6758 Federal Register / Vol. 75, No. 27 / Wednesday, February 10, 2010 / Notices 

5 15 U.S.C. 78s(b)(3)(A)(i). 

6 17 CFR 240.19b–4(f)(1). 

7 17 CFR 200.30–3(a)(12). 

1 15 U.S.C. 78s(b)(1). 

2 17 CFR 240.19b–4. 

3Each unit represents an equal, fractional, 

undivided ownership interest in the net assets of 

the Trust attributable to the particular class of units. 

4See Securities Exchange Act Release No. 61236 

(December 23, 2009), 75 FR 170 (‘‘Notice’’). 

5The Manager is a limited partnership existing 

under the laws of Ontario, Canada, and acts as 

manager of the Trust pursuant to the Trust’s trust 

agreement and the management agreement. The 

Manager provides management and advisory 

services to the Trust. Additional details regarding 

the Trust are set forth in the Registration Statement 

on Form F–1 for the Sprott Physical Gold Trust, 

filed with the Commission on December 9, 2009 

(No. 333–163601) (‘‘Registration Statement’’). 

6With respect to application of Rule 10A–3 under 

the Act, the Trust relies on the exemption contained 

in Rule 10A–3(c)(7). 

necessary or appropriate in furtherance 

of the purposes of the Act. 

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 proposed rule change is effective 

upon filing pursuant to Section 

19(b)(3)(A)(i) of the Exchange Act 5 and 

Rule 19b–4(f)(1) thereunder,6 in that it 

constitutes a stated policy, practice, or 

interpretation with respect to the 

meaning, administration, or 

enforcement of an existing rule of the 

Exchange. At any time within 60 days 

of the filing of the proposed rule change, 

the Commission may summarily 

abrogate the rule change if it appears to 

the Commission that the action is 

necessary or appropriate in the public 

interest, for the protection of investors, 

or would otherwise further 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 

• Use the Commission’s Internet 

comment form (http://www.sec.gov/ 

rules/sro.shtml); or 

• Send an e-mail to rulecomments@sec.gov. Please include File 

Number SR–NYSEArca–2010–06 on the 

subject line. 

Paper Comments 

• Send paper comments in triplicate 

to Elizabeth M. Murphy, Secretary, 

Securities and Exchange Commission, 

100 F Street, NE., Washington, DC 

20549–1090. 

All submissions should refer to File 

Number SR–NYSEArca-2010–06. This 

file number should be included on the 

subject line if e-mail 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 Web site (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 Web 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 such filing also will be 

available for inspection and copying at 

NYSE Arca’s principal office and on its 

Web site at http://www.nyse.com. All 

comments received will be posted 

without change; the Commission does 

not edit personal identifying 

information from submissions. You 

should submit only information that 

you wish to make available publicly. All 

submissions should refer to File No. 

SR–NYSEArca-2010–06 and should be 

submitted on or before March 3, 2010. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.7

Florence E. Harmon, 

Deputy Secretary. 

[FR Doc. 2010–2953 Filed 2–9–10; 8:45 am] 

BILLING CODE 8011–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–61496; File No. SR– 

NYSEArca–2009–113] 

Self-Regulatory Organizations; NYSE 

Arca, Inc.; Order Granting Approval of 

a Proposed Rule Change To List and 

Trade the Sprott Physical Gold Trust 

February 4, 2010. 

I. Introduction 

On December 15, 2009, NYSE Arca, 

Inc. (‘‘NYSE Arca’’ or the ‘‘Exchange’’) 

filed with the Securities and Exchange 

Commission (‘‘Commission’’), pursuant 

to Section 19(b)(1) of the Securities 

Exchange Act of 1934 (‘‘Act’’) 1 and Rule 

19b–4 thereunder,2 a proposed rule 

change to list and trade units 3 of the 

Sprott Physical Gold Trust (the ‘‘Trust’’) 

pursuant to NYSE Arca Equities Rule 

8.201. The proposed rule change was 

published for comment in the Federal 

Register on January 4, 2010.4 The 

Commission received no comments on 

the proposal. This order approves the 

proposed rule change. 

II. Description of the Proposal 

The Exchange proposes to list and 

trade units (‘‘Units’’) of the Trust under 

NYSE Arca Equities Rule 8.201. Sprott 

Asset Management LP is the sponsor or 

manager of the Trust (‘‘Sponsor’’ or 

‘‘Manager’’).5 RBC Dexia Investor 

Services Trust is the trustee of the Trust. 

The Royal Canadian Mint is the 

custodian for the physical gold bullion 

owned by the Trust and RBC Dexia 

serves as the custodian of the Trust’s 

assets other than physical gold bullion. 

The Units will be issued in an initial 

public offering. The Trust may issue 

additional Units: (i) In future offerings 

if the gross proceeds received by the 

Trust per Unit is not less than 100% of 

the most recently calculated net asset 

value (‘‘NAV’’) or (ii) by way of a 

distribution in Units in connection with 

an income distribution. The Trust will 

not issue Units on an ongoing or daily 

basis. At the start of trading, the Trust 

will issue a minimum of 1,000,000 

Units to at least 400 holders 

(‘‘Unitholders’’). The Exchange states 

that the Units satisfy the remaining 

criteria of NYSE Arca Equities Rule 

8.201 and thereby qualify for listing on 

the Exchange.6

The Trust’s investment objective is for 

the Units to reflect the performance of 

the price of gold bullion, less the 

expenses of the Trust’s operations. The 

Trust expects to own only London Good 

Delivery physical gold bullion. The 

Trust is not actively managed and does 

not engage in any activities designed to 

obtain a profit from, or to ameliorate 

losses caused by, changes in the price of 

gold bullion. 

The Exchange states that the Trust 

does not intend to create additional 

Units. The Units will be redeemable 

monthly at the option of the holder for 

physical gold bullion or for cash subject 

to the certain conditions. Generally, 

Units redeemed for physical gold will 


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7See Notice and the Registration Statement, 

supra notes 4 and 5, respectively, for additional 

information. 

8 Id. 

9 15 U.S.C. 78f. 

10 In approving this proposed rule change the 

Commission has considered the proposed rule’s 

impact on efficiency, competition and capital 

formation. See 15 U.S.C. 78c(f). 

11 15 U.S.C. 78f(b)(5). 

12 15 U.S.C. 78k–1(a)(1)(C)(iii). 

13The IIV on a per Unit basis disseminated 

during the Core Trading Session should not be 

viewed as a real-time update of the NAV, which is 

calculated once a day. 

14The bid-ask price of the Trust is determined 

using the highest bid and lowest offer on the 

Consolidated Tape as of the time of calculation of 

the closing day NAV. 

15See supra note 4. 16See e-mail, dated February 4, 2010, from Tim 

Malinowski, NYSE Arca, to Steve Varholik, Special 

Counsel, Division of Trading and Markets, 

Commission. 17See NYSE Arca Equities Rule 7.12. 

be entitled to a redemption price equal 

to 100% of the NAV of the redeemed 

Units on the last business day of the 

calendar month in which the 

redemption request is processed, less 

redemption and delivery expenses. 

Units redeemed for cash will be entitled 

to a redemption price equal to 95% of 

the lesser of: (i) The volume-weighted 

average trading price of the Units traded 

on the NYSE Arca or, if trading has been 

suspended on NYSE Arca, the trading 

price of the units traded on the Toronto 

Stock Exchange, for the last five 

business days of the month in which the 

redemption request is processed and (ii) 

the NAV of the redeemed Units as of 4 

p.m., Toronto time, on the last business 

day of such month.7

Additional information regarding the 

Trust, the Units, the Trust’s investment 

objectives, strategies, policies, and 

restrictions, fees and expenses, creation 

and redemption of Units, the gold 

market, availability of information, 

trading rules and halts, and surveillance 

procedures, among other things, can be 

found in the Notice and in the 

Registration Statement, as applicable.8

III. Discussion and Commission’s 

Findings 

The Commisison has carefully 

reviewed the proposed rule change and 

finds that it is consistent with the 

requirements of Section 6 of the Act 9

and the rules and regulations 

thereunder applicable to a national 

securities exchange.10 In particular, the 

Commission finds that the proposal is 

consistent with Section 6(b)(5) of the 

Act,11 which requires, among other 

things, that the Exchange’s rules be 

designed to promote just and equitable 

principles of trade, to foster cooperation 

and coordination with persons engaged 

in facilitating transactions in securities, 

and to remove impediments and perfect 

the mechanisms of a free and open 

market and to protect investors and the 

public interest. 

In addition, the Commission finds 

that the proposal to list and trade Units 

on the Exchange is consistent with 

Section 11(a)(1)(C)(iii) of the Act,12

which sets forth Congress’ finding that 

it is in the public interest and 

appropriate for the protection of 

investors to assure the availability to 

brokers, dealers and investors of 

information with respect to quotations 

for and transactions in securities. 

Quotation and last-sale information for 

the Units will be available via the 

Consolidated Tape Association. The 

Trust’s Web site will provide an 

intraday indicative value (‘‘IIV’’) per 

share for the Units, as calculated by a 

third party financial data provider 

during the Exchange’s Core Trading 

Session (9:30 a.m. to 4 p.m., New York 

time). The IIV will be calculated based 

on a price of gold derived from updated 

bids and offers indicative of the spot 

price of gold.13 In addition, the Web site 

for the Trust will contain the following 

information, on a per Unit basis, for the 

Trust: (a) The mid-point of the bid-ask 

price 14 at the close of trading in relation 

to the NAV as of the time the NAV is 

calculated (‘‘Bid/Ask Price’’), and a 

calculation of the premium or discount 

of such price against such NAV; and (b) 

data in chart format displaying the 

frequency distribution of discounts and 

premiums of the Bid/Ask Price against 

the NAV, within appropriate ranges, for 

each of the four previous calendar 

quarters. The Web site for the Trust will 

also provide the Trust’s prospectus, as 

well as the two most recent reports to 

stockholders. Finally, the Trust Web site 

will provide the last sale price of the 

Units as traded in the U.S. market. In 

addition, the Exchange will make 

available over the Consolidated Tape 

quotation information, trading volume, 

closing prices and NAV for the Units 

from the previous day. 

The Commission further believes that 

the proposal to list and trade the Units 

is reasonably designed to promote fair 

disclosure of information that may be 

necessary to price the Units 

appropriately and to prevent trading 

when a reasonable degree of 

transparency cannot be assured. Under 

NYSE Arca Equities Rule 7.34(a)(5), if 

the Exchange becomes aware that the 

NAV is not being disseminated to all 

market participants at the same time, it 

must halt trading on the NYSE 

Marketplace until such time as the NAV 

is available to all market participants. 

The Commission notes that the 

Exchange has received a representation 

from the Trust that, prior to listing, the 

NAV would be calculated daily and 

made available to all market 

participants at the same time.15

Additionally, if the IIV is not being 

disseminated as required, the Exchange 

may halt trading during the day in 

which the disruption occurs; if the 

interruption persists past the day in 

which it occurred, the Exchange will 

halt trading no later than the beginning 

of the trading day following the 

interruption.16 Further, the Exchange 

will consider suspension of trading 

pursuant to NYSE Arca Rule 8.201(e)(2) 

if, after the initial 12 month period 

following commencement of trading: (1) 

The value of gold is no longer calculated 

or available on at least a 15-second 

delayed basis from a source unaffiliated 

with the Sponsor, Trust, custodian or 

the Exchange stops providing a 

hyperlink on its Web site to any such 

unaffiliated commodity value; or (2) if 

the IIV is no longer made available on 

at least a 15-second delayed basis. With 

respect to trading halts, the Exchange 

may consider all relevant factors in 

exercising its discretion to halt or 

suspend trading in the Units. These may 

include: (1) The extent to which 

conditions in the underlying gold 

market have caused disruptions and/or 

lack of trading; or (2) whether other 

unusual conditions or circumstances 

detrimental to the maintenance of a fair 

and orderly market are present. In 

addition, trading in Units will be subject 

to trading halts caused by extraordinary 

market volatility pursuant to the 

Exchange’s ‘‘circuit breaker’’ rule.17

In addition, NYSE Arca Equities Rule 

8.201 sets forth certain requirements for 

ETP Holders acting as Market Makers in 

the Units. Pursuant to NYSE Arca 

Equities Rule 8.201(h), an ETP Holder 

acting as a registered Market Maker in 

the Units is required to provide the 

Exchange with information relating to 

its trading in the underlying gold, 

related futures or options on futures, or 

any other related derivatives. NYSE 

Arca Equities Rule 8.201(i) prohibits an 

ETP Holder acting as a registered Market 

Maker in the Units from using any 

material nonpublic information received 

from any person associated with an ETP 

Holder or employee of such person 

regarding trading by such person or 

employee in the underlying gold, 

related futures or options on futures or 

any other related derivative (including 

the Units). 

In support of this proposal, the 

Exchange has made representations 

including: 


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18The Exchange notes that the New York 

Mercantile Exchange, of which the COMEX is a 

division, is an ISG member, however, the Tokyo 

Commodity Exchange, Inc. (‘‘TOCOM’’) is not an 

ISG member and the Exchange does not have in 

place a comprehensive surveillance sharing 

agreement with such market. 

19 15 U.S.C. 78f(b)(5). 

20 15 U.S.C. 78s(b)(2). 

21 17 CFR 200.30–3(a)(12). 

1 15 U.S.C. 78s(b)(1). 

2 17 CFR 240.19b–4. 

3References to ISE Members in this filing refer to 

DECN Subscribers who are ISE Members. 

4See Securities Exchange Act Release No. 60769 

(October 2, 2009), 74 FR 51903 (October 8, 2009) 

(SR–ISE–2009–68). 

(1) The Units will be subject to the 

initial and continued listing criteria 

under NYSE Arca Equities Rule 8.201. 

(2) The Exchange’s surveillance 

procedures are adequate to properly 

monitor Exchange trading of the Units 

in all trading sessions and to deter and 

detect violations of Exchange rules and 

applicable federal securities laws. 

Pursuant to NYSE Arca Equities Rule 

8.201(h), the Exchange is able to obtain 

information regarding trading in the 

Units and the underlying gold, gold 

futures contracts, options on gold 

futures, or any other gold derivative, 

through ETP Holders acting as 

registered Market Makers, in connection 

with such ETP Holders’ proprietary or 

customer trades which they effect on 

any relevant market. In addition, the 

Exchange may obtain trading 

information via the Intermarket 

Surveillance Group (‘‘ISG’’) from other 

exchanges who are members of the 

ISG.18

(3) Prior to the commencement of 

trading, the Exchange will inform its 

ETP Holders in an Information Bulletin 

of the special characteristics and risks 

associated with trading the Units. 

Specifically, the Information Bulletin 

will discuss the following: (1) The 

procedures for purchases and 

redemptions of Units; (2) NYSE Arca 

Equities Rule 9.2(a), which imposes a 

duty of due diligence on its ETP Holders 

to learn the essential facts relating to 

every customer prior to trading the 

Units; (3) how information regarding the 

IIV is disseminated; (4) the requirement 

that ETP Holders deliver a prospectus to 

investors purchasing newly issued Units 

prior to or concurrently with the 

confirmation of a transaction; (5) the 

possibility that trading spreads and the 

resulting premium or discount on the 

Units may widen as a result of reduced 

liquidity of gold trading during the Core 

and Late Trading Sessions after the 

close of the major world gold markets; 

and (6) trading information. 

This approval order is based on the 

Exchange’s representations. 

For the foregoing reasons, the 

Commission finds that the proposed 

rule change is consistent with Section 

6(b)(5) of the Act 19 and the rules and 

regulations thereunder applicable to a 

national securities exchange. 

IV. Conclusion 

It is therefore ordered, pursuant to 

Section 19(b)(2) of the Act,20 that the 

proposed rule change (SR–NYSEArca– 

2009–113) be, and it hereby is, 

approved. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.21

Florence E. Harmon, 

Deputy Secretary. 

[FR Doc. 2010–2951 Filed 2–9–10; 8:45 am] 

BILLING CODE 8011–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–61490; File No. SR–ISE– 

2010–10] 

Self-Regulatory Organizations; 

International Securities Exchange, 

LLC; Notice of Filing and Immediate 

Effectiveness of Proposed Rule 

Change Relating To Amending the 

Direct Edge ECN Fee Schedule 

February 4, 2010. 

Pursuant to Section 19(b)(1) of the 

Securities Exchange Act of 1934 (the 

‘‘Act’’),1 and Rule 19b–4 thereunder,2

notice is hereby given that on January 

29, 2010, the International Securities 

Exchange, LLC (the ‘‘Exchange’’ or the 

‘‘ISE’’) filed with the Securities and 

Exchange Commission (‘‘Commission’’) 

the proposed rule change as described 

in Items I, II, and III below, which items 

have been prepared by the selfregulatory organization. The 

Commission is publishing this notice to 

solicit comments on the proposed rule 

change from interested persons. 

I. Self-Regulatory Organization’s 

Statement of the Terms of Substance of 

the Proposed Rule Change 

The Exchange proposes to amend 

Direct Edge ECN’s (‘‘DECN’’) fee 

schedule for ISE Members 3 to amend its 

fee schedule by (i) re-introducing a 

rebate; (ii) adding a fee for stocks priced 

less than $1 that remove liquidity on 

EDGA; (iii) eliminating certain tables on 

the fee schedule and (iv) making 

typographical and clarifying changes to 

the fee schedule. All of the changes 

described herein are applicable to ISE 

Members. 

All of the changes described herein 

are applicable to ISE Members. The text 

of the proposed rule change is available 

on the Exchange’s Internet Web site at 

http://www.ise.com. 

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 these statements may be examined at 

the places specified in Item IV below. 

The self-regulatory organization 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 

DECN, a facility of ISE, operates two 

trading platforms, EDGX and EDGA. 

Re-Introduction of Ultra Tier Rebate 

In SR–ISE–2009–68,4 the Exchange 

amended the criteria for meeting the 

Ultra Tier by allowing ISE Members to 

receive a $0.0032 rebate per share for 

securities priced at or above $1.00 when 

ISE Members add liquidity on EDGX if 

the attributed MPID posts 1% of the 

total consolidated volume (‘‘TCV’’) in 

average daily volume (‘‘ADV’’). TCV is 

defined as volume reported by all 

exchanges and trade reporting facilities 

to the consolidated transaction reporting 

plans for Tape A, B, and C securities. 

For competitive reasons, the Exchange 

is now seeking to re-introduce an Ultra 

Tier rebate of $0.0031 per share. 

The Ultra Tier rebate ($0.0031 per 

share), which is a higher rebate than the 

next best rebate ($0.0029 per share) for 

adding liquidity on EDGX, is also more 

difficult to reach, as a higher volume 

threshold is required based on recent 

TCV figures. For example, 1% of the 

average TCV for January 2010 (8.9 

billion) was approximately 89 million 

shares. This threshold far exceeds the 

criteria (no minimum share volume 

requirement) to meet the next best 

rebate of $0.0029 per share. In addition, 

the higher rebate also results in part 

from lower administrative costs 

associated with higher volume. 


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