[Federal Register Volume 89, Number 127 (Tuesday, July 2, 2024)]
[Notices]
[Pages 54868-54878]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-14516]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-100434; File No. SR-NASDAQ-2024-028]


Self-Regulatory Organizations; The Nasdaq Stock Market LLC; 
Notice of Filing of Proposed Rule Change To List and Trade Shares of 
the Hashdex Nasdaq Crypto Index US ETF Under Nasdaq Rule 5711(d)

June 26, 2024.
    Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 
(``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that 
on June 17, 2024, The Nasdaq Stock Market LLC (``Nasdaq'' or 
``Exchange'') filed with the Securities and Exchange Commission 
(``SEC'' or ``Commission'') the proposed rule change as described in 
Items I, II, and III, below, which Items have been prepared by the 
Exchange. The

[[Page 54869]]

Commission is publishing this notice to solicit comments on the 
proposed rule change from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    The Exchange proposes to list and trade shares of the Hashdex 
Nasdaq Crypto Index US ETF (the ``Trust'') under Nasdaq Rule 5711(d). 
The units of the Trust are referred to herein as the ``Shares.''

II. Self-Regulatory Organization's Statement of the Purpose of, and 
Statutory Basis for, the Proposed Rule Change

    In its filing with the Commission, the Exchange included statements 
concerning the purpose of and basis for the proposed rule change and 
discussed any comments it received on the proposed rule change. The 
text of these statements may be examined at the places specified in 
Item IV below. The Exchange has prepared summaries, set forth in 
sections A, B, and C below, of the most significant aspects of such 
statements.

A. Self-Regulatory Organization's Statement of the Purpose of, and 
Statutory Basis for, the Proposed Rule Change

1. Purpose
    The Exchange proposes to list and trade Shares of the Trust under 
Nasdaq Rule 5711(d), which governs the listing and trading of 
``Commodity-Based Trust Shares.'' The Trust is managed and controlled 
by the Hashdex Asset Management Ltd. (``Sponsor'') and administered by 
Tidal ETF Services LLC (the ``Administrator''). The Shares will be 
registered with the SEC by means of the Trust's registration statement 
on Form S-1 (the ``Registration Statement'').\3\
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    \3\ 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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Description of the Trust
    The Shares will be issued by the Trust, a Delaware statutory trust 
to be established by the Sponsor. The Trust will operate pursuant to 
the rules and guidelines set forth in the Trust agreement (``Trust 
Agreement''). The Trust will issue Shares representing fractional 
undivided beneficial interests in its net assets. The assets of the 
Trust will consist of bitcoin and ether. Under limited circumstances, 
the Trust will hold cash to bear its expenses. The Trust will not be an 
investment company registered under the Investment Company Act of 1940, 
as amended (the ``1940 Act''), and will not be a commodity pool under 
the Commodity Exchange Act.
    U.S. Bancorp Fund Services, LLC will be the sub-administrator, and 
transfer agent for the Trust (``Sub-Administrator'' or ``Transfer 
Agent''). U.S. Bank, N.A. will hold the Trust's cash and/or cash 
equivalents \4\ (``Cash Custodian''). The Sponsor intends to enter into 
an agreement with Coinbase Custody Trust Company, LLC and BitGo Trust 
Company, Inc. (``Crypto Custodians'', and together with the Cash 
Custodian, the ``Custodians''). The Crypto Custodians will keep custody 
of all the Trust's bitcoin and ether.\5\
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    \4\ ``Cash equivalents'' include short-term treasury bills (90 
days or less to maturity), money market funds, and demand deposit 
accounts. The Trust does not hold, invest in, or trade in crypto 
assets that are linked to any fiat currency (i.e., stablecoins).
    \5\ The Trust may engage additional custodians for its crypto 
assets, each of whom may be referred to as a Crypto Custodian. The 
Trust may also remove or change current Crypto Custodians, provided 
that there is at least one Crypto Custodian at all times.
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The Trust's Investment Objective
    The investment objective of the Trust is to have the daily changes 
in the net asset value (``NAV'') of the Shares correspond to the daily 
changes in the price of the Nasdaq Crypto US Settlement Price Index,\6\ 
NCIUSS (the ``NCIUSS'' or ``Index''), less expenses and liabilities 
from the Trust's operations, by investing in bitcoin and ether.
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    \6\ See https://indexes.nasdaqomx.com/docs/Methodology_NCIUS.pdf.
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    The Shares are designed to provide a straightforward means of 
obtaining investment exposure to bitcoin and ether through the public 
securities market, as opposed to direct acquisition, holding, and 
trading of spot crypto assets on a peer-to-peer or other basis or via a 
crypto asset platform. The Shares have been designed to remove the 
obstacles represented by the complexities and operational burdens 
involved in a direct investment in bitcoin and ether, while at the same 
time having an intrinsic value that reflects, at any given time, the 
investment exposure to the assets owned by the Trust at such time, less 
the Trust's expenses and liabilities. The Shares provide investors with 
an alternative method of achieving exposure to the crypto asset markets 
through the public securities market, which may be more familiar to 
them.
    The Trust will gain exposure to crypto assets by buying spot 
bitcoin and spot ether. The Trust will maintain cash balances to the 
extent it is necessary for currently due Trust-payable expenses.
    If there are no Share redemption orders or currently due Trust-
payable expenses, the Trust's portfolio is expected to consist of 
bitcoin and ether. The Trust will not invest in any other spot crypto 
asset besides bitcoin and ether. The Trust will not invest in crypto 
securities, tokenized assets or stablecoins. As of May 27, 2024, the 
crypto asset constituents of the Index (``Index Constituents'') and 
their weightings \7\ were as follows:
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    \7\ The Index Constituents will be weighted according to their 
relative free float market capitalizations, as described in the next 
section ``The Trust's Benchmark''.

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                        Constituents                          Weight (%)
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Bitcoin (BTC)...............................................       70.54
Ether (ETH).................................................       29.46
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    The Sponsor will employ a passive investment strategy that is 
intended to track the changes in the Index regardless of whether the 
Index goes up or goes down, meaning that the Sponsor will not try to 
``beat'' the Index. The Trust's passive investment strategy is designed 
to allow investors to purchase and sell the Shares for the purpose of 
investing in the Index, whether to hedge the risk of losses in their 
Index-related transactions or gain price exposure to the Index. The 
Trust's investments will be consistent with the Trust's investment 
objective and will not be used to enhance leverage. That is, given its 
passive investment strategy, the Trust's investments will not be used 
to seek performance that is the multiple or inverse multiple (e.g., 
2Xs, 3Xs, -2Xs, and -3Xs) of the Trust's Index.
    None of the Trust, the Sponsor, any Crypto Custodian, or any other 
person associated with the Trust will, directly or indirectly, engage 
in action where any portion of the Trust's ether becomes subject to the 
Ethereum proof-of-stake validation or is used to earn additional ether 
or generate income or other earnings.
    From time to time, the Trust may be entitled to or come into 
possession of rights to acquire, or otherwise establish dominion and 
control over, any crypto asset (for avoidance of doubt, other than 
bitcoin and ether) or other asset or right, which rights are incident 
to the Trust's ownership of bitcoin or ether and arise without any 
action of the Trust, or of the Sponsor (``Incidental Rights'') and/or 
crypto assets, or other assets or rights, acquired by the Trust through 
the exercise of any Incidental Right (``IR Virtual Currency'') by 
virtue of its

[[Page 54870]]

ownership of bitcoin or ether, generally through a fork in the Bitcoin 
or Ethereum blockchain, an airdrop offered to holders of bitcoin or 
ether or other similar event.
    With respect to a fork, airdrop or similar event, the Sponsor will 
cause the Trust to permanently and irrevocably abandon any such 
Incidental Rights and IR Virtual Currency and no such Incidental Right 
or IR Virtual Currency shall be taken into account for purposes of 
determining the NAV of the Trust.
    In the event that any other crypto asset is included (other than 
bitcoin or ether), or is eligible for inclusion as an Index Constituent 
(as defined below), the Sponsor will transition the Trust's investment 
strategy from full replication \8\ to sample replication,\9\ with only 
bitcoin and ether in the same proportions determined by the Index, and 
determine whether a filing with the Commission under Rule 19b-4 of the 
Act will be required.
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    \8\ Full replication is an investment strategy where the fund 
invests in all the components of the index in their exact weights, 
providing precise tracking of the index performance.
    \9\ Sample replication is a strategy where the fund invests in a 
representative sample of the index components, which may not include 
all index components, to achieve similar performance. This approach 
is typically used to reduce costs or when full replication is 
impractical.
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The Trust's Benchmark
    The Trust will use the Index as a reference to track and measure 
its performance compared to the price performance of the markets for 
the Index Constituents and for valuation purposes when calculating the 
Trust's NAV.
    The Index is designed to measure the performance of a portion of 
the overall crypto asset market. The Index does not track the overall 
performance of all crypto assets generally, nor the performance of any 
specific crypto assets. The Index is owned and administered by Nasdaq, 
Inc. (``Index Provider'') and is calculated by CF Benchmarks Limited 
(``Calculation Agent''), which is experienced in calculating and 
administering crypto assets indices. The Calculation Agent publishes 
daily the Index Constituents, the Index Constituents' weightings, the 
intraday value of the Index (under the ticker NCIUS), and the daily 
settlement value of the Index (under the ticker NCIUSS), which is 
effectively the Index's closing value.
    The Index is derived from a rules-based methodology (``Index 
Rules''), which is overseen by the Nasdaq Cryptocurrency Index 
Oversight Committee (``NCIOC''). The NCIOC governs the Index and is 
responsible for its implementation, administration, and general 
oversight, including assessing crypto assets for eligibility, 
adjustments to account for regulatory changes and periodic methodology 
reviews. The Index Rules may only be changed by the Index Provider with 
the approval of the NCIOC. Neither the Trust, nor the Sponsor have 
control over the Index Rules or the Index administration. Changes to 
Index Rules may result in adverse effects to the Trust and/or in the 
ability of the Sponsor to implement the Trust's investment strategy.
    Crypto assets are eligible for inclusion in the Index if they 
satisfy the criteria set forth under the Nasdaq Crypto US Index 
methodology, which includes being currently listed on a U.S.-regulated 
digital asset trading platform or serving as the underlying asset for a 
derivative instrument listed on a U.S.-regulated derivatives platform. 
The Index adjusts its constituents and weightings on a quarterly basis 
to reflect changes in the crypto asset markets.
    Pursuant to the Index Rules, to be eligible for inclusion in the 
Index, crypto assets must meet the following criteria on a quarterly 
basis:
    (1) Have active tradable markets listed on at least two Core Crypto 
Platforms (as defined below) for the entire period since the previous 
Index reconstitution;
    (2) Be supported by at least one Core Custodian (as defined below) 
for the entire period since the previous Index reconstitution.
    (3) To be considered for entry to the Index at any Index 
reconstitution, an asset must have a median daily trading volume in the 
USD pair conducted across all Core Crypto Platforms that is no less 
than 0.5% of the cryptocurrency asset that has the highest median daily 
trading volume.
    (4) Be currently listed on a U.S.-regulated digital asset trading 
platform or serve as the underlying asset for a derivative instrument 
listed on a U.S.-regulated derivatives platform.
    (5) Have free-floating pricing (i.e., not be pegged to the value of 
any asset).
    If a crypto asset meets requirements (1) through (5), it will be 
considered eligible for Index inclusion.
    Notwithstanding inclusion in the eligible list, the NCIOC reserves 
the right to further exclude any additional assets based on one or more 
factors, including but not limited to its risk of being deemed a 
security by United States Securities laws along with its review of 
general reputational, fraud, manipulation, or security concerns 
connected to the asset. Assets that, in the sole discretion of the 
Nasdaq Crypto Index Oversight Committee, do not offer utility, do not 
facilitate novel use cases, or that do not exhibit technical, 
structural or cryptoeconomic innovation (e.g., assets inspired by memes 
or internet jokes) may also be excluded.
    The Index will assess any crypto assets resulting from a hard fork 
or an airdrop under the same criteria as established digital assets and 
will only include a new digital asset if it meets the eligibility 
criteria set forth above.
    Moreover, notwithstanding the above, the Sponsor will not invest 
the Trust's assets in any other crypto assets (i.e., other than bitcoin 
and ether), even if such other crypto assets are included in the Index 
pursuant to the Index Rules and the eligibility criteria above.
    The Index Constituents will be weighted according to their relative 
free float market capitalizations. The free float market capitalization 
of an Index Constituent on any given day is defined as the product of 
an Index Constituent Settlement Price (as defined below) and its 
Circulating Supply \10\ as set in the most recent reconstitution. 
Weights are calculated by dividing the free float market capitalization 
of a digital asset by the total free float market capitalization of all 
Index Constituents at the time of rebalancing.
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    \10\ The Index will utilize ``Circulating Supply'' of an Index 
Constituent for all calculations of free float market capitalization 
and the determination of constituent weights. Circulating Supply is 
defined as the total supply of all units of a digital asset issued 
outside of the codebase since the initial block on a digital asset's 
blockchain or since the point of inception of the digital asset on a 
cryptographic distributed ledger that can be ``spent'' or moved from 
one deposit address to another that is deemed to be likely to be 
available for trading as defined by the Calculation Agent and 
described by the methods in the CF Cryptocurrency Index Family Multi 
Asset Ground Rules (section 4.2.1 to 4.3.1.2.1). Circulating Supply 
data will be determined at the block height or ledger number which 
is the last confirmed block or ledger number at 16:00:00 UTC on the 
day that is eight (8) business days immediately preceding the 
relevant Reconstitution Date. Where the Calculation Agent cannot 
reliably determine any of the respective inputs for the calculation 
of the Circulating Supply for a given crypto asset that is an Index 
Constituent then its Circulating Supply shall be approximated. This 
will be done by applying the Median Free Float Factor (Circulating 
Supply/Total Supply) that has been determined for that 
reconstitution of all Index Constituents to the Total Supply 
(Circulating Supply = Total Supply X Median Free Float Factor). 
During reconstitution, updated Circulating Supply of crypto assets 
will be set and will remain fixed until the next reconstitution. The 
Index fixes Circulating Supply of Index Constituents between 
reconstitutions in order to preserve the investability property of 
the Index.
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    As set forth in the Index methodology, a ``Core Crypto Platform'' 
is a crypto asset platform that, in the opinion of the NCIOC, exhibits 
at a minimum the following characteristics:
    (1) Have strong forking controls;
    (2) Have effective anti-money laundering controls;

[[Page 54871]]

    (3) Have a reliable and transparent application programming 
interface (API) that provides real-time and historical trading data;
    (4) Charge fees for trading and structure trading incentives that 
do not interfere with the forces of supply and demand;
    (5) Be licensed by a public independent governing body;
    (6) Include surveillance for manipulative trading practices and 
erroneous transactions;
    (7) Evidence a robust IT infrastructure;
    (8) Demonstrate active capacity management; \11\
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    \11\ According to the Index methodology, to demonstrate active 
capacity management, Core Crypto Platforms must demonstrate that 
their platform's technical infrastructure is designed in such a way 
that it is capable of accommodating a sudden, significant increase 
in trade volume without impacting system functionality.
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    (9) Evidence cooperation with regulators and law enforcement; and
    (10) Have a minimum market representation for trading volume.\12\
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    \12\ According to Index methodology, to compute an exchange's 
market size, the NCIOC sums the U.S. Dollar (``USD'') volume of all 
eligible crypto asset-USD pairs for the month of August each year. A 
Core Crypto Platform must have at least 0.05% of the total volume in 
eligible exchanges.
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    The list of existing Core Crypto Platforms will be recertified by 
the NCIOC at a minimum on an annual basis.
    The Core Crypto Platforms as of May 27, 2024 are BitStamp, 
Coinbase, Gemini, itBit, and Kraken.
    The Index methodology defines a ``Core Custodian'' to be a crypto 
assets custodian that, in the opinion of the NCIOC, exhibits the 
following characteristics:
    (1) Provide custody accounts whose holders are the legal 
beneficiaries of the assets held in the account. In case of bankruptcy 
or insolvency of a Custodian, creditors or the estate should have no 
rights to the client's assets.
    (2) Offer segregated individual accounts and store crypto assets in 
segregated individual accounts and not in omnibus accounts. Custodians 
must not allow securities lending against digital assets.
    (3) Generate account-segregated private keys for digital assets 
using high entropy random number generation methods and employ advanced 
security practices.
    (4) Utilize technology for storing private keys in offline digital 
vaults and apply secure processes, such as private key segmentation, 
multi-signature authorization, and geographic distribution of stored 
assets, to limit access to private keys. The Crypto Custodian will use 
security technology for storing private keys aiming to avoid theft or 
misappropriation of assets due to online attacks, collusion of agents 
managing the storage services, or any other threat.
    (5) Offers redemption processes for timely and secure transfer of 
digital assets and allows account holders to set withdrawal 
authorization restrictions such as whitelisting and multi-user account 
controls.
    (6) Must support the Index's forking policy and allow the split of 
assets to be reflected in the Index asset holdings.
    (7) Have a comprehensive risk management policy and formalized 
framework for managing operational and custody risks, including a 
disaster recovery program that ensures continuity of operations in the 
event of a system failure. The Crypto Custodian must have a business 
continuity plan to help ensure continued customer access to the assets.
    (8) Is licensed as a Custodian by a reputable and independent 
governing body (e.g., the U.S. Securities and Exchange Commission, the 
New York State Department of Financial Services, or other state, 
national or international regulators), as can be ascertained by certain 
public data sources.
    (9) Provides third-party audit reports at least annually on 
operational and security processes. This audit may be completed either 
by having a full SOC2 certification issued or the third-party auditor 
providing an attest report based off the full SOC2 methodology.
    (10) Have an insurance policy that covers, at least partially, 
third-party theft of private keys, insider theft from internal 
employees, and loss of keys.
    A Core Custodian might lose eligibility if it does not comply with 
the above requirements or with any other NCIOC requirements.
    The NCIOC will review new Core Custodian candidates throughout the 
year and announce any new additions when approved. The list of existing 
Core Custodians will be recertified by the NCIOC at a minimum on an 
annual basis. Changes to the list of Core Custodians may be made by the 
approval of the NCIOC and announced accordingly in the case of 
exceptional events or in order to maintain the integrity of the Index.
    The Core Custodians as of May 27, 2024 are BitGo, Coinbase, 
Fidelity and Gemini. The Trust's crypto assets must at all times be 
drawn only from the Core Custodians.
    The Index will be reconstituted and rebalanced quarterly, on the 
first Business Day in March, June, September, and December (each a 
``Reconstitution Date'').
    The settlement price of each Index Constituent (``Index Constituent 
Settlement Price'') is calculated once every trading day by applying a 
publicly available rules-based pricing methodology (the ``Pricing 
Methodology'') to a diverse collection of pricing sources to provide an 
institutional-grade reference price for each constituent. The Pricing 
Methodology is designed to account for variances in price across a wide 
range of sources, each of which has been vetted according to criteria 
identified in the methodology. Specifically, the Index Constituent 
Settlement Price is the Time Weighted Average Price (``TWAP'') 
calculated across the volume weighted average prices (``VWAPs'') for 
each minute in the settlement price window, which is between 3:50:00 
and 4:00:00 p.m. New York time, on all Core Crypto Platforms. Where 
there are no transactions observed in any given minute of the 
settlement price window, that minute is excluded from the calculation 
of the TWAP.
    The Pricing Methodology also utilizes penalty factors to mitigate 
the impact of anomalous trading activity such as manipulation, 
illiquidity, large block trading, or operational issues that could 
compromise price representation. Three types of penalties are applied 
when three or more contributing Core Crypto Platforms contribute 
pricing for a constituent asset: abnormal price penalties, abnormal 
volatility penalties, and abnormal volume penalties. These penalties 
are defined as adjustment factors to the weight of information from 
each platform that contributes pricing information based on the 
deviation of a platform's price, volatility, or volume from the median 
across all exchanges. For example, if a Core Crypto Platform's price is 
2.5 standard deviations away from the median price, its price penalty 
factor will be a 1/2.5 multiplier.
    The Sponsor believes that the NCIUSS is a suitable Index for the 
Trust for several reasons. First, it would provide reliable pricing for 
purposes of tracking the actual performance of the crypto asset markets 
for the Index Constituents. Second, it is administered by a reputable 
index administrator that is not affiliated with the Sponsor or 
Trust,\13\

[[Page 54872]]

which provides assurances of accountability and independence. Finally, 
its Pricing Methodology is designed to resist potential price 
manipulation from unregulated crypto markets by applying the following 
safeguards:
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    \13\ Nasdaq, Inc. (``Nasdaq''), the Index Provider, adheres to 
the International Organization of Securities Commissions principles 
for benchmarks (the ``IOSCO Principles'') for many of its indexes 
via an internal control and governance framework that is audited by 
an external, independent auditor on an annual basis. Although NCIUSS 
is not currently one of the indexes that is required to comply with 
IOSCO Principles, as a reference rate index, it is administered in a 
manner that is generally consistent with both the IOSCO Principles 
and the elements of Nasdaq's internal control and governance 
framework pursuant to IOSCO Principles. NCIUSS is administered and 
governed by the NCIOC in accordance with the publicly available 
NCIUS methodology. The NCIOC oversees all aspects of the 
administration of the NCIUSS, including the defined processes and 
controls for the selection and monitoring of third parties such as 
the Core Crypto Platforms and Core Custodians, as well as the 
validation and reconciliation of Index calculations and pricing 
data. The NCIOC also oversees the identification and mitigation of 
any potential conflicts of interest, formal complaints, and updates 
or changes to the Index methodology consistent with the IOSCO 
Principles.
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    (1) Requiring that constituents be listed on a U.S.-regulated 
crypto asset trading platform or serve as the underlying asset for a 
derivative instrument listed on a U.S.-regulated derivatives platform
    (2) Strict eligibility criteria for the Core Crypto Platforms from 
which the Index data is drawn;
    (3) A diverse collection of trustworthy pricing sources to provide 
an institutional-grade reference price for the Index Constituents; and
    (4) The use of adjustment factors to mitigate against the impact of 
any anomalous trading activity on the Index Constituent Settlement 
Prices.
Custody of the Trust's Crypto Assets
    An investment in the Shares is backed by assets held by the Trust, 
including the bitcoin and ether held by the Crypto Custodians on behalf 
of the Trust. The Crypto Custodians must qualify as Core Custodians by 
the NCIOC and, thus satisfy at least the requirements set forth by the 
NCIOC in the NCIUSS methodology.\14\ The Trust may engage additional 
custodians for its crypto assets and may also remove or change current 
Crypto Custodians, provided that there is at least one Crypto Custodian 
at all times.
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    \14\ See https://indexes.nasdaqomx.com/docs/Methodology_NCIUS.pdf.
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    The Trust's Crypto Custodians will hold and be responsible for 
maintaining custody of the Trust's bitcoin and ether. The Sponsor will 
cause the Trust to maintain ownership and control of the Trust's 
bitcoin in a manner consistent with good delivery requirements for spot 
commodity transactions.
    All of the Trust's crypto assets will be held in one or more 
accounts in the name of the Trust (each a ``Custody Account'' and 
together the ``Custody Accounts''), other than the Trust's assets which 
are temporarily maintained in a trading account under limited 
circumstances (``Trading Account''), i.e., in connection with creation 
and redemption basket activity or sales of crypto assets deducted from 
the Trust's holdings in payment of Trust expenses or the Sponsor's fee 
(or, in extraordinary circumstances, upon liquidation of the Trust). 
The Custody Accounts include all the Trust's assets held at the Crypto 
Custodians but do not include the Trust's crypto temporarily maintained 
in the Trading Account from time to time. The hardware, software, 
systems, and procedures of the Crypto Custodians may not be available 
or cost-effective for many investors to access directly.
    The Trust's bitcoin, ether and cash holdings from time to time may 
temporarily be maintained in the Trading Account. The Sponsor intends 
to execute an agreement so Coinbase Inc. can serve as the Trust's 
``Prime Execution Agent'' (``Prime Execution Agent Agreement''). In 
this capacity, the Prime Execution Agent will facilitate the buying and 
selling of crypto assets by the Trust in response to cash creations and 
redemptions between the Trust and registered broker-dealers that are 
Depositary Trust Company (``DTC'') participants that enter into an 
authorized participant agreement with the Sponsor (``Authorized 
Participants''), and the sale of crypto assets to pay the Sponsor's 
fee, any other Trust expenses not assumed by the Sponsor, to the extent 
applicable, and in extraordinary circumstances, in connection with the 
liquidation of the Trust's assets.
Creation and Redemption of Shares
    The Trust issues and redeems ``Baskets'' \15\ on a continuous 
basis. Baskets are issued or redeemed only in exchange for an amount of 
cash determined by the Sponsor or the Administrator on each Business 
Day. No Shares are issued unless the Cash Custodian has allocated to 
the Trust's account the corresponding amount of cash. Baskets may be 
created or redeemed only by Authorized Participants. Each Authorized 
Participant must be registered as a broker-dealer under the Exchange 
Act and regulated by the FINRA, or exempt from being, or otherwise not 
required to be, so regulated or registered, and must be qualified to 
act as a broker or dealer in the states or other jurisdictions where 
the nature of its business so requires.
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    \15\ Baskets will be offered continuously at NAV per Share for 
10,000 Shares. Therefore, a Basket of Shares would be valued at NAV 
per Share multiplied by the Basket size and the crypto asset 
required to be delivered in exchange for a creation of a Basket 
would equal the dollar value of the NAV per Share multiplied by the 
Basket size for such creations. The Trust may change the number of 
Shares in a Basket. Only Authorized Participants may purchase or 
redeem Baskets. Shares will be offered to the public from time to 
time at varying prices that will reflect the price of crypto assets 
and the trading price of the Shares on Nasdaq at the time of the 
offer.
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    The Authorized Participants will deliver only cash to create Shares 
and will receive only cash when redeeming Shares. Further, Authorized 
Participants will not directly or indirectly purchase, hold, deliver, 
or receive a crypto asset as part of the creation or redemption process 
or otherwise direct the Trust or a third party with respect to 
purchasing, holding, delivering, or receiving crypto assets as part of 
the creation or redemption process.
    The Trust will create Shares by receiving crypto assets from a 
third party that is not the Authorized Participant, and the Trust--not 
the Authorized Participant--is responsible for selecting the third 
party to deliver the assets. Further, the third party will not be 
acting as an agent of the Authorized Participant with respect to the 
delivery of the crypto assets to the Trust or acting at the direction 
of the Authorized Participant with respect to the delivery of the 
crypto assets to the Trust. The Trust will redeem Shares by delivering 
crypto assets to a third party that is not the Authorized Participant, 
and the Trust--not the Authorized Participant--is responsible for 
selecting the third party to receive the assets. Further, the third 
party will not be acting as an agent of the Authorized Participant with 
respect to the receipt of the crypto assets from the Trust or acting at 
the direction of the Authorized Participant with respect to the receipt 
of the crypto assets from the Trust. The third-party will be 
unaffiliated with the Trust and the Sponsor.
    In connection with cash creations and cash redemptions, the 
Authorized Participants will submit orders to create or redeem Baskets 
\16\ of Shares exclusively in exchange for cash. The Trust will engage 
in crypto transactions to convert cash into crypto assets (in 
association with creation orders) and crypto assets into cash (in 
association with redemption orders). The Trust will conduct its crypto 
asset purchase and sale transactions by, in its sole discretion, 
choosing to trade directly with designated third parties (each, a

[[Page 54873]]

``Crypto Trading Counterparty''), who are not registered broker-dealers 
pursuant to written agreements between each such Crypto Trading 
Counterparty and the Trust, or choosing to trade through the Prime 
Execution Agent acting in an agency capacity with third parties 
pursuant to the Prime Execution Agent Agreement. Crypto Trading 
Counterparties settle trades with the Trust using their own accounts at 
the Prime Execution Agent when trading with the Trust.
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    \16\ The Trust issues and redeems Shares only in blocks or 
``Baskets'' of 10,000 or integral multiples thereof. These 
transactions take place in exchange for crypto assets.
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    For a creation of a Basket of Shares, the Authorized Participant 
will be required to submit the creation order by an early order cutoff 
(``Creation Early Cutoff Time''). The Creation Early Cutoff Time will 
initially be 6:00 p.m. ET on the business day prior to trade date.
    On the date of the Creation Early Cutoff Time for a creation order, 
the Trust will choose, in its sole discretion, to enter into a 
transaction with a Crypto Trading Counterparty (or the Prime Execution 
Agent) to buy crypto assets in exchange for the cash proceeds from such 
creation order. On the settlement date for a creation, the Trust will 
deliver Shares to the Authorized Participant in exchange for cash 
received from the Authorized Participant. Also, on or around the 
settlement date, the Crypto Trading Counterparty or Prime Execution 
Agent, as applicable, will deposit the required assets pursuant to its 
trade with the Trust into the Trust's Trading Account in exchange for 
cash. In the event the Trust has not been able to successfully execute 
and complete settlement of a crypto transaction by the settlement date 
of the creation order, the Authorized Participant will be given the 
option to (1) cancel the creation order, or (2) accept that the Trust 
will continue to attempt to complete the execution, which will delay 
the settlement date of the creation order. With respect to a creation 
order, as between the Trust and the Authorized Participant, the 
Authorized Participant is responsible for the dollar cost of the 
difference between the crypto asset price utilized in calculating NAV 
per Share on trade date and the price at which the Trust acquires the 
asset to the extent the price realized in buying the crypto asset is 
higher than the price utilized in the NAV. To the extent the price 
realized in buying the crypto asset is lower than the price utilized in 
the NAV, the Authorized Participant shall keep the dollar impact of any 
such difference.
    Because the Trust's Trading Account may not be funded with cash on 
trade date for the purchase of crypto assets associated with a cash 
creation order, the Trust may borrow trade credits (``Trade Credits'') 
in the form of cash from the ``Trade Credit Lender'', under a trade 
financing agreement (``Trade Financing Agreement'') or may require the 
Authorized Participant to deliver the required cash for the creation 
order on trade date. The extension of Trade Credits on trade date 
allows the Trust to purchase crypto assets through the Prime Execution 
Agent on trade date, with such assets being deposited in the Trust's 
Trading Account. On settlement date for a creation order, the Trust 
delivers Shares to the Authorized Participant in exchange for cash 
received from the Authorized Participant. To the extent Trade Credits 
were utilized, the Trust uses the cash to repay the Trade Credits 
borrowed from the Trade Credit Lender. On settlement date for a 
creation order, the crypto assets purchased are swept from the Trust's 
Trading Account to the Custody Account pursuant to a regular end-of-day 
sweep process.
    For a redemption of a Basket of Shares, the Authorized Participant 
will be required to submit a redemption order by an early order cutoff 
(the ``Redemption Early Cutoff Time''). The Redemption Early Cutoff 
Time will initially be 6:00 p.m. ET on the business day prior to trade 
date. On the date of the Redemption Early Cutoff Time for a redemption 
order, the Trust may choose, in its sole discretion, to enter into a 
transaction with a Crypto Trading Counterparty or the Prime Execution 
Agent, to sell crypto assets in exchange for cash. After the Redemption 
Early Cutoff Time, the Trust will instruct the Crypto Custodian to 
prepare to move the associated assets from the Trust's Custody Account 
to the Trading Account. On the settlement date for a redemption order, 
the Authorized Participant will deliver the necessary Shares to the 
Trust, and on or around settlement date, a Crypto Trading Counterparty 
or Prime Execution Agent, as applicable, will deliver the cash 
associated with the Trust's sale of crypto assets to the Trust in 
exchange for the Trust's crypto assets, and the Trust will deliver cash 
to the Authorized Participant. In the event the Trust has not been able 
to successfully execute and complete settlement of a crypto transaction 
by the settlement date, the Authorized Participant will be given the 
option to (1) cancel the redemption order, or (2) accept that the Trust 
will continue to attempt to complete the execution, which will delay 
the settlement date. With respect to a redemption order, between the 
Trust and the Authorized Participant, the Authorized Participant will 
be responsible for the dollar cost of the difference between the crypto 
asset price utilized in calculating the NAV per Share on trade date and 
the price realized in selling the crypto asset to raise the cash needed 
for the cash redemption order to the extent the price realized in 
selling the asset is lower than the price utilized in the NAV. To the 
extent the price realized in selling the crypto asset is higher than 
the price utilized in the NAV, the Authorized Participant will keep the 
dollar impact of any such difference.
    The Trust may use financing in connection with a redemption order 
when crypto assets remain in the Custody Account at the point of 
intended execution of a sale of a crypto asset. In those circumstances, 
the Trust may borrow Trade Credits in the form of crypto assets from 
the Trade Credit Lender, which allows the Trust to sell crypto assets 
through the Prime Execution Agent on trade date, and the cash proceeds 
are deposited in the Trading Account. On settlement date for a 
redemption order, the Trust delivers cash to the Authorized Participant 
in exchange for Shares received from the Authorized Participant. In the 
event financing was used, the Trust will use the crypto assets moved 
from the Custody Account to the Trading Account to repay the Trade 
Credits borrowed from the Trade Credit Lender.
Net Asset Value
    The Trust's NAV per Share will be calculated by taking the current 
market value of its total assets, subtracting any liabilities, and 
dividing that total by the number of Shares. The assets of the Trust 
will consist of bitcoin, ether, cash and cash equivalents. The Sponsor 
has the exclusive authority to determine the Trust's NAV, which it has 
delegated to the Administrator.
    The Administrator of the Trust will calculate the NAV once each 
Business Day, as of the earlier of the close of the Nasdaq or 4:00 p.m. 
New York time. For purposes of making these calculations, a Business 
Day means any day other than a day when Nasdaq is closed for regular 
trading (``Business Day'').
    In determining the Trust's bitcoin and ether holdings, the 
Administrator will value the Index Constituents held by the Trust based 
on the Index Constituent Settlement Price, unless the prices are not 
available or the Administrator, in its sole discretion, determines that 
the Index Constituent Settlement Price is unreliable (``Fair Value 
Event''). In the instance of a Fair Value Event, the Trust's holdings 
may be fair valued on a temporary basis in accordance with the fair 
value policies approved by the Administrator.

[[Page 54874]]

    In the instance of a Fair Value Event and pursuant to the 
Administrator's fair valuation policies and procedures, VWAP or Volume 
Weighted Median Prices (``VWMP'') from another index administrator 
(``Secondary Index'') will be utilized.
    If a Secondary Index is also not available or the Administrator in 
its sole discretion determines the Secondary Index is unreliable, the 
price set by the Trust's principal market as of 4:00 p.m. ET, on the 
valuation date will be utilized. In the event the principal market 
price is not available or the Administrator in its sole discretion 
determines the principal market valuation is unreliable, the 
Administrator will use its best judgment to determine a good faith 
estimate of fair value. The Administrator identifies and determines the 
Trust's principal market (or in the absence of a principal market, the 
most advantageous market) for crypto assets consistent with the 
application of fair value measurement framework in FASB ASC 820-10.\17\ 
The principal market is the market where the reporting entity would 
normally enter into a transaction to sell the asset or transfer the 
liability. The principal market must be available to and be accessible 
by the reporting entity. The reporting entity is the Trust.
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    \17\ See FASB (Financial Accounting Standards Board) Accounting 
standards codification (ASC) 820-10. For financial reporting 
purposes only, the Trustee has adopted a valuation policy that 
outlines the methodology for valuing the Trust's assets. The policy 
also outlines the methodology for determining the principal market 
(or in the absence of a principal market, the most advantageous 
market) in accordance with FASB ASC 820-10.
---------------------------------------------------------------------------

    If the Index Constituent Settlement Price is not used to determine 
the Trust's crypto asset holdings, owners of the beneficial interests 
of Shares (the ``Shareholders'') will be notified in a prospectus 
supplement or on the Trust's website and, if this index change is on a 
permanent basis, a filing with the Commission under Rule 19b-4 of the 
Act will be required.
    A Fair Value Event value determination will be based upon all 
available factors that the Sponsor or the Administrator deems relevant 
at the time of the determination and may be based on analytical values 
determined by the Sponsor or Administrator using third-party valuation 
models. Fair value policies approved by the Administrator will seek to 
determine the fair value price that the Trust might reasonably expect 
to receive from the current sale of that asset or liability in an 
arm's-length transaction on the date on which the asset or liability is 
being valued consistent with ``Relevant Transactions''.\18\
---------------------------------------------------------------------------

    \18\ A ``Relevant Transaction'' is any crypto asset versus U.S. 
dollar spot trade that occurs during the observation window between 
3:00 p.m. and 4:00 p.m. ET on a ``Core Crypto Platform'' in the BTC/
USD pair that is reported and disseminated by a Core Crypto Platform 
through its publicly available application programming interface and 
observed by the index administrator.
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Indicative Trust Value
    In order to provide updated information relating to the Trust for 
use by Shareholders and market professionals, the Sponsor will engage 
an independent calculator to calculate an updated Indicative Trust 
Value (``ITV'').\19\ The ITV will be calculated by using the prior 
day's closing NAV per Share of the Trust as a base and will be updated 
throughout the regular market session of 9:30 a.m. E.T. to 4:00 p.m. 
E.T. (the ``Regular Market Session'') to reflect changes in the value 
of the Trust's holdings during the trading day. For purposes of 
calculating the ITV, the Trust's spot bitcoin and ether holdings will 
be priced using a real time version of the Index, the Nasdaq Crypto US 
Index (``NCIUS'').\20\
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    \19\ The ITV is based on the prior day's closing NAV per Share 
and updated to reflect changes in the Trust's holdings value during 
the trading day.
    \20\ The Nasdaq Crypto US Index (Index symbol NCIUS) is 
calculated every second throughout a 24-hour trading day, seven days 
per week, using published, real-time bid and ask quotes for Index 
constituents observed on Core Crypto Platforms through the publicly 
available API. See https://indexes.nasdaqomx.com/Index/Overview/NCIUS.
---------------------------------------------------------------------------

    The ITV will be disseminated on a per Share basis every 15 seconds 
during the Exchange's Regular Market Session and be widely disseminated 
by one or more major market data vendors during the Regular Market 
Session.\21\
---------------------------------------------------------------------------

    \21\ Several major market data vendors display and/or make 
widely available ITVs taken from the Consolidated Tape Association 
(``CTA'') or other data feeds.
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Background--Spot Crypto Asset ETFs
    The Commission has recently permitted exchange-traded products 
(``ETPs'') to directly hold bitcoin and ether. The Exchange and the 
Sponsor applaud the Commission as these approvals mark a significant 
step forward in offering U.S. investors and traders transparent, 
exchange-listed products for expressing views on crypto assets.
    The Exchange and the Sponsor believe that the proposed rule change 
does not introduce any elements that the Commission has not previously 
approved, and therefore, it will not impose any inappropriate 
consequences on the market. Although using previously approved crypto 
assets, the Trust employs a new strategy of investing in the crypto 
asset market, as it will hold both spot bitcoin and spot ether in 
accordance with the Index methodology, and its approval will add value 
to the U.S. market.
    The Trust will hold spot bitcoin and spot ether, commodities for 
which proposals to list and trade ETPs have recently been approved by 
the Commission. As the Trust will invest in crypto assets for which 
proposals to list and trade ETPs have been recently approved by the 
Commission, and because the Exchange will utilize the same surveillance 
mechanisms that were deployed pursuant to the proposals to list and 
trade those approved ETPs, the Sponsor and the Exchange understand that 
the proposed rule change does not introduce any novel regulatory issues 
and believe that the Commission should approve this proposal.
Spot Bitcoin ETF
    On January 10, 2024, the Commission issued an order granting 
approval for proposals to list bitcoin-based commodity trust and 
bitcoin-based trust units (``Spot Bitcoin ETPs'').\22\ In considering 
the Spot Bitcoin ETPs, the Commission determined in the Spot Bitcoin 
ETP Approval Order that the Exchanges' comprehensive surveillance-
sharing agreement with the Chicago Mercantile Exchange (``CME'')--a 
U.S. regulated market whose bitcoin futures market is consistently 
highly correlated to spot bitcoin--could be reasonably expected to 
assist in surveilling for fraudulent and manipulative acts and 
practices in the specific context of the proposals. The exchanges have 
comprehensive surveillance-sharing agreements with the CME via their 
common membership in the Intermarket Surveillance Group (``ISG''), 
which facilitates the sharing of information that is available to the 
CME through its surveillance of its markets.
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    \22\ See Exchange Act Release No. 99306 (January 10, 2024), 89 
FR 3008 (January 17, 2024) (Self-Regulatory Organizations; NYSE 
Arca, Inc.; The Nasdaq Stock Market LLC; Cboe BZX Exchange, Inc.; 
Order Granting Accelerated Approval of Proposed Rule Changes, as 
Modified by Amendments Thereto, To List and Trade Bitcoin-Based 
Commodity-Based Trust Shares and Trust Units) (the ``Spot Bitcoin 
ETP Approval Order'').
---------------------------------------------------------------------------

    After reviewing the proposals for the Spot Bitcoin ETPs, the 
Commission found that they were consistent with the Act, including with 
section 6(b)(5), and rules and regulations thereunder applicable to a 
national securities exchange, including the Exchange. The 
abovementioned section 6(b)(5) requires, among other things, that the 
investment product is designed to

[[Page 54875]]

``prevent fraudulent and manipulative acts and practices'' and, ``in 
general, to protect investors and the public interest;'' and with 
section 11A(a)(1)(C)(iii) of the Act, which sets forth Congress' 
finding that it is in the public interest and appropriate for the 
protection of investors and the maintenance of fair and orderly markets 
to assure the availability to brokers, dealers, and investors of 
information with respect to quotations for and transactions in 
securities.
    The Commission's analysis \23\ in the Spot Bitcoin ETP Approval 
Order also demonstrated that prices typically move in close, though not 
perfect, correlation \24\ between the spot bitcoin market and the CME 
bitcoin futures market. Therefore, the Commission concluded that fraud 
or manipulation affecting spot bitcoin market prices would likely also 
impact CME bitcoin futures prices. Since the CME's surveillance can 
help detect these impacts on CME bitcoin futures prices, such 
surveillance can be reasonably expected to assist in monitoring for 
fraudulent and manipulative acts and practices in the specific context 
of the Spot Bitcoin ETPs proposals.
---------------------------------------------------------------------------

    \23\ The robustness of the Commission's correlation analysis 
rests on the pre-requisites of (1) the correlations being calculated 
with respect to bitcoin futures that trade on the CME, a U.S. market 
regulated by the CFTC, (2) the lengthy sample period of price 
returns for both the CME bitcoin futures market and the spot bitcoin 
market, (3) the frequent intra-day trading data in both the CME 
bitcoin futures market and the spot bitcoin market over that lengthy 
sample period, and (4) the consistency of the correlation results 
throughout the lengthy sample period.
    \24\ Correlation should not be interpreted as an indicator of a 
causal relationship or whether one variable leads or lags the other.
---------------------------------------------------------------------------

    In the Spot Bitcoin ETP Approval Order, the Commission also stated 
that the Spot Bitcoin ETP proposals, similar to other spot commodity 
ETPs it has approved, are reasonably designed to ensure fair disclosure 
of information necessary for accurate share pricing, to prevent trading 
in the absence of sufficient transparency, to protect material 
nonpublic information related to the products' portfolios, and to 
maintain fair and orderly markets for the shares of the Spot Bitcoin 
ETPs.
Spot Ether ETF
    A few months after the issuance of its Spot Bitcoin ETP Approval 
Order, the Commission issued on May 23, 2024 an approval order for 
proposals to list ether-based trusts (``Spot Ether ETPs'').\25\ The 
Commission also concluded in the Spot Ether ETP Approval Order that the 
exchanges' comprehensive surveillance-sharing agreement with the CME, 
which is consistently highly correlated with spot ether, can be 
reasonably expected to prevent fraudulent and manipulative acts and 
practices within the context of the mentioned proposals.
---------------------------------------------------------------------------

    \25\ See Exchange Act Release No. 100224 (May 23, 2024) (Self-
Regulatory Organizations; NYSE Arca, Inc.; The Nasdaq Stock Market 
LLC; Cboe BZX Exchange, Inc.; Order Granting Accelerated Approval of 
Proposed Rule Changes, as Modified by Amendments Thereto, to List 
and Trade Shares of Ether-Based Exchange-Traded Products) (the 
``Spot Ether ETP Approval Order'').
---------------------------------------------------------------------------

    As in the case of the Spot Bitcoin ETP Approval Order, in the Spot 
Ether ETP Approval Order, the Commission determined that the exchanges' 
comprehensive surveillance-sharing agreement with the CME ether futures 
market, which exhibits a consistent high correlation with spot ether, 
is likely to effectively deter fraudulent and manipulative practices 
within the framework of the Spot Ether ETP proposals. Therefore, based 
on similar reasons to the Spot Bitcoin ETP Approval, the Commission 
approved the Spot Ether ETPs, stating that the proposals to list and 
trade Spot Ether ETPs were also consistent with the requirements of the 
Act and the regulations applicable to a national securities exchange, 
in particular with section 6(b)(5) and section 11A(a)(1)(C)(iii) of the 
Act.
Availability of Information
    The website for the Trust, which will be publicly accessible at no 
charge, will contain the following information: (a) the prior Business 
Day's NAV per Share; (b) the prior Business Day's Nasdaq official 
closing price; (c) calculation of the premium or discount of such 
Nasdaq official closing price against such NAV per Share; (d) data in 
chart form displaying the frequency distribution of discounts and 
premiums of the Nasdaq official closing price against the NAV per 
Share, within appropriate ranges for each of the four previous calendar 
quarters (or for the life of the Trust, if shorter); (e) the 
prospectus; and (f) other applicable quantitative information. The 
Administrator will also disseminate the Trust's holdings on a daily 
basis on the Trust's website. The NAV per Share for the Trust will be 
calculated by the Administrator once a day and will be disseminated 
daily to all market participants at the same time. Quotation and last 
sale information regarding the Shares will be disseminated through the 
facilities of the relevant securities information processor.
    Also, an estimated value that reflects an estimated ITV will be 
disseminated. For more information on the ITV, including the 
calculation methodology, see ``Indicative Trust Value'' above. The ITV 
disseminated during the Regular Market Session should not be viewed as 
an actual real time update of the NAV per Share, which will be 
calculated only once at the end of each trading day. The ITV will be 
widely disseminated on a per Share basis every 15 seconds during the 
Regular Market Session by one or more major market data vendors. In 
addition, the ITV will be available through online information 
services.
    Quotation and last sale information for crypto assets is widely 
disseminated through a variety of major market data vendors, including 
Bloomberg and Reuters. Information relating to trading, including price 
and volume information, is available from major market data vendors and 
from the platforms on which crypto assets are traded. Depth of book 
information is also available from crypto platforms. The normal trading 
hours for the crypto assets platforms are 24 hours per day, 365 days 
per year.
    Information regarding market price and trading volume of the Shares 
will be continually available on a real-time basis throughout the day 
on brokers' computer screens and other electronic services. Information 
regarding the previous day's closing price and trading volume 
information for the Shares will be published daily in the financial 
section of newspapers.
Initial and Continued Listing
    The Shares will be subject to Nasdaq Rule 5711(d)(vi), which sets 
forth the initial and continued listing criteria applicable to 
Commodity-Based Trust Shares. The Exchange will obtain a representation 
that the Trust's NAV per Share will be calculated daily and will be 
made available to all market participants at the same time. A minimum 
of 80,000 Shares, or the equivalent of eight Baskets, will be required 
to be outstanding at the time of commencement of trading on the 
Exchange. Upon termination of the Trust, the Shares will be removed 
from listing.
    As required in Nasdaq Rule 5711(d)(viii), the Exchange notes that 
any registered market maker (``Market Maker'') in the Shares must file 
with the Exchange, in a manner prescribed by the Exchange, and keep 
current a list identifying all accounts for trading the underlying 
commodity, related futures or options on futures, or any other related 
derivatives, which the registered Market Maker may have or over which 
it may exercise investment discretion. No registered Market Maker in 
the

[[Page 54876]]

Shares shall trade in the underlying commodity, related futures or 
options on futures, or any other related derivatives, in an account in 
which a registered Market Maker, directly or indirectly, controls 
trading activities, or has a direct interest in the profits or losses 
thereof, which has not been reported to the Exchange as required by 
Nasdaq Rule 5711(d). In addition to the existing obligations under 
Exchange rules regarding the production of books and records, the 
registered Market Maker in the Shares shall make available to the 
Exchange such books, records or other information pertaining to 
transactions by such entity or any limited partner, officer or approved 
person thereof, registered or non-registered employee affiliated with 
such entity for its or their own accounts in the underlying commodity, 
related futures or options on futures, or any other related 
derivatives, as may be requested by the Exchange.
    The Exchange is able to obtain information regarding trading in the 
Shares and the underlying bitcoin and ether, or any CME-traded crypto 
derivatives through members acting as registered Market Makers, in 
connection with their proprietary or customer trades.
    As a general matter, the Exchange has regulatory jurisdiction over 
its members, and their associated persons. The Exchange also has 
regulatory jurisdiction over any person or entity controlling a member, 
as well as a subsidiary or affiliate of a member that is in the 
securities business. A subsidiary or affiliate of a member organization 
that does business only in commodities would not be subject to Exchange 
jurisdiction, but the Exchange could obtain information regarding the 
activities of such subsidiary or affiliate through surveillance sharing 
agreements with regulatory or self-regulatory organizations of which 
such subsidiary or affiliate is a member.
Trading Rules
    The Exchange deems the Shares to be equity securities, thus 
rendering trading in the Shares subject to the Exchange's existing 
rules governing the trading of equity securities. The Exchange will 
allow trading in the Shares from 4:00 a.m. to 8:00 p.m. ET. The 
Exchange has appropriate rules to facilitate transactions in the Shares 
during all trading sessions. The Shares of the Trust will conform to 
the initial and continued listing criteria set forth in Nasdaq Rule 
5711(d).
Trading Halts
    With respect to trading halts, the Exchange may consider all 
relevant factors in exercising its discretion to halt or suspend 
trading in the Shares. The Exchange will halt trading in the Shares 
under the conditions specified in Nasdaq Rules 4120 and 4121, including 
without limitation the conditions specified in Nasdaq Rule 4120(a)(9) 
and (10) and the trading pauses under Nasdaq Rules 4120(a)(11) and 
(12).
    Trading may be halted because of market conditions or for reasons 
that, in the view of the Exchange, make trading in the Shares 
inadvisable. These may include: (1) the extent to which trading is not 
occurring in the Index Constituents underlying the Shares; or (2) 
whether other unusual conditions or circumstances detrimental to the 
maintenance of a fair and orderly market are present.
    If the ITV or the value of the Index is not being disseminated as 
required, the Exchange may halt trading during the day in which the 
interruption to the dissemination of the ITV or the value of the Index 
occurs. If the interruption to the dissemination of the ITV or the 
value of the Index persists past the trading day in which it occurred, 
the Exchange will halt trading no later than the beginning of the 
trading day following the interruption.
    In addition, if the Exchange becomes aware that the NAV per Share 
with respect to the Shares is not disseminated to all market 
participants at the same time, it will halt trading in the Shares until 
such time as the NAV per Share is available to all market participants.
Surveillance
    The Exchange believes that its surveillance procedures are adequate 
to properly monitor the trading of the Shares on the Exchange during 
all trading sessions and to deter and detect violations of Exchange 
rules and the applicable federal securities laws. The surveillance 
program includes real-time patterns for price and volume movements and 
post-trade surveillance patterns (e.g., spoofing, marking the close, 
pinging, phishing). In addition to the Exchange's existing 
surveillance, a new pattern will be added to surveil for significant 
deviation in the Shares' price from the underlying asset's price. The 
Exchange will use the trade data from an external vendor that 
consolidates the real-time data from multiple crypto assets platforms.
    Trading of Shares on the Exchange will be subject to the Exchange's 
surveillance program for derivative products, as well as cross-market 
surveillances administered by FINRA, on behalf of the Exchange pursuant 
to a regulatory services agreement, which are also designed to detect 
violations of Exchange rules and applicable federal securities laws. 
The Exchange is responsible for FINRA's performance under this 
regulatory services agreement.
    The Exchange will require the Trust to represent to the Exchange 
that it will advise the Exchange of any failure by the Trust to comply 
with the continued listing requirements, and, pursuant to its 
obligations under section 19(g)(1) of the Exchange Act, the Exchange 
will surveil for compliance with the continued listing requirements. If 
the Trust is not in compliance with the applicable listing 
requirements, the Exchange will commence delisting procedures under the 
Nasdaq 5800 Series. In addition, the Exchange also has a general policy 
prohibiting the distribution of material, non-public information by its 
employees.
    The Exchange or FINRA, on behalf of the Exchange, or both, will 
communicate as needed regarding trading in the Shares with other 
markets and other entities that are members of the ISG,\26\ and the 
Exchange or FINRA, on behalf of the Exchange, or both, may obtain 
trading information regarding trading in the Shares from such markets 
and other entities. The Exchange also may obtain information regarding 
trading in the Shares and listed crypto asset derivatives via the ISG, 
from other exchanges who are members or affiliates of the ISG, or with 
which the Exchange has entered into a comprehensive surveillance 
sharing agreement.
---------------------------------------------------------------------------

    \26\ For a list of the current members and affiliate members of 
ISG, see https://www.isgportal.com/.
---------------------------------------------------------------------------

    The Exchange's current trading surveillance focuses on detecting 
securities trading outside their normal patterns. When such situations 
are detected, surveillance analysis follows and investigations are 
opened, where appropriate, to review the behavior of all relevant 
parties for all relevant trading violations. The Exchange is able to 
obtain information regarding trading in the Shares, the physical 
commodities included in, or options, futures or options on futures on, 
Shares through Equity Trading Permit Holders (``ETP Holders''), in 
connection with such ETP Holders' proprietary or customer trades which 
they effect on any relevant market. The Exchange can obtain market 
surveillance information, including customer identity information, with 
respect to transactions occurring on the exchanges that are members of 
the ISG.

[[Page 54877]]

    The Exchange represents that these procedures are adequate to 
properly monitor Exchange trading of the Shares in all trading sessions 
and to deter and detect violations of Exchange rules and applicable 
federal securities laws.
Information Circular
    Prior to the commencement of trading, the Exchange will inform its 
members in an information circular (``Information Circular'') of the 
special characteristics and risks associated with trading the Shares. 
Specifically, the Information Circular will discuss the following: (1) 
the procedures for creations and redemptions of Shares in Baskets (and 
that Shares are not individually redeemable); (2) Section 10 of Nasdaq 
General Rule 9, which imposes suitability obligations on Nasdaq members 
with respect to recommending transactions in the Shares to customers; 
(3) how information regarding the ITV is disseminated; (4) the risks 
involved in trading the Shares during the pre-market and postmarket 
sessions when an updated ITV will not be calculated or publicly 
disseminated; (5) the requirement that members deliver a prospectus to 
investors purchasing newly issued Shares prior to or concurrently with 
the confirmation of a transaction; and (6) trading information. The 
Information Circular will also discuss any exemptive, no action and 
interpretive relief granted by the Commission from any rules under the 
Act.
    The Information Circular will also reference the fact that there is 
no regulated source of last sale information regarding crypto assets, 
that the Commission has no jurisdiction over the trading of the Index 
Constituents as a commodity.
    Additionally, the Information Circular will reference that the 
Trust is subject to various fees and expenses described in the 
Registration Statement. The Information Circular will also disclose the 
trading hours of the Shares. The Information Circular will disclose 
that information about the Shares will be publicly available on the 
Trust's website.
2. Statutory Basis
    The basis under the Act for this proposed rule change is the 
requirement under section 6(b)(5) \27\ that an exchange has rules that 
are designed to prevent fraudulent and manipulative acts and practices, 
to promote just and equitable principles of trade, to remove 
impediments to, and perfect the mechanism of a free and open market 
and, in general, to protect investors and the public interest.
---------------------------------------------------------------------------

    \27\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------

    The Exchange believes that the proposed rule change is designed to 
prevent fraudulent and manipulative acts and practices and to protect 
investors and the public interest in that the Shares will be listed and 
traded on the Exchange pursuant to the initial and continued listing 
criteria set forth in Nasdaq Rule 5711(d). The Exchange has in place 
surveillance procedures that are adequate to properly monitor trading 
in the Shares in all trading sessions and to deter and detect 
violations of Exchange rules and applicable federal securities laws. 
The Exchange or FINRA, on behalf of the Exchange, or both, will 
communicate as needed regarding trading in the Shares and the Trust's 
holdings with other markets and other entities that are members of the 
ISG, and the Exchange or FINRA, on behalf of the Exchange, or both, may 
obtain trading information regarding trading in the Shares and the 
Trust's holdings from such markets and other entities. In addition, the 
Exchange may obtain information regarding trading in the Shares and the 
Trust's holdings from markets and other entities that are members of 
ISG or with which the Exchange has in place a CSSA. The Exchange is 
also able to obtain information regarding trading in the Shares and the 
Trust's holdings through ETP Holders, in connection with such ETP 
Holders' proprietary or customer trades which they effect through ETP 
Holders on any relevant market. The Exchange will require the Trust to 
represent to the Exchange that it will advise the Exchange of any 
failure by the Trust to comply with the continued listing requirements, 
and, pursuant to its obligations under section 19(g)(1) of the Exchange 
Act, the Exchange will surveil for compliance with the continued 
listing requirements. If the Trust is not in compliance with the 
applicable listing requirements, the Exchange will commence delisting 
procedures under the Nasdaq 5800 Series.
    Trading in Shares of the Trust will be halted if the circuit 
breaker parameters have been reached or because of market conditions or 
for reasons that, in the view of the Exchange, make trading in the 
Shares inadvisable. These may include unusual conditions or 
circumstances detrimental to the maintenance of a fair and orderly 
market.
    The proposed rule change is designed to perfect the mechanism of a 
free and open market and, in general, to protect investors and the 
public interest in that it will facilitate the listing and trading of 
Shares that will enhance competition among market participants, to the 
benefit of investors and the marketplace. As noted above, the Exchange 
has in place surveillance procedures that are adequate to properly 
monitor trading in the Shares in all trading sessions and to deter and 
detect violations of Exchange rules and applicable federal securities 
laws.
    The Commission has approved numerous spot-based crypto asset 
products to be listed on U.S. national securities exchanges.\28\ In 
order for any proposed rule change from an exchange to be approved, the 
Commission must determine that, among other things, the proposal is 
consistent with the requirements of section 6(b)(5) of the Act, 
specifically including: (i) the requirement that a national securities 
exchange's rules are designed to prevent fraudulent and manipulative 
acts and practices; and (ii) the requirement that an exchange proposal 
be designed, in general, to protect investors and the public interest. 
The Exchange believes that this proposal is consistent with the 
requirements of section 6(b)(5) of the Act because this filing 
sufficiently demonstrates that the applicable standard that has 
previously been articulated by the Commission with respect to proposals 
to list and trade units of commodity-based trusts has been met as 
outlined below.
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    \28\ See ``Background--Spot Crypto Asset ETFs'' above.
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    To list and trade the commodity-trust ETPs, the Commission requires 
a comprehensive surveillance-sharing agreement with a regulated market 
of significant size. The Exchange and CME are members of the ISG, 
meeting this requirement. The remaining issue is whether the CME 
constitutes a regulated market of significant size in relation to 
bitcoin futures and ether futures in the context of the proposed ETP, 
which the Exchange believes it does. The Commission has provided an 
illustrative definition for ``market of significant size'' to include a 
market (or group of markets) as to which (a) there is a reasonable 
likelihood that a person attempting to manipulate the ETP would also 
have to trade on that market to successfully manipulate the ETP, so 
that a surveillance-sharing agreement would assist in detecting and 
deterring misconduct, and (b) it is unlikely that trading in the ETP 
would be the predominant influence on prices in that market.\29\ In the 
Spot Bitcoin ETP

[[Page 54878]]

Approval Order and the Spot Ether ETP Approval Order, the Commission 
concluded that CME was indeed a market of significant size with respect 
to bitcoin futures and ether futures.
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    \29\ See Order Setting Aside Action by Delegated Authority and 
Disapproving a Proposed Rule Change, as Modified by Amendments No. 1 
and 2, To List and Trade Shares of the Winklevoss Bitcoin Trust, 
Securities Exchange Act Release No. 83723 (July 26, 2018), 83 FR 
37579, 37594 (Aug. 1, 2018) (SR-BatsBZX-2016-30).
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    In the Spot Bitcoin ETP Approval Order and the Spot Ether Approval 
Order, the Commission also concluded that the proposing exchanges' 
comprehensive surveillance-sharing agreement with the CME--a U.S. 
regulated market--whose bitcoin and ether futures market is 
consistently highly correlated to spot bitcoin and spot ether, 
respectively--could be reasonably expected to assist in surveilling for 
fraudulent and manipulative acts and practices in the specific context 
of the proposals.
    Consequently, this Trust, which invests solely in bitcoin and 
ether, is similar to these approved products, since its only holdings 
are bitcoin, ether, and cash. As such, by analogy, in this specific 
context, the CME can also be considered the market of significant size 
in relation to bitcoin futures and ether futures. This market of 
significant size is highly, though not perfectly correlated with the 
spot bitcoin market and the spot ether market respectively, so that 
surveillance of the bitcoin futures market and the ether futures market 
can be reasonably expected to assist in monitoring for fraudulent and 
manipulative acts and practices in the spot bitcoin market and the spot 
ether market, respectively.
    For all the above reasons, the Exchange believes that the proposed 
rule change is consistent with the requirements of section 6(b)(5) of 
the Act.

B. Self-Regulatory Organization's Statement on Burden on Competition

    The Exchange does not believe that the proposed rule change will 
impose any burden on competition that is not necessary or appropriate 
in furtherance of the purpose of the Act. The Exchange notes that the 
proposed rule change will facilitate the listing and trading of the 
Shares, which are Commodity-Based Trust Shares and that will enhance 
competition among market participants, to the benefit of investors and 
the marketplace.

C. Self-Regulatory Organization's Statement on Comments on the Proposed 
Rule Change Received From Members, Participants, or Others

    No written comments were either solicited or received.

III. Date of Effectiveness of the Proposed Rule Change and Timing for 
Commission Action

    Within 45 days of the date of publication of this notice in the 
Federal Register or within such longer period up to 90 days (i) as the 
Commission may designate if it finds such longer period to be 
appropriate and publishes its reasons for so finding or (ii) as to 
which the Exchange consents, the Commission shall: (a) by order approve 
or disapprove such proposed rule change, or (b) institute proceedings 
to determine whether the proposed rule change should be disapproved.

IV. Solicitation of Comments

    Interested persons are invited to submit written data, views and 
arguments concerning the foregoing, including whether the proposed rule 
change is consistent with the Act. 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-2024-028 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-2024-028. 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-2024-028 and should 
be submitted on or before July 23, 2024.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\30\
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    \30\ 17 CFR 200.30-3(a)(12).
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Sherry R. Haywood,
Assistant Secretary.
[FR Doc. 2024-14516 Filed 7-1-24; 8:45 am]
BILLING CODE 8011-01-P