89 FR 206 pgs. 84960-84972 - Self-Regulatory Organizations; NYSE American LLC; Notice of Filing of Amendment No. 3 and Order Granting Accelerated Approval of a Proposed Rule Change, as Modified by Amendment No. 3, To Permit the Listing and Trading of Options on Bitcoin Exchange-Traded Funds
Type: NOTICEVolume: 89Number: 206Pages: 84960 - 84972
Pages: 84960, 84961, 84962, 84963, 84964, 84965, 84966, 84967, 84968, 84969, 84970, 84971, 84972Docket number: [Release No. 34-101386; File No. SR-NYSEAMER-2024-49]
FR document: [FR Doc. 2024-24640 Filed 10-23-24; 8:45 am]
Agency: Securities and Exchange Commission
Official PDF Version: PDF Version
[top]
SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-101386; File No. SR-NYSEAMER-2024-49]
Self-Regulatory Organizations; NYSE American LLC; Notice of Filing of Amendment No. 3 and Order Granting Accelerated Approval of a Proposed Rule Change, as Modified by Amendment No. 3, To Permit the Listing and Trading of Options on Bitcoin Exchange-Traded Funds
October 18, 2024.
On August 15, 2024, NYSE American LLC ("Exchange") filed with the Securities and Exchange Commission ("Commission"), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 ("Act" or "Exchange Act")? 1 and Rule 19b-4 thereunder, 2 a proposed rule change to list and trade options on the Fidelity Wise Origin Bitcoin Fund (the "Fidelity Fund"), the ARK21Shares Bitcoin ETF (the "ARK 21Shares Fund"), the Invesco Galaxy Bitcoin ETF (the "Invesco Fund"), the Franklin Bitcoin ETF (the "Franklin Fund"), the VanEck Bitcoin Trust (the "VanEck Fund"), the WisdomTree Bitcoin Fund (the "WisdomTree Fund"), the Grayscale Bitcoin Trust BTC (the "Grayscale Fund"), the Grayscale Bitcoin Mini Trust (the "Grayscale Mini Fund"), the Bitwise Bitcoin ETF (the "Bitwise Fund"), the iShares Bitcoin Trust ETF (the "iShares Fund"), and the Valkyrie Bitcoin Fund. 3 The proposed rule change was published for comment in the Federal Register on September 4, 2024. 4 On September 9, 2024, the Exchange filed Amendment No. 1 to the proposed rule change, which replaced and superseded the original proposal in its entirety. On October 7, the Exchange filed Amendment No. 2 to the proposal, which replaced and superseded Amendment No. 1 in its entirety. On October 11, 2024, the Exchange filed Amendment No. 3 to the proposal, which replaces and supersedes Amendment No. 2 in its entirety. 5 The Commission received no comments regarding the proposal. The Commission is publishing this notice to solicit comments on Amendment No. 3 from interested persons, and is approving the proposed rule change, as modified by Amendment No. 3, on an accelerated basis.
Footnotes:
1 ?15 U.S.C. 78s(b)(1).
2 ?17 CFR 240.19b-4.
3 ?On January 10, 2024, the Commission approved proposals by NYSE Arca, Inc., The Nasdaq Stock Market LLC, and Cboe BZX Exchange, Inc. to list and trade the shares of 11 bitcoin-based commodity-based trust shares and trust units, including the trusts underlying the proposed options. See Securities Exchange Act Release No. 99306 (Jan. 10, 2024), 89 FR 3008 (Jan. 17, 2024) (order approving File Nos. SR-NYSEARCA-2021-90; SR-NYSEARCA-2023-44; SR-NYSEARCA-2023-58; SR-NASDAQ-2023-016; SR-NASDAQ-2023-019; SR-CboeBZX-2023-028; SR-CboeBZX-2023-038; SR-CboeBZX-2023-040; SR-CboeBZX-2023-042; SR-CboeBZX-2023-044; SR-CboeBZX-2023-072) ("Bitcoin ETP Order").
4 ? See Securities Exchange Act Release No. 100861 (Aug. 28, 2024), 89 FR 71982.
5 ?On September 9, 2024, the Exchange filed Amendment No. 1 to SR-NYSEAMER-2024-49, which replaced and superseded the original filing in its entirety and, on October 7, 2024, the Exchange filed Amendment No. 2 to SR-NYSEAMER-2024-49, which replaced and superseded in its entirety both Amendment No. 1 and the original filing. See https://www.sec.gov/comments/sr-nyseamer-2024-49/srnyseamer202449-518495-1491742.pdf and https://www.sec.gov/comments/sr-nyseamer-2024-49/srnyseamer202449-527736-1516262.pdf, respectively. Amendment No. 3, which supersedes and replaces Amendment No. 2 in its entirety, modifies the original filing by (1) including reference to, and reliance on, the "ISE IBIT Approval Order," as referenced infra; (2) narrowing the scope of the original filing by (i) eliminating the following bitcoin-related funds, and any information related thereto: the ARK21Shares Bitcoin ETF, the Invesco Galaxy Bitcoin ETF, the Franklin Bitcoin ETF, the VanEck Bitcoin Trust, and the WisdomTree Bitcoin Fund, and (ii) excluding the (remaining) Bitcoin Fund options from being available for flexible ("FLEX") option trading; (3) providing additional information and analysis of trading data for the Bitcoin Funds in support of this proposal, including the proposed position limits of 25,000 per side for the options on the Bitcoin Funds; and (4) supplementing information related to the Exchange's surveillance program, including the manner in which it would surveil suspicious trading activity in the underlying Bitcoin Funds and where the Exchange would obtain information about the bitcoin market. Amendment No. 3 is available on the Exchange's website at https://www.nyse.com/regulation/rule-filings. A FLEX Option is a customized options contract that is subject to the rules in Section 15 of the Exchange's rules. A FLEX Equity Option is an option on a specified underlying equity security that is subject to the rules in Section 15 of the Exchange's rules. See Exchange Rules 900G(b)(1) and (10). Except as provided in Exchange Rules 906G(b)(i) and (ii), there are no position limits for FLEX Equity options. See Exchange Rule 906G(b).
I. The Exchange's Description of the Proposed Rule Change, as Modified by Amendment No. 3
The Exchange proposes to amend Rule 915 regarding the criteria for underlying securities. This Amendment No. 3 supersedes and replaces Amendment No. 2 to the original filing in its entirety. The proposed rule change is available on the Exchange's website at www.nyse.com, at the principal office of the Exchange, and at the Commission's Public Reference Room.
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
[top] The Exchange proposes to amend Rule 915 (Criteria for Underlying Securities). Specifically, the Exchange proposes to amend Rule 915, Commentary .10 to allow the Exchange to list and trade options on the following exchange-traded products: the
Footnotes:
6 ? See proposed Rule 915, Commentary .10(a). On January 11, 2024, GBTC and BITB began trading on NYSE Arca, Inc. ("NYSE Arca"), the Exchange's affiliated SRO, after the Commission approved rule changes to list and trade shares of "Bitcoin-Based Commodity-Based Trust Shares" pursuant to Rule 8.201-E(c)(1) (Commodity-Based Trust Shares), including GBTC and BITB. See Securities Exchange Act Release No. 99306 (January 10, 2024) (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), 89 FR 3008 (January 17, 2024) (SR-NYSEARCA-2023-44; SR-NYSEARCA-2021-90).
On July 13, 2024, after receiving approval of the Commission, BTC began trading on NYSE Arca. See Securities Exchange Act Release No. 100610 (July 26, 2024) (Order Granting Approval of Proposed Rule Changes, as Modified by Amendment No. 1, to List and Trade Share of BTC pursuant to NYSE Arca Rule 8.201-E (Commodity-Based Trust Shares)), 89 FR 62821 (August 1, 2024) (SR-NYSEARCA-2023-45).
The Exchange notes that this is a competitive filing as the Commission recently approved a rule proposal by Nasdaq ISE, LLC ("ISE") to allow the listing and trading of options on iShares Bitcoin Trust (or IBIT), which is a trust that holds bitcoin (referred to herein as the "ISE IBIT Approval Order"). 7 As discussed herein, the Exchange believes, like the recently-approved options on IBIT, options on the Bitcoin Funds would permit hedging, and allow for more liquidity, better price efficiency, and less volatility with respect to the underlying Funds. Further, permitting the listing of such options would enhance the transparency and efficiency of markets in these and correlated products.
Footnotes:
7 ? See Securities Exchange Act Release No. 101128 (September 20, 2024), 89 FR 78942 (September 26, 2024) (SR-ISE-2024-03) (Notice of Filing of Amendment Nos. 4 and 5 and Order Granting Accelerated Approval of a Proposed Rule Change, as Modified by Amendment Nos. 1, 4, and 5, to Permit the Listing and Trading of Options on the iShares Bitcoin Trust ("IBIT")) ("ISE IBIT Approval Order").
Rule 915 provides that, subject to certain other criteria set forth in the Rule, securities deemed appropriate for options trading include Exchange-Traded Fund Shares (or ETFs) as defined in Commentary .06, that represent certain types of interests? 8 and exchange-traded products ("ETPs") structured as trusts that hold precious metals (which are deemed commodities). 9 Like ETPs backed by precious metals ( i.e., commodities), the Exchange proposes to allow options trading on the Bitcoin Funds that hold Bitcoin-which is also deemed a commodity. 10
Footnotes:
8 ? See Rule 915, Commentary .06, which permits options trading on ETFs that are traded on a national securities exchange and are defined as an "NMS stock" in Rule 600(b)(55) of Regulation NMS, that represent interests in registered investment companies (or series thereof) organized as open-end management investment companies, unit investment trusts or similar entities that hold portfolios of securities and/or financial instruments including, but not limited to, stock index futures contracts, options on futures, options on securities and indexes, equity caps, collars and floors, swap agreements, forward contracts, repurchase agreements and reverse purchase agreements (the "Financial Instruments"), and money market instruments, including, but not limited to, U.S. government securities and repurchase agreements (the "Money Market Instruments") comprising or otherwise based on or representing investments in indexes or portfolios of securities and/or Financial Instruments and Money Market Instruments (or that hold securities in one or more other registered investment companies that themselves hold such portfolios of securities and/or Financial Instruments and Money Market Instruments); interests in a trust or similar entity that holds a specified non-U.S. currency deposited with the trust or similar entity when aggregated in some specified minimum number may be surrendered to the trust by the beneficial owner to receive the specified non-U.S. currency and pays the beneficial owner interest and other distributions on deposited non-U.S. currency, if any, declared and paid by the trust ("Currency Trust Shares"); commodity pool interests principally engaged, directly or indirectly, in holding and/or managing portfolios or baskets of securities, commodity futures contracts, options on commodity futures contracts, swaps, forward contracts and/or options on physical commodities and/or non-U.S. currency ("Commodity Pool Units"); or represents an interest in a registered investment company ("Investment Company") organized as an open-end management investment company or similar entity, that invests in a portfolio of securities selected by the Investment Company's investment adviser consistent with the Investment Company's investment objectives and policies, which is issued in a specified aggregate minimum number in return for a deposit of a specified portfolio of securities and/or a cash amount with a value equal to the next determined net asset value ("NAV"), and when aggregated in the same specified minimum number, may be redeemed at a holder's request, which holder will be paid a specified portfolio of securities and/or cash with a value equal to the next determined NAV ("Managed Fund Share"); provided that all of the conditions listed in Rules 915 and 916 are met.
9 ? See Rule 915, Commentary .10 (permitting the listing and trading of options on shares of the following trusts: SPDR Gold Trust, the iShares COMEX Gold Trust the iShares Silver Trust, the ETFS Gold Trust, and the ETFS Silver Trust, pursuant to Rule 915 and 916).
10 ? See proposed Rule 915, Commentary .10(a) (added to include the listing and trading of options on shares of GBTC, BTC, and BITB, pursuant to Rule 915 and 916).
The Bitcoin Funds are structured as trusts that hold bitcoin. Like ETFs and ETPs currently deemed appropriate for options trading, the investment objective of each Bitcoin Fund trust is for its shares to reflect the performance of Bitcoin (less the expenses of the trust's operations), offering investors an opportunity to gain exposure to Bitcoin without the complexities of Bitcoin delivery. Each Bitcoin Fund's shares represent units of fractional undivided beneficial interest in the trust, the assets of which consist principally of Bitcoin and are designed to track Bitcoin or the performance of the price of Bitcoin and offer access to the Bitcoin market. 11 The Bitcoin Funds provide investors with cost-efficient alternatives that allow a level of participation in the Bitcoin market through the securities market.
Footnotes:
11 ?The trust may include minimal cash.
The Exchange believes each Bitcoin Fund satisfies the Exchange's initial listing standards set forth in Commentary .01 to Rule 915. 12 The Exchange notes that the Bitcoin Funds also satisfy the listing standard applied to ETFs traded on the Exchange that they be available for creation and redemption each business day as set forth in Commentary .06(a)(ii). 13
Footnotes:
12 ?Commentary .01 to Rule 915 provides for guidelines to be by the Exchange when evaluating potential underlying securities for Exchange option transactions.
13 ?Commentary .06(a)(ii) requires that ETFs must be available for creation or redemption each business day from or through the issuer in cash or in kind at a price related to net asset value, and the issuer must be obligated to issue ETFs in a specified aggregate number even if some or all of the investment assets required to be deposited have not been received by the issuer, subject to the condition that the person obligated to deposit the investments has undertaken to deliver the investment assets as soon as possible and such undertaking is secured by the delivery and maintenance of collateral consisting of cash or cash equivalents satisfactory to the issuer, as provided in the respective prospectus.
First, each of the Bitcoin Funds satisfy the criteria and guidelines set forth in Rule 915(a). Pursuant to Rule 915(a), a security on which options may be listed and traded on the Exchange must be duly registered (with the Commission) and be an NMS stock (as defined in Rule 600 of Regulation NMS under the Act) and be characterized by a substantial number of outstanding shares that are widely held and actively traded. 14 Each of the Bitcoin Funds is an NMS Stock as defined in Rule 600 of Regulation NMS under the Act. 15 The Exchange believes each Bitcoin Fund is characterized by a substantial number of outstanding shares that are widely held and actively traded.
Footnotes:
14 ?The criteria and guidelines for a security to be considered widely held and actively traded are set forth in Commentary .01 to Rule 915, subject to exceptions.
15 ?An "NMS stock" means any NMS security other than an option, and an "NMS security" means any security or class of securities for which transaction reports are collected, processed, and made available pursuant to an effective transaction reporting plan (or an effective national market system plan for reporting transaction in listed options). See 17 CFR 242.600(b)(64) (definition of "NMS security") and (65) (definition of "NMS stock").
[top] As of August 30, 2024, the Bitcoin Funds had the following number of
| Bitcoin fund | Shares outstanding | Market value (8/30/2024) |
|---|---|---|
| GBTC | 284,570,100 | $13,443,091,524 |
| BTC | 366,950,100 | 1,930,157,526 |
| BITB | 68,690,000 | 2,221,640,670 |
As shown above, each of the Bitcoin Funds had significantly more than 7,000,000 shares outstanding, which is the minimum number of shares of a corporate stock that the Exchange generally requires to list options on that stock pursuant to Commentary .01(1) to Rule 915. The Exchange believes this demonstrates that each Bitcoin Fund is characterized by a substantial number of outstanding shares.
Further, the below table contains information regarding the number of beneficial holders of the Bitcoin Funds as of August 14, 2024.
| Bitcoin Fund | Beneficial holders (8/14/24) |
|---|---|
| GBTC | 464,364 |
| BTC | 13,403 |
| BITB | 75,437 |
As this table shows, each Bitcoin Fund has significantly more than 2,000 beneficial holders (approximately 232, 7, and 38 times more, respectively), which is the minimum number of holders the Exchange generally requires for corporate stock in order to list options on that stock pursuant to pursuant to [sic] Commentary .01(2) to Rule 915. Therefore, the Exchange believes the shares of each Bitcoin Fund are widely held.
In addition, the Exchange believes the shares of each Bitcoin Fund are actively traded. Further, as of September 30, 2024, the total trading volume (by shares and notional) for these funds since they began trading? 16 and the average daily volume ("ADV") over the 30-day period of September 1 through September 30, 2024, was as follows:? 17
Footnotes:
16 ?As noted supra, GBTC and BITB began trading on January 11th and BTC began trading on July 31st. Thus, the measurement period for the trading volume (shares/notional) is January 11 through September 20, 2024, for GBTC and BITB ( i.e., nine months) and July 31 through September 20, 2024, for BTC ( i.e., two months).
17 ? See FactSet, 9/30/2024, https://www.factset.com/data-attribution.
| Bitcoin Fund | Trading volume (shares) | Trading volume (notional $) | ADV (shares) |
|---|---|---|---|
| GBTC | 1,803,567,700 | 93,472,544,497 | 3,266,138 |
| BTC | 335,492,930 | 1,792,866,521 | 6,838,546 |
| BITB | 434,815,840 | 14,433,361,384 | 1,949,835 |
As demonstrated above, even though these Bitcoin Funds have been trading for less than one year (and in the case of the BTC, less than two months), the trading volume for each is substantially higher than 2,400,000 shares (between roughly 165 and 700 times that amount), which is the minimum 12-month volume the Exchange generally requires for a security in order to list options on that security as set forth in Commentary .01 to Rule 915. The Exchange believes this data demonstrates each Bitcoin Fund is characterized by a substantial number of outstanding shares that are actively traded.
In addition to satisfying the Exchange's initial listing standards, options on Bitcoin Funds will be subject to the Exchange's continued listing standards as set forth in Commentary .07 to Rule 916. 18 Pursuant to Commentary .07 to Rule 916, the Exchange will not open for trading any additional series of option contracts covering a fund traded on the Exchange if such fund ceases to be an "NMS stock" as provided for Commentary .01(5) to Rule 915 or the fund is halted from trading on its primary market. 19 Additionally, options on funds traded on the Exchange may be subject to the suspension of opening transactions as follows: (1) the fund no longer meets the terms of Commentary .01 to Rule 916; (2) following the initial twelve-month period beginning upon the commencement of trading of the fund, there are fewer than 50 record and/or beneficial holders of the fund for 30 or more consecutive trading days; (3) the value of the underlying commodity is no longer calculated or available; or (4) such other event occurs or condition exists that in the opinion of the Exchange makes further dealing on the Exchange inadvisable.
Footnotes:
18 ?The Exchange proposes to amend Commentary .11 to Rule 916 to include the Bitcoin Funds in the list of ETPs deemed "Exchange-Traded Fund Shares"-of ETFs [sic]-for purposes of the continued listing standards set forth in Commentary .07 to Rule 916. See proposed Commentary .11 to Rule 916. For avoidance of doubt, the Exchange refers "funds" rather than "ETFs" to make clear that the Bitcoin Funds are subject to these continued listing standards.
19 ? See Commentary .07 to Rule 916.
Options on each Bitcoin Fund will be physically settled contracts with American-style exercise. 20 Consistent with Rule 903, which governs the opening of options series on a specific underlying security (including ETFs and ETPs), the Exchange will open at least one expiration month for options on each Bitcoin Fund? 21 at the commencement of trading on the Exchange and may also list series of options on Bitcoin Funds for trading on a weekly, 22 monthly, 23 or quarterly? 24 basis. The Exchange may also list long-term equity option series ("LEAPS") that expire from twelve to thirty-nine months from the time they are listed. 25
Footnotes:
20 ? See Rule 902 (Rights and Obligations of Holders and Writers), which provides that the rights and obligations of holders and writers of option contracts of any class of options dealt in on the Exchange shall be as set forth in the Rules of the Clearing Corporation. See also OCC Rules, Chapter VIII, which governs exercise and assignment, and Chapter IX, which governs the discharge of delivery and payment obligations arising out of the exercise of physically settled stock option contracts. OCC Rules can be located at: https://www.theocc.com/getmedia/9d3854cd-b782-450f-bcf7-33169b0576ce/occrules.pdf.
21 ? See Rule 903(c), Commentary .03. The monthly expirations are subject to certain listing criteria for underlying securities described within Rule 915. Monthly listings expire the third Friday of the month. The term "expiration date" (unless separately defined elsewhere in the OCC By-Laws), when used in respect of an option contract (subject to certain exceptions), means the third Friday of the expiration month of such option contract, or if such Friday is a day on which the exchange on which such option is listed is not open for business, the preceding day on which such exchange is open for business. See OCC By-Laws Article I, Section 1. Pursuant to Rule 903(d), additional series of options of the same class may be opened for trading on the Exchange when the Exchange deems it necessary to maintain an orderly market, to meet customer demand or when the market price of the underlying stock moves more than five strike prices from the initial exercise price or prices. New series of options on an individual stock may be added until the beginning of the month in which the options contract will expire. Due to unusual market conditions, the Exchange, in its discretion, may add a new series of options on an individual stock until the close of trading on the business day prior to expiration.
22 ? See Rule 903(h).
23 ? See Rule 903, Commentary .11.
24 ? See Rule 903, Commentary .09.
25 ? See Rule 903, Commentary .03.
[top] Pursuant to Rule 903, Commentary .05(a), which governs strike prices of series of options on ETFs, the interval between strike prices of series of options
Footnotes:
26 ?The Exchange notes that for options listed pursuant to the Short Term Option Series Program, the Monthly Options Series Program, and the Quarterly Options Series Program, Rules 903(h) and Commentaries .09 and .03 to Rule 903, specifically set forth intervals between strike prices on Quarterly Options Series, Short Term Option Series, and Monthly Options Series, respectively.
27 ? See Rule 903, Commentary .06.
28 ? See Rule 903, Commentary .13.
29 ? See Rule 903, Commentary .07(a).
30 ? See Rule 903, Commentary .12.
31 ?If options on a Bitcoin Fund are eligible to participate in the Penny Interval Program, the minimum increment of $0.01 below $3.00 and $0.50 above $3.00 would apply. See Rule 960NY(a)(3). See also Rule 960.1NY (which describes the requirements for the Penny Interval Program).
Rule 903G(a)(1) permits the Exchange to authorize for trading a FLEX option class on any equity security if it may authorize for trading a non-FLEX option class on that equity security pursuant to Rule 915. 32 At this time, the Exchange is not proposing to permit Bitcoin Fund options to trade as FLEX options. 33 The Exchange therefore proposes to modify Rule 903G(a)(1) to specify this exception, which will add clarity and transparency to Exchange Rules. 34
Footnotes:
32 ? See Rule 903G(a)(1). See generally Section 15 (Flexible Exchange ("FLEX") Options).
33 ?The Exchange will continue ongoing discussions with the Commission regarding appropriate position limits for the Bitcoin Funds and plans to submit a separate rule filing that would permit the Exchange to authorize for trading FLEX options on the Funds (which filing may propose changes to existing FLEX option position limits for such options if appropriate).
34 ? See proposed Rule 903G(a)(1) (providing, in relevant part, that the Exchange may approve and open for trading any FLEX Equity Options series on any equity security that is eligible for Non-FLEX Options trading under Rule 915 "except those set forth in Commentary .10(a) to Rule 915," i.e., the Bitcoin Funds).
Position and Exercise Limits
Position and exercise limits for options, including options on Bitcoin Funds, are determined pursuant to Rules 904 and 905, respectively. Position and exercise limits for options vary according to the number of outstanding shares and the trading volumes of the underlying security over the past six months, where the largest in capitalization and the most frequently traded funds have an option position and exercise limit of 250,000 contracts (with adjustments for splits, re-capitalizations, etc.) on the same side of the market; and smaller capitalization funds have position and exercise limits of 200,000, 75,000, 50,000 or 25,000 contracts (with adjustments for splits, re-capitalizations, etc.) on the same side of the market. 35
Footnotes:
35 ? See Commentary .07(a)-(d) to Rule 904. For an option to be eligible for the 50,000-contract limit, the security underlying the option must have most recent six-month trading volume of at least 20,000,000 shares, or most recent six-month trading volume of at least 15,000,000 shares and at least 40,000,000 shares currently outstanding. For an option to be eligible for the 75,000-contract limit, the underlying security must have most recent six-month trading volume of at least 40,000,000 shares, or most recent six-month trading volume of at least 30,000,000 shares and at least 120,000,000 shares currently outstanding. For an option to be eligible for the 200,000-contract limit, the underlying security must have most recent six-month trading volume of at least 80,000,000 shares, or most recent six-month trading volume of at least 60,000,000 shares and at least 240,000,000 shares currently outstanding. For an option to be eligible for the 250,000-contract limit, the security underlying the option must have most recent six-month trading volume of at least 100,000,000 shares, or most recent six-month trading volume of at least 75,000,000 shares and at least 300,000,000 shares currently outstanding. The 25,000-contract limit applies to options on underlying securities that do not qualify for a higher contract limit. See Commentary .07(e) to Rule 904. In addition, Commentary .07(f) to Rule 904 establishes higher position limits for options on certain ETFs.
Position limits are designed to limit the number of options contracts traded on the Exchange in an underlying security that an investor, acting alone or in concert with others directly or indirectly, may control. The purpose of position limits, which are set forth in Rule 904, is to address potential manipulative schemes and adverse market impacts surrounding the use of options, such as disrupting the market in the security underlying the options. As such, position limits must balance concerns regarding mitigating potential manipulation and the cost of inhibiting potential hedging activity that investors may use for legitimate economic purposes. To achieve this balance, the Exchange proposes to set the position and exercise limits for the options on the Bitcoin Funds at 25,000 contracts, a limit which has already been approved for IBIT, an ETP that (like the Bitcoin Funds) holds bitcoin. 36 Capping the position limit at 25,000 contracts, the lowest limit available in options, would address concerns related to manipulation and protection of investors as this number is conservative for the Bitcoin Funds and therefore appropriate given their liquidity. While the Exchange believes that the proposed 25,000-contract position limit is conservative for options on the Bitcoin Funds, it nonetheless believes that, for the reasons set forth below, evidence exists to support a much higher position limit. 37
Footnotes:
36 ? See proposed Rule 904, Commentary .07(f). See also ISE IBIT Approval Order, supra note 6. [sic]
37 ?The Exchange may file a subsequent rule change to amend the position and exercise limit for options on any or all the Bitcoin Funds based on additional data regarding trading activity, to continue to balance any concerns regarding manipulation. A higher position limit would allow institutional investors to utilize options on the Bitcoin Funds for prudent risk management purposes.
As shown in the table below, GBTC, BITB and BTC would easily qualify for the 250,000-contract position limit available to other ETFs and ETPs pursuant to the criterion in Rule 904, Commentary .07(a)(i), which requires that, for the most recent six-month period, trading volume for the underlying security be at least 100,000,000 shares. 38 As noted herein, BTC began trading on July 31, 2024, and therefore has only two months of trading data available as shown below. 39
Footnotes:
38 ?Per Commentary .07(a) to Rule 904, to qualify for the 250,000-contract position limit for options, the underlying security must (i) have trading volume of at least 100,000,000 shares during the most recent six-month trading period; or (ii) have trading volume of at least 75,000,000 shares during the most recent six-month trading period and have at least 300,000,000 shares currently outstanding.
39 ? See FactSet, 9/30/2024, https://www.factset.com/data-attribution. For avoidance of doubt, the Exchange notes that this chart depicts the most recent six months of trading data by shares for GBTC and BITB whereas the earlier chart (that depicts volume by notional and shares) covered the first nine months of trading. For BTC, both charts depict the same two-month trading volume by shares.
| Bitcoin Fund | Total volume (9/30/2024) |
|---|---|
| GBTC | 723,758,100 (6-months) |
| BTC | 335,492,930 (2-months) |
| BITB | 263,965,870 (6-months) |
[top] Thus, based on the most-recent trading volume, each Bitcoin Fund exceeded the requisite minimum of 100,000,000 shares necessary to qualify for the 250,000-contract position and exercise limits. By comparison, other options symbols with six-month trading volume less than GBTC, BITB, and BTC
Footnotes:
40 ? See https://www.theocc.com/Market-Data/Market-Data-Reports/Series-and-Trading-Data/Series-Search (including the following symbols that have a position limit of 250,000: GLD, IAU, SLV, SIVR, SGOL).
With respect to the outstanding shares of each Bitcoin Fund, if a market participant held the maximum number of contracts possible pursuant to the proposed position and exercise limits (25,000 contracts), the equivalent shares represented by the proposed position/exercise limit (2,500,000 shares) would represent the following approximate percentage of current outstanding shares:
| Bitcoin Fund | Proposed position/exercise limits in equivalent shares | Outstanding shares (8/30/24) | Percentage of outstanding shares |
|---|---|---|---|
| GBTC | 2,500,000 | 284,570,100 | 0.9 |
| BTC | 2,500,000 | 366,950,100 | 0.7 |
| BITB | 2,500,000 | 68,690,000 | 3.6 |
As this table demonstrates, if a market participant held the maximum permissible options positions in one of the Bitcoin Fund options and exercised all of them at the same time, that market participant would control a small percentage of the outstanding shares of the underlying Bitcoin Fund. For example, as noted above, a position limit of 25,000 same side contracts effectively restricts a market participant from holding positions that could result in the receipt of no more than 2,500,000 shares of the applicable Bitcoin Fund (if that market participant exercised all its options). Based on the number of shares outstanding for each Bitcoin Fund as of August 30, 2024, the table below sets forth the approximate number of market participants that could hold the maximum of 25,000 same side positions in each Bitcoin Fund that would equate to the number of shares outstanding of that Bitcoin Fund:
| Bitcoin Fund | Shares outstanding | Number of market participants with 25,000 same side positions |
|---|---|---|
| GBTC | 284,570,100 | 114 |
| BTC | 366,950,100 | 147 |
| BITB | 68,690,000 | 27 |
This means if 114 market participants had 25,000 same side positions in options on GBTC, each of them would have to simultaneously exercise all of those options to create a scenario that may put the underlying security under stress. Similarly, this means if 147 market participants had 25,000 same side positions in options on BTC, each of them would have to simultaneously exercise all of those options to create a scenario that may put the underlying security under stress. Finally, this means if 27 market participants had 25,000 same side positions in options on BITB, each of them would have to simultaneously exercise all of those options to create a scenario that may put the underlying security under stress. The Exchange believes it is highly unlikely for this to occur; however, even if such event did occur, the Exchange would not expect any of the Bitcoin Fund to be under stress because such an event would merely induce the creation of more shares through the trust's creation and redemption process.
Further, given that the issuer of each Bitcoin Fund may create and redeem shares that represent an interest in Bitcoin, the Exchange believes it is relevant to compare the size of a position limit to the market capitalization of the Bitcoin market. As of August 30, 2024, the global supply of Bitcoin was 19,747,066, and the price of one Bitcoin was approximately $59,108.23, which equates to a market capitalization of approximately $1.167 trillion. 41 Consider the proposed position and exercise limit of 25,000 option contracts for each Bitcoin Fund option. A position and exercise limit of 25,000 same side contracts effectively restricts a market participant from holding positions that could result in the receipt of no more than 2,500,000 shares of GBTC, BTC, or BITB, as applicable (if that market participant exercised all its options). The following table shows the share price of each Bitcoin Fund on August 30, 2024, the value of 2,500,000 shares of the Bitcoin Fund at that price, and the approximate percentage of that value of the size of the Bitcoin market:
Footnotes:
41 ? See https://www.blockchain.com/explorer/charts/total-bitcoins.
| Bitcoin Fund | Aug. 30th share price ($) | Value of 2,500,000 shares of bitcoin fund ($) | Percentage of bitcoin market |
|---|---|---|---|
| GBTC | 46.75 | 116,875,000 | 0.010 |
| BTC | 5.20 | 13,000,000 | 0.001 |
| BITB | 31.95 | 79,875,000 | 0.007 |
Therefore, if a market participant with the maximum 25,000 same side contracts in options on GBTC, BTC, or BITB exercised all positions at one time, such an event would have no practical impact on the Bitcoin market.
[top] The Exchange also reviewed the market capitalization of each Bitcoin Fund relative to the market
| bitcoin/shares outstanding | Market value (8/30/2024) | % of total bitcoin market | |
|---|---|---|---|
| Total Bitcoin Market? 42 | 19,747,066 | $1,167,214,096,788 | 100.00 |
| GBTC | 284,570,100 | 13,443,091,524 | 1.15 |
| BTC | 366,950,100 | 1,930,157,526 | 0.17 |
| BITB | 68,690,000 | 2,221,640,670 | 0.19 |
As shown above, the Bitcoin Funds collectively represent approximately 1.51% of the global supply of Bitcoin (19,747,066). Based on the $46.75 price of a GBTC share on August 30, 2024, a market participant could have redeemed one Bitcoin for approximately 1,264 GBTC shares. Another 24,967,146,455 GBTC shares could be created before the supply of Bitcoin was exhausted. As a result, 9,987 market participants would have to simultaneously exercise 25,000 same side positions in GBTC options to receive shares of the GBTC holding the entire global supply of Bitcoin. Similarly, based on the $5.20 price of a BTC share on August 30, 2024, a market participant could have redeemed one Bitcoin for approximately 11,367 BTC shares. Another 224,464,249,382 BTC shares could be created before the supply of Bitcoin was exhausted. As a result, 89,786 market participants would have to simultaneously exercise 25,000 same side positions in BTC options to receive shares of BTC holding the entire global supply of Bitcoin. Similarly, based on the $31.95 price of a BITB share on August 30, 2024, a market participant could have redeemed one Bitcoin for approximately 1,850 BITB shares. Another 36,532,522,591 BITB shares could be created before the supply of Bitcoin was exhausted. As a result, 14,613 market participants would have to simultaneously exercise 25,000 same side positions in BITB options to receive shares of BITB holding the entire global supply of Bitcoin. Unlike the Bitcoin Funds, the number of shares that corporations may issue is limited. However, like corporations, which authorize additional shares, repurchase shares, or split their shares, the Bitcoin Funds may create, redeem, or split shares in response to demand. While the supply of Bitcoin is limited to 21,000,000, it is believed that it will take more than 100 years to fully mine the remaining Bitcoin. 43 The supply of Bitcoin is larger than the available supply of most securities. 44 Given the significant unlikelihood of any of these events ever occurring, the Exchange does not believe options on the Bitcoin Funds should be subject to position and exercise limits even lower than those proposed (which are already equal to the lowest available limit for equity options in the industry) to protect the supply of Bitcoin.
Footnotes:
42 ? See id.
43 ? See https://www.blockchain.com/explorer/assets/btc (citing 21 million as the "total supply" of bitcoin).
44 ?The market capitalization of Bitcoin would rank in the top 10 among securities. See https://companiesmarketcap.com/usa/largest-companies-in-the-usa-by-market-cap/.
The Exchange also believes the proposed limits are appropriate given position limits for Bitcoin futures. For example, the Chicago Mercantile Exchange ("CME") imposes a position limit of 2,000 futures (for the initial spot month) on its Bitcoin futures contract. 45 On August 28, 2024, CME Aug 24 Bitcoin Futures settled at $58,950. A position of 2,000 CME Bitcoin futures, therefore, would have a notional value of $589,500,000. The following table shows the share price of each Bitcoin Fund on August 28, 2024, and the approximate number of option contracts that equates to that notional value:
Footnotes:
45 ? See CME Rulebook Chapter 350 (description of CME Bitcoin Futures) and Chapter 5, Position Limit, Position Accountability and Reportable Level Table in the Interpretations & Special Notices. Each CME Bitcoin futures contract is valued at five Bitcoins as defined by the CME CF Bitcoin Reference Rate ("BRR"). See CME Rule 35001.
| Bitcoin Fund | Aug. 28th share price | Number of option contracts |
|---|---|---|
| GBTC | 46.94 | 125,585 |
| BTC | 5.23 | 1,127,151 |
| BITB | 32.08 | 183,759 |
The approximate number of option contracts for each Bitcoin Fund that equate to the notional value of CME Bitcoin futures is significantly higher than the proposed limit of 25,000 options contract for each Bitcoin Fund option. The fact that many options ultimately expire out-of-the-money and thus are not exercised for shares of the underlying, while the delta of a Bitcoin Future is 1, further demonstrates how conservative the proposed limits of 25,000 options contracts are for the Bitcoin Fund options.
The Exchange notes, unlike options contracts, CME position limits are calculated on a net futures-equivalent basis by contract and include contracts that aggregate into one or more base contracts according to an aggregation ratio(s). 46 Therefore, if a portfolio includes positions in options on futures, CME would aggregate those positions into the underlying futures contracts in accordance with a table published by CME on a delta equivalent value for the relevant spot month, subsequent spot month, single month and all month position limits. 47 If a position exceeds position limits because of an option assignment, CME permits market participants to liquidate the excess position within one business day without being considered in violation of its rules. Additionally, if at the close of trading, a position that includes options exceeds position limits for futures contracts, when evaluated using the delta factors as of that day's close of trading but does not exceed the limits when evaluated using the previous day's delta factors, then the position shall not constitute a position limit violation. Considering CME's position limits on futures for Bitcoin, the Exchange believes that that the proposed same side position limits are more than appropriate for the Bitcoin Fund options.
Footnotes:
46 ? See CME Rulebook Chapter 5, Position Limit, Position Accountability and Reportable Level Table in the Interpretations & Special Notices.
47 ? Id.
[top] The Exchange believes the available supply of Bitcoin is not relevant to the determination of position and exercise limits for options overlying the Bitcoin Funds. 48 Position and exercise limits are
Footnotes:
48 ?The Exchange is unaware of any proposed rule change related to position and exercise limits for any equity option (including commodity ETF options) for which the Commission required consideration of whether the available supply of an underlying (whether it be a corporate stock or an ETF) or the contents of an ETF (commodity or otherwise) should be considered when an exchange proposed to establish those limits. See, e.g., Securities Exchange Act Release No. 57894 May 30, 2008), 73 FR 32061 (June 5, 2008) (SR-CBOE-2005-11) (approval order in which the Commission stated that the "listing and trading of Gold Trust Options will be subject to the exchanges' rules pertaining to position and exercise limits and margin"). The Exchange notes when the Commission approved this filing, the position limits in Rule 9054 were the same as they are today. For reference, the current position and exercise limits for options on SPDR Gold Shares ETF ("GLD") and options on iShares Silver Trust ("SLV") are 250,000 contracts, or 10 times that proposed position and exercise limit for the Bitcoin Fund options.
49 ?For example, suppose an option has a position limit of 25,000 option contracts and there are a total of 10 investors trading that option. If all 10 investors max out their positions, that would result in 250,000 option contracts outstanding at that time. However, suppose 10 more investors decide to begin trading that option and also max out their positions. This would result in 500,000 option contracts outstanding at that time. An increase in the number of investors could cause an increase in outstanding options even if position limits remain unchanged.
50 ? See Securities Exchange Act Release No. 39489 (December 24, 1997), 63 FR 276 (January 5, 1998) (SR-CBOE-1997-11).
51 ? Id.
The Exchange notes that a Registration Statement on Form S-1 was filed with the Commission for each Bitcoin Fund, each of which described the supply of Bitcoin as being limited to 21,000,000 (of which approximately 90% had already been mined), and that the limit would be reached around the year 2140. 52 Each Registration Statement permits an unlimited number of shares of the applicable Bitcoin Fund to be created. Further, the Commission approved proposed rule changes that permitted the listing and trading of shares of each Bitcoin Fund, which approval did not comment on the sufficient supply of Bitcoin or address whether there was a risk that permitting an unlimited number of shares for a Bitcoin Fund would impact the supply of Bitcoin. 53 Therefore, the Exchange believes the Commission had ample time and opportunity to consider whether the supply of Bitcoin was sufficient to permit the creation of unlimited Bitcoin Fund shares, and does not believe considering this supply with respect to the establishment of position and exercise limits is appropriate given its lack of relevance to the purpose of position and exercise limits. However, given the significant size of the Bitcoin supply, the proposed positions limits are more than sufficient to protect investors and the market.
Footnotes:
52 ? See, e.g., GBTC Form S-1 Registration Statement, at p. 17, https://www.sec.gov/Archives/edgar/data/1588489/000119312517013693/d157414ds1.htm; BTC Form S-1 Registration Statement, at p. 21, https://www.sec.gov/Archives/edgar/data/2015034/000119312524065444/d785023ds1.htm; and BITB Amendment No 2. to S-1, at p. 47, https://www.sec.gov/Archives/edgar/data/1763415/000199937123000735/bitwise-s1a_120423.htm ("Bitcoin Funds Reg. Stmts.").
53 ? See Bitcoin ETP Approval Order.
Based on the foregoing, the Exchange believes the proposal to list options on the Bitcoin Funds with positions and exercise limits of 25,000 on the same side, the lowest position limit available in the options industry, is conservative and appropriate given the market capitalization, average daily volume, and high number of outstanding shares for each of the Bitcoin Funds. The proposed position and exercise limits reasonably and appropriately balance the liquidity provisioning in the market against the prevention of manipulation. The Exchange believes these proposed limits are effectively designed to prevent an individual customer or entity from establishing options positions that could be used to manipulate the market of the underlying Bitcoin Funds as well as the Bitcoin market. 54
Footnotes:
54 ? See Securities Exchange Act Release No. 39489 (December 24, 1997), 63 FR 276 (January 5, 1998) (SR-CBOE-1997-11).
As described herein, options on the Bitcoin Funds will trade in the same manner as any other ETF or ETP options on the Exchange, except that the Bitcoin Funds will not be eligible for FLEX option trading. The Exchange Rules that currently apply to the listing and trading of options on the Exchange, including, for example, Rules that govern listing criteria, expiration and exercise prices, minimum increments, margin requirements, customer accounts and trading halt procedures will apply to the listing and trading of Bitcoin Funds on the Exchange in the same manner as they apply to all other ETFs and ETPs that are listed and traded on the Exchange, including the precious metal-backed commodity ETPs already deemed appropriate for options trading on the Exchange pursuant to Commentary .10 to Rule 915. Further, as described above, Exchange Rules regarding position and exercise limits will likewise apply to options on the Bitcoin Funds except the that, as proposed, the position and exercise limits will be set at 25,000 on the same side.
The Exchange notes that options on Bitcoin Funds would not be available for trading until The Options Clearing Corporation ("OCC") represents to the Exchange that it is fully able to clear and settle such options. The Exchange has also analyzed its capacity and represents that it and The Options Price Reporting Authority ("OPRA") have the necessary systems capacity to handle the additional traffic associated with the listing of options on Bitcoin Funds. The Exchange believes any additional traffic that would be generated from the trading of options on Bitcoin Funds would be manageable. The Exchange represents that Exchange members will not have a capacity issue as a result of this proposed rule change.
[top] The Exchange represents that the same surveillance procedures applicable to all other options currently listed and traded on the Exchange will apply to options on Bitcoin Funds, and that it has the necessary systems capacity to support the new option series. The Exchange's existing surveillance and reporting safeguards are designed to deter and detect possible manipulative behavior which might arise from listing and trading options on ETFs and ETPs, such as (existing) precious metal-commodity backed ETP options as well as the proposed options on Bitcoin Funds. The Exchange believes that its surveillance procedures are adequate to properly monitor the trading of options on Bitcoin Funds in all trading sessions and to deter and detect violations of Exchange rules. Specifically, the Exchange's market surveillance staff will have access to the surveillances conducted by its affiliate NYSE, Arca Inc. with respect to the Bitcoin Funds and would review activity in the underlying Funds when conducting surveillances for market abuse or manipulation in the options on the Trust. Additionally, the Exchange is a member of the Intermarket Surveillance Group ("ISG") under the Intermarket Surveillance Group Agreement. ISG members work together to coordinate surveillance and investigative information sharing in the stock, options, and futures markets. In addition, the Exchange has a Regulatory Services Agreement with the Financial Industry Regulatory Authority ("FINRA"). Pursuant to a multi-party 17d-2 joint plan, all options exchanges
Footnotes:
55 ?Section 19(g)(1) of the Act, among other things, requires every SRO registered as a national securities exchange or national securities association to comply with the Act, the rules and regulations thereunder, and the SRO's own rules, and, absent reasonable justification or excuse, enforce compliance by its members and persons associated with its members. See 15 U.S.C. 78q(d)(1) and 17 CFR 240.17d-2. Section 17(d)(1) of the Act allows the Commission to relieve an SRO of certain responsibilities with respect to members of the SRO who are also members of another SRO. Specifically, Section 17(d)(1) allows the Commission to relieve an SRO of its responsibilities to: (i) receive regulatory reports from such members; (ii) examine such members for compliance with the Act and the rules and regulations thereunder, and the rules of the SRO; or (iii) carry out other specified regulatory responsibilities with respect to such members.
The underlying shares of spot bitcoin ETPs, including the Bitcoin Funds, are also subject to safeguards related to addressing market abuse and manipulation. As the Commission stated in its order approving proposals of several exchanges to list and trade shares of spot bitcoin-based exchange-traded products ("Bitcoin ETP Order"):
Each Exchange has a comprehensive surveillance-sharing agreement with the CME via their common membership in the Intermarket Surveillance Group. This facilitates the sharing of information that is available to the CME through its surveillance of its markets, including its surveillance of the CME bitcoin futures market. 56
Footnotes:
56 ? See Securities Exchange Act Release No. 99306 (January 10, 2024), 89 FR 3008, 3009 (January 17, 2024) (File Nos. SR-NYSEArca-2021-90; SR-NYSEArca-2023-44; SR-NYSEArca-2023-58; SR-NASDAQ-2023-016; SR-NASDAQ-2023-019; SR-CboeBZX-2023-028; SR-CboeBZX-2023-038; SR-CboeBZX-2023-040; SR-CboeBZX-2023-042; SR-CboeBZX-2023-044; and SR-CboeBZX-2023-072) (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 Exchange states that, given the consistently high correlation between the CME bitcoin futures market and the spot bitcoin market, as confirmed by the Commission through robust correlation analysis, the Commission was able to conclude that such surveillance sharing agreements could reasonably be "expected to assist in surveilling for fraudulent and manipulative acts and practices in the specific context of the [Bitcoin ETPs]."? 57
Footnotes:
57 ? See Bitcoin ETP Order, 89 FR at 3010-11.
In light of surveillance measures related to both options and futures as well as the underlying Bitcoin Funds, 58 the Exchange believes that existing surveillance procedures are designed to deter and detect possible manipulative behavior which might potentially arise from listing and trading the proposed options on the Bitcoin Funds.
Footnotes:
58 ? See Amendment No. 2 to Proposed Rule Change to List and Trade Shares of the Grayscale Bitcoin Trust (BTC) under NYSE Arca Rule 8.201-E (Commodity-Based Trust Shares) (SR-NYSEARCA-2021-90), filed Jan. 5, 2024, available at https://www.sec.gov/comments/sr-nysearca-2021-90/srnysearca202190-358659-884182.pdf ; Amendment No. 2 to Proposed Rule Change to List and Trade Shares of the Bitwise Bitcoin ETF under NYSE Arca Rule 8.201-E (Commodity-Based Trust Shares) (SR-NYSEARCA-2023-44), filed Jan. 5, 2024, available at https://www.sec.gov/comments/sr-nysearca-2023-44/srnysearca202344-358800-884322.pdf; and Notice of Filing of Proposed Rule Change, as Modified by Amendment No. 1, To List and Trade Shares of the Grayscale Bitcoin Mini Trust Under NYSE Arca Rule 8.201-E, Commodity-Based Trust Shares, Securities Exchange Act Release No. 100290 (June 6, 2024), 89 FR 49931 (June 12, 2024) (SR-NYSEARCA-2024-45).
Finally, quotation and last sale information for ETFs is available via the Consolidated Tape Association ("CTA") high speed line. Quotation and last sale information for such securities is also available from the exchange on which such securities are listed. Quotation and last sale information for options on Bitcoin Funds will be available via OPRA and major market data vendors.
The Exchange believes that offering options on Bitcoin Funds will benefit investors by providing them with an additional, relatively lower cost investing tool to gain exposure to the price of Bitcoin and hedging vehicle to meet their investment needs in connection with Bitcoin-related products and positions. The Exchange expects investors will transact in options on Bitcoin Funds in the unregulated over-the-counter ("OTC") options market, 59 but may prefer to trade such options in a listed environment to receive the benefits of trading listed options, including (1) enhanced efficiency in initiating and closing out position; (2) increased market transparency; and (3) heightened contra-party creditworthiness due to the role of OCC as issuer and guarantor of all listed options. The Exchange believes that listing Bitcoin Fund options may cause investors to bring this liquidity to the Exchange, would increase market transparency and enhance the process of price discovery conducted on the Exchange through increased order flow. The Exchange notes that the ETPs that hold precious metal commodities on which the Exchange may already list and trade options are trusts structured in substantially the same manner as Bitcoin Funds and essentially offer the same objectives and benefits to investors, just with respect to different assets. The Exchange notes that it has not identified any issues with the continued listing and trading of options on any ETFs or ETPs that hold commodities ( i.e., precious metals) that it currently lists and trades on the Exchange.
Footnotes:
59 ?The Exchange understands from customers that investors have historically transacted in options on ETFs in the OTC options market if such options were not available for trading in a listed environment.
Finally, the Exchange notes that applicable Exchange rules will require that customers receive appropriate disclosure before trading options in Bitcoin Funds. 60 Further, brokers opening accounts and recommending options transactions must comply with relevant customer suitability standards. 61
Footnotes:
60 ? See Rules 921(c) and (f), and Commentary .01 to Rule 921 and 481.
61 ? See Rule 923.
2. Statutory Basis
The Exchange believes that its proposed rule change is consistent with Section 6(b) of the Act? 62 in general and furthers the objectives of Section 6(b)(5) of the Act? 63 in particular, in that it is designed to promote just and equitable principles of trade, to remove impediments to and perfect the mechanisms of a free and open market and a national market system, and, in general, to protect investors and the public interest.
Footnotes:
62 ?15 U.S.C. 78f(b).
63 ?15 U.S.C. 78f(b)(5).
In particular, the Exchange believes that the proposal to list and trade options on Bitcoin Funds will remove impediments to and perfect the mechanism of a free and open market and a national market system and, in general, protect investors because offering options on Bitcoin Funds will provide investors with an opportunity to realize the benefits of utilizing options on a Bitcoin Fund, including cost efficiencies and increased hedging strategies.
[top] The Exchange believes that offering Bitcoin Fund options will benefit investors by providing them with a relatively lower-cost risk management tool, which will allow them to manage their positions and associated risk in their portfolios more easily in connection with exposure to the price of Bitcoin and with Bitcoin-related products and positions. Additionally, the Exchange's offering of Bitcoin Fund options will provide investors with the ability to transact in such options in a listed market environment as opposed to in the unregulated OTC options market, which would increase market
Footnotes:
64 ? See Rule 915, Commentary .10.
The Exchange also believes the proposed rule change will remove impediments to and perfect the mechanism of a free and open market and a national market system, because it is consistent with current Exchange Rules previously filed with the Commission. Options on Bitcoin Funds satisfy the initial listing standards and continued listing standards currently in the Exchange Rules applicable to options on all ETFs and ETPs, including ETPs that hold other commodities already deemed appropriate for options trading on the Exchange. Additionally, as demonstrated above, each Bitcoin Fund is characterized by a substantial number of shares that are widely held and actively traded. Bitcoin Fund options will trade in the same manner as any other ETF or ETP options-the same Exchange Rules that currently govern the listing and trading of options, including permissible expirations, strike prices, minimum increments, and margin requirements, will govern the listing and trading of options on Bitcoin Funds in the same manner.
The Exchange believes the proposed rule change to exclude the Bitcoin Funds from being eligible for trading as FLEX options is consistent with the Act, because it will permit the Exchange to continue to participate in ongoing discussions with the Commission regarding appropriate position limits for options on these Funds. 65
Footnotes:
65 ?The Exchange will submit a separate rule filing that would permit the Exchange to authorize for trading FLEX options on the Bitcoin Funds (which filing may propose changes to existing FLEX option position limits for such options if appropriate).
The proposed position and exercise limit for options on the Bitcoin Funds is 25,000 contracts. These position and exercise limits are the lowest position and exercise limits available in the options industry, are extremely conservative and more than appropriate given the Bitcoin Funds' market capitalization, average daily volume, number of beneficial holders, and high number of outstanding shares. 66 The proposed position and exercise limits are consistent with the Act as they addresses concerns related to manipulation and protection of investors because the position and exercise limits are extremely conservative and more than appropriate given the Bitcoin Funds are actively traded.
Footnotes:
66 ?The Exchange notes that IBIT-which has been approved for options trading-represents a larger percentage of the bitcoin market than all three Bitcoin Funds. See ISE IBIT Approval Order, supra note 6. As noted herein, the Bitcoin Funds collectively represent approximately 1.51% of the bitcoin market. By comparison, IBIT options have an approved position limit of 25,000 contracts per side, which represents 4% of total underlying spot BTC liquidity, and IBIT is the most liquid spot Bitcoin ETF. See id.
The Exchange also believes the proposed rule change to Rule 903G(a), to make clear that options on the Bitcoin Funds are not eligible for FLEX trading, will remove impediments to and perfect the mechanism of a free and open market and a national market system because it adds clarity and transparency to Exchange Rules making them easier to navigate and understand to the benefit of investors and the public interest.
The Exchange represents that it has the necessary systems capacity to support the new Bitcoin Fund options. The Exchange believes that its existing surveillance and reporting safeguards are designed to deter and detect possible manipulative behavior which might arise from listing and trading options, including Bitcoin Fund options. The Exchange's existing surveillance and reporting safeguards are designed to deter and detect possible manipulative behavior which might arise from listing and trading options on ETFs and ETPs, such as (existing) precious metal-commodity backed ETP options as well as the proposed options on Bitcoin Funds. The Exchange believes that its surveillance procedures are adequate to properly monitor the trading of options on Bitcoin Funds in all trading sessions and to deter and detect violations of Exchange rules. Specifically, the Exchange's market surveillance staff will have access to the surveillances conducted by its affiliated NYSE, Arca Inc. with respect to the Bitcoin Funds and would review activity in the underlying Funds when conducting surveillances for market abuse or manipulation in the options on the Trust. Additionally, the Exchange is a member of the ISG under the Intermarket Surveillance Group Agreement. ISG members work together to coordinate surveillance and investigative information sharing in the stock, options, and futures markets. In addition, the Exchange has a Regulatory Services Agreement with the FINRA and, as noted herein, pursuant to a multi-party 17d-2 joint plan, all options exchanges allocate regulatory responsibilities to FINRA to conduct certain options-related market surveillances. Further, the Exchange will implement any new surveillance procedures it deems necessary to effectively monitor the trading of options on the Bitcoin Funds.
[top] The underlying shares of spot bitcoin ETPs, including the Bitcoin Funds, are also subject to safeguards related to addressing market abuse and manipulation. As the Commission stated in its order approving proposals of several exchanges to list and trade shares of spot bitcoin-based ETPs, "[e]ach Exchange has a comprehensive surveillance-sharing agreement with the CME via their common membership in the Intermarket Surveillance Group. This facilitates the sharing of information that is available to the CME through its surveillance of its markets, including its surveillance of the CME bitcoin futures market. 67 The Exchange states that, given the consistently high correlation between the CME bitcoin futures market and the spot bitcoin market, as confirmed by the Commission through robust correlation analysis, the Commission was able to conclude that such surveillance sharing agreements could reasonably be "expected to assist in surveilling for fraudulent and manipulative acts and practices in the specific context of the [Bitcoin ETPs]."? 68 In light of surveillance measures related to both options and futures as well as the underlying Bitcoin Funds, 69 the
Footnotes:
67 ? See Securities Exchange Act Release No. 99306 (January 10, 2024), 89 FR 3008, 3009 (January 17, 2024) (File Nos. SR-NYSEArca-2021-90; SR-NYSEArca-2023-44; SR-NYSEArca-2023-58; SR-NASDAQ-2023-016; SR-NASDAQ-2023-019; SR-CboeBZX-2023-028; SR-CboeBZX-2023-038; SR-CboeBZX-2023-040; SR-CboeBZX-2023-042; SRCboeBZX-2023-044; and SR-CboeBZX-2023-072) (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).
68 ? See Bitcoin ETP Order, 89 FR at 3010-11.
69 ? See Amendment No. 2 to Proposed Rule Change to List and Trade Shares of the Grayscale Bitcoin Trust (BTC) under NYSE Arca Rule 8.201-E (Commodity-Based Trust Shares) (SR-NYSEARCA-2021-90), filed Jan. 5, 2024, available at https://www.sec.gov/comments/sr-nysearca-2021-90/srnysearca202190-358659-884182.pdf; Amendment No. 2 to Proposed Rule Change to List and Trade Shares of the Bitwise Bitcoin ETF under NYSE Arca Rule 8.201-E (Commodity-Based Trust Shares) (SR-NYSEARCA-2023-44), filed Jan. 5, 2024, available at https://www.sec.gov/comments/sr-nysearca-2023-44/srnysearca202344-358800-884322.pdf; and Notice of Filing of Proposed Rule Change, as Modified by Amendment No. 1, To List and Trade Shares of the Grayscale Bitcoin Mini Trust Under NYSE Arca Rule 8.201-E, Commodity-Based Trust Shares, Securities Exchange Act Release No. 100290 (June 6, 2024), 89 FR 49931 (June 12, 2024) (SR-NYSEARCA-2024-45).
Finally, the Exchange notes that this proposal will remove impediments to and perfect the mechanism of a free and open market and a national market system and, in general, protect investors because applicable Exchange rules will require that customers receive appropriate disclosure before trading options in Bitcoin Funds? 70 and will require that brokers opening accounts and recommending options transactions comply with relevant customer suitability standards. 71
Footnotes:
70 ? See Rule 921(f). See also Rule 921(c), Commentary .01 to Rule 921, and Rule 481.
71 ? See Rule 923.
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 purposes of the Act.
Intramarket Competition: The Exchange does not believe that the proposed rule change will impose any burden on intramarket competition that is not necessary or appropriate in furtherance of the purposes of the Act as Bitcoin Funds would need to satisfy the initial listing standards set forth in the Exchange Rules in the same manner as any other ETF before the Exchange could list options on them. Additionally, Bitcoin Fund options will be equally available to all market participants who wish to trade such options. The Exchange Rules currently applicable to the listing and trading of options on ETFs on the Exchange will apply in the same manner to the listing and trading of all options on Bitcoin Funds. Also, and as stated above, the Exchange already lists options on other commodity-based ETPs. 72
Footnotes:
72 ? See Rule 915, Commentary .10.
Intermarket Competition: The Exchange does not believe that the proposal to list and trade options on Bitcoin Funds will impose any burden on intermarket competition that is not necessary or appropriate in furtherance of the purposes of the Act. To the extent that the advent of Bitcoin Fund options trading on the Exchange may make the Exchange a more attractive marketplace to market participants at other exchanges, such market participants are free to elect to become market participants on the Exchange. As noted herein, this is a competitive filing as the Commission recently approved the listing and trading of options on an ETP that, like the Bitcoin Funds, holds bitcoin. 73 Additionally, other options exchanges are free to amend their listing rules, as applicable, to permit them to list and trade options on Bitcoin Funds. The Exchange notes that listing and trading Bitcoin Fund options on the Exchange will subject such options to transparent exchange-based rules as well as price discovery and liquidity, as opposed to alternatively trading such options in the OTC market.
Footnotes:
73 ? See ISE IBIT Approval Order, supra note 6.
The Exchange believes that the proposed rule change may relieve any burden on, or otherwise promote, competition as it is designed to increase competition for order flow on the Exchange in a manner that is beneficial to investors by providing them with a lower-cost option to hedge their investment portfolios. The Exchange notes that it operates in a highly competitive market in which market participants can readily direct order flow to competing venues that offer similar products. Ultimately, the Exchange believes that offering Bitcoin Fund options for trading on the Exchange will promote competition by providing investors with an additional, relatively low-cost means to hedge their portfolios and meet their investment needs in connection with Bitcoin prices and Bitcoin-related products and positions on a listed options exchange.
C. Self-Regulatory Organization's Statement on Comments on the Proposed Rule Change Received From Members, Participants, or Others
No written comments were solicited or received with respect to the proposed rule change.
III. Discussion and Commission Findings
After careful consideration, the Commission finds that the proposed rule change, as modified by Amendment No. 3, is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities exchange, 74 and, in particular, the requirements of Section 6 of the Act. 75 Specifically, the Commission finds that the proposed rule change is consistent with Section 6(b)(5) of the Act, 76 which requires that an exchange have rules designed to prevent fraudulent and manipulative acts and practices, to remove impediments to and perfect the mechanism of a free and open market, and to protect investors and the public interest.
Footnotes:
74 ?In approving this proposed rule change, the Commission has considered the proposed rule's impact on efficiency, competition, and capital formation. See 15 U.S.C. 78c(f).
75 ?15 U.S.C. 78f.
76 ?15 U.S.C. 78f(b)(5).
A. Widely Held and Actively Traded
The Exchange's initial listing standards require, among other things, that the security underlying a listed option be "characterized by a substantial number of outstanding shares that are widely held and actively traded."? 77 As described above, the Exchange states that, as of August 30, 2024, GBTC had 284,570,100 shares outstanding, BTC had 366,950,100 shares outstanding, and BITB had 68,690,000 shares outstanding. 78 The Exchange states that, as of August 14, 2024, GBTC had 464,364 beneficial holders, BTC had 13,403 beneficial holders, and BITB had 75,437 beneficial holders. 79 In addition, the Exchange states that from January 11, 2024, through September 30, 2024, GBTC had trading volume of 1,803,567,700 shares ($93,472,544,497 notional volume) and BITB had trading volume of 434,815,840 shares ($14,433,361,384 notional volume). 80 The Exchange states that from July 31, 2024, through September 30, 2024, BTC had trading volume of 335,492,930 shares ($1,792,866,521 notional volume). 81 The Exchange further states that, for the 30-day period from September 1, 2024, through September 30, 2024, GBTC had ADV of 3,266,138 shares, BTC had ADV of 6,838,546 shares, and BITB had ADV of 1,949,835 shares. 82 In addition, the Exchange states that, as of August 30, 2024, GBTC had market capitalization of $13,443,091,524, BTC had market capitalization of $1,930,157,526, and BITB had market capitalization of $2,221,640,670. 83
Footnotes:
77 ? See Exchange Rule 915(a)(2).
78 ? See Amendment No. 3 at 6.
79 ? See id. at 7.
80 ? See id. at 7.
81 ? See id.
82 ? See id.
83 ? See id. at 6.
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The Commission has reviewed the Exchange's analysis and publicly available data regarding the Bitcoin Funds. Based on this review of information provided by the Exchange and publicly available information-including information regarding the number of shares outstanding and the number of beneficial holders for each Bitcoin Fund, the ADV of each Bitcoin Fund, and the market capitalization of each Bitcoin Fund-the Commission concludes that it is reasonable for the Exchange to determine that the Bitcoin Funds satisfy the requirement of Exchange Rule 915(a)(2) that the security underlying a listed option be widely held and actively traded.
B. Position and Exercise Limits
Position and exercise limits serve as a regulatory tool designed to deter manipulative schemes and adverse market impact surrounding the use of options. Since the inception of standardized options trading, the options exchanges have had rules limiting the aggregate number of options contracts that a member or customer may hold or exercise. Options position and exercise limits are intended to prevent the establishment of options positions that can be used or might create incentives to manipulate or disrupt the underlying market to benefit the options position. 84 In addition, such limits serve to reduce the possibility of disruption in the options market itself, especially in illiquid classes. 85 As the Commission has previously recognized, markets with active and deep trading interest, as well as with broad public ownership, are more difficult to manipulate or disrupt than less active and deep markets with smaller public floats. 86 The Commission also has recognized that position and exercise limits must be sufficient to prevent investors from disrupting the market for the underlying security by acquiring and exercising a number of options contracts disproportionate to the deliverable supply and average trading volume of the underlying security. 87 At the same time, the Commission has recognized that limits must not be established at levels that are so low as to discourage participation in the options market by institutions and other investors with substantial hedging needs or to prevent specialists and market-makers from adequately meeting their obligations to maintain a fair and orderly market. 88
Footnotes:
84 ? See Securities Exchange Act Release No. 39489 (Dec. 24, 1997), 63 FR 276, 279 (Jan 5. 1998) (order approving File No. SR-Cboe-97-11) ("Position Limit Order").
85 ? Id.
86 ? Id.
87 ? See, e.g., Securities Exchange Act Release Nos. 21907 (Mar. 29, 1985), 50 FR 13440, 13441 (Apr. 4, 1985) (order approving File Nos. SR-CBOE-84-21, SR-Amex-84-30, SR-Phlx-84-25, and SR-PSE-85-1); and 40875 (Dec. 31, 1998), 64 FR 1842, 1843 (Jan. 12, 1999) (order approving File Nos. SR-CBOE-98-25; Amex-98-22; PCX-98-33; and Phlx-98-36).
88 ? See id.
The Exchange proposes a position limit of 25,000 contracts on the same side of the market for options on each Bitcoin Fund and an equivalent exercise limit. 89 In proposing these position and exercise limits, the Exchange considered, among other things, the ADV, outstanding shares, and market capitalization of each Bitcoin Fund. 90 The Exchange states that Exchange Rule 904, Commentary .07(a)(i) establishes a position limit of 250,000 contracts for options on an underlying security with six-month trading volume of 100,000,000 shares. 91 The Exchange states that six-month trading volumes for GBTC and BITB were, respectively, 723,758,100 shares and 263,965,870 shares, and that the two-month trading volume for BTC was 335,492,930 shares. 92 The Exchange further states that the proposed position and exercise limits are lower than the position and exercise limits for options other commodity-based ETPs that have lower trading volumes than the Bitcoin Funds. 93 In addition, the Exchange states that, as of August 30, 2024, the number of shares represented by the proposed position and exercise limits were equal to approximately 0.9% of the outstanding shares of GBTC, 0.7% of the outstanding shares of BTC, and 3.6% of the outstanding shares of BITB. 94 The Exchange further states that the proposed "position and exercise limits are the lowest position and exercise limits available in the options industry, are extremely conservative and more than appropriate given the Bitcoin Funds' market capitalization, average daily volume, number of beneficial holders, and high number of outstanding shares."? 95
Footnotes:
89 ? See Amendment No. 3 and proposed Exchange Rule 904, Commentary .07(f) and Exchange Rule 905(a)(i).
90 ? See Amendment No. 3 at 16.
91 ? See id. at 11.
92 ? See id.
93 ? See id.
94 ? See id. at 11-12.
95 ? Id. at 21.
The Exchange also compared the size of the position and exercise limits to the market capitalization of the Bitcoin market, which, according to the Exchange, had a market capitalization of approximately $1.167 trillion as of August 30, 2024. 96 The Exchange calculated that with a position limit of 25,000 contracts (2,500,000 shares of the underlying Bitcoin Fund), as of August 30, 2024, a market participant could hold a position in shares of GBTC that represented 0.010% of the bitcoin market, a position in BTC that represented 0.001% of the bitcoin market, and a position in BITB that represented 0.007% of the bitcoin market, positions that the Exchange states "would have no practical impact on the Bitcoin market."? 97
Footnotes:
96 ? See id. at 12-13.
97 ? Id. at 13.
The Exchange states that the proposed position and exercise limits also are appropriate given position limits for Bitcoin futures. 98 The Exchange states that the Chicago Mercantile Exchange ("CME") establishes a position limit of 2,000 Bitcoin futures for the spot month and that, as of August 28, 2024, such a position would have had a notional value of $589,500,000. 99 The Exchange states that, as of that date, 125,585 GBTC options, 1,127,151 BTC options, and 183,759 BITB options would be the equivalent of the $589,500,000 CME bitcoin futures notional value. 100 The Exchange states that the option contract equivalent numbers are significantly higher than the proposed position and exercise limit of 25,000 contracts. 101
Footnotes:
98 ? See id. at 14-15.
99 ? See id. at 14.
100 ? See id.
101 ? See id. at 15.
[top] In addition, the Exchange states that, based on the number of shares outstanding for each Bitcoin Fund as of August 30, 2024, and with a position limit of 25,000 option contracts, 114 market participants, each with a same side position of 25,000 contracts, would have to exercise all of their GBTC options to place the GBTC shares under stress; 147 market participants, each with a same side position of 25,000 contracts, would have to exercise all of their BTC options to place the BTC shares under stress; and 27 market participants, each with a same side position of 25,000 contracts, would have to exercise all of their BITB options to place the BITB shares under stress. 102 The Exchange states that the proposed position and exercise limits "are extremely conservative and more than appropriate given the Bitcoin Funds' market capitalization, average daily volume, number of beneficial holders, and high number of outstanding shares."? 103 The Exchange states that the proposed position and exercise limits
Footnotes:
102 ? See id. at 12.
103 ? Id. at 21.
104 ? See id. at 16-17.
105 ? See id. at 17 (citing the Position Limit Order supra note 84.
The Commission finds that the proposed position and exercise limits are consistent with the Act, and in particular, with the requirements in Section 6(b)(5) that the rules of a national securities exchange designed to prevent fraudulent and manipulative acts and practices and to protect investors and the public interest. As discussed above, the Commission has recognized that position and exercise limits must be sufficient to prevent investors from disrupting the market for the underlying security by acquiring and exercising a number of options contracts disproportionate to the deliverable supply and average trading volume of the underlying security. 106 In addition, the Commission has stated previously that rules regarding position and exercise limits are intended to prevent the establishment of options positions that can be used or might create incentives to manipulate or disrupt the underlying market so as to benefit the options position. 107 Based on its review of the data and analysis provided by the Exchange, the Commission concludes that the proposed position and exercise limits satisfy these objectives. Specifically, the Commission has considered and reviewed the Exchange's analysis that, as of August 30, 2024, the proposed position and exercise limits of 25,000 contracts represented approximately 0.9% of the outstanding shares of GBTC, 0.7% of the outstanding shares of BTC, and 3.6% of the outstanding shares of BITB. 108 The Commission also has considered and reviewed the Exchange's statement that with a position limit of 25,000 contracts, 114 market participants, each with a same side position of 25,000 contracts, would have to exercise all of their GBTC options to place the GBTC shares under stress; 147 market participants, each with a same side position of 25,000 contracts, would have to exercise all of their BTC options to place the BTC shares under stress; and 27 market participants, each with a same side position of 25,000 contracts, would have to exercise all of their BITB options to place the BITB shares under stress. 109 Based on the Commission's review of this information and analysis, the Commission concludes that the proposed position and exercise limits are designed to prevent investors from disrupting the market for the underlying securities by acquiring and exercising a number of options contracts disproportionate to the deliverable supply and average trading volume of the underlying security, and to prevent the establishment of options positions that can be used or might create incentives to manipulate or disrupt the underlying market so as to benefit the options position.
Footnotes:
106 ? See supra note 73 and accompanying text.
107 ? See Securities Exchange Act Release No. 57352 (Feb.19, 2008), 73 FR 10076, 10080 (Feb. 25, 2008) (order approving File No. SR-Cboe-2008-07).
108 ? See Amendment No. 3 at 11-12.
109 ? See id. at 12.
The proposal excludes the Bitcoin Fund options from FLEX trading. 110 Excluding Bitcoin Fund options from FLEX trading will allow the Commission to consider the listing of FLEX options on the Bitcoin Funds in the context of any separate proposal to list such options.
Footnotes:
110 ? See proposed Exchange Rule 903G(a)(1). The Exchange states that excluding Bitcoin Fund options from FLEX trading will allow the Exchange to continue to participate in ongoing discussions with the Commission regarding appropriate position limits for options on the Bitcoin Funds. See Amendment No. 3 at 21.
C. Surveillance
As described more fully above, the Exchange states that the same surveillance procedures applicable to all other options currently listed and traded on the Exchange will apply to options on the Bitcoin Funds. 111 The Exchange states that its market surveillance staff would have access to the surveillances conducted by its affiliate, NYSE Arca, Inc. with respect to the Bitcoin Funds and would review activity in the underlying Bitcoin Funds when conducting surveillance for market abuse or manipulations in options on the Bitcoin Funds. 112 Additionally, the Exchange states that it is a member of the Intermarket Surveillance Group ("ISG") under the Intermarket Surveillance Group Agreement, and that ISG members work together to coordinate surveillance and investigative information sharing in the stock, options, and futures markets. 113 CME also is a member of ISG. In approving the Bitcoin ETPs, the Commission concluded that:
Footnotes:
111 ? See id. at 17.
112 ? See Amendment No. 3 at 17.
113 ? See id.
fraud or manipulation that impacts prices in spot bitcoin markets would likely similarly impact CME bitcoin futures prices. And because the CME's surveillance can assist in detecting those impacts on CME bitcoin futures prices, the Exchanges' comprehensive surveillance-sharing agreement with the CME-a U.S. regulated market whose bitcoin futures market is highly correlated to spot bitcoin-can reasonably be expected to assist in surveilling for fraudulent and manipulative acts and practices in the specific context of [the Bitcoin ETPs]. 114
Footnotes:
114 ? See Bitcoin ETP Order, 89 FR at 3010-11.
Together, these surveillance procedures should allow the Exchange to investigate suspected manipulations or other trading abuses in options on the Bitcoin Funds.
D. Retail Customers
The Exchange states that applicable Exchange rules will require that customers receive appropriate disclosure before trading options in Bitcoin Funds. 115 Further, the Exchange states that brokers opening accounts and recommending options transactions must comply with relevant customer suitability standards. 116
Footnotes:
115 ? See Amendment No. 3 at 19; Exchange Rules 921(c), (f), and Commentary .01 to Exchange Rule 921; and Exchange Rule 481.
116 ? See Amendment No. 3 at 19 and Exchange Rule 923.
Existing rules governing broker-dealer conduct when dealing with retail customers will apply to the proposed Bitcoin Fund options. For example, the Exchange's rules require its members to "exercise due diligence to learn the essential facts as to the customer and his investment objectives and financial situation."? 117 In fulfilling this obligation, the member must consider, among other things, a customer's investment objectives; employment status; estimated annual income; estimated net worth; and investment experience and knowledge. 118 Further, FINRA's heightened suitability requirements for options trading accounts require that a person recommending an opening position in any option contract have "a reasonable basis for believing, at the time of making the recommendation, that the customer has such knowledge and experience in financial matters that he may reasonably be expected to be capable of evaluating the risks of the recommended transaction, and is financially able to bear the risks of the recommended position in the option contract."? 119
Footnotes:
117 ? See Exchange Rule 921(c).
118 ? See Exchange Rule 921, Commentary .01.
119 ? See FINRA Rule 2360(b)(19).
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IV. Solicitation of Comments on Amendment No. 3 to the Proposed Rule Change
Interested persons are invited to submit written data, views, and arguments concerning whether Amendment No. 3 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 rule-comments@sec.gov. Please include file number SR-NYSEAMER-2024-49 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-NYSEAMER-2024-49. 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-NYSEAMER-2024-49 and should be submitted on or before November 14, 2024.
V. Accelerated Approval of Amendment No. 3
The Commission finds good cause, pursuant to Section 19(b)(2) of the Act, for approving Amendment No. 3 prior to the 30th day after the date of publication of notice of Amendment No. 3 in the Federal Register . As described more fully above, Amendment No. 3 narrows the scope of the proposal to provide for the listing of options on GBTC, BTC, and BITB; provides additional information and analysis of trading data for the Bitcoin Funds in support of the proposal, including the proposed position and exercise limits of 25,000 contracts; provides additional information related to the Exchange's surveillance program, including the manner in which the Exchange would surveil suspicious trading activity in the underlying Bitcoin Funds and where the Exchange would obtain information about the bitcoin market; and provides that the Exchange will not list FLEX options on the Bitcoin Funds. Amendment No. 3 provides data and analysis supporting the proposed position and exercise limits and states, among other things, that the proposed position and exercise limits would represent approximately 0.9% of the outstanding shares of GBTC, 0.7% of the outstanding shares of BTC, and 3.6% of the outstanding shares of BITB. 120 The Commission concludes that proposed position and exercise limits are designed to minimize the potential for manipulations or disruptions of the underlying market. 121 Amendment No. 3 also describes in greater detail the surveillance procedures that will apply to the proposed Bitcoin Fund options. The additional information regarding these procedures assists the Commission in evaluating the proposal and determining that the proposal is consistent with the Act and the rules and regulations thereunder applicable to a national securities exchange, as discussed above. In addition, Amendment No. 3 revises the proposal to exclude Bitcoin Fund options from FLEX trading. Excluding Bitcoin Fund options from FLEX trading will allow the Commission to consider the listing of FLEX options on the Bitcoin Funds in the context of any separate proposal to list such options. Accordingly, the Commission finds good cause, pursuant to Section 19(b)(2) of the Act, 122 to approve the proposed rule change, as modified by Amendment No. 3 on an accelerated basis.
Footnotes:
120 ? See Amendment No. 3 at 11-12.
121 ?The Commission recognizes that position limits should not be established at levels that are so low as to discourage participation in the options market by institutions and other investors with substantial hedging needs or to prevent specialists and market makers from adequately meeting their obligations to maintain a fair and orderly market. See, e.g., Securities Exchange Act Release Nos. 21907 (Mar. 29, 1985), 50 FR 13440 (Apr. 4, 1985) (order approving File Nos. SR-CBOE-84-21, SR-Amex-84-30, SR-Phlx-84-25, and SR-PSE-85-1); 40875 (Dec. 31, 1998), 64 FR 1842, 1843 (Jan. 12, 1999) (order approving File Nos. SR-CBOE-98-25; Amex-98-22; PCX-98-33; and Phlx-98-36). The Commission finds that the proposed position and exercise limits are consistent with these objectives.
122 ?15 U.S.C. 78s(b)(2).
VI. Conclusion
For the reasons set forth above, the Commission finds that the proposed rule change, as modified by Amendment No. 3, is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities exchange and, in particular, the requirements of Section 6(b)(5) of the Act. 123
Footnotes:
123 ?15 U.S.C. 78f(b)(5).
It is therefore ordered , pursuant to Section 19(b)(2) of the Act, 124 that the proposed rule change (SR-NYSEAMER-2024-49), as modified by Amendment No. 3, is approved.
Footnotes:
124 ?15 U.S.C. 78s(b)(2)
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority. 125
Footnotes:
125 ?17 CFR 200.30-3(a)(12).
J. Matthew DeLesDernier,
Deputy Secretary.
[FR Doc. 2024-24640 Filed 10-23-24; 8:45 am]
BILLING CODE 8011-01-P