[Federal Register Volume 86, Number 1 (Monday, January 4, 2021)]
[Notices]
[Pages 159-161]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-29025]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-90807; File No. SR-NYSEArca-2020-114]


Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing 
and Immediate Effectiveness of Proposed Rule Change To Reflect a Change 
in the Time of Calculation and Publication of the Wilshire Gold Index 
Applicable to Shares of the Wilshire wShares Enhanced Gold Trust

December 28, 2020.
    Pursuant to Section 19(b)(1) \1\ of the Securities Exchange Act of 
1934 (``Act'') \2\ and Rule 19b-4 thereunder,\3\ notice is hereby given 
that, on December 21, 2020, NYSE Arca, Inc. (``NYSE Arca'' or 
``Exchange'') filed with the Securities and Exchange Commission 
(``Commission'') the proposed rule change as described in Items I and 
II below, which Items have been prepared by the self-regulatory 
organization. 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\ 15 U.S.C. 78a.
    \3\ 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 reflect a change in the time of 
calculation and publication of the Wilshire Gold Index applicable to 
shares of the Wilshire wShares Enhanced Gold Trust (``Trust''). Shares 
of the Trust have been approved by the Commission for listing and 
trading on the Exchange under NYSE Arca Rule 8.201-E.\4\ The Trust's 
shares have not commenced trading on the Exchange. The proposed rule 
change is available on the Exchange's website at www.nyse.com, at the 
principal office of the Exchange, and at the Commission's Public 
Reference Room.
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    \4\ See note 5, infra.
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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 self-regulatory organization 
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 those 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 parts of such statements.

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

1. Purpose
    The Commission has approved a proposed rule change relating to 
listing and trading on the Exchange of shares (``Shares'') of the 
Wilshire wShares Enhanced Gold Trust (``Trust'') for listing and 
trading on the Exchange under NYSE Arca Rule 8.201-E (``Commodity-Based 
Trust Shares'').\5\ The Exchange proposes to reflect a change in the 
time of calculation and publication of the Wilshire Gold Index 
(``Index'') applicable to Shares of the Trust. The Trust's Shares have 
not commenced trading on the Exchange.\6\
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    \5\ See Securities Exchange Act Release No. 90216 (October 16, 
2020), 85 FR 67401 (October 22, 2020) (SR-NYSEArca-2020-59) (Notice 
of Filing of Amendment No. 3 and Order Granting Accelerated Approval 
of a Proposed Rule Change, as Modified by Amendment No. 3, To Amend 
NYSE Arca Rule 8.201-E (Commodity-Based Trust Shares) and To Permit 
the Listing and Trading of Shares of the Wilshire wShares Enhanced 
Gold Trust Under Amended NYSE Arca Rule 8.201-E) (``Prior Order'').
    \6\ On November 18, 2020 the Trust filed with the Commission an 
amended registration statement on Form S-1 under the Securities Act 
of 1933 relating to the Trust (File No. 333-235913) (``Registration 
Statement''). The description of the operation of the Trust herein 
is based, in part, on the Prior Order. The procedures described in 
this proposed rule change will not be implemented until this 
proposed rule change is effective and operative.
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    According to the Registration Statement and the Prior Order, the 
investment objective of the Trust is for the Shares to closely reflect 
the Index, which will be published by Solactive AG (the Index 
Calculation Agent), less the Trust's liabilities and expenses. The 
Trust will have no assets other than (a) physical gold bullion 
(``Physical Gold'') in proportions that seek to closely replicate the 
Index and (b) cash.
    The Prior Order stated that the Index value using the London 
Bullion Market Association (``LBMA'') Gold Price PM \7\ will be 
calculated and published daily each business day at approximately 5:00 
p.m. (Eastern time (``E.T.'')) on the Trust's website. The Exchange 
proposes to change this representation to state that the Index value 
using the LBMA Gold Price PM will be calculated and published daily 
each business day by approximately 7:00 p.m. E.T. on the Trust's 
website. The revised time is being proposed as a result of certain 
contractual licensing restrictions which prevents the publication of 
the Index value prior to 7:00 p.m. E.T.
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    \7\ As stated in the Prior Order, the LBMA Gold Price PM is the 
price of Physical Gold obtained from auctions conducted in the 
afternoon (London time) by ICE Benchmark Administration (``IBA''), a 
benchmark administrator appointed by the LBMA.
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    The Exchange believes that modifying the representation regarding 
when the Index value using the LBMA Gold Price PM is published to 
reflect that such Index value would be published each business day by 
approximately 7:00 p.m. E.T. would have no impact on the Trust's 
shareholders. During the proposed two hour extension from approximately 
5:00 p.m. E.T. to approximately 7:00 p.m. E.T., the value of the 
Trust's holdings and net asset value (``NAV'') will be available, which 
will provide investors and authorized participants (``APs'') with a 
basis to determine whether Shares during the

[[Page 160]]

Exchange's Late Trading Session (normally 4:00 p.m., E.T. to 8:00 p.m., 
E.T.) are trading at a premium or a discount to the Trust's NAV. 
Therefore, investors and APs will have sufficient information to be 
able to ascertain whether any premiums or discounts will have a 
material impact on their trading in Shares of the Trust.\8\ The 
creation and redemption process used by the Trust will not be affected 
by the proposed change because the value used for purposes of effecting 
creations and redemptions of the Shares is based on NAV, not the Index 
value.
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    \8\ The Commission has previously approved proposed rule changes 
permitting listing and trading of shares of gold-related commodity 
trusts where such proposed rule changes did not specify when NAV or 
the value of the applicable trust's holdings would be posted to the 
trust's website. See, e.g., Securities Exchange Act Release Nos. 
50603 (October 28, 2004), 69 FR 64614 (November 5, 2004) (SR-NYSE-
2004-22) Order Granting Approval of Proposed Rule Change and Notice 
of Filing and Order Granting Accelerated Approval to Amendments No. 
1 and No. 2 Thereto to the Proposed Rule Change by the New York 
Stock Exchange, Inc. Regarding Listing and Trading of 
streetTRACKS[supreg] Gold Shares); 71378 (January 13, 2014), 79 FR 
4786 (January 29, 2014) (SR-NYSEArca-2013-137) (Order Approving a 
Proposed Rule Change, as Modified by Amendment No. 1 Thereto, to 
List and Trade Shares of the Merk Gold Trust Pursuant to NYSE Arca 
Equities Rule 8.201).
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    The proposed two-hour extension of the calculation and publication 
of the Index value will not impact investors trading Shares during the 
Exchange's Early Trading Session (normally 4:00 a.m. to 9:30 a.m. E.T.) 
or the Exchange's Core Trading Session (normally 9:30 a.m. to 4:00 p.m. 
E.T.) as such calculation and publication time will, consistent with 
the Prior Order, occur after such trading sessions. In addition, 
investors trading Shares during the Exchange's Late Trading Session 
(normally 4:00 p.m. to 8:00 p.m. E.T.) will not be impacted by such 
change, as the Trust's NAV will be determined as of 4:00 p.m., E.T. (or 
as soon thereafter as practicable) and then disseminated via market 
data feeds as well as posted on the Trust's website. Like the Index, 
the value of the Physical Gold held by the Trust for purposes of 
determining the Trust's NAV is determined by reference to the LBMA Gold 
Price PM for that day. Therefore, whether the Index value is calculated 
and published at 5:00 p.m. E.T. or 7:00 p.m. E.T., investors trading in 
the Exchange's Late Trading Session will trade based on the Trust's NAV 
determined as of 4:00 p.m. E.T. (or as soon thereafter as 
practicable).\9\
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    \9\ The LBMA Gold Price PM for such day does not change between 
the hours of 4:00 p.m. E.T. and 7:00 p.m. E.T. and the investment 
objective of the Trust is for the Shares to closely reflect the 
Index.
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    The Exchange notes that the Prior Order stated that the Index value 
is calculated and published each business day at approximately 5:00 
p.m. E.T. on the Trust's website.\10\ Such calculation and publication 
time occurs outside of the Exchange's Core Trading Session (normally 
9:30 a.m. to 4:00 p.m. E.T.) for each business day but occurs during 
the Exchange's Late Trading Session. The proposed change to the 
calculation and publication time from approximately 5:00 p.m. E.T. to 
approximately 7:00 p.m. E.T. is consistent with the Prior Order in that 
calculation and publication of the Index value will continue to occur 
outside of the Exchange's Core Trading Session for each business day 
but during the Exchange's Late Trading Session. The Exchange notes that 
the Commission has previously approved listing and trading on the 
Exchange of shares of gold-related commodity trusts under NYSE Arca 
Rule 8.201-E where the specified time (i.e., approximately 6:00 a.m. 
E.T.) for dissemination of the applicable index value occurs outside of 
the Core Trading Session for such business day but during the 
Exchange's Early Trading Session (normally 4:00 a.m., E.T. to 9:30 
a.m., E.T.).\11\
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    \10\ The Index currently is published daily through various 
market data vendors, including Bloomberg LP, under the ticker symbol 
``WGIX'', and Refinitiv, under the Reuters instrument code (``RIC'') 
``WGIX''. Wilshire Phoenix Funds LLC, the Trust's ``Sponsor,'' 
represents that both the cash and Physical Gold weights for the 
Index are posted on the Trust's website on the first Business Day 
after the rebalance date, which is the last Business Day of each 
month.
    \11\ See Securities Exchange Act Release Nos. 79518 (December 9, 
2016), 81 FR 90876 (December 15, 2016) (SR-NYSEArca-2016-84) (order 
approving listing and trading of shares of the Long Dollar Gold 
Trust); 80840 (June 1, 2017), 82 FR 26534 (June 7, 2017) (SR-
NYSEArca-2017-33) (Order Approving a Proposed Rule Change, as 
Modified by Amendment No. 2 Thereto, To List and Trade Shares of the 
Euro Gold Trust, Pound Gold Trust, and the Yen Gold Trust Under NYSE 
Arca Equities Rule 8.201).
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    The proposed change would not affect the Trust's requirement to 
provide investors with an updated Index value each day and would not 
alter any information that is provided to investors during the trading 
day.\12\ Rather, the proposed publication of the Index value at 
approximately 7:00 p.m., E.T. would, like the approximately 5:00 p.m., 
E.T. time frame approved in the Prior Order, provide for publication 
after the close of the Exchange's Core Trading Session.\13\ In 
addition, as stated in the Prior Order, the Exchange, the Index 
Calculation Agent or a third party financial data provider will 
calculate an intraday indicative value (``IIV'') for the Shares every 
fifteen seconds during the Exchange's Core Trading Session, which will 
be available from one or more major market data vendors.\14\
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    \12\ As stated in the Prior Order, the current Index value will 
be disseminated by one or more major market vendors at least every 
15 seconds during the Exchange's Core Trading Session.
    \13\ The proposed approximately 7:00 p.m. E.T. time for Index 
publication, like the approximately 5:00 p.m., E.T. Index 
calculation and publication time, would overlap with part of the 
Exchange's Late Trading Session (normally 4:00 p.m., E.T. to 8:00 
p.m., E.T.). The Exchange notes, that NYSE Arca Rule 7.34-E (Trading 
Sessions) includes certain requirements for orders entered in the 
Late Trading Session. Among these is the requirement that no Equity 
Trading Permit (``ETP'') Holder may accept an order from a non-ETP 
Holder for execution in the Exchange's Late Trading Session without 
disclosing to such non-ETP Holder certain risks, including the risk 
that an updated underlying index value or IIV may not be calculated 
or publicly disseminated in extended trading hours.
    \14\ For purposes of the Prior Order and this filing, the IIV is 
the value referenced in NYSE Arca Rule 8.201-E(e)(2)(v).
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    The Sponsor represents that the proposed change described above 
will not impact investors. Except for the change noted above, all other 
representations made in the Prior Order remain unchanged.\15\
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    \15\ See note 5, supra. All terms referenced but not defined 
herein are defined in the Prior Order.
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2. Statutory Basis
    The basis under the Act for this proposed rule change is the 
requirement under Section 6(b)(5) \16\ 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.
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    \16\ 15 U.S.C. 78f(b)(5).
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    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. The Exchange believes that the proposed change to the 
time of Index value calculation and publication would have no impact on 
the Trust's shareholders. The Trust's ability to pursue its investment 
objective will not be impacted by the proposed change to provide for a 
later calculation and publication of an updated Index value for a 
particular business day.
    The proposed change would provide investors with an updated Index 
value each day and would not alter any information that is provided to 
investors during the trading day. Like the approximately 5:00 p.m., 
E.T. time frame approved in the Prior Order, the Index would be 
calculated and published after the close of the Exchange's Core Trading 
Session and during the Exchange's Late Trading

[[Page 161]]

Session. In addition, as stated in the Prior Order, the Exchange, the 
Index Calculation Agent or a third party financial data provider will 
calculate an IIV for the Shares every fifteen seconds during the 
Exchange's Core Trading Session, which will be available from one or 
more major market data vendors. The Sponsor represents that both the 
cash and Physical Gold weights for the Index are posted on the Trust's 
website on the first Business Day after the rebalance date, which is 
the last Business Day of each month.
    The Sponsor represents that the proposed change described above 
will not impact investors. Except for the change noted above, all other 
representations made in the Prior Order remain unchanged.

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 and will enhance competition 
among issues of gold-based Commodity-Based Trust Shares.

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

    No written comments were solicited or received with respect to the 
proposed rule change.

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

    The Exchange has filed the proposed rule change pursuant to Section 
19(b)(3)(A)(iii) of the Act \17\ and Rule 19b-4(f)(6) thereunder.\18\ 
Because the proposed rule change does not: (i) Significantly affect the 
protection of investors or the public interest; (ii) impose any 
significant burden on competition; and (iii) become operative prior to 
30 days from the date on which it was filed, or such shorter time as 
the Commission may designate, if consistent with the protection of 
investors and the public interest, the proposed rule change has become 
effective pursuant to Section 19(b)(3)(A) of the Act and Rule 19b-
4(f)(6)(iii) thereunder.
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    \17\ 15 U.S.C. 78s(b)(3)(A)(iii).
    \18\ 17 CFR 240.19b-4(f)(6).
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    A proposed rule change filed under Rule 19b-4(f)(6) \19\ normally 
does not become operative prior to 30 days after the date of the 
filing. However, pursuant to Rule 19b-4(f)(6)(iii),\20\ the Commission 
may designate a shorter time if such action is consistent with the 
protection of investors and the public interest. The Exchange has asked 
the Commission to waive the 30-day operative delay so that the proposal 
may become operative immediately upon filing. The Exchange states that 
the proposed change would not alter any information that is provided to 
investors during the Exchange's Core Trading Session and that investors 
and APs will have sufficient information to determine whether Shares 
are trading at a premium or discount to the Trust's NAV during the 
Exchange's Late Trading Session. In addition, the Exchange represents 
that other than the change discussed herein, all other representations 
made in the Prior Order remain unchanged. Finally, the change would not 
affect the Trust's requirement to provide investors with an updated 
Index value each day. For these reasons, the proposed rule change does 
not raise any novel regulatory issues, and the Commission believes 
waiver of the 30-day operative delay is consistent with the protection 
of investors and the public interest. The Commission therefore waives 
the 30-day operative delay and designates the proposed rule change to 
be operative upon filing.\21\
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    \19\ Id.
    \20\ 17 CFR 240.19b-4(f)(6)(iii).
    \21\ For purposes only of waiving the 30-day operative delay, 
the Commission has also considered the proposed rule's impact on 
efficiency, competition, and capital formation. See 15 U.S.C. 
78c(f).
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    At any time within 60 days of the filing of such proposed rule 
change, the Commission summarily may temporarily suspend such rule 
change if it appears to the Commission that such action is necessary or 
appropriate in the public interest, for the protection of investors, or 
otherwise in furtherance of the purposes of the Act.

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

    <bullet> Use the Commission's internet comment form (http://www.sec.gov/rules/sro.shtml); or
    <bullet> Send an email to <a href="/cdn-cgi/l/email-protection#90e2e5fcf5bdf3fffdfdf5fee4e3d0e3f5f3bef7ffe6"><span class="__cf_email__" data-cfemail="a2d0d7cec78fc1cdcfcfc7ccd6d1e2d1c7c18cc5cdd4">[email protected]</span></a>. Please include 
File Number SR-NYSEArca-2020-114 on the subject line.

Paper Comments

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


All submissions should refer to File Number SR-NYSEArca-2020-114. 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 (http://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 10:00 a.m. and 
3:00 p.m. Copies of the filing also will be available for inspection 
and copying at the principal office of the Exchange. All comments 
received will be posted without change. Persons submitting comments are 
cautioned that we do not redact or edit personal identifying 
information from comment submissions. You should submit only 
information that you wish to make available publicly. All submissions 
should refer to File Number SR-NYSEArca-2020-114 and should be 
submitted on or before January 25, 2021.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\22\
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    \22\ 17 CFR 200.30-3(a)(12).
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J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2020-29025 Filed 12-31-20; 8:45 am]
BILLING CODE 8011-01-P


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