[Federal Register Volume 89, Number 123 (Wednesday, June 26, 2024)]
[Notices]
[Pages 53466-53468]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-13940]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-100390; File No. SR-NYSEARCA-2024-27]


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 7RCC Spot Bitcoin and 
Carbon Credit Futures ETF Under NYSE Arca Rule 8.500-E (Trust Units)

June 20, 2024.

I. Introduction

    On March 13, 2024, 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 7RCC Spot Bitcoin and Carbon 
Credit Futures ETF (``Fund'') under NYSE Arca Rule 8.500-E (Trust 
Units). The proposed rule change was published for comment in the 
Federal Register on March 26, 2024.\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. 99801 (Mar. 20, 
2024), 89 FR 21104 (``Notice''). Comments on the proposed rule 
change are available at: https://www.sec.gov/comments/sr-nysearca-2024-27/srnysearca202427.htm.
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    On May 2, 2024, 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 is publishing this order to institute 
proceedings pursuant to 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. 100050, 89 FR 38932 
(May 8, 2024). The Commission designated June 24, 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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II. Exchange's Description of the Proposed Rule Change 7
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    \7\ Additional information regarding the Fund and the Shares, 
carbon markets and Carbon Credit Futures (as defined herein), and 
bitcoin and bitcoin markets, among other things, can be found in the 
Notice, supra note 3.
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    The Exchange proposes to list and trade Shares of the Fund under 
NYSE Arca Rule 8.500-E, which governs the listing and trading of Trust 
Units.\8\ The Fund is a series of the Tidal Commodities Trust I 
(``Trust''), a Delaware statutory trust organized on February 10, 
2023.\9\ The Trust will not

[[Page 53467]]

be registered as an investment company under the Investment Company Act 
of 1940. The sponsor of the Trust, Tidal Investments LLC (``Sponsor''), 
is registered as a commodity pool operator and a commodity trading 
adviser with the Commodity Futures Trading Commission and is a member 
of the National Futures Association.
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    \8\ NYSE Arca Rule 8.500-E defines Trust Units as securities 
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.
    \9\ The Exchange represents that, on December 18, 2023, the 
Trust filed with the Commission a registration statement on Form S-1 
(``Registration Statement'') under the Securities Act of 1933. 
According to the Exchange, the Registration Statement is not yet 
effective, and the Shares will not trade on the Exchange until such 
time that the Registration Statement is effective.
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    The administrator of the Fund is Tidal ETF Services 
(``Administrator''). The custodian of the Fund's bitcoin holdings is 
Gemini Trust Company, LLC. The Sponsor will appoint a non-digital 
custodian, who will serve as the Fund's custodian with respect to its 
cash and cash equivalents,\10\ as well as any investments in connection 
with its exposure to Carbon Credit Futures (as defined herein).
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    \10\ According to the Exchange, ``Cash Equivalents'' shall mean 
such investments that, in the view of the Sponsor, are of high 
credit quality and liquidity and can be converted to cash quickly. 
Such investments shall include, but are not limited to, (a) cash; 
(b) debt securities issued or directly or indirectly fully 
guaranteed or insured by the United States or any agency or 
instrumentality thereof; (c) commercial paper or finance company 
paper of sufficient credit quality in the view of the Sponsor; or 
(d) money market mutual funds.
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The Fund's Investment Objective and Strategy

    According to the Exchange, the Fund's investment objective is to 
reflect the daily changes of the price of bitcoin \11\ and the value of 
carbon credit futures contracts (``Carbon Credit Futures''),\12\ as 
represented by the Vinter Bitcoin Carbon Credits Index (``Index''), 
less expenses from the Fund's operations. The Fund will pursue its 
investment objective by investing 80% of its assets in bitcoin and the 
remaining 20% of its assets in financial instruments, including swap 
agreements, that provide exposure to Carbon Credit Futures represented 
by the Index.
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    \11\ According to the Exchange, bitcoin is the digital asset 
that is native to, and created and transmitted through the 
operations of, the peer-to-peer Bitcoin Network, a decentralized 
network of computers that operates on cryptographic protocols. See 
Notice, supra note 3, 89 FR at 21105.
    \12\ According to the Exchange, carbon markets are designed to 
reduce greenhouse gas (``GHG'') emissions and promote sustainable 
development by putting a price on carbon. Carbon markets are markets 
where GHG emissions are commodified as a tradable unit either as an 
emission allowance in government compliance markets or as a verified 
emission reduction/removal credit in voluntary markets. There are 
two types of instruments that are traded in carbon markets: carbon 
credits (sometimes called ``allowances'') and carbon offsets. The 
two main types of carbon markets are compliance carbon markets and 
voluntary carbon markets. See Notice, supra note 3, 89 FR at 21108-
09. The Exchange further explains that Carbon Credit Futures are 
futures contracts on emissions allowances issued by various ``cap-
and-trade'' regulatory regimes that seek to reduce GHGs over time. A 
cap-and-trade regime typically involves a regulator setting a limit 
on the total amount of specific GHGs (such as carbon dioxide 
(``CO2'')) that can be emitted by regulated entities. 
Capping and reducing the cap on GHGs is viewed as a key policy tool 
in reaching climate change objectives. The regime is designed to 
promote sustainable development by putting a price on carbon 
emissions. The regulator will then issue or sell ``emissions 
allowances'' to regulated entities, which in turn may buy or sell 
the emissions allowances to the open market. To the extent that the 
regulator may then reduce the cap on emission allowances, regulated 
entities are incentivized to reduce their emissions; otherwise, they 
must purchase additional emission allowances on the open market, 
where the price of such allowances will likely be increasing as a 
result of demand, and regulated entities that reduce their emissions 
will be able to sell unneeded emission allowances for profit. An 
emission allowance or carbon credit is a unit of emissions 
(typically one ton of CO2) that the owner of the 
allowance or credit is permitted to emit. Futures contracts linked 
to the value of emission allowances are known as carbon credit 
futures. See Notice, supra note 3, 89 FR at 21105.
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The Index

    The Index is designed to track the performance of investing in a 
portfolio comprised of 80% bitcoin and 20% Carbon Credit Futures, which 
are linked to the value of emissions allowances issued under the 
following cap-and-trade regimes: the European Union Emissions Trading 
System (``EU ETS''); the California Carbon Allowance (``CCA''); and 
Regional Greenhouse Gas Initiative (``RGGI'').\13\ Because the Fund's 
investment objective is to track the daily changes of the price of 
bitcoin and Carbon Credit Futures, changes in the price of the Shares 
will vary from changes in the spot price of bitcoin, carbon credits, 
and Carbon Credit Futures individually.\14\ The Index is rebalanced 
quarterly, starting at the end of January. After a rebalance, the 
portfolio is updated so that its current weights per asset equal the 
rebalancing weights per asset.\15\
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    \13\ See Notice, supra note 3, 89 FR at 21109.
    \14\ See id.
    \15\ See id.
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    Invierno AB (``Vinter'') \16\ is the benchmark administrator for 
the bitcoin portion of the Index and is the central recipient of input 
data and evaluates the integrity and accuracy of input data on a 
consistent basis.\17\ To calculate the value of bitcoin, Vinter selects 
what it considers to be reputable bitcoin trading platforms and takes 
the last price on each trading platform. Vinter then takes the median 
price across these trading platforms and calculates the average price 
during the selected time window to determine the value of bitcoin at 
4:00 p.m. Eastern Time.\18\
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    \16\ According to the Exchange, Vinter is a registered benchmark 
administrator governed by the European Benchmarks Regulation (2016/
1011) and included in the European Securities and Markets 
Authority's register over benchmark administrators. See id.
    \17\ See id.
    \18\ See id. According to the Exchange, the Fund uses the same 
methodology as the Index to determine the value of bitcoin for 
purposes of calculating the net asset value of the Fund. The Index 
requires each digital asset trading platform used to calculate the 
price of bitcoin to meet each of the following criteria: operating 
history as a digital asset trading platform for a minimum of two 
years; implemented trading, deposits, and withdrawal fees for a 
minimum of one month without interruption; met a minimum monthly 
volume threshold of $30 million with respect to total trading 
volume; provided reliable, continuous, and valid market data for a 
minimum of one month; offered the possibility to withdraw and 
deposit for a minimum of one month, settling in two to seven 
business days; chosen a jurisdiction of incorporation that offers 
sufficient investor protection, such as Financial Action Task Force 
(``FATF''), FATF-style regional bodies, or Moneyval member states; 
complied with relevant anti-money laundering and know-your-customer 
regulations; cooperated with requests from Vinter and relevant 
regulatory bodies; has not been domiciled in a jurisdiction subject 
to European Union restrictive measures (sanctions); provided 
information concerning ownership and corporate structure; and has 
not been declared unlawful by any governmental authority or agency 
with jurisdiction over the exchange. The Exchange states that 
digital asset trading platforms meeting these criteria are used to 
calculate the price of the bitcoin portion of the Index (``Index 
Pricing Sources''). The selection of Index Pricing Sources may 
evolve from time to time, and Vinter may make changes to the 
eligibility requirements. The Exchange represents that the following 
digital asset trading platforms are used to calculate the Index 
price: Kraken, Coinbase, Bitstamp, Itbit, Gemini, Gate.io, and 
Crypto.com. See id.
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    Solactive is the benchmark administrator for the Carbon Credit 
Futures portion of the Index. Solactive calculates the value of the 
Carbon Credit Futures portion of the Index and the value of the overall 
Index.\19\ The Carbon Credit Futures component of the Index is built 
with a combination of three carbon credit indices, each of which is 
calculated and administered by a third party: (i) Solactive Carbon 
European Union Allowance Futures ER Index (SOCARBN), which tracks EU 
ETS futures; (ii) Solactive California Carbon Rolling Futures ER Index 
(SOCCAER), which tracks CCA futures; and (iii) an index that tracks 
RGGI futures.\20\ The weights of the components are adjusted once per 
year (in November) and the weights are proportional to the trading 
volume over the last six months. The combination of exposure to the 
three underlying indices provides the Index with returns tied to 
futures contracts on carbon credits connected to EU ETS, CCA, and RGGI. 
The value of the Carbon Credit Futures that comprise the Index will be 
based on market prices. The Index includes only Carbon Credit

[[Page 53468]]

Futures that mature in December of the next one to two years.\21\
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    \19\ See id.
    \20\ See id.
    \21\ See id.
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III. Proceedings To Determine Whether To Approve or Disapprove SR-
NYSEARCA-2024-27 and Grounds for Disapproval Under Consideration

    The Commission is instituting proceedings pursuant to Section 
19(b)(2)(B) of the Act \22\ to determine whether the proposed rule 
change should be approved or disapproved. Institution of such 
proceedings is appropriate at this time in view of the legal and policy 
issues raised by the proposal. 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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    \22\ 15 U.S.C. 78s(b)(2)(B).
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    Pursuant to Section 19(b)(2)(B) of the Act,\23\ the Commission is 
providing notice of the grounds for disapproval under consideration. 
The Commission is instituting proceedings to allow for additional 
analysis of the proposal'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.'' \24\
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    \23\ Id.
    \24\ 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, including the information provided about the investment 
objective of and the underlying assets held by the Fund, particularly 
regarding the Carbon Credit Futures, in addition to any other comments 
they may wish to submit about the proposed rule change. Given the 
nature of the underlying assets held by the Fund, the Commission seeks 
commenters' views on whether the proposed Fund and Shares would be 
susceptible to manipulation, as well as commenters' views, generally, 
on whether the Exchange's proposal is designed to prevent fraudulent 
and manipulative acts and practices.

IV. 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 proposed rule change 
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.\25\
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    \25\ 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 July 17, 2024. Any person who wishes to file a 
rebuttal to any other person's submission must file that rebuttal by 
July 31, 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-NYSEARCA-2024-27 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-2024-27. 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-2024-27 and should 
be submitted on or before July 17, 2024. Rebuttal comments should be 
submitted by July 31, 2024.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\26\
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    \26\ 17 CFR 200.30-3(a)(57).
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Vanessa A. Countryman,
Secretary.
[FR Doc. 2024-13940 Filed 6-25-24; 8:45 am]
BILLING CODE 8011-01-P