```

[Federal Register Volume 88, Number 190 (Tuesday, October 3, 2023)]
[Notices]
[Pages 68214-68236]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-21788]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-98563; File No. SR-NASDAQ-2023-035]

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

September 27, 2023.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 
(``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that 
on September 20, 2023, The Nasdaq Stock Market LLC (``Nasdaq'' or 
``Exchange'') filed with the Securities and Exchange Commission 
(``SEC'' or ``Commission'') the proposed rule change as described in 
Items I and II below, which Items have been prepared by the Exchange. 
The Commission is publishing this notice to solicit comments on the 
proposed rule change from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    The Exchange proposes to list and trade the shares of the Hashdex 
Nasdaq Ethereum ETF under Nasdaq Rule 5711(i) (``Trust Units''). The 
units of the Trust are referred to herein as the ``Shares.''
    The text of the proposed rule change is available on the Exchange's 
website at https://listingcenter.nasdaq.com/rulebook/nasdaq/rules, 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
    The Exchange proposes to list and trade Shares of the Hashdex 
Nasdaq Ethereum ETF (the ``Fund'') under Nasdaq Rule 5711(i),\3\ which 
governs the listing and trading of Trust Units on the Exchange.
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    \3\ The Commission approved Nasdaq Rule 5711 in Securities 
Exchange Act Release No. 66648 (March 23, 2012), 77 FR 19428 (March 
30, 2012) (SR-NASDAQ-2012-013).
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    The Fund is a series of Tidal Commodities Trust I (the ``Trust''), 
a Delaware statutory trust.\4\ The Fund is managed and controlled by 
Toroso Investments LLC (``Sponsor''). The Sponsor is registered as a 
commodity pool operator (``CPO'') with the Commodity Futures Trading 
Commission (``CFTC'') and is a member of the National Futures 
Association (``NFA'').
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    \4\ On September 8, 2023, the Trust confidentially filed a draft 
registration statement under the Securities Act (the ``Registration 
Statement''). The Jumpstart Our Business Startups Act (the ``JOBS 
Act''), enacted on April 5, 2012, added Section 6(e) to the 
Securities Act. Secction 6(e) of the Securities Act provides that an 
``emerging growth company'' may confidentially submit to the 
Commission a draft registration statement for confidential, non-
public review by the Commission staff prior to public filing, 
provided that the initial confidential submission and all amendments 
thereto shall be publicly filed not later than 21 days before the 
date on which the issuer conducts a road show, as such term is 
defined in Securities Act Rule 433(h)(4). An emerging growth company 
is defined in Section 2(a)(19) of the Securities Act as an issuer 
with less than $1,000,000,000 total annual gross revenues during its 
most recently completed fiscal year. The Trust meets the definition 
of an emerging growth company and consequently submitted its 
Registration Statement to the Commission on a confidential basis. 
The description of the operation of the Trust and the Fund herein is 
based, in part, on the Registration Statement.
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The Fund's Investment Objective and Strategy
    According to the Registration Statement, the Chicago Mercantile 
Exchange, Inc. (``CME'') currently offers two Ether futures contracts 
(``Ether Futures Contracts''), one contract representing 50 ether 
(``ETH Contracts'') and another contract representing 0.10 ether (``MET 
Contracts'').\5\ Each ETH Contract and MET Contract settles daily to 
the ETH Contract volume-weighted average price (``VWAP'') of all trades 
that occur between 2:59 p.m. and 3:00 p.m., Central Time, the 
settlement period, rounded to the nearest tradable tick. ETH Contracts 
and MET Contracts each expire on the last Friday of the contract month, 
and the final settlement value for each contract is based on the CME CF 
Ether Dollar Reference Rate (``ETHUSD_RR'').\6\
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    \5\ ETH Contracts began trading on the CME Globex (``Globex'') 
trading platform on February 8, 2021 under the ticker symbol ``ETH'' 
and are cash-settled in U.S. dollars. MET Contracts began trading on 
the Globex trading platform on December 6, 2021 under the ticket 
symbol ``MET'' and are also cash-settled in U.S. dollars.
    \6\ The ETHUSD_RR is a daily reference rate of the U.S. dollar 
price of one ether calculated daily as of 4:00 p.m. London time. It 
is calculated by the CME based on the ether trading activity on CME-
specified consituent spot ether exchanges during a calculation 
window between 3:00 p.m. and 4:00 p.m. London time. The CME launched 
the ETHUSD_RR in May 2018.
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    ETH Contracts and MET Contracts each trade six consecutive monthly 
contracts plus two additional December contract months (if the 6 
consecutive months include December, only one additional December 
contract month is listed). Because ETH Contracts and MET Contracts are 
exchange-listed, they allow investors to gain exposure to ether

[[Page 68215]]

(the native cryptocurrency to the Ethereum blockchain, herein referred 
to interchangeably as ``Ether'' or ``Ethereum'') without having to hold 
the underlying cryptocurrency. Like a futures contract on a commodity 
or stock index, ETH Contracts and MET Contracts allow investors to 
hedge investment positions or speculate on the future price of Ether.
    According to the Registration Statement, the Fund's investment 
objective is to have the daily changes in the net asset value (``NAV'') 
of the Shares reflecting the daily changes in the price of the Nasdaq 
Ether Reference Price (NQETH) (the ``Benchmark''), less expenses from 
the Fund's operations. The Benchmark is designed to track the price 
performance of Ether. Under normal market conditions,\7\ the Fund will 
invest in Ether, Ether Futures Contracts listed on the CME, and in cash 
and cash equivalents.\8\ Because the Fund's investment objective is to 
track the price of the Benchmark by investing in Ether and Ether 
Futures Contracts, changes in the price of the Shares may vary from 
changes in the spot price of Ether. The Benchmark is calculated using 
the Nasdaq Ethereum Reference Price--Settlement (the ``NQETHS'').\9\ 
According to the Sponsor, the NQETHS is designed to allow investors to 
track the price of Ether by applying a rigorous methodology to trade 
data captured from cryptocurrency exchanges that meet eligibility 
criteria of the Nasdaq Crypto Index (``NCI''). The NQETHS is calculated 
once every trading day through the application of a publicly available 
rules-based pricing methodology to a diverse collection of pricing 
sources to provide an institutional-grade reference price for 
Ethereum.\10\ The pricing methodology is designed to account for 
variances in price across a wide range of sources, each of which has 
been vetted according to criteria identified in the methodology. 
Specifically, the settlement value is the Time Weighted Average Price 
(``TWAP'') calculated across VWAPs for each minute in the settlement 
price window, which is between 2:50:00 and 3:00:00 p.m. New York Time. 
Where there are no transactions observed in any given minute of the 
settlement price window, that minute is excluded from the calculation 
of the TWAP.
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    \7\ The term ``normal market conditions'' includes, but is not 
limited to, the absence of: trading halts in the applicable 
financial markets generally; operational issues (e.g., systems 
failure) causing dissemination of inaccurate market information; or 
force majeure type events such as a natural or man-made disaster, 
act of God, armed conflict, act of terrorism, riot or labor 
disruption or any similar intervening circumstance. See Nasdaq Rules 
4120 and 4121.
    \8\ The term ``cash equivalents'' includes short term Treasury 
bills, money market funds, and demand deposit accounts.
    \9\ See https://indexes.nasdaqomx.com/Index/Overview/NQETHS.
    \10\ See https://indexes.nasdaqomx.com//docs/methodology/NCI.pdf.
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    According to the Sponsor, the NQETHS methodology also utilizes 
penalty factors to mitigate the impact of anomalous trading activity 
such as manipulation, illiquidity, large block trading, or operational 
issues that could compromise price representation. Three types of 
penalties are applied: abnormal price penalties, abnormal volatility 
penalties, and abnormal volume penalties. These penalties are defined 
as adjustment factors on the weight of information from each exchange 
that contributes pricing information based on the deviation of an 
exchange's price, volatility, or volume from the median across all 
exchanges. For example, if a core exchange's price is 2.5 standard 
deviations away from the median price, its price penalty factor will be 
a \1/2\.5 multiplier.
    Finally, as a means of achieving the highest degrees of confidence 
in the reported volume, data is sourced only from ``core exchanges'' 
that are screened, selected, and approved by the Nasdaq Crypto Index 
Oversight Committee (the ``NCIOC''). Core exchanges must: (1) have 
strong forking controls; (2) have effective anti-money laundering (AML) 
controls; (3) have reliable and transparent application programming 
interface (API) that provides real-time and historical trading data; 
(4) charge fees for trading and structure trading incentives that do 
not interfere with the forces of supply and demand; (5) be licensed by 
a public independent governing body; (6) include surveillance for 
manipulative trading practices and erroneous transactions; (7) evidence 
a robust IT infrastructure; (8) demonstrate active capacity management; 
(9) evidence cooperation with regulators and law enforcement; and (10) 
have a minimum market representation for trading volume. Additionally, 
the NCIOC conducts further diligence to assess an exchange's 
eligibility and will consider additional criteria such as the 
exchange's organizational and ownership structure, security history, 
and reputation; the list of existing core exchanges will be recertified 
by the NCIOC at minimum on an annual basis.
    The Sponsor believes that the NQETHS is suitable for use in 
calculating the Benchmark because (i) it would provide reliable pricing 
for purposes of tracking the actual performance of spot Ether, (ii) it 
is administered by an independent index administrator, and (iii) its 
methodology is specifically designed to mitigate potential manipulation 
coming from unregulated markets. Specifically, the Sponsor believes 
that (i) by tracking the actual price of spot Ether, NQETHS is 
transparent and adequate for the Fund's investors; (ii) using a 
Benchmark that has its own independent index administrator provides 
investors the best practices in governance and accountability and 
benchmark quality; and (iii) the pricing methodology underlying the 
NQETHS is designed to be resistant to potential price manipulation by 
applying a robust methodology to trade data captured from NCI core 
exchanges, which have to meet strict criteria created by the NCIOC, 
thereby drawing on a diverse collection of trustworthy pricing sources 
to provide an institutional-grade reference price for Ether that 
accounts for variances in price across a wide range of sources and that 
adjusts to mitigate the impact of anomalous trading activity that could 
compromise the integrity of the NQETHS price.
    According to the Registration Statement, the Fund seeks to maintain 
its holdings in Ether Futures Contracts with a roughly constant 
expiration profile. Therefore, the Fund's positions in Ether Futures 
Contracts will be changed or ``rolled'' on a regular basis by closing 
out first to expire contracts prior to settlement, and then entering 
into second to expire contracts. Accordingly, the Fund will never carry 
futures positions all the way to cash settlement--the Fund will price 
only off of the daily settlement prices of the Ether Futures 
Contracts.\11\ To achieve this, the Fund will roll its futures holdings 
prior to cash settlement of the expiring contract.
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    \11\ As discussed in more detail below, the CME determines the 
daily settlements for Ether futures based on trading activity on CME 
Globex between 14:59:00 and 15:00:00 Central Time (CT), which is the 
``settlement period.''
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    In seeking to achieve the Fund's investment objective, the Sponsor 
will employ a ``neutral'' investment strategy that is intended to track 
the changes in the Benchmark regardless of whether the Benchmark goes 
up or goes down. The Fund will endeavor to trade in Ether and Ether 
Futures Contracts so that the Fund's average daily tracking error 
against the Benchmark will be less than 10 percent over any period of 
30 trading days. The Fund's ``neutral'' investment strategy is designed 
to permit investors generally to purchase and sell the Fund's Shares 
for the purpose of investing in the Ether and Ether Futures Contracts 
(as discussed

[[Page 68216]]

below). Such investors may include participants in the Ether market 
seeking to hedge the risk of losses in their Ether-related 
transactions, as well as investors seeking price exposure to the Ether 
market.
    According to the Registration Statement, one factor determining the 
total return from investing in futures contracts is the price 
relationship between soon to expire contracts and later to expire 
contracts. If the futures market is in a state of backwardation (i.e., 
when the price of ETH Contracts and MET Contracts in the future is 
expected to be less than the current price), the Fund will buy later to 
expire contracts for a lower price than the sooner to expire contracts 
that it sells. Hypothetically, and assuming no changes to either 
prevailing ETH Contracts and MET Contracts' prices or the price 
relationship between soon to expire contracts and later to expire 
contracts, the value of a contract will rise as it approaches 
expiration. Over time, if backwardation remained constant, the 
performance of a portfolio would continue to be affected. If the 
futures market is in contango, the Fund will buy later to expire 
contracts for a higher price than the sooner to expire contracts that 
it sells. Hypothetically, and assuming no other changes to either 
prevailing ETH Contracts and MET Contracts' prices or the price 
relationship between the spot price, soon to expire contracts and later 
to expire contracts, the value of a contract will fall as it approaches 
expiration. Over time, if contango remained constant, the performance 
of a portfolio would continue to be affected. Frequently, whether 
contango or backwardation exists is a function, among other factors, of 
the prevailing market conditions of the underlying market and 
government policy.
    The Fund's investments will be consistent with the Fund's 
investment objective and will not be used to enhance leverage. That is, 
the Fund's investments will not be used to seek performance that is the 
multiple or inverse multiple (e.g., 2Xs, 3Xs, -2Xs, and -3Xs) of the 
Fund's Benchmark.
    According to the Registration Statement, the Fund will seek to 
achieve its investment objective by investing not only in Ether Futures 
Contracts, but also in physical Ether to the extent allowed by the 
Fund's investment restrictions on spot Ether, using a pricing 
methodology, for purposes of calculating the Fund's NAV, that will 
derive spot Ether prices from Ether Futures Contracts and not from 
unregulated exchanges, as further explained below (``Spot Ether''). In 
doing so, the Sponsor expects to provide Ether exposure to investors 
while still using Ether Futures Contracts in its strategy and relying 
on the CME as its ``market of relevant size.'' In particular, to avoid 
any exposure to potential manipulation from unregulated exchanges, the 
Fund's NAV will be calculated using a Spot Ether price derived from CME 
futures prices, as further explained below, and the Fund expects to 
purchase and sell physical Ether via CME's Exchange for Physical 
Transactions, which are subject to CME's market surveillance.
The Ethereum Network and Ether Transactions
    As discussed in further detail below, Ether is the digital asset 
that is native to, created and transmitted through the operations of, 
the peer-to-peer Ethereum network, an open-source protocol of the 
network of computers that operates on cryptographic protocols and 
governs the creation, movement, and ownership of Ether and hosts the 
public ledger, or ``blockchain,'' (``Ethereum Network''). The 
decentralized nature of the Ethereum Network allows parties to transact 
directly with one another based on cryptographic proof instead of 
relying on a trusted third party. No single entity owns or operates the 
Ethereum Network, the infrastructure of which is collectively 
maintained by a decentralized user base. The Ethereum Network allows 
people to exchange tokens of value and settle multiple types of data, 
which are recorded on the blockchain.
    Ether is the native token for the Ethereum Network. Such a 
statement implies that, in order to settle any information on the 
Ethereum Network, there will be a fee (named ``gas fee'') to be paid in 
Ether, in order to use that block space. Ether may be also used as a 
medium of exchange, unit of account or store of value. Ethers exist and 
are stored on the blockchain, which serves as the decentralized 
transaction ledger for the Ethereum Network. All transactions, 
including the creation of new ethers through staking, are recorded on 
the blockchain, ensuring the verification of each ether's location in 
specific digital wallets.
    The responsibility for maintaining the Ether Account lies with the 
Ether Custodian, who utilizes cold storage mechanisms for the vault 
account. Digital wallets can be accessed using their respective private 
keys, which are held by the Ether Custodians in cold storage at various 
vaulting locations. The locations of these vaulting premises are kept 
confidential to enhance security. ``Cold storage'' refers to a 
safeguarding method where private keys associated with ethers are kept 
offline, away from internet-connected devices. This could involve 
storing the private keys on a non-networked computer or electronic 
device. To send ethers from a digital wallet with private keys in cold 
storage, the private keys must be retrieved and entered into an ether 
software program for transaction signing, or the unsigned transaction 
is sent to a ``cold'' server where the private keys are held for 
signature.
    The Ethereum Network is decentralized and does not require 
governmental authorities or financial institution intermediaries to 
create, transmit, or determine the value of Ether. In addition, no 
party may easily censor transactions on the Ethereum Network. As a 
result, the Ethereum Network is often referred to as decentralized and 
censorship resistant.
    The value of Ether is determined by the supply of and demand for 
Ether. New tokens are created (or ``minted'') and rewarded to the 
parties providing security to the Ethereum Network (the ``stakes''), by 
staking their own Ether and running a computer node in order to verify 
transactions and add them to the blockchain.
The Crypto Industry Has Progressed and Matured Significantly
    Ether and Bitcoin are the two largest and most well-known 
cryptoassets. In a similar vein to the Ethereum Network, the bitcoin 
network governs the creation, transaction, and ownership of its native 
token (``Bitcoin'' and ``Bitcoin Network''). The Bitcoin Protocol was 
launched in 2009 and lays out the rate of issuance of new Bitcoins 
within the Bitcoin Network, a rate that is reduced by half 
approximately every four years with an eventual hard cap of 21 million. 
It is generally understood that the combination of these two features--
a systemic hard cap of 21 million Bitcoin and the ability to transact 
with anyone connected to the Bitcoin Network--gives Bitcoin its value.
    After ``The Merge,'' which marked the merging of Ethereum's 
original execution layer with its new ``proof-of-stake'' consensus 
layer, known as the Beacon Chain, a significant change occurred. This 
modification eliminated the resource-intensive mining process, 
replacing it with the option to secure the network through the 
utilization of staked Ether. In October 2022, Ether supply dynamics 
transitioned as more Ether was burned verifying transactions than was 
created in the same period, which became a constant trend ever since 
that period. This behavior, similar to Bitcoin's capped supply (limited 
to 21 million), plays a significant role in

[[Page 68217]]

influencing its long-term price dynamics.
    The first rule filing proposing to list an exchange-traded product 
to provide exposure to crypto in the U.S. was submitted by the Cboe BZX 
Exchange, Inc. on June 30, 2016.\12\ At that time, blockchain 
technology, and digital assets that utilized it, were relatively new to 
the broader public. No registered offering of digital asset securities 
or shares in an investment vehicle with exposure to a digital asset had 
yet been conducted, and the regulated infrastructure for conducting a 
digital asset securities offering had not begun to develop. Conversely, 
the first rule filing proposing to list an exchange-traded product to 
provide exposure to Ether in the U.S. was submitted on August 18, 
2021.\13\ When CME Globex began trading ETH Contracts in February 2021, 
the digital assets financial ecosystem had progressed, and matured 
significantly.
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    \12\ See Order Setting Aside Action by Delegated Authority and 
Disapproving a Proposed Rule Change, as Modified by Amendments No. 1 
and 2, to List and Trade Shares of the Winklevoss Bitcoin Trust, 
Securities Exchange Act Release No. 83723 (July 26, 2018), 83 FR 
37579 (August 1, 2018) (the ``Winklevoss II Order''). This proposal 
was subsequently disapproved by the Commission.
    \13\ See https://www.nasdaq.com/articles/vaneck-proshares-abruptly-withdraw-ether-futures-etf-proposals-2021-08-20.
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    The development of a regulated market for digital asset securities 
has significantly evolved, with market participants having conducted 
registered public offerings of both digital asset securities and shares 
in investment vehicles holding crypto futures. Additionally, licensed, 
and regulated service providers have emerged to provide fund custodial 
services for digital assets, among other services. For example, in 
December 2020, the Commission adopted a conditional no-action position 
permitting certain special purpose broker-dealers to custody digital 
asset securities under Rule 15c3-3 under the Exchange Act.\14\ In 
September 2020, the Commission released a no-action letter permitting 
certain broker-dealers to operate a non-custodial Alternative Trading 
System (``ATS'') for digital asset securities, subject to specified 
conditions.\15\ In October 2019, the Commission granted temporary 
relief from the clearing agency registration requirement to an entity 
seeking to establish a securities clearance and settlement system based 
on distributed ledger technology; \16\ and multiple transfer agents who 
provide services for digital asset securities have registered with the 
Commission.\17\
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    \14\ See Securities Exchange Act Release No. 90788, 86 FR 11627 
(February 26, 2021) (File Number S7-25-20) (Custody of Digital Asset 
Securities by Special Purpose Broker-Dealers).
    \15\ See Letter from Elizabeth Baird, Deputy Director, Division 
of Trading and Markets, U.S. Securities and Exchange Commission to 
Kris Dailey, Vice President, Risk Oversight & Operational 
Regulation, Financial Industry Regulatory Authority (September 25, 
2020), available at: https://www.sec.gov/divisions/marketreg/mr-noaction/2020/finra-ats-role- in-settlement-of-digital-asset-
security-trades-09252020.pdf.
    \16\ See Letter from Jeffrey S. Mooney, Associate Director, 
Division of Trading and Markets, U.S. Securities and Exchange 
Commission to Charles G. Cascarilla & Daniel M. Burstein, Paxos 
Trust Company, LLC (October 28, 2019), available at: https://www.sec.gov/divisions/marketreg/mr-noaction/2019/paxos-trust-company-102819-17a.pdf.
    \17\ See, e.g., Form TA-1/A filed by Tokensoft Transfer Agent 
LLC (CIK: 0001794142) on January 8, 2021, available at: https://www.sec.gov/Archives/edgar/data/1794142/000179414219000001/xslFTA1X01/primary_doc.xml.
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    Beyond the Commission's purview, the regulatory landscape has also 
changed significantly since 2016, and cryptocurrency markets have grown 
and evolved as well. The U.S. Office of the Comptroller of the Currency 
(the ``OCC'') has made clear that federally chartered banks are able to 
provide custody services for cryptocurrencies and other digital 
assets.\18\ The OCC recently granted conditional approval of two 
charter conversions by state-chartered trust companies to national 
banks, both of which provide cryptocurrency custody services.\19\ NYDFS 
has granted no fewer than twenty-five BitLicenses, including to 
established public payment companies like PayPal Holdings, Inc. and 
Square, Inc., and limited purpose trust charters to entities providing 
cryptocurrency custody services. The U.S. Treasury Financial Crimes 
Enforcement Network (``FinCEN'') has released extensive guidance 
regarding the applicability of the Bank Secrecy Act (``BSA'') and 
implementing regulations to virtual currency businesses,\20\ and has 
proposed rules imposing requirements on entities subject to the BSA 
that are specific to the technological context of virtual 
currencies.\21\ In addition, the Treasury's Office of Foreign Assets 
Control (``OFAC'') has brought enforcement actions over apparent 
violations of the sanction's laws in connection with the provision of 
wallet management services for digital assets.\22\
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    \18\ See OCC News Release 2021-2 (January 4, 2021), available 
at: https://www.occ.gov/news-issuances/news-releases/2021/nr-occ-2021-2.html.
    \19\ See OCC News Release 2021-6 (January 13, 2021), available 
at: https://www.occ.gov/news-issuances/news-releases/2021/nr-occ-2021-6.html and OCC News Release 2021-19 (February 5, 2021), 
available at: https://www.occ.gov/news-issuances/news-releases/2021/nr-occ-2021-19.html.
    \20\ See FinCEN Guidance FIN-2019-G001 (May 9, 2019) 
(Application of FinCEN's Regulations to Certain Business Models 
Involving Convertible Virtual Currencies), available at: https://www.fincen.gov/sites/default/files/2019-05/FinCEN%20Guidance%20CVC%20FINAL%20508.pdf.
    \21\ See U.S. Department of the Treasury Press Release: ``The 
Financial Crimes Enforcement Network Proposes Rule Aimed at Closing 
Anti-Money Laundering Regulatory Gaps for Certain Convertible 
Virtual Currency and Digital Asset Transactions'' (December 18, 
2020), available at: https://home.treasury.gov/news/press-releases/sm1216.
    \22\ See U.S. Department of the Treasury Enforcement Release: 
``OFAC Enters Into $98,830 Settlement with BitGo, Inc. for Apparent 
Violations of Multiple Sanctions Programs Related to Digital 
Currency Transactions'' (December 30,2020), available at: https://home.treasury.gov/system/files/126/20201230_bitgo.pdf.
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    In addition to the mentioned regulatory advancements, there is a 
noticeable trend of increased acceptance of digital assets among 
traditional financial market participants. Notably, major insurance 
companies,\23\ investment banks,\24\ asset managers,\25\ credit card 
companies,\26\ university endowments,\27\ pension funds,\28\ and even 
previously crypto-wary fund managers \29\ are now allocating funds to 
the crypto space.
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    \23\ On December 10, 2020, Massachusetts Mutual Life Insurance 
Company (MassMutual) announced that it had purchased $100 million in 
Bitcoin for its general investment account. See MassMutual Press 
Release ``Institutional Bitcoin provider NYDIG announces minority 
stake purchase by MassMutual'' (December 10, 2020), available at: 
https://www.massmutual.com/about-us/news-and-press-releases/press-releases/2020/12/institutional-bitcoin-provider-nydig-announces-minority-stake-purchase-by-massmutual.
    \24\ See, e.g., ``Morgan Stanley to Offer Rich Clients Access to 
Bitcoin Funds'' (March 17, 2021) available at: https://www.bloomberg.com/news/articles/2021-03-17/morgan-stanley-to-offer-rich-clients-access-to-bitcoin-funds.
    \25\ See, e.g., ``BlackRock's Rick Rieder says the world's 
largest asset manager has `started to dabble' in Bitcoin'' (February 
17, 2021), available at: https://www.cnbc.com/2021/02/17/blackrock-has-started-to-dabble-in-bitcoin-says-rick-rieder.html and 
``Guggenheim's Scott Minerd Says Bitcoin Should Be Worth $400,000'' 
(December 16, 2020), available at: https://www.bloomberg.com/news/articles/2020-12-16/guggenheim-s-scott-minerd-says-bitcoin-should-be-worth-400-000.
    \26\ See, e.g., ``Visa Moves to Allow Payment Settlements Using 
Cryptocurrency'' (March 29, 2021), available at: https://www.reuters.com/business/autos-transportation/exclusive-visa-moves-allow-payment-settlements-using-cryptocurrency-2021-03-29/.
    \27\ See, e.g., ``Harvard and Yale Endowments Among Those 
Reportedly Buying Crypto'' (January 25, 2021), available at: https://www.bloomberg.com/news/articles/2021-01-26/harvard-and-yaleendowments-among-those-reportedly-buying-crypto.
    \28\ See, e.g., ``Virginia Police Department Reveals Why its 
Pension Fund is Betting on Bitcoin'' (February 14, 2019), available 
at: https://finance.yahoo.com/news/virginia-police-department-reveals-why- 194558505.html.
    \29\ See, e.g., ``Bridgewater: Our Thoughts on Bitcoin'' 
(January 28, 2021) available at: https://www.bridgewater.com/research-and-insights/our-thoughts-on-bitcoin and ``Paul Tudor Jones 
says he likes bitcoin even more now, rally still in the `first 
inning' '' (October 22, 2020), available at: https://www.cnbc.com/2020/10/22/-paul-tudor-jones-says-he-likes-bitcoin-even-more-now-rally-still-in-the-first-inning.html.

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[[Page 68218]]

The Ether Futures Market Has Developed Alongside the Ether Spot Market 
Into a Strong and Viable Marketplace That Stands On Its Own
    CME began offering trading in Ether Futures Contracts in 2021, and 
each of the contract's final cash settlement is based on the CME CF 
Ether Dollar Reference Rate (the ``ETHUSD_RR'').\30\ The contracts 
trade and settle like other cash-settled commodity futures contracts. 
According to the Sponsor, trading in CME Ether futures contracts has 
increased significantly, in particular with respect to ETH Contracts. 
Nearly every measurable metric related to ETH Contracts has trended 
consistently up since launch and/or accelerated upward. For example, 
there was approximately $12.53 billion in trading in ETH Contracts in 
July 2023 compared to $7.53 billion in total trading in December 2022. 
ETH Contracts traded over $544.78 million per day in July 2023 and 
represented $403.58 million in open interest compared to $337.99 
million in December 2022. This general upward trend in trading volume 
and open interest is captured in the following chart.
---------------------------------------------------------------------------

    \30\ According to the CME, the ETHUSD--RR aggregates the trade 
flow of major Ether spot exchanges during a specific calculation 
window into a once-a-day reference rate of the U.S. dollar price of 
Ether. Calculation rules are geared toward maximum transparency and 
real-time replicability in underlying spot markets, including 
Bitstamp, Coinbase, Gemini, itBit, and Kraken. For additional 
information, refer to https://www.cmegroup.com/trading/files/ether-futures-fact-card-launch.pdf.
[GRAPHIC] [TIFF OMITTED] TN03OC23.001

    Similarly, the number of large open interest holders has continued 
to increase even as the price of Ether has risen, as have the number of 
unique accounts trading Ether Futures Contracts.\31\
---------------------------------------------------------------------------

    \31\ See https://www.cmegroup.com/newsletters/quarterly-cryptocurrencies-report/2022-q3-cryptocurrency-recap.html.
---------------------------------------------------------------------------

The Structure and Operation of the Trust Satisfies Commission 
Requirements for Cryptocurrencies-Based Exchange Traded Products
    The Sponsor believes that the Fund's holding a combination of Ether 
Futures Contracts, Spot Ether, and cash could significantly mitigate 
the risk of market manipulation while still providing the market with a 
regulated product that tracks the actual price of Ethereum, creating a 
secure way for U.S. investors to gain exposure to Spot Ether without 
having to rely on unregulated products, offshore regulated products, or 
indirect strategies such as investing in publicly traded companies that 
hold Ether.
    In determining whether to approve listing and trading of new 
exchange-traded products (``ETPs''), the Commission conducts a thorough 
analysis to ensure the proposal is consistent with Section 6(b)(5) of 
the Act. Section 6(b)(5) of the Act mandates that the rules of a 
national securities exchange be designed to prevent fraudulent and 
manipulative acts and practices, and to protect investors and the 
public interest. With respect to ETPs, the Commission often considers 
how the listing exchange would access necessary information to detect 
and deter market manipulation, illegal trading, and other abuses, which 
listing exchanges may accomplish by entering into a comprehensive 
surveillance-sharing agreement (``CSSA'') with other entities, such as 
the markets trading the ETP's underlying assets. Historically, for 
commodity-trust ETPs, there has always been at least one regulated 
market of significant size for trading futures on the underlying 
commodity--whether gold, silver, platinum, palladium, or copper. Then, 
the listing exchange would enter into CSSA with, or hold Intermarket 
Surveillance Group (``ISG'') membership in common with, that regulated 
market.\32\ As the Commission has stated, it considers two markets to 
have a comprehensive surveillance-sharing agreement with one another if 
they are both members of the ISG, even if they do not have a separate 
bilateral surveillance-sharing agreement.
---------------------------------------------------------------------------

    \32\ See Order Setting Aside Action by Delegated Authority and 
Disapprovng a Proposed Rule Change, as Modified by Amendments No. 1 
and 2, To List and Trade Shares of the Winklevoss Bitcoin Trust, 
Securities Exchange Act Release No. 83723 (July 26, 2018), 83 FR 
37579 at 37592-94 (Aug. 1, 2018) (SR-BatsBZX-2016-30) (the 
``Winklevoss Order''); Order Disapproving a Proposed Rule Change, as 
Modified by Amendment No. 1, Relating to the Listing and Trading of 
Shares of the Bitwise Bitcoin ETF Trust Under NYSE Arca Rule 8.201-
E, Securities Exchange Act Release No. 87267 (Oct. 9, 2019), 84 FR 
55382 at 55383, 55410 (Oct. 16, 2019) (SR-NYSEArca-2019-01) (the 
``Bitwise Order''); Order Disapproving a Proposed Rule Change, as 
Modified by Amendment No. 1, to Amend NYSE Arca Rule 8.201-E 
(Commodity-Based Trust Shares) and to List and Trade Shares of the 
United States Bitcoin and Treasury Investment Trust Under NYSE Arca 
Rule 8.201-E, Securities Exchange Act Release No. 88284 (February 
26, 2020), 85 FR 12595 at 12609 (March 3, 2020) (SR-NYSEArca-2019-
39) (the ``Wilshire Phoenix Order'').
---------------------------------------------------------------------------

    In the context of Ethereum, the CME Ether Futures Market (the ``CME 
Market'') is currently the only regulated market in the U.S.
    The Commission has previously interpreted the terms ``significant

[[Page 68219]]

market'' and ``market of significant size'' to include a market (or 
group of markets) where:
    1. There is a reasonable likelihood that a person attempting to 
manipulate the ETP would also have to trade on that market to 
successfully manipulate the ETP, such that a surveillance-sharing 
agreement would assist the ETP listing market in detecting and 
deterring misconduct; and
    2. It is unlikely that trading in the ETP would be the predominant 
influence on prices in that market.\33\
---------------------------------------------------------------------------

    \33\ See, e.g., Winklevoss Order, 83 FR at 37594. The Commission 
further noted that ``significant markets'' and ``markets of 
significant size,'' but this definition is an example that will 
provide guidance to market participants.'' Id.
---------------------------------------------------------------------------

    With respect to the first prong of the Commission's interpretation, 
the Commission has previously explained that the lead/lag relationship 
between the Bitcoin futures market and the spot market is central to 
understanding this first prong. With respect to the second prong, the 
Commission's prior analysis has focused on the potential size and 
liquidity of the ETP compared to the size and liquidity of the market.
    The Commission recognized in the Teucrium Approval Order \34\ that 
``the CME [Market] is a `significant market' related to CME bitcoin 
futures contracts,'' and thus that the Exchange has entered into the 
requisite surveillance-sharing agreement with respect to its Bitcoin 
Futures Contracts holdings. However, there is still a lack of consensus 
on whether the CME Market is of ``significant size'' in relation to the 
spot Bitcoin or Ether market based on the test historically applied by 
the Commission.
---------------------------------------------------------------------------

    \34\ See Securities Exchange Act Release No. 34-94620 (April 6, 
2022) (SR-NYSEArca-2021-53) (Order Granting Approval of a Proposed 
Rule Change, as Modified by Amendment No. 2, To List and Trade 
Shares of the Teucrium Bitcoin Futures Fund Under NYSE Arca Rule 
8.200-E, Commentary .02 (Trust Issued Receipts)) (the ``Teucrium 
Approval Order'').
---------------------------------------------------------------------------

Interrelationship Between the CME and the Fund
    The Commission has previously stated that ``the interpretation of 
the term market of significant size depends on the interrelationship 
between the market with which the listing exchange has a surveillance-
sharing agreement and the proposed ETP.'' \35\ The Sponsor intends to 
adopt an innovative approach to mitigate the risks of fraud and 
manipulation that are unique to the Fund. The core principle of this 
approach would be to structure the operation of the Fund such that the 
regulated market of significant size in relation to the Fund is the CME 
Market because it is the same market on which the Fund trades its non-
cash assets. Therefore, the Sponsor's strategy aims to establish a 
comprehensive interrelationship between the CME Market and the Fund to 
unequivocally classify the CME Market as the market of significant size 
in relation to the ETP. The Sponsor notes that, although the Fund may, 
as proposed, hold physical ether, it does not rely on any information 
or services from unregulated ether spot exchanges (such as Coinbase or 
Binance). Therefore, no spot ether exchange could be considered a 
``market of relevant size'' in relation to the Fund.
---------------------------------------------------------------------------

    \35\ See Securities Exchange Act Release No. 95180 (June 29, 
2022), 87 FR 40299 at 40312 (July 6, 2022) (SR-NYSEArca-2021-90) 
(Order Disapproving a Proposed Rule Change, as Modified by Amendment 
No. 1, to List and Trade Shares of Grayscale Bitcoin Trust Under 
NYSE Arca Rule 8.201-E (Commodity-Based Trust Shares)).
---------------------------------------------------------------------------

    The Sponsor has designed the Fund to have five features that 
underscore its significant interrelationship with the CME:
    1. Investment strategy: The Fund will hold a mix of Ether Futures 
Contracts, Spot Ether, and cash and cash equivalents, subject to 
certain investment restrictions (as further discussed below).
    2. Futures-based pricing for Spot Ether: The price determination 
for Spot Ether holdings in the NAV calculation will be derived from the 
CME Market's Ether futures curve. As a result, the price of Spot Ether 
holdings will depend solely on Ether futures settlement prices on the 
CME Market and will not depend directly on price information from 
unregulated spot Ether markets (as further below).
    3. Investment restrictions on Spot Ether: The Fund will be subject 
to dynamic investment restrictions that are designed to mitigate the 
risk that Shares of the Fund could be manipulated by manipulating the 
Ether spot market and ensuring that the CME Market is the only ``market 
of significant size'' with respect to the Fund.
    4. Physical Ether purchases on the CME Market: The Fund will use 
the CME Market's Exchange for Physical (``EFP'') \36\ transactions to 
acquire and dispose of Spot Ether, instead of transactions on 
unregulated spot exchanges. Moreover, as described below, the 
transactions are quoted as basis points over the Ethereum futures 
contracts prices, creating a direct and unequivocal lead-lag 
relationship between the prices on CME and the spot market transaction 
prices that the Fund engages. Accordingly, the only non-cash assets 
held by the Fund (Ether Futures Contracts and Ether via EFP) would be 
traded on the CME Market, such that the exchanges' ability to share 
information pursuant to their common ISG membership could assist in 
detecting and deterring fraudulent or manipulative misconduct related 
to those assets.
---------------------------------------------------------------------------

    \36\ See https://www.cmegroup.com/trading/equity-index/exchange-for-physical-efp-transactions.html.
---------------------------------------------------------------------------

    5. Creations and redemptions: The Fund will use cash creations and 
redemptions \37\ to deter intraday Share price manipulation that could 
originate from in kind creation or redemption from physical spot Ether 
sourced in unregulated spot markets. Investment in Spot Ether thus 
would not be directly related to creation/redemptions, but instead on 
target portfolio exposure, as allowed by the investment restrictions on 
spot Ether. Trading for Spot Ether could thus be accomplished in 
smaller sizes and at unpredictable times, reducing the risk of 
manipulation in the creation or redemption processes.
---------------------------------------------------------------------------

    \37\ In a cash creation/redemption format, the AP delivers cash 
to the fund instead of Spot Ether.
---------------------------------------------------------------------------

    The Sponsor believes that these features of the Fund are designed 
to provide a robust framework for mitigating the risks of market 
manipulation, thereby protecting investors, and maintaining the 
integrity of the market, and further believes that, given these 
features of the Fund, the CME Market would be considered the regulated 
market of significant size in relation to the Fund.
    Additionally, as further discussed below, the Sponsor believes that 
the Fund investment strategy is designed such that it would be highly 
unlikely that a person attempting to manipulate the Fund could be 
successful by trading on unregulated spot and derivatives markets. 
Thus, no market other than CME could be considered as of significant 
size in relation to the Fund.
    The Sponsor further believes that the novel approach proposed is in 
line with the first prong of the Commission's interpretation of the 
definition of ``regulated market of significant size'' as to the CME 
Market and that there is a reasonable likelihood that a person 
attempting to manipulate the Fund would also have to trade on the CME 
Market to successfully manipulate the ETP (and, accordingly, the 
exchange's common ISG membership would aid the Exchange in detecting 
and deterring potential misconduct).
    According to the Sponsor, the Sponsor's approach is designed in 
such a way that any attempt to manipulate the Fund would require 
trading on the CME Market, for the following reasons:

[[Page 68220]]

    1. Futures-based pricing for Spot Ether: Because the price 
determination for Spot Ether holdings in the Fund would be derived from 
the CME Market futures curve, any attempt to manipulate the price of 
the Fund would require influencing the futures curve on the CME Market 
because the spot price (which could be a target for manipulation) does 
not directly influence the price of the Fund. There is thus a direct 
and unequivocal lead-lag relationship in which CME Market prices lead 
both the spot price used by the Fund to determine its NAV and the 
Fund's market price.
    2. Investment restrictions on Spot Ether: The dynamic investment 
restrictions in place for the Fund (as discussed in the section below 
entitled ``Investment Restrictions on Spot Ether'') ensure that any 
significant trading activity aimed at the Fund would likely spill over 
into the CME Market because the investment restrictions are designed to 
prevent the Fund from becoming so large in relation to the unregulated 
spot market that the cost-benefit tradeoff is favorable for the 
potential manipulator to execute without influencing the futures 
market.
    3. Spot Ether operations via EFP on the CME Market: Because the 
Fund's Spot Ether operations would take place via CME Market EFP 
transactions, any attempt to manipulate the Fund's transactions in Spot 
Ether holdings would need to occur on the CME Market. Accordingly, any 
potential manipulation of the Fund is closely tied to the CME Market.
    4. Creations and redemptions: The Fund's use of cash creations and 
redemptions also reduces the potential for manipulation through the 
creation and redemption processes. Any significant creation or 
redemption activity aimed at manipulating the Fund would likely 
influence the futures market, given that the investment in spot is 
based on target portfolio exposure and not directly related to 
creations or redemptions.
    Given these factors, the Sponsor believes that the Exchange and CME 
Market's common membership in the ISG would be an effective tool in 
assisting the Exchange in detecting and deterring potential misconduct. 
The agreement would provide the Exchange with access to necessary 
trading data from the CME Market, which is intrinsically linked to the 
Fund, allowing for comprehensive oversight and the ability to quickly 
identify and investigate any suspicious trading activity.
    The Sponsor believes that trading in the Fund is unlikely to have a 
predominant impact on prices in the CME Market, primarily due to the 
volume and size of the CME futures market, and the significant 
liquidity available in the spot market. In addition, considering the 
Investment Restrictions on Spot Ether detailed below, the holding of 
Ether Spot by the Fund will not alter its impact on prices in the 
``significant market''.
    In relation to crypto futures market, the Commission has previously 
stated that the CME ``comprehensively surveils futures market 
conditions and price movements on a real-time and ongoing basis in 
order to detect and prevent price distortions, including price 
distortions caused by manipulative efforts'' and that the ``CME's 
surveillance can reasonably be relied upon to capture the effects on 
the CME bitcoin futures market caused by a person attempting to 
manipulate the [Fund] by manipulating the price of CME Bitcoin Futures 
Contracts, whether that attempt is made by directly trading on the CME 
bitcoin futures market or indirectly by trading outside of the CME 
bitcoin futures market.'' \38\ The Commission further noted that, as a 
result, ``when the CME shares its surveillance information with Arca, 
the information would assist in detecting and deterring fraudulent or 
manipulative misconduct related to the non-cash assets held by the 
[Fund]''.\39\ The Sponsor further believes that CME surveillance can be 
relied upon to capture any possible manipulation of the CME Ether 
futures markets, even when the attempt is made indirectly by trading 
outside the CME in unregulated markets.
---------------------------------------------------------------------------

    \38\ See Teucrium Approval Order of the Hashdex Bitcoin Futures 
ETF, 87 FR at 21679.
    \39\ Id.
---------------------------------------------------------------------------

    When discussing the second prong of the analysis in the Teucrium 
Approval Order, the Commission observed that the CME bitcoin futures 
market has progressed and matured significantly, and nearly every 
measurable metric related to bitcoin futures contracts has trended 
consistently up since the launch of 1940 Act \40\-registered bitcoin 
futures ETFs. This fact persuaded the Commission that trading in the 
proposed ETP is not likely to be the predominant influence on prices in 
the CME bitcoin futures market. In that case, the Commission concluded 
that the CME bitcoin futures market had sufficiently developed to 
support ETPs seeking exposure to bitcoin by holding CME futures 
contracts.
---------------------------------------------------------------------------

    \40\ Investment Company Act of 1940 (``1940 Act'').
---------------------------------------------------------------------------

    The Sponsor understands that a similar effect would happen to 
Ether: the approval of Ether products could potentially facilitate the 
maturation of the market. Moreover, based on the Commission's findings 
regarding the Bitcoin futures market, the Sponsor anticipates that the 
approval of the proposed ETP is unlikely to significantly impact prices 
in the CME Ether futures market. Market dynamics and the influence of 
these cryptocurrencies-based products on prices are expected to follow 
comparable patterns. Just as the bitcoin futures ETF did not disrupt 
the CME bitcoin futures market's equilibrium, the Sponsor anticipates a 
similar behavior upon the introduction of an Ether-based ETP.
    Nevertheless, the Sponsor believes that the analysis below 
illustrates that the progress observed in the Ether Futures Contracts 
and Ether Spot markets in the last few years is on par with what was 
observed for the bitcoin futures and spot markets right before the 
approval of the 1940 Act-registered bitcoin futures ETFs. Nearly every 
measurable metric related to Ether is trending up and the Ether market 
is still growing in volume and liquidity, approaching the size of 
markets for other commodity interests.
    As the CME Market continues to develop and more closely resemble 
other commodity futures markets, the Sponsor believes that it is 
reasonable to expect that the relationship between the Ether futures 
market and Ether spot market will behave similarly to other future/spot 
market relationships, where the spot market may have no relationship to 
the futures market (although the current proposal does not depend on 
such similarity).
    Despite the negative price performance of Ether in 2022, there has 
been significant growth in CME Ether Futures Markets relative to 
unregulated spot and derivatives markets. The Sponsor also notes that 
in the same period during which CME Market trading volume increased 
11.3%, the trading volume of unregulated Ether futures and spot markets 
had a significant drawdown of 38%.

[[Page 68221]]

                                                 Trading Volume
----------------------------------------------------------------------------------------------------------------
                                                          August 31, 2022    August 31, 2023        1-year %
                                                             (millions)         (millions)         variation
----------------------------------------------------------------------------------------------------------------
CME Ether Futures Market \41\..........................               $327               $364               11.3
Unregulated Futures Market \42\........................             $7,930             $4,930              -37.8
Spot Ether Market \43\.................................             $7,950             $4,930                -38
----------------------------------------------------------------------------------------------------------------

    The Sponsor believes that the data above suggests an increase in 
market appetite for regulated products (e.g., CME Market Ether futures) 
vis-a-vis a significant decrease in interest for unregulated products 
(e.g., unregulated futures and spot Ether).
---------------------------------------------------------------------------

    \41\ Data in this table is sourced from: Bloomberg.
    \42\ https://www.theblock.co/data/crypto-markets/futures.
    \43\ https://www.coinglass.com/currencies/ETH.
---------------------------------------------------------------------------

    The Sponsor further considers that the CME Market managed to 
maintain its open interest level despite the price volatility that 
Ether experienced in 2022, demonstrating its resilience and that it is 
sufficiently developed such that it is unlikely that trading in the 
Fund would be the predominant influence on its prices.

                Chicago Mercantile Exchange Ether Futures
------------------------------------------------------------------------
                                            August 31,      August 31,
                                               2022            2023
------------------------------------------------------------------------
Open Interest...........................     207,650 ETH     219,650 ETH
------------------------------------------------------------------------

    The CME Market is also sufficiently developed to support ETPs that 
seek exposure to Ether by holding a mix of CME Market Ether Futures 
Contracts and physical Ether through the use of CME Market EFP 
transactions, and thus the CME Market is the only market on which the 
Fund's only proposed non-cash assets would trade. Thus, the CME Market 
remains the ``significant market'' in relation to the Fund, as 
proposed.
    Moreover, as detailed above, the Sponsor's proposed investment 
strategy ensures that no unregulated spot exchange could be considered 
a ``market of relevant size'' in relation to the Fund, given that the 
Fund does not rely on any information or services coming from 
unregulated markets. All of the Fund's operations, including the 
purchase and sale of spot Ether and its NAV determination, are 
conducted through the CME Market. Thus, all transactions are registered 
and monitored on a regulated exchange, providing an additional layer of 
security and transparency. Because any attempt to manipulate the Fund 
would require significant trading on the CME Market, and not on any 
unregulated spot Ether exchange, there is significantly reduced 
potential for manipulation and fraud, further protecting investors and 
maintaining the integrity of the market.
    The Sponsor further believes that the holding of Spot Ether would 
not significantly alter the influence of the Fund's trading on the CME 
Market. The Spot Ether in the Fund's portfolio would be converted from 
futures positions using EFP transactions on the CME Market. The Fund's 
Spot Ether holdings would thus be directly linked to the futures market 
and would not introduce a new, independent variable that could 
significantly influence the futures market. Indeed, because both sides 
of the trade track the same benchmark, an EFP is market-neutral and, as 
such, the pricing of an EFP is quoted in terms of the basis between the 
price of the futures contract and the level of the underlying index.
    Additionally, the dynamic investment restrictions and futures-based 
pricing for Spot Ether would ensure that the Fund's Spot Ether holdings 
remain at a level where they are unlikely to impact the futures market 
significantly and that the futures market continues to influence the 
price of the Fund's Spot Ether holdings (and not the other way around).
    The Sponsor believes that, even with the holding of Spot Ether by 
using EFP transactions on the CME Market, the Fund's trading would not 
become the predominant influence on prices of the futures market. 
Therefore, considering the maturation of the CME Ether futures market 
since its inception, including but not limited to the overall size, 
volume, liquidity, and number of years of trading, the Sponsor 
considers that the second prong of the standard for ``market of 
significant size'' has been established.
    In reviewing prior proposals to list and trade shares of various 
cryptoassets-based trust issued receipts, the Commission noted that 
some of such proposals did not adequately demonstrate that they were 
designed to prevent fraudulent and manipulative acts and practices and 
to protect investors and the public interest, consistent with Section 
6(b)(5) of the

[[Page 68222]]

Act.\44\ The Commission does not apply a ``cannot be manipulated'' 
standard, but instead seeks to examine whether a proposal meets the 
requirements of the Act.\45\ The Commission has explained that a 
proposal could satisfy the requirements of the Act in the first 
instance by demonstrating that the listing exchange has entered into a 
CSSA with a regulated ``market of significant size'' related to the 
underlying or reference crypto-assets.\46\ The Commission has also 
recognized that a listing exchange would not necessarily need to enter 
into such an agreement with a regulated significant market if the 
underlying commodity market inherently possessed a unique resistance to 
manipulation beyond the protections that are utilized by traditional 
commodity or securities markets or if the listing exchange could 
demonstrate that there were sufficient ``other means to prevent 
fraudulent and manipulative acts and practices.'' \47\ As the 
Commission explained in the Teucrium Approval Order, the approval of 
that fund was based on a finding that the CME is a ``significant 
market'' related to the exclusive non-cash holdings of the proposed 
ETPs, which in that case would be CME bitcoin futures contracts.\48\
---------------------------------------------------------------------------

    \44\ See e.g., Order Disapproving a Proposed Rule Change, as 
Modified by Amendments No. 1 and 2, to BZX Rule 14.11(e)(4), 
Commodity-Based Trust Shares, To List and Trade Shares, Issued by 
the Winklevoss Bitcoin Trust, Securities Exchange Act Release No. 
80206 (March 10,2017), 82 FR 14076 (March 16, 2017) (SR-BatsBZX-
2016-30) (the ``Winklevoss I Order'') the Winklevoss II Order; Order 
Disapproving a Proposed Rule change, as Modified by Amendment No. 1, 
Relating to the Listing and Trading of Shares of the Bitwise Bitcoin 
ETF Trust Under NYSE Arca Rule 8.201-E, Securities Exchange Act 
Release No. 87267 (October 9, 2019), 84 FR 55382 (October 16, 2019 
(SR-NYSEArca-2019-01) (the ``Bitwise Order''); the Wilshire Phoenix 
Order; Order Disapproving a Proposed Rule Change to List and Trade 
the Shares of the ProSharess Bitcoin ETF and the ProShares Short 
Bitcoin ETF, Securities Exchange Act Release No. 83904 (August 22, 
2018), 83 FR 43934 (August 28, 2018) SR-NYSEArca-2017-139); Order 
Disapproving a Proposed Rule Change Relating to Listing and Trading 
of the Direxion Daily Bitcoin Bear IX Shares, Direxion Daily Bitcoin 
1.25X Bull Shares, Direxion Daily Bitcoin 2X Bull Shares, and 
Direxion Daily Bitcoin 2X Bear Shares Under NYSE Arca Rule 8.200-E, 
Securities Exchange Act Release No. 83912 (August 22, 2018), 83 FR 
43912 (August 28, 2018) (SR-NYSEArca-2018-02); Order Disapproving a 
Proposed Rule Change to List and Trade the Shares of the 
GraniteShares Bitcoin ETF and the GraniteShares Short Bitcoin ETF, 
Securities Exchange Act Release No. 83913 (August 22, 2018), 83 FR 
43923 (August 28, 2018) (SR-CboeBZX-2018-01) (the ``GraniteShares 
Order'').
    \45\ See Winklevoss II Order, 83 FR at 37582.
    \46\ See Wilshire Phoenix Order, 85 FR at 12596-97.
    \47\ See Winkle II Order, 83 FR at 37580, 37582-91; Bitwise 
Order, 84 FR at 55383, 55385-406; Wilshire Phoenix Order, 85 FR at 
12597.
    \48\ See Teucrium Approval Order.
---------------------------------------------------------------------------

    As described below, the Sponsor believes the structure and 
operation of the Trust are designed to prevent fraudulent and 
manipulative acts and practices, to protect investors and the public 
interest, and to respond to the specific concerns that the Commission 
has identified with respect to potential fraud and manipulation in the 
context of a crypto product. Further, as the Commission has previously 
acknowledged, trading in an Ether-based ETP on a national securities 
exchange, as compared to trading in an unregulated Ether spot market, 
may provide additional protection to investors.\49\ The Sponsor also 
believes that listing of the Shares on the Exchange will provide 
investors with such an opportunity to obtain exposure to Ether within a 
regulated environment.
---------------------------------------------------------------------------

    \49\ See GraniteShares Order, 83 FR at 43931 See also Hester M. 
Peirce, U.S Sec. Exch. Comm'n, Dissent of Commissioner Hester M. 
Peirce to Release No. 34-83723 (July 26, 2018), available at: 
https://www.sec.gov/news/public-statement/peirce-dissent-34-83723 
(``An ETP based on bitcoin would offer investors indirect exposure 
to bitcoin through a product that trades on a regulated securities 
market and in manner that eliminates some of the frictions and 
worries of buying and holding bitcoin dirctly. If we were to approve 
the ETP at issue here, investors could choose whether to buy it or 
avoid it'').
---------------------------------------------------------------------------

Futures-Based Spot Price (``FBSP'')
    The value of Spot Ether held by the Fund would be determined by the 
Sponsor and by Hashdex Asset Management Ltd. (the ``Digital Asset 
Adviser'') in good faith based on a methodology that is entirely 
derived from the settlement prices of Ether Futures Contracts on the 
CME Market and that considers all available facts and all available 
information on the valuation date.
    The method involves a calculation that is sensitive to both the 
length of time (the ``tenor'') until each Ether Futures Contract is due 
for settlement and the final settlement price for each contract. The 
calculation takes into account each contract's tenor and the tenor 
squared. This approach is designed to give more importance to contracts 
that are due for settlement in the near term, considering that the 
prices of these near-term contracts are more reliable indicators of the 
current spot price of Ether and are also more heavily traded. The 
calculation produces a set of weighting factors, with each factor 
indicating the contribution of the corresponding Ether Futures Contract 
to the estimated current spot price of Ether. The estimated spot price 
is the component of the result corresponding to a tenor of zero days. 
The Sponsor and Digital Asset Advisor do not use data from Ether 
exchanges or directly from spot Ether trading activity in determining 
the value of Spot Ether held by the Fund.
    As an example, the table below demonstrates how the weights of each 
hypothetical Ether Futures Contract change over time as the first 
contract gets closer to maturity.

[[Page 68223]]

[GRAPHIC] [TIFF OMITTED] TN03OC23.002

    The Sponsor believes that the accuracy of the proposed pricing 
methodology can be measured by comparing its pricing results to the 
real time version of Ether price benchmarks such as ETHUSD_RR and 
NQETHS. FBSP is derived from futures settlement prices, which are 
usually VWAPs from all contracts traded on Globex between 14:59:00 and 
15:00:00 Central Time (``CT''). Accordingly, for purposes of developing 
a useful proxy, the Sponsor's analysis uses the arithmetic average of 
the Benchmark closing prices at 14:59:00 and 15:00:00 CT, which is not 
sensitive to the fluctuations that occur within this minute. By design, 
this difference in the price metric introduces an artificial distortion 
in the comparison, resulting in figures that are less adherent than in 
reality. Therefore, the figures set forth below represent a 
conservative estimation of the true adherence between FBSP and the 
Benchmark, considering that the actual adherence to the Benchmark is 
higher than these results can indicate.\50\
---------------------------------------------------------------------------

    \50\ The difference in the price metrics introduces an 
artificial distortion in the comparison. Indeed, a regression 
analysis shows that the ratio between the maximum and minimum spot 
prices within the Ether Futures VWAP window is a significant 
variable that explains the absolute divergences between FBSP and the 
spot prices. The higher the ratio between the maximum and minimum 
spot prices, the higher expected absolute divergence between FBSP 
and the spot prices. The correlation of these two metrics in the 
case of the real time version of NQETHS is approximately 17%, 
suggesting that the actual adherence between FBSP and the spot 
benchmarks is even higher than the figures discussed herein 
indicate.
---------------------------------------------------------------------------

    Using data available on Bloomberg on August 28, 2023, the Sponsor 
compared FBSP to NQETHS and ETHUSD_RR from February 16, 2023 to August 
28, 2023 and determined that FBSP behaves very similarly to both 
indexes. The following charts show a direct comparison between those 
two benchmark values and FBSP:
BILLING CODE 8011-01-P

[[Page 68224]]

[GRAPHIC] [TIFF OMITTED] TN03OC23.003

    In the above charts, each black point indicates one day, and their 
proximity to the red line shows how similar FBSP is to each of NQETHS 
and ETHUSD_RR. The correlations between FBSP and each of NQETHS and 
ETHUSD_RR exceed 99.8%, and the mean absolute percentage divergences 
are 21 basis points (``bps'') and 21 bps, respectively, while the 
median absolute percentage divergences are 12 bps and 13 bps, 
respectively.
    The charts below provide another visualization of the results of 
this comparison, as time series of the percentage divergences:

[[Page 68225]]

[GRAPHIC] [TIFF OMITTED] TN03OC23.004

BILLING CODE 8011-01-C
    These charts show that there are no clusters of abnormal 
divergences. In both cases, more than 90% of the days exhibit 
percentage divergences below 51 bps. The highest percentage divergence 
in absolute terms, with 91 bps for the NQETHS and 89 bps for the 
ETHUSD_RR, was observed on March 31, 2023, and coincided with 
significant volatility in the Ether markets; on that day, NQETHS gain 
2.60% from $1780.66 to $1826.99 and the FBSP, which settles one hour 
later, gain 3.54%, from $1781.28 to $1844.39. The Sponsor notes that, 
even on the day with the highest percentage divergence between FBSP and 
the other two benchmarks, that percentage divergence was insignificant 
in comparison to the intraday volatility of Ether itself and could be 
attributable to the different market structures of the regulated CME 
Market and the unregulated spot markets.
    The Sponsor believes that this data strongly suggests that FBSP is 
a suitable choice for the NAV calculation, both for the settlement and 
the real time proxy, and that the following additional considerations 
further support the soundness of the FBSP methodology:
     Ether is a highly volatile asset traded in multiple venues 
across the world, and divergences of the magnitude found in this 
analysis are not unusual across different price sources or exchanges.
     As noted above, the mean absolute percentage divergences 
are 21 bps and 21 bps respectively, the median absolute percentage 
divergences are 12 bps and 13 bps, and March 31, 2023 was the day with 
the highest percentage divergence in absolute terms, with 91 bps for 
the NQETHS and 89 bps for ETHUSD_RR. The Sponsor believes that these 
divergences between FBSP and the underlying benchmarks are in a 
reasonable range and support that FBSP closely tracks NQETHS and 
ETHUSD_RR.
    Finally, the Sponsor notes that, even considering that FBSP could 
create some level of uncertainty due to the potential divergences 
between the FBSP and the spot prices observed in unregulated markets, 
the authorized participants (``APs'') are able to hedge potential 
exposure by buying the basket of futures that represents FBSP and 
selling it during the futures settlement window. In doing so, APs can 
emulate a situation where they know ex ante the value of the creation 
basket. The opposite trade can have the same effect for the case of 
redemptions. Thus, the APs providing liquidity on the secondary market 
during the day will always be in a position to hedge their exposure 
using exclusively the CME Market, which will make them more likely to 
provide liquidity to the Fund thus making its market price converge to 
its NAV.
Preventing Manipulation
    While the Commission has raised valid concerns about the potential 
influence of unregulated Ether markets on the daily settlement price on 
CME Market, the Sponsor believes that the proposed methodology 
described above provides a significant and sufficient

[[Page 68226]]

degree of insulation from such influences, for the following reasons:
    1. Regulated market influence: The daily settlement price of Ether 
Futures Contracts on the CME Market, which is the basis for the NAV 
calculation of both futures contracts and physical holdings of the 
Fund, is primarily influenced by trading activity within the regulated 
futures market itself. This market is subject to stringent oversight 
and surveillance mechanisms designed to detect and deter manipulative 
and fraudulent practices, thus significantly limiting the possible 
influence of unregulated Ether markets on the daily settlement price.
    2. High liquidity and volume: The CME Market is characterized by 
high liquidity and trading volume, such that any attempt to influence 
the daily settlement price through trading activity in other, 
unregulated Ether markets would require a significant amount of capital 
and coordination. The Sponsor thus believes that any such manipulation 
attempts would be highly detectable by the CME Market's market 
surveillance.
    3. Complex pricing methodology: The NAV calculation methodology is 
comprehensive and accounts for both the tenor and final settlement 
price of each futures contract. In addition, the FBSP used in the NAV 
calculation methodology incorporates all maturities of Ether Futures 
Contracts, which exhibit a robust price relationship among themselves. 
As a result, attempting to manipulate these prices in a coordinated 
manner to generate a substantial impact on NAV would be very 
challenging for potential manipulators and likely financially 
unfeasible. The Sponsor thus believes that the complexity of the 
methodology provides an additional layer of protection against 
manipulation, as it would be extremely difficult for a manipulator to 
influence all these factors in a coordinated way to impact the Fund's 
NAV without leaving a detectable trail that would alert market 
surveillance.
    4. Focus on near-term contracts: The Fund's methodology gives more 
importance to futures contracts that are due for settlement in the near 
term because such contracts are more heavily traded, and their prices 
are more reliable indicators of the current spot price of Ether. The 
Sponsor believes that the methodology's focus on near-term contracts 
further reduces the potential for manipulation, as these contracts are 
less susceptible to manipulation due to their higher trading volumes 
and liquidity.
    The Sponsor also believes that it is highly unlikely that a person 
attempting to manipulate the NAV of the Fund could do so successfully 
by trading on unregulated spot and derivatives markets. Because of 
direct arbitrage, it is reasonable to assume that the ETP's market 
price (in the secondary market) would be highly adherent to the Fund's 
Intraday Net Asset Value, since APs can always create and redeem shares 
of the Fund hedging with a basket of Ether Futures Contracts and the 
value of the creation basket is determined based on the NAV of the 
Fund, which is calculated using the FBSP prices that is based on such 
basket of Ether Futures Contracts. Consequently, the likelihood of a 
potential manipulator of the ETP to succeed by exclusively trading in 
unregulated Ether markets would depend on how much the prices in these 
markets have an impact over the CME Ether Futures Contracts prices. The 
likelihood that a potential manipulator would undertake such an effort 
is also decreased when considering the financial burden of manipulating 
the unregulated markets and the overall expected profitability of any 
such manipulation.
    To further assess such likelihood, the Sponsor carried out the 
following analysis to investigate the relationship between prices from 
relevant unregulated Ether markets and the prices of the CME Ether 
Futures Contracts, to assess the impact that a manipulation on those 
markets would have on CME. The Sponsor collected one-minute bars data 
between February 21 and September 6 \51\ of prices for the nearest CME 
Ether Futures Contract (``CME Futures'') and the following alternative 
Ether prices (``AEP''): spot Ether (in USD) on BitStamp, Coinbase, 
Gemini and Kraken, spot Ether (in USDT), and ETHUSDT USDs-Margined 
Perpetuals on Binance. For each day and each AEP, a simple regression 
model was estimated with one-minute CME Futures log-returns as the 
dependent variable, and two independent variables: (1) the log CME 
Futures closing price of the previous minute (as a control variable) 
and (2) the difference between the AEP log return and the CME Futures 
log return in the previous minute (as the variable of interest).
---------------------------------------------------------------------------

    \51\ This date range represents days with intraday data 
available on Bloomberg as of September 6. Days with less than 40 
observations for a given AEP were excluded from the analysis of such 
AEP.
---------------------------------------------------------------------------

    The estimated coefficients associated with the variable of interest 
are a measure of the expected response from the CME Futures (as 
measured by its returns) to a divergence between its own return 
information and the one from AEP in the near past (one-minute lagged 
returns). Such divergences are expected to occur in cases of 
manipulation. A higher coefficient (closer to one) would indicate that 
CME Futures are more sensitive to and strongly influenced by the 
divergence, while a lower coefficient (closer to zero) would suggest 
that CME Futures are less responsive and not significantly influenced 
by the information coming from AEP. The Sponsor believes that these 
coefficients can be considered a conservative estimation of the real 
impact that manipulation in an AEP would have over the CME Futures 
price because the estimations are calculated under normal circumstances 
rather than under a manipulative attack, in which some other 
indicators, such as abnormal volume and volatility, would warn market 
participants and undermine their perception of the attacked AEP as a 
reliable price reference. The results of the Sponsor's analysis are 
summarized in the table below:\52\
---------------------------------------------------------------------------

    \52\ The market depth information was obtained from 
CoinMarketCap on August 31, 2023. The AEPs with blank cells in this 
table were not included in the August 31, 2023 snapshot.

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

[[Page 68227]]

[GRAPHIC] [TIFF OMITTED] TN03OC23.005

    The Sponsor's analysis suggests that the influence of AEP over the 
CME Futures prices is relatively low. For instance, if a would-be 
manipulator chose to attack Binance Spot (ETH-USDT), which is an AEP 
with higher coefficients and thus higher potential to impact CME 
futures, the average coefficient of 0.33 means that in order to 
manipulate CME Futures prices by 1%, the would-be manipulator would 
have to distort Binance's prices by 3% (1% divided by 0.33) on average. 
To be successful with 90% confidence (1st Decile) this manipulator 
would have to distort Binance's prices by more than 8.3% (1% divided by 
0.12). The Sponsor believes that its analysis supports that, even 
considering these conservative estimations, indirect manipulation would 
be extremely inefficient.
    The market depth columns in the above table indicate that 
substantial financial resources, running into millions of dollars, are 
present on both sides of the order book for the most influential AEPs 
(even without including hidden orders, bots, and arbitrageurs that 
effectively enhance liquidity). The considerable financial commitment 
that would be required makes the manipulation of these prices an 
expensive endeavor.
    The Sponsor believes that its analysis demonstrates that the low 
efficiency of attempts to manipulate AEPs, coupled with the significant 
cost involved in influencing impactful AEPs, makes potential 
manipulation of spot Ether markets an unattractive proposition, and 
that it is therefore highly unlikely that a potential manipulator of 
the ETP could succeed by exclusively trading in unregulated Ether 
markets. The combination of the high costs and the inefficiencies 
associated with manipulation makes it a daunting and unprofitable 
venture.
    In summary, while the Sponsor acknowledges the potential for 
influence from trades settled in unregulated Ether markets, the Sponsor 
believes that the NAV calculation methodology, coupled with the 
inherent characteristics of the CME, provides a significant degree of 
protection against such influence being deliberately used to manipulate 
the Fund's market price or NAV without it being subject to detection by 
CME market surveillance.
Investment Strategy
    The Sponsor believes that the investment strategy of the Fund is 
designed to mitigate the risk of manipulation by diversifying its 
holdings and is responsive to the Commission's concerns with respect to 
an ETP that holds spot Ether. Instead of holding 100% spot Ether, which 
could make it more susceptible to price manipulation in the spot 
market, the Fund will hold a mix of Spot Ether, Ether Futures 
Contracts, and cash. This diversified portfolio is subject to 
investment restrictions, which further reduces the potential for 
manipulation, as explained below:
    1. Diversification: By holding a combination of Spot Ether, Ether 
Futures Contracts, and cash, the Fund reduces its exposure to any 
single asset class. This diversification also makes it more difficult 
for a would-be manipulator to influence the NAV of the Fund by 
manipulating the price of spot Ether alone; for instance, even if a 
manipulator were able to influence the spot price of Ether, their 
actions would only affect a portion of the Fund's portfolio, thereby 
limiting the overall impact of such manipulation on the Fund's NAV.
    2. Investment restrictions: The Fund's holdings of Spot Ether would 
be subject to investment restrictions, which are further discussed 
below. These restrictions cap the amount of Spot Ether that the Fund 
can hold, further reducing the potential for manipulation by, for 
example, preventing the Fund from becoming so large in relation to the 
spot market that it could be manipulated without influencing the 
futures market. The Sponsor believes that these investment restrictions 
ensure that any significant trading activity aimed at manipulating the 
Fund would likely spill over into the CME Market, a regulated market 
with robust surveillance mechanisms in place to detect and deter 
manipulation, and with which the Exchange could receive information 
pursuant to common ISG membership.
    3. Reduced dependence on spot market: By holding Ether Futures 
Contracts and cash in addition to Spot Ether, the Fund reduces its 
dependence on the spot market, thereby mitigating concerns about 
potential manipulation in unregulated Ether spot exchanges. Instead, 
the Fund will rely on Ether Futures Contracts and Ether futures EFPs 
that are traded on the CME Market, a regulated exchange, which provides 
a higher level of transparency and oversight compared to unregulated 
spot exchanges.
    4. Dynamic adjustment: The mix of Spot Ether, Ether Futures 
Contracts, and cash in the Fund's portfolio can be dynamically adjusted 
based on market conditions and regulatory developments. This 
flexibility allows the Fund to respond quickly to any signs of 
potential manipulation or other market abuses, further enhancing its 
resilience against manipulation.
    In summary, by diversifying its holdings and imposing investment 
restrictions, the Fund reduces its vulnerability to manipulation in any 
single market, thereby protecting investors and maintaining the 
integrity of the Fund.
Investment Restrictions on Spot Ether
    According to the Sponsor, the Fund will be subject to investment 
restrictions on Spot Ether (the ``Investment Restrictions'') that are 
specific constraints on its exposure to Ether, particularly with 
respect to spot holdings. These investment restrictions, which are 
designed to mitigate the risk of manipulation of the Fund's Shares by 
insulating the Fund from events impacting the Ether spot market, are 
variable based on factors such as the Commission's recognition of the 
CME as a regulated market of significant size related to spot Ether, 
the NAV of the Fund, and the prevailing trading conditions on the core 
exchanges of the Benchmark.

[[Page 68228]]

    The first constraint, termed in the Registration Statement as the 
``Spot Ether Relative Position Restriction,'' caps the Fund's exposure 
to the ether spot market to a specified proportion of the Fund's NAV. 
This limit is designed to curb the potential success of any attempts to 
materially manipulate the Fund's Share prices through undue influence 
on the ether spot market.
    The second constraint, referred to in the Registration Statement as 
the ``Spot Ether Notional Exposure Restriction,'' restricts the Fund's 
notional exposure to ether to a set proportion. The dual objectives of 
this second constraint are: (a) to deter potential manipulative actions 
on the Shares by making the cost-benefit tradeoff highly unfavorable 
for the manipulator, as it would require them to transact a volume that 
surpasses the Fund's total exposure in the ether spot market, thus 
making the potential costs of manipulation outweigh the benefits, and 
(b) to restrict the Fund's trading activities in such a way that they 
are not expected to become the primary driving force behind price 
variations in the ether spot market.
    The Sponsor believes that the Investment Restrictions serve two 
main purposes:
    1. They deter potential manipulative actions directed towards the 
Fund's Shares by making the cost-benefit tradeoff highly unfavorable 
for the manipulator. To manipulate the Fund's price using an 
unregulated spot market, a manipulator would need to transact a volume 
that surpasses the Fund's total exposure in spot Ether, making the 
potential costs of manipulation outweigh the benefits.
    2. They ensure that the Fund's trading activities do not become the 
primary driving force behind price variations in the Ether spot market. 
By restricting the Fund's notional exposure to a proportion of the 
ADTV, this constraint ensures that the Fund's trading activities are 
always a fraction of the overall market activity, thereby reducing the 
potential for the Fund to unduly influence market prices.
    As an example, in the 30-day period ending on August 31, 2023, the 
ADTV of spot Ether on Coinbase was $146 million. Thus, the Fund's 
notional exposure to Ether is restricted to up to $146 million, meaning 
that if the Fund's AUM is, for example, $100 million, it could have up 
to 100% allocation to Spot Ether. However, if the Fund's AUM is, for 
example, $1 billion, it could still only have up to $146 million of 
notional exposure to Spot Ether, which would be the equivalent of up to 
14.6% of the Fund's NAV, and the rest of the portfolio would need to be 
allocated to Ether Futures Contracts, cash, or cash equivalents.
    To ensure that the Fund's trading activities do not become the 
primary driving force of the Spot Ether price, the Sponsor intends to 
keep its notional allocation to spot Ether as a small proportion of the 
overall trading activity of spot Ether.
    The Sponsor intends to do so by restricting the maximum notional 
exposure to Spot Ether to a proportion of the 30-day ADTV, with the 
ADTV data based on the most trusted exchanges (meeting the double 
requirements of being a core exchange per the NQETHS methodology and 
being subject to regulatory and reporting rules in the United States, 
which make them liable for any false volume data reporting).
    Currently, only one exchange meets those requirements, and over the 
last three months, it accounted for 9.75% to 11.83% of all Ether 
trading, whereas the largest unregulated spot Ether exchange accounted 
for 35% to 40% of the spot Ether volume over the same period.\53\
---------------------------------------------------------------------------

    \53\ See https://www.theblock.co/data/crypto-markets/spot/the-block-legitimate-volume-index-eth-only.

                                           Spot Ether 30-Day ADTV \54\
----------------------------------------------------------------------------------------------------------------
                                        June 30, 2023              July 31, 2023             August 31 2023
----------------------------------------------------------------------------------------------------------------
Top 10 Exchanges................  $2,012.24 million........  $1,560.15 million........  $1,499.43 million
Single Core Exchange meeting      $203.56 million..........  $184.64 million..........  $146.22 million
 Sponsor's requirement.
Single Core Exchange's market     10.12%...................  11.83%...................  9.75%
 share.
All 5 Core Exchanges............  $271.02 million..........  $227.84 million..........  $187.53 million
All 5 Core Exchanges' market      13.47%...................  14.60%...................  12.51%
 share.
----------------------------------------------------------------------------------------------------------------

    The Sponsor believes that it is therefore unlikely that the single 
exchange on which the Sponsor bases the ADTV data on will be the 
primary driver of spot Ether price given its relatively small market 
share. As a result, even with the Fund's notional Spot Ether exposure 
limited at 100% of the ADTV on that single exchange, the Fund's Spot 
Ether holdings would likely represent only 9.75% to 11.83% of the daily 
liquidity of the spot Ether market (on the biggest 10 exchanges by 
volume) and thus is unlikely to become the primary driver of the spot 
market price formation.
---------------------------------------------------------------------------

    \54\ See Messari, volume data is for USD, USDT and USDC traded 
against Bitcoin. Core Exchanges.
---------------------------------------------------------------------------

    Additionally, with the spot Ether notional exposure at 9.75% to 
11.83 of ADTV, a would-be manipulator would need to trade on exchanges 
that account for most of the liquidity and, in particular, the largest 
one. The Sponsor believes that the cost benefit analysis of attempting 
to distort the price on the largest exchange, which accounts for 
approximately 35% to 40% of the liquidity (or approximately 3 to 4 
times the size of the Fund), to manipulate the price of the Fund would 
not be compelling.
    In summary, the Sponsor believes that the Investment Restrictions 
are a key tool in the Fund's strategy to prevent manipulation. By 
limiting the Fund's exposure to the spot market and ensuring that the 
Fund's trading activities do not become the predominant influence on 
market prices, these restrictions provide a robust defense against 
potential manipulation attempts.
Investor Protection and Spot and Proxy Exposure
    The Sponsor believes that U.S. investor exposure to Ether directly 
through holding Ether itself has grown and the potential risk to U.S. 
investors has also grown. As described, premium and discount 
volatility, high fees, insufficient disclosures, and technical hurdles 
are exposing U.S. investors to risks that could potentially be 
eliminated through access to an Ether futures-based fund with 
investment restrictions on its exposure to Spot Ether. The Sponsor 
believes that the Commission's concerns have been sufficiently 
mitigated by the use of futures contracts, the investment restrictions 
and EFP transactions. Accordingly, the Sponsor believes that

[[Page 68229]]

the Fund represents an opportunity for U.S. investors to gain price 
exposure to Ether in a regulated and transparent exchange-traded 
vehicle that limits risks by: (i) reducing premium and discount 
volatility; (ii) reducing management fees through meaningful 
competition; and (iii) reducing risks associated with investing in 
operating companies that are imperfect proxies for Ether exposure.
    According to the Sponsor, exposure to Ether through the Fund also 
presents certain advantages for retail investors compared to buying 
spot Ether directly. A retail investor holding Spot Ether directly in a 
self-hosted wallet may suffer from inexperience in private key 
management (e.g., insufficient password protection, lost key, etc.), 
which could cause them to lose some or all of their Ether holdings. In 
addition, retail investors will be able to hold the Shares in 
traditional brokerage accounts which provide SIPC protection if a 
brokerage firm fails.
Creations and Redemptions
    According to the Sponsor (and as discussed further below), the Fund 
uses cash creations and redemptions. With respect to Spot Ether, an AP 
delivers cash to the Fund instead of Spot Ether in the creation 
process, and an AP receives cash instead of Spot Ether in the 
redemption process. The cash delivered or received during the creation 
or redemption process is then used by the Sponsor to purchase or sell 
Ether Futures Contracts with an aggregate market value that 
approximates the amount of cash received or paid upon the creation or 
redemption. On a daily basis, the Sponsor will analyze the current 
portfolio allocation of the Fund between Spot Ether and Ether Futures 
Contracts and, based on the Investment Restrictions and target 
portfolio exposure, may decide to engage in an EFP transaction on CME 
to buy or sell Spot Ether for the equivalent position in Ether Futures 
Contracts.
    The Sponsor believes that this method protects against manipulation 
in the creation and redemption process and of the Fund's market price 
from trading in unregulated spot markets. Investment in spot Ether will 
not be directly related to creation or redemption of Fund Shares, but 
instead on target portfolio exposure, such that trades can be performed 
in smaller sizes and at unpredictable times, reducing the risk of 
creation or redemption manipulation.
    The Sponsor believes that the use of cash creations and redemptions 
in the Fund serves as a deterrent to manipulation in several ways:
    1. Decoupling from spot market: By using cash instead of Spot Ether 
for creations and redemptions, the Fund's operations are decoupled from 
the unregulated spot market. The creation and redemption process does 
not directly influence the unregulated spot market or vice versa, 
thereby reducing the potential for manipulation through this process.
    2. Unpredictable trading times: The Fund's investment in Spot Ether 
is not directly related to creations or redemptions, but instead on 
target portfolio exposure. As a result, trading can be done in smaller 
sizes and at unpredictable times, making it harder for potential 
manipulators to time their actions.
    3. Reduced impact of large trades: By effecting creations and 
redemptions in cash, large trades that could potentially influence the 
unregulated spot market are mitigated. Instead, these trades are 
absorbed in the CME Market, which is sufficiently liquid and can 
reasonably be relied upon to assist in detecting and deterring 
fraudulent or manipulative misconduct.
    4. Reduced influence of Ether sourced from unregulated spot 
exchanges: In-kind creation may create a direct relationship between 
the Fund's market price and prices on unregulated exchanges such as 
Binance by arbitrage, because an AP could buy or sell Ether from 
Binance and receive or deliver Ether from the Fund through the creation 
or redemption process. With creations and redemptions in cash, however, 
that arbitrage cannot be executed without going through pricing and 
trading on the CME Market.
    The Sponsor believes that the Fund's creation and redemption 
process is designed to minimize the potential for market manipulation, 
thereby protecting investors and maintaining the integrity of the 
markets.
Exchange for Physical Transactions
    EFP transactions, also known as Exchange for Related Position or 
EFRP transactions,\55\ are a type of private agreement between two 
parties to trade a futures position for the underlying asset. In the 
context of the Fund, these transactions will be used to purchase and 
sell Spot Ether by delivering or receiving the equivalent futures 
position.
---------------------------------------------------------------------------

    \55\ See https://www.cmegroup.com/clearing/operations-and-deliveries/accepted-trade-types/efp-efr-eoo-trades.html.
---------------------------------------------------------------------------

    In an EFP transaction, two parties exchange equivalent but 
offsetting positions in an Ether Futures Contract and the underlying 
physical Ether. One party is the buyer of futures and the seller of the 
physical Ether, and the other party takes the opposite position (seller 
of futures and buyer of physical). While the EFP is a privately-
negotiated transaction between the two parties to the trade, the 
consummated transaction must be reported to CME Market and its 
conditions and prices are subject to CME Market's market regulation 
oversight.
    EFPs may be transacted at such commercially reasonable prices as 
are mutually agreed upon by the parties to the transaction, provided 
that the price conforms to the applicable futures price increments set 
forth for the relevant futures contract. The Sponsor believes that EFPs 
executed at off-market prices are more likely to be reviewed by CME's 
Market Regulation. CME's Rule 538 establishes that ``EFPs may not be 
priced off-market for the purpose of shifting substantial sums of cash 
from one party to another, to allocate gains and losses between the 
futures or options on futures and the cash or OTC derivative components 
of the EFRP, to evade taxes, to circumvent financial controls by 
disguising a firm's financial condition, or to accomplish some other 
unlawful purpose.''
    Because both sides of the trade track the same benchmark (Ether), 
an EFP is market-neutral. As such, the pricing of an EFP is quoted in 
terms of the basis between the price of the futures contract and the 
level of the underlying Ether. Because the Fund proposes to use EFP 
transactions to purchase and sell Spot Ether, the only non-cash assets 
held by the Fund (Ether Futures Contracts and Ether) are traded on CME 
Market. Because the Exchange and the CME Market are both ISG members, 
information shared by the CME Market with the Exchange can be used to 
assist in detecting and deterring fraudulent or manipulative misconduct 
related to those assets.
    In the proposed strategy for the operation of the Fund, every time 
the Fund is required to purchase or sell Ether, the Sponsor will 
perform a request for quotation auction (``RFQ Auction'') with multiple 
market makers using the settlement price as the reference for the 
futures contracts. Market makers present their quotes in terms of basis 
points (``bps''), where 1bp = 0.01% between the futures contract price 
and the spot price. The Sponsor will then confirm the trade with the 
best offer and report the EFP transaction to the CME Market. The 
Sponsor believes that performing an RFQ Auction with multiple market 
makers is an efficient price formation mechanism that generates enough 
competition and

[[Page 68230]]

attracts sufficient liquidity to minimize the transaction costs for the 
ETP.
    As an example, assume that the Fund needs to buy 500 ethers (ETH) 
in exchange for 10 units of the next maturity of Ether Futures 
Contracts (``ETHA''). The Sponsor will perform an RFQ Auction by 
requesting 3 market makers to provide their best price for buying ETHA 
versus ETH. The Market Makers provide a bid/ask quote in terms of basis 
between the futures and spot. Market Maker 1 (MM1) bids +22bps, Market 
Maker 2 (MM2) bids +20bps, and Market Maker 3 (MM3) bids +25bps. The 
Sponsor will then agree to pay the best bid of +25bps from MM3. 
Assuming ETHA is at $1,634, the price for the spot transaction is fixed 
at $1,629.92. The transaction is then reported within the time period 
and in the manner specified by the CME Market. Upon completion of the 
EFP, the Fund and MM3 would have different positions but same exposure:
     The Fund was long 10 Ether Futures Contracts and now has 
converted this exposure into 500 Ethers.
     MM3 had 500 Ethers and now holds an equal position long 10 
Ether Futures Contracts.
    The table below illustrates the steps in this EFP transaction:

------------------------------------------------------------------------
             Steps                      MM3                 Fund
------------------------------------------------------------------------
1. Starting Position...........  500 ETH..........  10 ETHA.
2. EFP is privately negotiated.  MM3 and the Fund
                                  agree to terms
                                  of the EFP:
                                  Fund
                                  sells/MM3 buys
                                  10 ETHA at
                                  $1,634..
                                  Fund
                                  buys/MM3 sells
                                  500 ETH at
                                  1,629.92
                                  (+25bps).
3. MM3 sends Ether to the Fund.  -500 ETH.........  + 500 ETH.
4. EFP reported to CME.........  + 10 ETHA........  -10 ETHA.
5. Final Position..............  10 ETHA..........  500 ETH.
------------------------------------------------------------------------

    As required by CME Market's regulation, the Fund and all other 
parties related to the transaction will maintain all records relevant 
to this transaction, including order tickets, RFQ Auction message 
history, and custody transaction records, and provide them to CME upon 
request for surveillance purposes pursuant to CFTC Regulation 1.35.
    EFP volumes are reported daily on the CME Group website. 
Historically, trading activity in EFP transactions is sporadic as it 
depends on the demand for a regulated conversion between futures and 
spot positions. Nonetheless, the Sponsor believes that a large number 
of liquidity providers are ready to execute this type of transaction 
and can provide enough liquidity to support the proposed ETP's demand. 
A subset of firms that are ready to provide liquidity on EFP Ether 
transactions is available on CME's website.\56\
---------------------------------------------------------------------------

    \56\ See https://www.cmegroup.com/trading/bitcoin-brokers-and-block-liquidity-providers.html.
---------------------------------------------------------------------------

    1. Regulated environment: EFP transactions occur on the CME Market, 
which is a regulated exchange with processes in place to prevent market 
manipulation, including monitoring transaction prices and investigating 
potential manipulations, as outlined in CME Rule 538.\57\ All 
transactions are monitored and subject to rules and regulations 
designed to prevent market manipulation. Moreover, all parties to an 
EFP transaction are required to maintain all records relevant to the 
transaction pursuant to CFTC Regulation 1.35, thus providing the 
ability for CME and the CFTC to conduct surveillance inquiries and 
investigations in an efficient and effective manner for the protection 
of customers and ensuring market integrity. Since the transactions are 
quoted as basis points based on the ethereum futures contracts prices, 
the Sponsor believes that there is a direct and unequivocal lead-lag 
relationship between the prices on CME and the spot market price that 
the Fund trades. Furthermore, as an additional protection measure, to 
enforce the highest standard on the sourcing of such underlying 
physical Ether, the Sponsor represents that it will only participate in 
EFP transactions with broker-dealers that are FINRA regulated or part 
of corporate groups that are, which would provide another layer of 
regulatory oversight in how Ether exposures are sourced, as those 
counterparties already have an ongoing commercial relationship with the 
Sponsor and are active participants in trading Ether regulated products 
worldwide.
---------------------------------------------------------------------------

    \57\ See https://www.cmegroup.com/rulebook/files/cme-group-Rule-538.pdf.
---------------------------------------------------------------------------

    2. Surveillance-sharing agreement: Nasdaq and the CME Market are 
both members of the ISG, which allows for the sharing of information 
and cooperation in investigations, which can help detect and deter 
market manipulation.
    3. Transparency: EFP transactions must be reported to the CME 
Market, which is a regulated exchange, providing transparency and 
making it more difficult for manipulative practices to go unnoticed. 
Parties to EFP transactions must maintain all records relevant to the 
CME futures contract and the related position transaction, pursuant to 
CFTC Regulation 1.35, adding another layer of regulatory scrutiny and 
transparency. In addition, EFP transactions volumes are required to be 
reported with the daily large trader positions by each clearing member, 
omnibus account, and foreign broker.
    4. Market-neutrality: Because EFP transactions involve exchanging 
equivalent but offsetting positions, they are market-neutral. As a 
result, EFP transactions do not create imbalances in the market that 
could be exploited for manipulative purposes.
    5. Unpredictability: EFP transactions are privately negotiated 
between the fund and other parties, making them less predictable and 
therefore more difficult to manipulate.
    The Sponsor believes that, by using EFP transactions to purchase 
and sell spot Ether, the Fund would ensure that its operations are 
conducted in a regulated, transparent, and market-neutral manner, 
significantly reducing the dependency on and the risk of manipulation 
from unregulated spot exchanges.
Settlement of ETH and MET Contracts
    According to the Registration Statement, each ETH Contract and MET 
Contract settles daily to the ETH Contract volume-weighted average 
price (``VWAP'') of all trades that occur between 2:59 p.m. and 3:00 
p.m., Central Time, the settlement period, rounded to the nearest 
tradable tick.\58\

[[Page 68231]]

ETH Contracts and MET Contracts each expire on the last Friday of the 
contract month and are settled with cash. The final settlement value is 
based on the ETHUSD_RR at 4:00 p.m. London time on the expiration day 
of the futures contract.\59\
---------------------------------------------------------------------------

    \58\ VWAP is calculated based first on Tier 1 (if there are 
trades during the settlement period); then Tier 2 (if there are no 
trades during the settlement period); and then Tier 3 (in the 
absence of any trade activity or bid/ask in a given contract month 
during the current trading day, as follows: Tier 1: Each contract 
month settles to its VWAP of all trades that occur between 14:59:00 
and 15:00:00 CT, the settlement period, rounded to the nearest 
tradable tick. If the VWAP is exactly in the middle of two tradable 
ticks, then the settlement will be the tradable price that is closer 
to the contract's prior day settlement price. Tier 2: If no trades 
occur on CME Globex between 14:59:00 and 15:00:00 CT, the settlement 
period, then the last trade (or the contract's settlement price from 
the previous day in the absence of a last trade price) is used to 
determine whether to settle to the bid or the ask during this 
period. a. If the last trade price is outside of the bid/ask spread, 
then the contract month settles to the nearest bid or ask price. b. 
If the last trade price is within the bid/ask spread, or if a bid/
ask spread is not available, then the contract month settles to the 
last trade price. Tier 3: In the absence of any trade activity or 
bid/ask in a given contract month during the current trading day, 
the daily settlement price will be determined by applying the net 
change from the preceding contract month to the given contract 
month's prior daily settlement price.]
    \59\ The ETHUSD_RR is a daily reference rate of the U.S. dollar 
price of one ether calculated daily as of 4:00 p.m. London time. It 
is calculated by the CME based on the ether trading activity on CME-
specified constituent spot ether exchanges during a calculation 
window between 3 p.m. and 4 p.m. London time. The CME launched the 
ETHUSD_RR in May 2018.
---------------------------------------------------------------------------

    As proposed, the Fund will rollover its soon to expire Ether 
Futures Contracts to extend the expiration or maturity of its position 
forward by closing the initial contract holdings and opening a new 
longer-term contract holding for the same underlying asset at the then-
current market price. The Fund does not intend to hold any Ether 
futures positions into cash settlement.
Net Asset Value
    According to the Registration Statement, the Fund's NAV per Share 
will be calculated by taking the current market value of its total 
assets, subtracting any liabilities, and dividing that total by the 
number of Shares.
    The Sub-Administrator of the Fund will calculate the NAV once each 
trading day, as of the earlier of the close of the Nasdaq or 4:00 p.m. 
New York time.
    According to the Registration Statement, to determine the value of 
Ether Futures Contracts, the Fund's Sub-Administrator will use the 
Ether Futures Contract settlement price on the exchange on which the 
contract is traded, except that the ``fair value'' of Ether Futures 
Contracts (as described in more detail below) may be used when Ether 
Futures Contracts close at their price fluctuation limit for the day. 
The Fund's Sub-Administrator will determine the value of Fund 
investments as of the earlier of the close of the New York Stock 
Exchange or 4:00 p.m. New York time. The Fund's NAV will include any 
unrealized profit or loss on open Ether futures contacts and any other 
credit or debit accruing to the Fund but unpaid or not received by the 
Fund.
    According to the Registration Statement, the value of spot Ether 
held by the Fund is determined by the Sponsor in good faith based on a 
methodology that is entirely derived from the settlement prices of 
Ether Futures Contracts on the CME. The method involves a calculation 
that is a function of both the length of time (the tenor) until each 
Ether Futures Contract is due for settlement, and the final settlement 
price for each contract on that day. The calculation takes into account 
each contract's tenor and the tenor squared. This approach is designed 
to give more importance to contracts that are due for settlement in the 
near term, considering that the prices of these near-term contracts are 
more reliable indicators of the current spot price of Ether and are 
also more heavily traded. The calculation produces a set of weighting 
factors, with each factor indicating the contribution of the 
corresponding Ether Futures Contract to the estimated current spot 
price of Ether. The estimated spot price is the component of the result 
corresponding to a tenor of zero days. The Fund does not use data from 
ether exchanges or from spot ether trading activity. By way of example, 
the table below shows how the weights of each hypothetical Ether 
Futures Contract change over time as the first contract gets closer to 
maturity.
BILLING CODE 8011-01-P

[[Page 68232]]

[GRAPHIC] [TIFF OMITTED] TN03OC23.006

BILLING CODE 8011-01-C
    The Fund's Sub-Administrator will determine the value of Fund 
investments as of the earlier of the close of the Nasdaq or 4:00 p.m. 
New York time. The Fund's NAV will include any unrealized profit or 
loss on open Ether futures contacts and any other credit or debit 
accruing to the Fund but unpaid or not received by the Fund.
    According to the Registration Statement, the fair value of the 
Fund's holdings will be determined by the Fund's Sponsor in good faith 
and in a manner that assesses the future Ether market value based on a 
consideration of all available facts and all available information on 
the valuation date. When an Ether Futures Contract has closed at its 
price fluctuation limit, the fair value determination will attempt to 
estimate the price at which such Ether Futures Contract would be 
trading in the absence of the price fluctuation limit (either above 
such limit when an upward limit has been reached or below such limit 
when a downward limit has been reached). Typically, this estimate will 
be made primarily by reference to exchange traded instruments at 4:00 
p.m. New York time on settlement day. The fair value of ETH Contracts 
and MET Contracts may not reflect such security's market value or the 
amount that the Fund might reasonably expect to receive for the ETH 
Contracts and MET Contracts upon its current sale.
    According to the Registration Statement and as discussed above, the 
value of Spot Ether held by the Fund would be determined by the Sponsor 
and by Hashdex Asset Management Ltd. (the ``Digital Asset Adviser'') 
via an FBSP methodology that is sensitive to both the tenor of an Ether 
Futures Contract and the final settlement price for such contract. The 
calculation produces a set of weighting factors, with each factor 
indicating the contribution of the corresponding Ether Futures Contract 
to the estimated current spot price of Ether. The estimated spot price 
is the component of the result corresponding to a tenor of zero days. 
The Sponsor and Digital Asset Advisor will not use data from Ether 
exchanges or directly from spot Ether trading activity in determining 
the value of Spot Ether held by the Fund.
Indicative Fund Value
    According to the Registration Statement, in order to provide 
updated information relating to the Fund for use by investors and 
market professionals, a third party financial data provider will 
calculate an updated Indicative Fund Value (``IFV''). The IFV will be 
calculated by using the prior day's closing NAV per Share of the Fund 
as a base and will be updated throughout the Core Trading Session of 
9:30 a.m. E.T. to 4:00 p.m. E.T. to reflect changes in the value of the 
Fund's holdings during the trading day.
    The IFV will be disseminated on a per Share basis every 15 seconds 
during the Exchange's Core Trading Session and be widely disseminated 
by one or more major market data vendors during the Exchange's Core 
Trading Session.\60\
---------------------------------------------------------------------------

    \60\ Several major market data vendors display and/or make 
widely available IFVs taken from the Consolidated Tape Association 
(``CTA'') or other data feeds.
---------------------------------------------------------------------------

Creation and Redemption of Shares
    According to the Registration Statement, the Shares issued by the 
Fund may only be purchased by APs and only in blocks of 10,000 Shares 
called ``Creation Baskets.'' The amount of the purchase payment for a 
Creation Basket is equal to the total NAV of Shares in the Creation 
Basket. Similarly, only APs may redeem Shares and only

[[Page 68233]]

in blocks of 10,000 Shares called ``Redemption Baskets.'' The amount of 
the redemption proceeds for a Redemption Basket is equal to the total 
NAV of Shares in the Redemption Basket. The purchase price for Creation 
Baskets and the redemption price for Redemption Baskets are the actual 
NAV calculated at the end of the business day when a request for a 
purchase or redemption is received by the Fund.
    ``APs'' will be the only persons that may place orders to create 
and redeem Creation Baskets. APs must be (1) either registered broker-
dealers or other securities market participants, such as banks and 
other financial institutions, that are not required to register as 
broker-dealers to engage in securities transactions, and (2) DTC 
Participants. An AP is an entity that has entered into an Authorized 
Purchaser Agreement with the Sponsor.
    With respect to Spot Ether, an AP delivers cash to the Fund instead 
of Spot Ether in the creation process, and an AP receives cash instead 
of Spot Ether in the redemption process. The cash delivered or received 
during the creation or redemption process is then used by the Sponsor 
to purchase or sell Ether Futures Contracts with an aggregate market 
value that approximates the amount of cash received or paid upon the 
creation or redemption. On a daily basis, the Sponsor will analyze the 
current portfolio allocation of the Fund between Spot Ether and Ether 
Futures Contracts and, based on the Investment Restrictions and target 
portfolio exposure, may decide to engage in an EFP transaction on CME 
to buy or sell Spot Ether for the equivalent position in Ether Futures 
Contracts.
Creation Procedures
    According to the Registration Statement, on any ``Business Day,'' 
an AP may place an order with the Transfer Agent to create one or more 
Creation Baskets. For purposes of processing both purchase and 
redemption orders, a ``Business Day'' means any day other than a day 
when the CME or Nasdaq is closed for regular trading. Purchase orders 
for Creation Baskets must be placed by 3:00 p.m. New York time or one 
hour prior to the close of trading on Nasdaq, whichever is earlier. The 
day on which the Distributor receives a valid purchase order is 
referred to as the purchase order date. If the purchase order is 
received after the applicable cut-off time, the purchase order date 
will be the next Business Day. Purchase orders are irrevocable.
    By placing a purchase order, an AP agrees to deposit cash with the 
Custodian.
Redemption Procedures
    According to the Registration Statement, the procedures by which an 
AP can redeem one or more Creation Baskets will mirror the procedures 
for the creation of Creation Baskets. On any Business Day, an AP may 
place an order with the Transfer Agent to redeem one or more Creation 
Baskets.
    The redemption procedures allow APs to redeem Creation Baskets. 
Individual shareholders may not redeem directly from the Fund. By 
placing a redemption order, an AP agrees to deliver the Creation 
Baskets to be redeemed through DTC's book entry system to the Fund by 
the end of the next Business Day following the effective date of the 
redemption order or by the end of such later business day.
Determination of Redemption Distribution
    According to the Registration Statement, the redemption 
distribution from the Fund will consist of an amount of cash, that is 
in the same proportion to the total assets of the Fund on the date that 
the order to redeem is properly received as the number of Shares to be 
redeemed under the redemption order is in proportion to the total 
number of Shares outstanding on the date the order is received.
Delivery of Redemption Distribution
    According to the Registration Statement, an AP who places a 
purchase order will transfer to the Custodian the required amount of 
cash, cash equivalents and/or Ether futures by the end of the next 
business day following the purchase order date or by the end of such 
later business day, not to exceed three business days after the 
purchase order date, as agreed to between the AP and the Custodian when 
the purchase order is placed (the ``Purchase Settlement Date''). Upon 
receipt of the deposit amount, the Custodian will direct DTC to credit 
the number of Creation Baskets ordered to the AP's DTC account on the 
Purchase Settlement Date.
Availability of Information
    The NAV for the Fund's Shares will be disseminated daily to all 
market participants at the same time. The intraday, closing prices, and 
settlement prices of the Ether Futures Contracts will be readily 
available from the applicable futures exchange websites, automated 
quotation systems, published or other public sources, or major market 
data vendors. Information regarding market price and trading volume of 
the Shares will be continually available on a real-time basis 
throughout the day on brokers' computer screens and other electronic 
services.
    Complete real-time data for the Ether Futures Contracts will be 
available by subscription through on-line information services. Nasdaq 
and CME also provide delayed futures and options on futures information 
on current and past trading sessions and market news free of charge on 
their respective websites. The specific contract specifications for 
Ether Futures Contracts will also be available on such websites, as 
well as other financial informational sources. Quotation and last-sale 
information regarding the Shares will be disseminated through the 
facilities of the CTA. Quotation information for cash equivalents and 
commodity futures may be obtained from brokers and dealers who make 
markets in such instruments. Intra-day price and closing price level 
information for the Benchmark will be available from major market data 
vendors. The Benchmark value will be disseminated once every 15 
seconds. The IFV will be available through on-line information 
services.
    In addition, the Fund's website, https://hashdex-etfs.com/, will 
display the applicable end of day closing NAV and the daily holdings of 
the Fund. The Fund's website will also include a form of the prospectus 
for the Fund that may be downloaded. The website will include the 
Shares' ticker and CUSIP information along with additional quantitative 
information updated on a daily basis, including: (1) the prior Business 
Day's reported NAV and closing price and a calculation of the premium 
and discount of the closing price or mid-point of the bid/ask spread at 
the time of NAV calculation (the ``Bid/Ask Price'') against the NAV; 
and (2) data in chart format displaying the frequency distribution of 
discounts and premiums of the daily closing price or Bid/Ask Price 
against the NAV, within appropriate ranges, for at least each of the 
four previous calendar quarters. The website disclosure of portfolio 
holdings will be made daily and will include, as applicable, (i) the 
name, quantity, price, and market value of the Fund's holdings, (ii) 
the counterparty to and value of forward contracts and any other 
financial instruments tracking the Benchmark, and (iii) the total cash 
and cash equivalents held in the Fund's portfolio, if applicable.
    The Fund's website will be publicly available at the time of the 
public

[[Page 68234]]

offering of the Shares and accessible at no charge.
Trading Halts
    With respect to trading halts, the Exchange may consider all 
relevant factors in exercising its discretion to halt or suspend 
trading in the Shares. The Exchange will halt trading in the Shares 
under the conditions specified in Nasdaq Rules 4120 and 4121, including 
without limitation the conditions specified in Nasdaq Rule 4120(a)(9) 
and the trading pauses under Nasdaq Rules 4120(a)(11) and (12).
    Trading may be halted because of market conditions or for reasons 
that, in the view of the Exchange, make trading in the Shares 
inadvisable. These may include: (i) the extent to which trading is not 
occurring in the Ether Futures Contracts or the Ether underlying the 
Shares; or (ii) whether other unusual conditions or circumstances 
detrimental to the maintenance of a fair and orderly market are 
present.
    If the intraday indicative value of the Fund's NAV (``IIV'') or the 
value of the underlying Ether Futures Contracts or underlying Ether is 
not being disseminated as required, the Exchange may halt trading 
during the day in which the interruption to the dissemination of the 
IIV or the value of the underlying Ether Futures Contracts or 
underlying Ether occurs. If the interruption to the dissemination of 
the IIV or the value of the underlying Ether Futures Contracts or 
underlying Ether persists past the trading day in which it occurred, 
the Exchange will halt trading no later than the beginning of the 
trading day following the interruption.
    In addition, if the Exchange becomes aware that the NAV with 
respect to the Shares is not disseminated to all market participants at 
the same time, it will halt trading in the Shares until such time as 
the NAV is available to all market participants.
Trading Rules
    The Exchange deems the Shares to be equity securities, thus 
rendering trading in the Shares subject to the Exchange's existing 
rules governing the trading of equity securities. The Exchange will 
allow trading in the Shares from 4:00 a.m. to 8:00 p.m. (ET). The 
Exchange has appropriate rules to facilitate transactions in the Shares 
during all trading sessions. The Shares of the Fund will conform to the 
initial and continued listing criteria set forth in Nasdaq Rule 
5711(i).
Surveillance
    The Exchange represents that trading in the Shares of the Fund will 
be subject to the existing trading surveillances administered by the 
Exchange, as well as cross-market surveillances administered by the 
Financial Industry Regulatory Authority, Inc. (``FINRA'') on behalf of 
the Exchange, which are designed to detect violations of Exchange rules 
and applicable federal securities laws.\61\ The Exchange represents 
that these procedures are adequate to properly monitor Exchange trading 
of the Shares in all trading sessions and to deter and detect 
violations of Exchange rules and federal securities laws applicable to 
trading on the Exchange.
---------------------------------------------------------------------------

    \61\ FINRA conducts cross-market surveillances on behalf of the 
Exchange pursuant to a regulatory services agreement. The Exchange 
is responsible for FINRA's performance under this regulatory 
services agreement.
---------------------------------------------------------------------------

    The surveillances referred to above generally focus on detecting 
securities trading outside their normal patterns, which could be 
indicative of manipulative or other violative activity. When such 
situations are detected, surveillance analysis follows and 
investigations are opened, where appropriate, to review the behavior of 
all relevant parties for all relevant trading violations.
    The Exchange or FINRA, on behalf of the Exchange, or both, will 
communicate as needed regarding trading in the Shares and the Fund's 
holdings with other markets and other entities that are members of the 
ISG, and the Exchange or FINRA, on behalf of the Exchange, or both, may 
obtain trading information regarding trading in the Shares and the 
Fund's holdings from such markets and other entities. In addition, the 
Exchange may obtain information regarding trading in the Shares and the 
Fund's holdings from markets and other entities that are members of ISG 
or with which the Exchange has in place a CSSA. The Exchange is also 
able to obtain information regarding trading in the Shares, the 
physical commodities underlying the futures contracts through ETP 
Holders, in connection with such ETP Holders' proprietary or customer 
trades which they effect through ETP Holders on any relevant market. 
The Exchange can obtain market surveillance information, including 
customer identity information, with respect to transactions (including 
transactions in futures contracts) occurring on US futures exchanges, 
which are members of the ISG. In addition, the Exchange also has a 
general policy prohibiting the distribution of material, non-public 
information by its employees.
    All statements and representations made in this filing regarding 
(a) the description of the portfolios of the Funds or Benchmark, (b) 
limitations on portfolio holdings or the Benchmark, or (c) the 
applicability of Exchange listing rules specified in this rule filing 
shall constitute continued listing requirements for listing the Shares 
on the Exchange.
    The issuer has represented to the Exchange that it will advise the 
Exchange of any failure by the Fund to comply with the continued 
listing requirements, and, pursuant to its obligations under Section 
19(g)(1) of the Act, the Exchange will monitor for compliance with the 
continued listing requirements. If the Fund is not in compliance with 
the applicable listing requirements, the Exchange will commence 
delisting procedures under the Nasdaq Rule 5800 Series.
Information Circular
    Prior to the commencement of trading of the Shares, the Exchange 
will inform its members in an Information Circular of the special 
characteristics and risks associated with trading the Shares. 
Specifically, the Information Circular will discuss the following: (1) 
the procedures for purchases and redemptions of Shares in Creation 
Units (and that Shares are not individually redeemable); (2) Section 10 
of Nasdaq General Rule 9, which imposes suitability obligations on 
Nasdaq members with respect to recommending transactions in the Shares 
to customers; (3) how information regarding the IIV is disseminated; 
(4) the risks involved in trading the Shares during the Pre-Market and 
Post-Market Sessions when an updated IIV will not be calculated or 
publicly disseminated; (5) the requirement that members deliver a 
prospectus to investors purchasing newly issued Shares prior to or 
concurrently with the confirmation of a transaction; and (6) trading 
information. The Information Circular will also discuss any exemptive, 
no-action and interpretive relief granted by the Commission from any 
rules under the Act.
    Additionally, the Information Circular will reference that the 
Trust is subject to various fees and expenses described in the 
Registration Statement. The Information Circular will also disclose the 
trading hours of the Shares. The Information Circular will disclose 
that information about the Shares will be publicly available on the 
Trust's website.

[[Page 68235]]

2. Statutory Basis
    The basis under the Act for this proposed rule change is the 
requirement under Section 6(b)(5) \62\ that an exchange have rules that 
are designed to prevent fraudulent and manipulative acts and practices, 
to promote just and equitable principles of trade, to remove 
impediments to, and perfect the mechanism of a free and open market 
and, in general, to protect investors and the public interest.
---------------------------------------------------------------------------

    \62\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------

    The Exchange believes that the proposed rule change is designed to 
prevent fraudulent and manipulative acts and practices and to protect 
investors and the public interest in that the Shares will be listed and 
traded on the Exchange pursuant to the initial and continued listing 
criteria set forth in Nasdaq Rule 5711(i). The Exchange has in place 
surveillance procedures that are adequate to properly monitor trading 
in the Shares in all trading sessions and to deter and detect 
violations of Exchange rules and applicable federal securities laws. 
The Exchange or FINRA, on behalf of the Exchange, or both, will 
communicate as needed regarding trading in the Shares and the Fund's 
holdings with other markets and other entities that are members of the 
ISG, and the Exchange or FINRA, on behalf of the Exchange, or both, may 
obtain trading information regarding trading in the Shares and the 
Fund's holdings from such markets and other entities. In addition, the 
Exchange may obtain information regarding trading in the Shares and the 
Fund's holdings from markets and other entities that are members of ISG 
or with which the Exchange has in place a CSSA. The Exchange is also 
able to obtain information regarding trading in the Shares and the 
Fund's holdings through ETP Holders, in connection with such ETP 
Holders' proprietary or customer trades which they effect through ETP 
Holders on any relevant market. The Exchange can obtain market 
surveillance information, including customer identity information, with 
respect to transactions (including transactions in Ether Futures 
Contracts) occurring on US futures exchanges, which are members of the 
ISG. The intraday, closing prices, and settlement prices of the Ether 
Futures Contracts will be readily available from the applicable futures 
exchange websites, automated quotation systems, published or other 
public sources, or major market data vendors website or on-line 
information services.
    Complete real-time data for the Ether Futures Contracts will be 
available by subscription from on-line information services. Nasdaq and 
CME also provide delayed futures information on current and past 
trading sessions and market news free of charge on the Fund's website. 
The specific contract specifications for Ether Futures Contracts will 
also be available on such websites, as well as other financial 
informational sources. Information regarding options will be available 
from the applicable exchanges or major market data vendors. Quotation 
and last-sale information regarding the Shares will be disseminated 
through the facilities of the CTA. The IFV will be disseminated on a 
per Share basis every 15 seconds during the Exchange's Core Trading 
Session and be widely disseminated by one or more major market data 
vendors during the Exchange's Core Trading Session. The Fund's website 
will also include a form of the prospectus for the Fund that may be 
downloaded. The website will include the Share's ticker and CUSIP 
information along with additional quantitative information updated on a 
daily basis, including, for the Fund: (1) the prior business day's 
reported NAV and closing price and a calculation of the premium and 
discount of the closing price or mid-point of the Bid/Ask Price against 
the NAV; and (2) data in chart format displaying the frequency 
distribution of discounts and premiums of the daily closing price or 
Bid/Ask Price against the NAV, within appropriate ranges, for at least 
each of the four previous calendar quarters. The website disclosure of 
portfolio holdings will be made daily and will include, as applicable, 
(i) the name, quantity, price, and market value of Ether Futures 
Contracts, (ii) the counterparty to and value of forward contracts, and 
(iii) other financial instruments, if any, and the characteristics of 
such instruments and cash equivalents, and amount of cash held in the 
Fund's portfolio, if applicable.
    Trading in Shares of the Fund will be halted if the circuit breaker 
parameters have been reached or because of market conditions or for 
reasons that, in the view of the Exchange, make trading in the Shares 
inadvisable. These may include: (1) the extent to which trading is not 
occurring in ETH and/or MET Contracts and the securities and/or the 
financial instruments composing the daily disclosed portfolio of the 
Fund; or (2) whether other unusual conditions or circumstances 
detrimental to the maintenance of a fair and orderly market are 
present.
    The proposed rule change is designed to perfect the mechanism of a 
free and open market and, in general, to protect investors and the 
public interest in that it will facilitate the listing and trading of 
Trust Units based on Ether that will enhance competition among market 
participants, to the benefit of investors and the marketplace. As noted 
above, the Exchange has in place surveillance procedures that are 
adequate to properly monitor trading in the Shares in all trading 
sessions and to deter and detect violations of Exchange rules and 
applicable federal securities laws.

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

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

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

    No written comments were either solicited or received.

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

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

IV. Solicitation of Comments

    Interested persons are invited to submit written data, views and 
arguments concerning the foregoing, including whether the proposed rule 
change is consistent with the Act. Comments may be submitted by any of 
the following methods:

Electronic Comments

     Use the Commission's internet comment form (https://www.sec.gov/rules/sro.shtml); or

[[Page 68236]]

     Send an email to [email protected]. Please include 
file number SR-NASDAQ-2023-035 on the subject line.

Paper Comments

     Send paper comments in triplicate to Secretary, Securities 
and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.

All submissions should refer to file number SR-NASDAQ-2023-035. This 
file number should be included on the subject line if email is used. To 
help the Commission process and review your comments more efficiently, 
please use only one method. The Commission will post all comments on 
the Commission's internet website (https://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent amendments, all 
written statements with respect to the proposed rule change that are 
filed with the Commission, and all written communications relating to 
the proposed rule change between the Commission and any person, other 
than those that may be withheld from the public in accordance with the 
provisions of 5 U.S.C. 552, will be available for website viewing and 
printing in the Commission's Public Reference Room, 100 F Street NE, 
Washington, DC 20549, on official business days between the hours of 10 
a.m. and 3 p.m. Copies of the filing also will be available for 
inspection and copying at the principal office of the Exchange. Do not 
include personal identifiable information in submissions; you should 
submit only information that you wish to make available publicly. We 
may redact in part or withhold entirely from publication submitted 
material that is obscene or subject to copyright protection. All 
submissions should refer to file number SR-NASDAQ-2023-035 and should 
be submitted on or before October 24, 2023.
---------------------------------------------------------------------------

    \63\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\63\

Sherry R. Haywood,
Assistant Secretary.
[FR Doc. 2023-21788 Filed 10-2-23; 8:45 am]
BILLING CODE 8011-01-P
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