internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an email to [email protected]. Please include 
File Number SR-NYSEArca-2021-67 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-NYSEArca-2021-67. This 
file number should be included on the subject line if email is used. To 
help the Commission process and review your comments more efficiently, 
please use only one method. The Commission will post all comments on 
the Commission's internet website (http://www.sec.gov/rules/sro.shtml). 
Copies of the submission, all subsequent amendments, all written 
statements with respect to the proposed rule change that are filed with 
the Commission, and all written communications relating to the proposed 
rule change between the Commission and any person, other than those 
that may be withheld from the public in accordance with the provisions 
of 5 U.S.C. 552, will be available for website viewing and printing in 
the Commission's Public Reference Room, 100 F Street NE, Washington, DC 
20549 on official business days between the hours of 10:00 a.m. and 
3:00 p.m. Copies of the filing also will be available for inspection 
and copying at the principal office of the Exchange. All comments 
received will be posted without change. Persons submitting comments are 
cautioned that we do not redact or edit personal identifying 
information from comment submissions. You should submit only 
information that you wish to make available publicly. All submissions 
should refer to File Number SR-NYSEArca-2021-67 and should be submitted 
by January 18, 2022. Rebuttal comments should be submitted by February 
1, 2022.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\47\
---------------------------------------------------------------------------

    \47\ 17 CFR 200.30-3(a)(57).
---------------------------------------------------------------------------

J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2021-28112 Filed 12-27-21; 8:45 am]
BILLING CODE 8011-01-P