[Federal Register Volume 88, Number 175 (Tuesday, September 12, 2023)]
[Notices]
[Pages 62608-62610]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-19591]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-98302; File No. SR-NYSEARCA-2023-37]


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 COtwo Advisors Physical 
European Carbon Allowance Trust Under NYSE Arca Rule 8.201-E

September 6, 2023.
    On May 23, 2023, NYSE Arca, Inc. filed with the Securities and 
Exchange Commission (``Commission'' or ``NYSE Arca''), 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 of the COtwo Advisors Physical European Carbon Allowance Trust. 
The proposed rule change was published for comment in the Federal 
Register on June 12, 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. 97653 (June 6, 
2023), 88 FR 38110 (``Notice'').
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    On July 25, 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\ The Commission has received no comments on the proposal. 
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. 97972, 88 FR 49508 
(July 31, 2023). The Commission designated September 10, 2023, 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).
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I. Summary of the Exchange's Proposal

    As described in more detail in the Notice,\7\ the Exchange proposes 
to list and trade shares (``Shares'') of the COtwo Advisors Physical 
European Carbon Allowance Trust (``Trust'') \8\ under NYSE Arca Rule 
8.201-E, which governs the listing and trading of Commodity-Based Trust 
Shares. The sponsor of the Trust is COtwo Advisors LLC, a Delaware 
limited liability company (``Sponsor''). State Street Bank and Trust 
Company serves as the Trust's administrator (``Administrator'') and as 
the Trust's transfer agent and as custodian of the Trust's cash, if any 
(``Cash Custodian'').\9\
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    \7\ See Notice, supra note 3.
    \8\ According to the Exchange, the Trust, which was formed as a 
Delaware statutory trust on January 12, 2023, will not be registered 
as an investment company under the Investment Company Act of 1940, 
as amended, and is not a commodity pool for purposes of the 
Commodity Exchange Act, as amended. On May 12, 2023, the Trust filed 
with the Commission a registration statement on Form S-1 (File No. 
333-271910) (``Registration Statement'') under the Securities Act of 
1933. The Exchange represents that the Registration Statement is not 
yet effective, and the Shares will not trade on the Exchange until 
such time that the Registration Statement becomes effective.
    \9\ The Cash Custodian is responsible for holding the Trust's 
cash as well as receiving and dispensing cash on behalf of the Trust 
in connection with the payment of Trust expenses.
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Operation of the Trust

    The investment objective of the Trust will be for the Shares to 
reflect the performance of the price of EU Carbon Emission Allowances 
for stationary installations (``EUAs''), less the Trust's expenses.\10\ 
The Trust intends to achieve its objective by investing all of its 
assets in EUAs on a non-discretionary basis (i.e., without regard to 
whether the value of EUAs is rising or falling over any particular 
period).\11\

[[Page 62609]]

Shares of the Trust will represent units of fractional undivided 
beneficial interest in and ownership of the Trust. The Trust's only 
ordinary recurring expense will be the Sponsor's annual fee.\12\ The 
Trust will not hold any assets other than EUAs or possibly cash. The 
Trust may hold a very limited amount of cash to pay Trust expenses. The 
Trust may also cause the Sponsor to receive EUAs from the Trust in such 
a quantity as may be necessary to pay the Sponsor's annual fee.\13\
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    \10\ See Notice, supra note 3, 88 FR at 38110.
    \11\ Id.
    \12\ Id.
    \13\ Id.
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    The Trust will not invest in futures, options, or swap contracts on 
any futures exchange or in the over-the-counter market. The Trust will 
not hold or trade in commodity futures contracts, ``commodity 
interests,'' or any other instruments regulated by the Commodity 
Exchange Act. As stated above, the Trust's Cash Custodian may hold cash 
proceeds from EUA sales to pay Trust expenses. All EUAs will be held in 
the Union Registry (defined below). The Exchange states that the Trust 
is not a proxy for investing in physical carbon credits. Rather, 
according to the Exchange, the Shares are intended to provide a cost-
effective means of obtaining investment exposure to the price of EUAs 
through the securities markets that is similar to an investment in 
futures contracts or other derivatives.\14\
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    \14\ Id.
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Description of EUAs 15
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    \15\ Additional information about EUAs and the operation of the 
EUA markets can be found in the Notice and in the Registration 
Statement. See Notice, supra note 3; Registration Statement, supra 
note 8.
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    According to the Exchange, the European Union Emissions Trading 
System (``EU ETS'') is a ``cap and trade'' system that caps the total 
volume of greenhouse gas (``GHG'') emissions from installations and 
aircraft operators responsible for around 40% of EU GHG emissions.\16\ 
The EU ETS is the largest cap and trade system in the world and covers 
more than 11,000 power stations and industrial plants in 31 countries, 
and flights between airports of participating countries.\17\ The EU ETS 
is administered by the EU Commission, which issues a predefined amount 
of EUAs through auctions or free allocation. An EUA represents the 
right to emit one metric ton of carbon dioxide equivalent into the 
atmosphere by operators of stationary installations (``Covered 
Entities'').\18\ By the end of April each year, all Covered Entities 
are required to surrender EUAs equal to the total volume of actual 
emissions from their installation for the last calendar year. EU ETS 
operators can buy or sell EUAs to achieve EU ETS compliance.\19\
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    \16\ There are two types of European Union (``EU'') emissions 
allowances: (i) general allowances for stationary installations, or 
EUAs; and (ii) allowances for the aviation sector, or ``EUAAs.'' The 
Trust will hold EUAs only. See Notice, supra note 3, 88 FR at 38110.
    \17\ See id.
    \18\ Id. at 38111.
    \19\ Id.
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    In 2012, EU ETS operations were centralized into a single EU 
registry operated by the EU Commission (``Union Registry''), which 
covers all countries participating in the EU ETS.\20\ The Union 
Registry is an online database that holds accounts for all entities 
covered by the EU ETS as well as for participants (such as the Trust) 
not covered under the EU ETS. An account must be opened in the Union 
Registry in order to transact in EUAs, and the Union Registry is at all 
times responsible for holding the EUAs. All EUAs are held in the Union 
Registry.
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    \20\ Id.
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Trading and Pricing of EUAs

    According to the Exchange, there are two primary avenues for 
trading EUAs: a primary market and a secondary market. The primary 
market involves participation in a regularly scheduled auction.\21\ The 
secondary market involves transactions between buyers and sellers on 
regulated markets via trading in spot, options, and futures 
contracts.\22\ There are also over-the-counter transactions, but they 
comprise a negligible percentage of transactions.\23\
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    \21\ Id.
    \22\ Id.
    \23\ Id.
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    The Exchange represents that the EUA markets are generally liquid. 
EUA auctions are held on a near-daily basis throughout the year, other 
than between mid-December to mid-January, when auctions are paused.\24\ 
Prices achieved in these auctions are published on various publicly-
accessible websites, including the European Commission's primary 
website.
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    \24\ Id.
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    The secondary market trading takes place predominantly on the 
European Energy Exchange AG (``EEX'') and ICE Endex.\25\ As of January 
2023, the secondary market had average daily trading volume of [euro]2 
billion, with the majority of the liquidity in the futures market.\26\ 
Prices for secondary market transactions are published on various 
publicly-accessible websites, including those of EEX and ICE Endex.\27\ 
Both EEX and ICE Endex are affiliates of Exchange groups that are 
members of the Intermarket Surveillance Group.
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    \25\ Id.
    \26\ Id.
    \27\ Id.
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    Most liquidity in the secondary market is achieved by trading 
futures contracts. These contracts have expiration going out as far as 
2030. The most liquid contract is the single day futures contract on 
EUAs (``Daily EUA Future''), which settles each day at the close of 
trading.\28\ Generally, Daily EUA Futures trade from approximately 2:00 
a.m. Eastern Time (``E.T.'') to approximately 12:00 p.m. E.T. The 
settlement price is fixed each business day and is published at 
approximately 12:15 E.T. Final cash settlement occurs the first 
business day following the expiry day.
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    \28\ Id.
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    In 2021, the secondary spot market for EUAs (including the Daily 
EUA Future) averaged around 2.4 million EUAs daily, and the primary 
auctions accounted for almost 2.5 million EUAs being auctioned several 
times per week.\29\ The current value (spot price) for an EUA is 
greatly influenced by a number of factors, including regulatory 
changes, world events, and the general level of economic activity.\30\
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    \29\ Id.
    \30\ Id.
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Net Asset Value (``NAV'')

    The Trust's NAV is calculated by taking the current market value of 
its total assets, less any liabilities of the Trust, and dividing that 
total by the total number of outstanding Shares. The Administrator will 
calculate the NAV of the Trust once each Exchange trading day. The NAV 
for a normal trading day will be released after the end of the Core 
Trading Session, which is typically 4:00 p.m. New York time. The NAV 
for the Trust's Shares will be disseminated daily to all market 
participants at the same time. The Administrator will use the 
settlement price for the Daily EUA Futures established by ICE Endex to 
calculate the NAV.

II. Proceedings To Determine Whether To Approve or Disapprove SR-
NYSEARCA-2023-37 and Grounds for Disapproval Under Consideration

    The Commission is instituting proceedings pursuant to Section 
19(b)(2)(B) of the Act \31\ 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

[[Page 62610]]

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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    \31\ 15 U.S.C. 78s(b)(2)(B).
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    Pursuant to Section 19(b)(2)(B) of the Act,\32\ 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.'' \33\
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    \32\ Id.
    \33\ 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,\34\ 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:
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    \34\ See Notice, supra note 3.
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     According to the Exchange, the investment objective of the 
Trust will be for the Shares to reflect the performance of the price of 
EUAs, and that the Trust intends to achieve its objective by investing 
all of its assets in EUAs on a non-discretionary basis and will not 
hold or trade in commodity futures contracts.\35\ The Exchange further 
represents, however, that the Trust is not a proxy for investing in 
physical carbon credits, and that the Administrator will use the 
settlement price for the Daily EUA Futures established by ICE Endex to 
calculate the NAV.\36\ What are commenters' views on the Trust's 
holdings in spot EUAs, on the one hand, and its method of calculating 
NAV based on the settlement price of Daily EUA Futures, on the other? 
What are commenters' views on the correlation in pricing between the 
EUA and Daily EUA Futures markets?
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    \35\ See id. at 38110.
    \36\ See id.; id. at 38112.
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     The Exchange asserts that the proposed rule change is 
designed to prevent fraudulent and manipulative acts and practices in 
that the Shares will be listed and traded on the Exchange pursuant to 
the initial and continued listing criteria in NYSE Arca Rule 8.201-E. 
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?

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.\37\
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    \37\ 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).
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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 October 3, 2023. Any person who wishes to file a 
rebuttal to any other person's submission must file that rebuttal by 
October 17, 2023.
    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-NYSEARCA-2023-37 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-2023-37. 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-NYSEARCA-2023-37 and should 
be submitted on or before October 3, 2023. Rebuttal comments should be 
submitted by October 17, 2023.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\38\
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    \38\ 17 CFR 200.30-3(a)(57).
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Sherry R. Haywood,
Assistant Secretary.
[FR Doc. 2023-19591 Filed 9-11-23; 8:45 am]
BILLING CODE 8011-01-P