[Federal Register Volume 87, Number 195 (Tuesday, October 11, 2022)]
[Notices]
[Pages 61418-61420]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-21982]


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

SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-95978; File No. SR-CboeBZX-2022-035]


Self-Regulatory Organizations; Cboe BZX Exchange, Inc.; Order 
Instituting Proceedings To Determine Whether To Approve or Disapprove 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

October 4, 2022.
    On June 24, 2022, 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 
(``Act'') \1\ and Rule 19b-4 thereunder,\2\ a proposed rule change to 
list and trade shares (``Shares'') of the VanEck 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 July 13, 2022.\3\ The Commission has received no comments 
on the proposed rule change.
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ See Securities Exchange Act Release No. 95218 (July 7, 
2022), 87 FR 41755 (``Notice'').
---------------------------------------------------------------------------

    On August 24, 2022, 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

[[Page 61419]]

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. 95596, 87 FR 53038 
(Aug. 30, 2022). The Commission designated October 11, 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 BZX Rule 14.11(e)(4), 
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 would be for the Shares to 
reflect the performance of the MVIS[supreg] CryptoCompare Bitcoin 
Benchmark Rate (``Benchmark''), less the expenses of the Trust's 
operations.\8\ The Benchmark will be used to calculate the Trust's net 
asset value (``NAV''). The Benchmark is designed to be a price for 
bitcoin in USD, and there is no component other than bitcoin in the 
Benchmark. The current platform composition of the Benchmark is 
Bitstamp, Coinbase, Gemini, itBit, and Kraken. In calculating the 
Benchmark, the methodology captures trade prices and sizes from 
platforms and examines twenty three-minute periods leading up to 4:00 
p.m. E.T. It then calculates an equal-weighted average of the volume-
weighted median price of these twenty three-minute periods, removing 
the highest and lowest contributed prices.\9\
---------------------------------------------------------------------------

    \8\ See Notice, supra note 3, 87 FR at 41765. VanEck Digital 
Assets, LLC is the sponsor of the Trust, and Delaware Trust Company 
is the trustee. The State Street Bank and Trust Company will be the 
administrator (``Administrator'') and transfer agent. Van Eck 
Securities Corporation will be the marketing agent in connection 
with the creation and redemption of Shares. Van Eck Securities 
Corporation provides assistance in the marketing of the Shares. See 
id. at 41764. A third-party regulated custodian (``Custodian'') will 
be responsible for custody of the Trust's bitcoin. See id. at 41755.
    \9\ See id. at 41765.
---------------------------------------------------------------------------

    Each Share will represent a fractional undivided beneficial 
interest in the Trust's net assets. The Trust's assets will consist of 
bitcoin held by the Custodian on behalf of the Trust. The Trust 
generally does not intend to hold cash or cash equivalents. However, 
there may be situations where the Trust will unexpectedly hold cash on 
a temporary basis.\10\
---------------------------------------------------------------------------

    \10\ See id. at 41764.
---------------------------------------------------------------------------

    The Administrator will determine the NAV and NAV per Share of the 
Trust on each day that the Exchange is open for regular trading, as 
promptly as practical after 4:00 p.m. E.T. The NAV of the Trust is the 
aggregate value of the Trust's assets less its estimated accrued but 
unpaid liabilities (which include accrued expenses). In determining the 
Trust's NAV, the Administrator values the bitcoin held by the Trust 
based on the price set by the Benchmark as of 4:00 p.m. E.T.\11\
---------------------------------------------------------------------------

    \11\ See id. at 41766.
---------------------------------------------------------------------------

    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.\12\
---------------------------------------------------------------------------

    \12\ See id. at 41765.
---------------------------------------------------------------------------

    When the Trust sells or redeems its Shares, it will do so in ``in-
kind'' transactions in blocks of 50,000 Shares at the Trust's NAV. 
Authorized participants will deliver, or facilitate the delivery of, 
bitcoin to the Trust's account with the Custodian in exchange for 
Shares when they purchase Shares, and the Trust, through the Custodian, 
will deliver bitcoin to such authorized participants when they redeem 
Shares with the Trust.\13\
---------------------------------------------------------------------------

    \13\ See id. at 41764-65.
---------------------------------------------------------------------------

II. Proceedings To Determine Whether To Approve or Disapprove SR-
CboeBZX-2022-035 and Grounds for Disapproval Under Consideration

    The Commission is instituting proceedings pursuant to Section 
19(b)(2)(B) of the Act \14\ 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.
---------------------------------------------------------------------------

    \14\ 15 U.S.C. 78s(b)(2)(B).
---------------------------------------------------------------------------

    Pursuant to Section 19(b)(2)(B) of the Act,\15\ 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.'' \16\
---------------------------------------------------------------------------

    \15\ Id.
    \16\ 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,\17\ 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:
---------------------------------------------------------------------------

    \17\ 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. Based on data and analysis provided and the academic research 
cited by the Exchange,\18\ do commenters agree with the Exchange that 
the Chicago Mercantile Exchange (``CME'') on which bitcoin futures 
contracts trade (``CME Bitcoin Futures'') represents a regulated market 
of significant size related to spot bitcoin? \19\ 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? Do commenters agree with the Exchange's 
assertion that the combination of (a) the in-kind creation and 
redemption process; (b) CME Bitcoin Futures leading price discovery; 
(c) the overall size of the bitcoin market; and (d) the ability for 
market participants to buy or sell large amounts of bitcoin without 
significant market impact, helps to prevent the Shares from becoming 
the predominant force on pricing in either the spot bitcoin or CME 
Bitcoin Futures markets? \20\
---------------------------------------------------------------------------

    \18\ See id. at 41761-62, 41763 n.51.
    \19\ See id. at 41763.
    \20\ See id. at 41764.

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

[[Page 61420]]

    3. The Exchange states that bitcoin is resistant to price 
manipulation and that other means to prevent fraudulent and 
manipulative acts and practices exist to justify dispensing with the 
requirement to enter into a comprehensive surveillance-sharing 
agreement with a regulated market of significant size related to spot 
bitcoin.\21\ Do commenters believe the Exchange has shown that the 
bitcoin market is resistant to price manipulation or that other means 
to prevent fraudulent and manipulative acts and practices exist to 
justify dispensing with the relevant surveillance-sharing agreement?
---------------------------------------------------------------------------

    \21\ See id. at 41763 n.54.
---------------------------------------------------------------------------

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.\22\
---------------------------------------------------------------------------

    \22\ 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 November 1, 2022. Any person who wishes to file a 
rebuttal to any other person's submission must file that rebuttal by 
November 15, 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-CboeBZX-2022-035 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-CboeBZX-2022-035. 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 (http://www.sec.gov/rules/sro.shtml). 
Copies of the submission, all subsequent amendments, all written 
statements with respect to the proposed rule change that are filed with 
the Commission, and all written communications relating to the proposed 
rule change between the Commission and any person, other than those 
that may be withheld from the public in accordance with the provisions 
of 5 U.S.C. 552, will be available for website viewing and printing in 
the Commission's Public Reference Room, 100 F Street NE, Washington, DC 
20549 on official business days between the hours of 10:00 a.m. and 
3:00 p.m. Copies of the filing also will be available for inspection 
and copying at the principal office of the Exchange. All comments 
received will be posted without change. Persons submitting comments are 
cautioned that we do not redact or edit personal identifying 
information from comment submissions. You should submit only 
information that you wish to make available publicly. All submissions 
should refer to File Number SR-CboeBZX-2022-035 and should be submitted 
by November 1, 2022. Rebuttal comments should be submitted by November 
15, 2022.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\23\
---------------------------------------------------------------------------

    \23\ 17 CFR 200.30-3(a)(57).
---------------------------------------------------------------------------

J. Matthew DeLesDernier,
Deputy Secretary.
[FR Doc. 2022-21982 Filed 10-7-22; 8:45 am]
BILLING CODE 8011-01-P