[Federal Register Volume 74, Number 93 (Friday, May 15, 2009)]
[Notices]
[Pages 22993-23000]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-11397]


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

SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-59895; File No. SR-NYSEArca-2009-40]


Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing 
and Order Granting Accelerated Approval of Proposed Rule Change 
Relating to the Listing and Trading of ETFS Gold Trust

May 8, 2009.
    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 May 1, 2009, NYSE Arca, Inc. (``NYSE Arca'' or the ``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 Exchange. The Commission is publishing this 
notice to solicit comments on the proposed rule change from interested 
persons and is approving the proposed rule change on an accelerated 
basis.
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
---------------------------------------------------------------------------

I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    The Exchange proposes to list and trade shares of the ETFS Gold 
Trust (the ``Trust'') pursuant to NYSE Arca Equities Rule 8.201. A copy 
of this filing is available on the Exchange's Web site at http://www.nyse.com, at the Exchange's principal office 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 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 III 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 
Statutory Basis for, the Proposed Rule Change

1. Purpose
    The Exchange proposes to list and trade ETFS Gold Shares 
(``Shares'') of the Trust under NYSE Arca Equities Rule 8.201. Under 
NYSE Arca Equities Rule 8.201, the Exchange may propose to list and/or 
trade pursuant to unlisted trading privileges (``UTP'') ``Commodity-
Based Trust Shares.'' \3\ The Commission has previously approved 
listing on the Exchange under NYSE Arca Equities Rule 8.201 shares of 
the streetTRACKS Gold Trust and iShares COMEX Gold Trust.\4\ Previous 
to their listing on the Exchange, the Commission approved listing of 
the streetTRACKS Gold Trust on the New York Stock Exchange (``NYSE'') 
and listing of iShares COMEX Gold Trust on the American Stock Exchange 
LLC.\5\ In addition, the Commission has approved trading of the 
streetTRACKS Gold Trust and iShares Silver Trust and [sic] on the 
Exchange pursuant to UTP.\6\ The Commission also has approved listing 
of the iShares Silver Trust on the Exchange \7\ and, previously, 
listing of the iShares Silver Trust on the American Stock Exchange LLC 
(now known as ``NYSE Amex LLC'').\8\
---------------------------------------------------------------------------

    \3\ Commodity-Based Trust Shares are securities issued by a 
trust that represent investors' discrete identifiable and undivided 
beneficial ownership interest in the commodities deposited into the 
Trust.
    \4\ See Securities Exchange Act Release No. 56224 (August 8, 
2007), 72 FR 45850 (August 15, 2007) (SR-NYSEArca-2007-76) 
(approving listing on the Exchange of the streetTRACKS Gold Trust); 
Securities Exchange Act Release No. 56041 (July 11, 2007), 72 FR 
39114 (July 17, 2007) (SR-NYSEArca-2007-43) (order approving listing 
on the Exchange of iShares COMEX Gold Trust).
    \5\ See Securities Exchange Act Release No. 50603 (October 28, 
2004), 69 FR 64614 (November 5, 2004) (SR-NYSE-2004-22) (order 
approving listing of streetTRACKS Gold Trust on NYSE); Securities 
Exchange Act Release No. 51058 (January 19, 2005), 70 FR 3749 
(January 26, 2005) (SR-Amex-2004-38) (order approving listing of 
iShares COMEX Gold Trust on the American Stock Exchange LLC).
    \6\ See Securities Exchange Act Release Nos. 53520 (March 20, 
2006), 71 FR 14977 (March 24, 2006) (SR-PCX-2005-117) (approving 
trading on the Exchange pursuant to UTP of the iShares Silver 
Trust); 51245 (February 23, 2005), 70 FR 10731 (March 4, 2005) (SR-
PCX-2004-117) (approving trading on the Exchange of the streetTRACKS 
Gold Trust pursuant to UTP).
    \7\ See Securities Exchange Act Release Nos. 58956 (November 14, 
2008), 73 FR 71074 (November 24, 2008) (SR-NYSEArca-2008-124) 
(approving listing on the Exchange of the iShares Silver Trust)).
    \8\ See Securities Exchange Act Release No. 53521 (March 20, 
2006), 71 FR 14967 (March 24, 2006) (SR-Amex-2005-72) (approving 
listing on the American Stock Exchange LLC of the iShares Silver 
Trust).
---------------------------------------------------------------------------

    The Trust will issue Shares which represent units of fractional 
undivided beneficial interest in and ownership of the Trust. The 
investment objective of the Trust is for the Shares to reflect the 
performance of the price of gold bullion, less the expenses of the 
Trust's operations.\9\
---------------------------------------------------------------------------

    \9\ See the Registration Statement for the ETFS Gold Trust on 
Form S-1, filed with the Commission on March 26, 2009 (No. 333-
158221) (``Registration Statement''). The descriptions of the Trust, 
the Shares and the gold market contained herein are based on the 
Registration Statement.
---------------------------------------------------------------------------

    ETFS Services USA LLC is the sponsor of the Trust (``Sponsor''), 
The Bank of New York Mellon is the trustee of the Trust (``Trustee'') 
\10\, and HSBC Bank USA, N.A. is the custodian of the Trust 
(``Custodian'').\11\
---------------------------------------------------------------------------

    \10\ The Trustee is generally responsible for the day-to-day 
administration of the Trust, including keeping the Trust's 
operational records. The Trustee's principal responsibilities 
include (1) transferring the Trust's gold as needed to pay the 
Sponsor's Fee in gold (gold transfers are expected to occur 
approximately monthly in the ordinary course), (2) valuing the 
Trust's gold and calculating the NAV of the Trust and the NAV per 
Share, (3) receiving and processing orders from Authorized 
Participants to create and redeem Baskets and coordinating the 
processing of such orders with the Custodian and DTC, (4) selling 
the Trust's gold as needed to pay any extraordinary Trust expenses 
that are not assumed by the Sponsor, (5) when appropriate, making 
distributions of cash or other property to Shareholders, and (6) 
receiving and reviewing reports from or on the Custodian's custody 
of and transactions in the Trust's gold. The Trustee shall, with 
respect to directing the Custodian, act in accordance with the 
instructions of the Sponsor.
    \11\ The Custodian is responsible for safekeeping for the Trust 
gold deposited with it by Authorized Participants in connection with 
the creation of Baskets. The Custodian is also responsible for 
selecting its direct subcustodians, if any. The Custodian 
facilitates the transfer of gold in and out of the Trust through the 
unallocated gold accounts it will maintain for each Authorized 
Participant and the unallocated and allocated gold accounts it will 
maintain for the Trust. The Custodian is responsible for allocating 
specific bars of gold bullion to the Trust's allocated gold account. 
The Custodian will provide the Trustee with regular reports 
detailing the gold transfers in and out of the Trust's unallocated 
and allocated gold accounts and identifying the gold bars held in 
the Trust's allocated gold account.
---------------------------------------------------------------------------

    The Exchange represents that the Shares satisfy the requirements of 
NYSE Arca Equities Rule 8.201 and thereby qualify for listing on the 
Exchange.\12\
---------------------------------------------------------------------------

    \12\ With respect to application of Rule 10A-3 (17 CFR 240.10A-
3) under the Securities Exchange of 1934 (``Act'') (15 U.S.C. 78a), 
the Trust relies on the exemption contained in Rule 10A-3(c)(7).
---------------------------------------------------------------------------

Operation of the Gold Bullion Market
    The global trade in gold consists of Over-the-Counter (OTC) 
transactions in spot, forwards, and options and other derivatives, 
together with exchange-traded futures and options. The OTC market 
trades on a 24-hour per day continuous basis and accounts for most 
global gold trading.

[[Page 22994]]

    Market makers, as well as others in the OTC market, trade with each 
other and with their clients on a principal-to-principal basis. All 
risks and issues of credit are between the parties directly involved in 
the transaction. Market makers include the market-making members of the 
LBMA, the trade association that acts as the coordinator for activities 
conducted on behalf of its members and other participants in the London 
bullion market. The ten market-making members of the LBMA are: Barclays 
Bank plc, Deutsche Bank AG, HSBC Bank USA, N.A. (through its London 
branch), Goldman Sachs International, JPMorgan Chase Bank, 
ScotiaMocatta (a division of the Bank of Nova Scotia), 
Soci[eacute]t[eacute] G[eacute]n[eacute]rale, Mitsui & Co Precious 
Metals Inc, Royal Bank of Canada, and UBS AG. The OTC market provides a 
relatively flexible market in terms of quotes, price, size, 
destinations for delivery and other factors. Bullion dealers customize 
transactions to meet clients' requirements. The OTC market has no 
formal structure and no open-outcry meeting place.\13\
---------------------------------------------------------------------------

    \13\ Terms relating to the Trust and the Shares referred to, but 
not defined, herein are defined in the Registration Statement.
---------------------------------------------------------------------------

    According to the Registration Statement, the main centers of the 
OTC market are London and New York. Mining companies, central banks, 
manufacturers of jewelry and industrial products, together with 
investors and speculators, tend to transact their business through one 
of these market centers. Centers such as Dubai and several cities in 
the Far East also transact substantial OTC market business, typically 
involving jewelry and small bars (1 kilogram or less). Bullion dealers 
have offices around the world and most of the world's major bullion 
dealers are either members or associate members of the LBMA. Of the ten 
market-making members of the LBMA, six offer clearing services. As of 
November 24, 2008, there were a further 59 full members, plus a number 
of associate members around the world.
    In the OTC market, the standard size of gold trades between market 
makers ranges between 5,000 and 10,000 ounces. Bid-offer spreads are 
typically 50 US cents per ounce. Certain dealers are willing to offer 
clients competitive prices for much larger volumes, including trades 
over 100,000 ounces, although this will vary according to the dealer, 
the client and market conditions, as transaction costs in the OTC 
market are negotiable between the parties and therefore vary widely. 
Cost indicators can be obtained from various information service 
providers as well as dealers.
    Liquidity in the OTC market can vary from time to time during the 
course of the 24-hour trading day. Fluctuations in liquidity are 
reflected in adjustments to dealing spreads--the differential between a 
dealer's ``buy'' and ``sell'' prices. The period of greatest liquidity 
in the gold market generally occurs at the time of day when trading in 
the European time zones overlaps with trading in the United States, 
which is when OTC market trading in London, New York and other centers 
coincides with futures and options trading on the COMEX. This period 
lasts for approximately four hours each New York business day morning.
The London Bullion Market
    Although the market for physical gold is distributed globally, most 
OTC market trades are cleared through London. In addition to 
coordinating market activities, the LBMA acts as the principal point of 
contact between the market and its regulators. A primary function of 
the LBMA is its involvement in the promotion of refining standards by 
maintenance of the ``London Good Delivery Lists,'' which are the lists 
of LBMA accredited melters and assayers of gold. The LBMA also 
coordinates market clearing and vaulting, promotes good trading 
practices and develops standard documentation.
    The term ``loco London'' gold refers to gold physically held in 
London that meets the specifications for weight, dimensions, fineness 
(or purity), identifying marks (including the assay stamp of a LBMA 
acceptable refiner) and appearance set forth in ``The Good Delivery 
Rules for Gold and Silver Bars'' published by the LBMA. Gold bars 
meeting these requirements are described in this prospectus from time 
to time as ``London Good Delivery Bars.'' The unit of trade in London 
is the troy ounce, whose conversion between grams is: 1,000 grams = 
32.1507465 troy ounces and 1 troy ounce = 31.1034768 grams. A London 
Good Delivery Bar is acceptable for delivery in settlement of a 
transaction on the OTC market. Typically referred to as 400-ounce bars, 
a London Good Delivery Bar must contain between 350 and 430 fine troy 
ounces of gold, with a minimum fineness (or purity) of 995 parts per 
1,000 (99.5%), be of good appearance and be easy to handle and stack. 
The fine gold content of a gold bar is calculated by multiplying the 
gross weight of the bar (expressed in units of 0.025 troy ounces) by 
the fineness of the bar. A London Good Delivery Bar must also bear the 
stamp of one of the melters and assayers who are on the LBMA approved 
list. Unless otherwise specified, the gold spot price always refers to 
that of a London Good Delivery Bar. Business is generally conducted 
over the phone and through electronic dealing systems.
    Twice daily during London trading hours there is a fix which 
provides reference gold prices for that day's trading. Many long-term 
contracts will be priced on the basis of either the morning (a.m.) or 
afternoon (p.m.) London Fix, and market participants will usually refer 
to one or the other of these prices when looking for a basis for 
valuations. The London Fix is the most widely used benchmark for daily 
gold prices and is quoted by various financial information sources.
    Formal participation in the London Fix is traditionally limited to 
five members, each of which is a bullion dealer and a member of the 
LBMA. The chairmanship now rotates annually among the five member 
firms. The morning session of the fix starts at 10:30 a.m. London time 
and the afternoon session starts at 3 p.m. London time. The members of 
the gold fixing are currently The Bank of Nova Scotia--ScotiaMocatta, 
Deutsche Bank AG, HSBC Bank USA, N.A., Soci[eacute]t[eacute] 
G[eacute]n[eacute]rale and Barclays Bank plc. Any other market 
participant wishing to participate in the trading on the fix is 
required to do so through one of the five gold fixing members.
    Orders are placed either with one of the five fixing members or 
with another bullion dealer who will then be in contact with a fixing 
member during the fixing. The fixing members net-off all orders when 
communicating their net interest at the fixing. The fix begins with the 
fixing chairman suggesting a ``trying price,'' reflecting the market 
price prevailing at the opening of the fix. This is relayed by the 
fixing members to their dealing rooms which have direct communication 
with all interested parties. Any market participant may enter the 
fixing process at any time, or adjust or withdraw his order. The gold 
price is adjusted up or down until all the buy and sell orders are 
matched, at which time the price is declared fixed. All fixing orders 
are transacted on the basis of this fixed price, which is instantly 
relayed to the market through various media. The London Fix is widely 
viewed as a full and fair representation of all market interest at the 
time of the fix.
Futures Exchanges
    According to the Registration Statement, the most significant gold 
futures exchanges are the COMEX and

[[Page 22995]]

the Tokyo Commodity Exchange (``TOCOM''). The COMEX is the largest 
exchange in the world for trading precious metals futures and options 
and has been trading gold since 1974. The TOCOM has been trading gold 
since 1982. Trading on these exchanges is based on fixed delivery dates 
and transaction sizes for the futures and options contracts traded. 
Trading costs are negotiable. As a matter of practice, only a small 
percentage of the futures market turnover ever comes to physical 
delivery of the gold represented by the contracts traded. Both 
exchanges permit trading on margin. Margin trading can add to the 
speculative risk involved given the potential for margin calls if the 
price moves against the contract holder. The COMEX operates through a 
central clearance system. On June 6, 2003, TOCOM adopted a similar 
clearance system. In each case, the exchange acts as a counterparty for 
each member for clearing purposes.
    There are other gold exchange markets, such as the Istanbul Gold 
Exchange (trading gold since 1995), the Shanghai Gold Exchange (trading 
gold since October 2002) and the Hong Kong Chinese Gold & Silver 
Exchange Society (trading gold since 1918).
Market Regulation
    The global gold markets are overseen and regulated by both 
governmental and self-regulatory organizations. In addition, certain 
trade associations have established rules and protocols for market 
practices and participants. In the United Kingdom, responsibility for 
the regulation of the financial market participants, including the 
major participating members of the LBMA, falls under the authority of 
the Financial Services Authority (FSA) as provided by the Financial 
Services and Markets Act 2000 (FSM Act). Under this act, all UK-based 
banks, together with other investment firms, are subject to a range of 
requirements, including fitness and properness, capital adequacy, 
liquidity, and systems and controls.
    The FSA is responsible for regulating investment products, 
including derivatives, and those who deal in investment products. 
Regulation of spot, commercial forwards, and deposits of gold and 
silver not covered by the FSM Act is provided for by The London Code of 
Conduct for Non-Investment Products, which was established by market 
participants in conjunction with the Bank of England.
    The TOCOM has authority to perform financial and operational 
surveillance on its members' trading activities, scrutinize positions 
held by members and large-scale customers, and monitor the price 
movements of futures markets by comparing them with cash and other 
derivative markets' prices. To act as a Futures Commission Merchant 
Broker, a broker must obtain a license from Japan's Ministry of 
Economy, Trade and Industry (METI), the regulatory authority that 
oversees the operations of the TOCOM.
    The Trust will not trade in gold futures contracts on the COMEX or 
on any other futures exchange. The Trust will take delivery of physical 
gold that complies with the COMEX gold delivery rules or the LBMA gold 
delivery rules. Because the Trust will not trade in gold futures 
contracts on any futures exchange, the Trust will not be regulated by 
the CFTC under the Commodity Exchange Act as a ``commodity pool,'' and 
will not be operated by a CFTC-regulated commodity pool operator. 
Investors in the Trust will not receive the regulatory protections 
afforded to investors in regulated commodity pools, nor may the COMEX 
or any futures exchange enforce its rules with respect to the Trust's 
activities. In addition, investors in the Trust will not benefit from 
the protections afforded to investors in gold futures contracts on 
regulated futures exchanges.
    The activities of the Trust will be limited to (1) issuing Baskets 
in exchange for the gold deposited with the Custodian as consideration, 
(2) delivering gold as necessary to cover the Sponsor's Fee and selling 
gold as necessary to pay Trust expenses not assumed by the Sponsor and 
other liabilities, and (3) delivering gold in exchange for Baskets 
surrendered for redemption. The Trust will not be actively managed. It 
will not engage in any activities designed to obtain a profit from, or 
to ameliorate losses caused by, changes in the price of gold.
    According to the Registration Statement, the investment objective 
of the Trust is for the Shares to reflect the performance of the price 
of gold bullion, less the Trust's expenses. The Shares are intended to 
constitute a simple and cost-effective means of making an investment 
similar to an investment in gold. An investment in physical gold 
requires expensive and sometimes complicated arrangements in connection 
with the assay, transportation, warehousing and insurance of the metal. 
Although the Shares will not be the exact equivalent of an investment 
in gold, they provide investors with an alternative that allows a level 
of participation in the gold market through the securities market.
    According to the Registration Statement, the Trust is not 
registered as an investment company under the Investment Company Act of 
1940 and is not required to register under such act. The Trust will not 
hold or trade in commodity futures contracts regulated by the Commodity 
Exchange Act (``CEA''), as administered by the Commodity Futures 
Trading Commission (``CFTC''). The Trust is not a commodity pool for 
purposes of the CEA, and neither the Sponsor nor the Trustee is subject 
to regulation by the CFTC as a commodity pool operator or a commodity 
trading advisor in connection with the Shares.
Secondary Market Trading
    While the Trust's investment objective is for the Shares to reflect 
the performance of gold bullion, less the expenses of the Trust, the 
Shares may trade in the secondary market on the NYSE Arca at prices 
that are lower or higher relative to their net asset value (``NAV'') 
per Share. The amount of the discount or premium in the trading price 
relative to the NAV per Share may be influenced by non-concurrent 
trading hours between the NYSE Arca and the COMEX and London. While the 
Shares will trade on the NYSE Arca until 8 p.m. New York time, 
liquidity in the global gold market will be reduced after the close of 
the COMEX at 1:30 p.m. New York time. As a result, during this time, 
trading spreads, and the resulting premium or discount, on the Shares 
may widen.
Trust Expenses
    The Trust's only ordinary recurring expense is expected to be equal 
to the Sponsor's Fee. In exchange for the Sponsor's Fee, the Sponsor 
will assume specified administrative and marketing expenses incurred by 
the Trust. The Sponsor will also pay the costs of the Trust's 
organization and the initial sale of the Shares, including the 
applicable SEC registration fees.
    The Sponsor's Fee will accrue daily at a specified annualized rate 
payable monthly in arrears. The Sponsor, from time to time, may 
temporarily waive all or a portion of the Sponsor's Fee at its 
discretion for a stated period of time.
    The Sponsor's Fee shall be paid by delivery of gold to an account 
maintained by the Custodian for the Sponsor on an Unallocated Basis, 
monthly on the first business day of the month in respect of fees 
payable for the prior month. The delivery shall be of that number of 
ounces of gold which equals the daily accrual of the Sponsor's Fee for 
such prior month calculated at the London p.m. Fix.
    The Trust will deliver gold to the Sponsor to pay the Sponsor's Fee 
and

[[Page 22996]]

sell gold to raise the funds needed for the payment of all Trust 
expenses not assumed by the Sponsor. The purchase price received as 
consideration for such sales will be the Trust's sole source of funds 
to cover its liabilities. The Trust will not engage in any activity 
designed to derive a profit from changes in the price of gold.
Creation and Redemption of Shares
    The Trust will create and redeem Shares daily, but only in one or 
more Baskets (a Basket equals a block of 50,000 Shares). The creation 
and redemption of Baskets will only be made in exchange for the 
delivery to the Trust or the distribution by the Trust of the amount of 
gold and any cash represented by the Baskets being created or redeemed, 
the amount of which will be based on the combined NAV of the number of 
Shares included in the Baskets being created or redeemed determined on 
the day the order to create or redeem Baskets is properly received.
    Authorized Participants are the only persons that may place orders 
to create and redeem Baskets. Authorized Participants must be (1) 
registered broker-dealers or other securities market participants, such 
as banks and other financial institutions, which are not required to 
register as broker-dealers to engage in securities transactions, and 
(2) participants in the Depository Trust Company (``DTC''). To become 
an Authorized Participant, a person must enter into an Authorized 
Participant Agreement with the Sponsor and the Trustee. The Authorized 
Participant Agreement provides the procedures for the creation and 
redemption of Baskets and for the delivery of the gold and any cash 
required for such creations and redemptions.
    All gold will be delivered to the Trust and distributed by the 
Trust in unallocated form through credits and debits between Authorized 
Participant Unallocated Accounts and the Trust Unallocated Account (as 
further described in the Registration Statement). Gold transferred from 
an Authorized Participant Unallocated Account to the Trust in 
unallocated form will first be credited to the Trust Unallocated 
Account. Thereafter, the Custodian will allocate specific bars of gold 
representing the amount of gold credited to the Trust Unallocated 
Account (to the extent such amount is representable by whole gold bars) 
to the Trust Allocated Account. The movement of gold is reversed for 
the distribution of gold to an Authorized Participant in connection 
with the redemption of Baskets.
    All gold bullion represented by a credit to any Authorized 
Participant Unallocated Account and to the Trust Unallocated Account 
and all gold bullion held in the Trust Allocated Account with the 
Custodian must be of at least a minimum fineness (or purity) of 995 
parts per 1,000 (99.5%) and otherwise conform to the rules, regulations 
practices and customs of the LBMA, including the specifications for a 
London Good Delivery Bar.
Creation Procedures
    On any business day, an Authorized Participant may place an order 
with the Trustee to create one or more Baskets. Creation and redemption 
orders will be accepted on ``business days'' the NYSE Arca is open for 
regular trading. Settlements of such orders requiring receipt or 
delivery, or confirmation of receipt or delivery, of gold in the United 
Kingdom or another jurisdiction will occur on ``business days'' when 
(1) banks in the United Kingdom or such other jurisdiction and (2) the 
London gold markets are regularly open for business. If such banks or 
the London gold markets are not open for regular business for a full 
day, such a day will only be a ``business day'' for settlement purposes 
if the settlement procedures can be completed by the end of such day. 
Settlement of orders requiring receipt or delivery, or confirmation of 
receipt or delivery, of Shares will occur, after confirmation of the 
applicable gold delivery, on ``business days'' the NYSE Arca is open 
for regular trading. Purchase orders must be placed by 4 p.m. or the 
close of regular trading on the NYSE Arca, whichever is earlier. The 
day on which the Trustee receives a valid purchase order is the 
purchase order date.
    By placing a purchase order, an Authorized Participant agrees to 
deposit gold with the Trust, or a combination of gold and cash, as 
described below. Prior to the delivery of Baskets for a purchase order, 
the Authorized Participant must also have wired to the Trustee the non-
refundable transaction fee due for the purchase order.
    The total deposit required to create each Basket (``Creation Basket 
Deposit'') will be an amount of gold and cash, if any, that is in the 
same proportion to the total assets of the Trust (net of estimated 
accrued but unpaid fees, expenses and other liabilities) on the date 
the order to purchase is properly received as the number of Shares to 
be created under the purchase order is in proportion to the total 
number of Shares outstanding on the date the order is received. The 
Sponsor anticipates that in the ordinary course of the Trust's 
operations a cash deposit will not be required for the creation of 
Baskets.
    The amount of the required gold deposit is determined by dividing 
the number of ounces of gold held by the Trust by the number of Baskets 
outstanding, as adjusted for estimated accrued but unpaid fees and 
expenses as described in the next paragraph.
    The amount of any required cash deposit is determined as follows. 
The estimated unpaid fees, expenses and liabilities of the Trust 
accrued through the purchase order date are subtracted from any cash 
held or receivable by the Trust as of the purchase order date. The 
remaining amount is divided by the number of Shares outstanding 
immediately before the purchase order date and then multiplied by the 
number of Shares being created pursuant to the purchase order. If the 
resulting amount is positive, this amount is the required cash deposit. 
If the resulting amount is negative, the amount of the required gold 
deposit will be reduced by the number of fine ounces of gold equal in 
value to that resulting amount, determined at the price of gold used in 
calculating the NAV of the Trust on the purchase order date. Fractions 
of a fine ounce of gold smaller than 0.001 of a fine ounce which are 
included in the gold deposit amount are disregarded.
Redemption Procedures
    The procedures by which an Authorized Participant can redeem one or 
more Baskets will mirror the procedures for the creation of Baskets. On 
any business day, an Authorized Participant may place an order with the 
Trustee to redeem one or more Baskets. Redemption orders must be placed 
by 4 p.m. or the close of regular trading on the NYSE Arca, whichever 
is earlier. A redemption order so received is effective on the date it 
is received in satisfactory form by the Trustee. The redemption 
procedures allow Authorized Participants to redeem Baskets and do not 
entitle an individual Shareholder to redeem any Shares in an amount 
less than a Basket, or to redeem Baskets other than through an 
Authorized Participant.
    By placing a redemption order, an Authorized Participant agrees to 
deliver the Baskets to be redeemed through DTC's book-entry system to 
the Trust not later than the third business day following the effective 
date of the redemption order. Prior to the delivery of the redemption 
distribution for a redemption order, the Authorized Participant must 
also have wired to the Trustee the non-refundable transaction fee due 
for the redemption order.

[[Page 22997]]

    The redemption distribution from the Trust will consist of (1) a 
credit to the redeeming Authorized Participant's Authorized Participant 
Unallocated Account representing the amount of the gold held by the 
Trust evidenced by the Shares being redeemed plus or minus (2) the cash 
redemption amount. The cash redemption amount is equal to the value of 
all assets of the Trust other than gold less all estimated accrued but 
unpaid expenses and other liabilities, divided by the number of Baskets 
outstanding and multiplied by the number of Baskets included in the 
Authorized Participant's redemption order. The Trustee will distribute 
any positive cash redemption amount through DTC to the account of the 
Authorized Participant as recorded on DTC's book-entry system.
Termination Events
    The Trustee will terminate and liquidate the Trust if the aggregate 
market capitalization of the Trust, based on the closing price for the 
Shares, was less than $350 million (as adjusted for inflation) at any 
time after the first anniversary after the Trust's formation and the 
Trustee receives, within six months after the last of those trading 
days, notice from the Sponsor of its decision to terminate the Trust. 
The Trustee will terminate the Trust if the CFTC determines that the 
Trust is a commodities pool under the CEA. The Trustee may also 
terminate the Trust upon the agreement of the owners of beneficial 
interests in the Shares (``Shareholders'') owning at least 75% of the 
outstanding Shares.
    Additional information regarding the Shares and the operation of 
the Trust, including termination events, risks, and creation and 
redemption procedures, are described in the Registration Statement.
Valuation of Gold, Definition of Net Asset Value and Adjusted Net Asset 
Value (``ANAV'')
    As of the London p.m. Fix on each day that the NYSE Arca is open 
for regular trading or, if there is no London p.m. Fix on such day or 
the London p.m. Fix has not been announced by 12 noon New York time on 
such day, as of 12 noon New York time on such day (Evaluation Time), 
the Trustee will evaluate the gold held by the Trust and determine both 
the ANAV and the NAV of the Trust.
    At the Evaluation Time, the Trustee will value the Trust's gold on 
the basis of that day's London p.m. Fix or, if no London p.m. Fix is 
made on such day or has not been announced by the Evaluation Time, the 
next most recent London gold price fix (a.m. or p.m.) determined prior 
to the Evaluation Time will be used, unless the Sponsor determines that 
such price is inappropriate as a basis for evaluation. In the event the 
Sponsor determines that the London p.m. Fix or such other publicly 
available price as the Sponsor may deem fairly represents the 
commercial value of the Trust's gold is not an appropriate basis for 
evaluation of the Trust's gold, it shall identify an alternative basis 
for such evaluation to be employed by the Trustee.\14\
---------------------------------------------------------------------------

    \14\ The Exchange, pursuant to NYSE Arca Equities Rule 7.12, has 
discretion to halt trading in the Shares if the London p.m. Fix is 
not determined or available for an extended time period based on 
extraordinary circumstances or market conditions.
---------------------------------------------------------------------------

    Once the value of the gold has been determined, the Trustee will 
subtract all estimated accrued but unpaid fees, expenses and other 
liabilities of the Trust from the total value of the gold and all other 
assets of the Trust (other than any amounts credited to the Trust's 
reserve account, if established). The resulting figure is the ANAV of 
the Trust. The ANAV of the Trust is used to compute the Sponsor's Fee.
    To determine the Trust's NAV, the Trustee will subtract the amount 
of estimated accrued but unpaid fees computed by reference to the ANAV 
of the Trust and to the value of the gold held by the Trust from the 
ANAV of the Trust. The resulting figure is the NAV of the Trust. The 
Trustee will also determine the NAV per Share by dividing the NAV of 
the Trust by the number of the Shares outstanding as of the close of 
trading on the NYSE Arca (which includes the net number of any Shares 
created or redeemed on such evaluation day).
    The Shares will be book-entry only and individual certificates will 
not be issued for the Shares.
Liquidity
    The Shares may trade at, above or below the NAV per Share. The NAV 
per Share will fluctuate with changes in the market value of the 
Trust's assets. The trading price of the Shares will fluctuate in 
accordance with changes in the NAV per Share as well as market supply 
and demand. The amount of the discount or premium in the trading price 
relative to the NAV per Share may be influenced by non-concurrent 
trading hours between the NYSE Arca and the major gold markets. While 
the Shares will trade on the NYSE Arca until 8 p.m. New York time, 
liquidity in the market for gold will be reduced after the close of the 
major world gold markets, including London and the COMEX.\15\ As a 
result, during this time, trading spreads, and the resulting premium or 
discount, on the Shares may widen.
---------------------------------------------------------------------------

    \15\ See e-mail from Tim Malinowski, Director, NYSE Euronext, to 
Christopher W. Chow, Special Counsel, Commission, dated May 7, 2009 
(``E-mail'').
---------------------------------------------------------------------------

Availability of Information Regarding Gold Prices
    Currently, the Consolidated Tape Plan does not provide for 
dissemination of the spot price of a commodity, such as gold, over the 
Consolidated Tape. However, there will be disseminated over the 
Consolidated Tape the last sale price for the Shares, as is the case 
for all equity securities traded on the Exchange (including exchange-
traded funds). In addition, there is a considerable amount of gold 
price and gold market information available on public Web sites and 
through professional and subscription services.
    Investors may obtain on a 24-hour basis gold pricing information 
based on the spot price for an ounce of gold from various financial 
information service providers, such as Reuters and Bloomberg. Reuters 
and Bloomberg provide at no charge on their Web sites delayed 
information regarding the spot price of gold and last sale prices of 
gold futures, as well as information about news and developments in the 
gold market. Reuters and Bloomberg also offer a professional service to 
subscribers for a fee that provides information on gold prices directly 
from market participants. An organization named EBS provides an 
electronic trading platform to institutions such as bullion banks and 
dealers for the trading of spot gold, as well as a feed of live 
streaming prices to Reuters and Moneyline Telerate subscribers. 
Complete real-time data for gold futures and options prices traded on 
the COMEX are available by subscription from Reuters and Bloomberg. The 
NYMEX also provides delayed futures and options information on current 
and past trading sessions and market news free of charge on its Web 
site. There are a variety of other public Web sites providing 
information on gold, ranging from those specializing in precious metals 
to sites maintained by major newspapers, such as The Wall Street 
Journal. In addition, the London a.m. Fix and London p.m. Fix are 
publicly available at no charge at http://www.lbma.org.uk/statistics_current.htm or http://www.thebulliondesk.com.
    The Trust Web site will provide for the Shares an intraday 
indicative value (``IIV'') per Share, updated at least every 15 
seconds, as calculated by the Exchange or a third party financial data 
provider during the Exchange's Core

[[Page 22998]]

Trading Session (9:30 a.m. to 4 p.m., New York time).\16\ The IIV will 
be calculated based on the amount of gold required for creations and 
redemptions and a price of gold derived from updated bids and offers 
indicative of the spot price of gold from gold dealer pricing.\17\ The 
Trust Web site will also provide the Creation Basket Deposit and the 
NAV of the Trust as calculated each business day by the Sponsor. In 
addition, the Web site for the Trust will contain the following 
information, on a per Share basis, for the Trust: (a) The mid-point of 
the bid-ask price \18\ 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 Shares as traded in 
the US market. The Exchange will provide on its Web site (http://www.nyx.com) a link to the Trust's Web site. In addition, the Exchange 
will make available over the Consolidated Tape quotation information, 
trading volume, closing prices and NAV for the Shares from the previous 
day.
---------------------------------------------------------------------------

    \16\ See E-mail, supra note 15.
    \17\ See id. The IIV on a per Share 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.
    \18\ The 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.
---------------------------------------------------------------------------

Criteria for Initial and Continued Listing
    The Trust will be subject to the criteria in NYSE Arca Equities 
Rule 8.201(e) for initial and continued listing of the Shares.
    It is anticipated that a minimum of 100,000 Shares will be required 
to be outstanding at the start of trading. The minimum number of shares 
required to be outstanding is comparable to requirements that have been 
applied to previously listed shares of the streetTRACKS Gold Trust, the 
iShares COMEX Gold Trust, the iShares Silver Trust and exchange-traded 
funds. It is anticipated that the initial price of a Share will be 
approximately $90. The Exchange believes that the anticipated minimum 
number of Shares outstanding at the start of trading is sufficient to 
provide adequate market liquidity.
Trading Rules
    The Exchange deems the Shares to be equity securities, thus 
rendering trading in the Fund subject to the Exchange's existing rules 
governing the trading of equity securities. Trading in the Shares on 
the Exchange will occur in accordance with NYSE Arca Equities Rule 
7.34(a). The Exchange has appropriate rules to facilitate transactions 
in the Shares during all trading sessions. The minimum trading 
increment for Shares on the Exchange will be $0.01.
    Further, NYSE Arca Equities Rule 8.201 sets forth certain 
restrictions on ETP Holders acting as registered Market Makers in the 
Shares to facilitate surveillance. Pursuant to NYSE Arca Equities Rule 
8.201(h), an ETP Holder acting as a registered Market Maker in the 
Shares 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 Shares 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 Shares). In addition, NYSE Arca Equities Rule 8.201(g) 
prohibits an ETP Holder acting as a registered Market Maker in the 
Shares from being affiliated with a market maker in the underlying 
gold, related futures or options on futures or any other related 
derivative unless adequate information barriers are in place, as 
provided in NYSE Arca Equities Rule 7.26.
    As a general matter, the Exchange has regulatory jurisdiction over 
its ETP Holders and their associated persons, which include any person 
or entity controlling an ETP Holder, as well as a subsidiary or 
affiliate of an ETP Holder that is in the securities business. A 
subsidiary or affiliate of an ETP Holder that does business only in 
commodities or futures contracts would not be subject to Exchange 
jurisdiction, but the Exchange could obtain information regarding the 
activities of such subsidiary or affiliate through surveillance sharing 
agreements with regulatory organizations of which such subsidiary or 
affiliate is a member.
    With respect to trading halts, the Exchange may consider all 
relevant factors in exercising its discretion to halt or suspend 
trading in the Shares. Trading on the Exchange in the Shares may be 
halted because of market conditions or for reasons that, in the view of 
the Exchange, make trading in the Shares inadvisable. These may 
include: (1) The extent to which 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 Shares will be subject to trading halts caused by 
extraordinary market volatility pursuant to the Exchange's ``circuit 
breaker'' rule.\19\
---------------------------------------------------------------------------

    \19\ See NYSE Arca Equities Rule 7.12.
---------------------------------------------------------------------------

Surveillance
    The Exchange intends to utilize its existing surveillance 
procedures applicable to derivative products (including Commodity-Based 
Trust Shares) to monitor trading in the Shares. The Exchange represents 
that these procedures are adequate to properly monitor Exchange trading 
of the Shares in all trading sessions and to deter and detect 
violations of Exchange rules and applicable federal securities laws.
    The Exchange's current trading surveillance focuses on detecting 
securities trading outside their normal patterns. When such situations 
are detected, surveillance analysis follows and investigations are 
opened, where appropriate, to review the behavior of all relevant 
parties for all relevant trading violations. Also, pursuant to NYSE 
Arca Equities Rule 8.201(h), the Exchange is able to obtain information 
regarding trading in the Shares 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.\20\ Also, the Exchange has an 
Information Sharing Agreement with NYMEX for the purpose of sharing 
information in connection with trading in or related to COMEX gold 
futures contracts.
---------------------------------------------------------------------------

    \20\ A list of ISG members is available at http://www.isgportal.org. The Exchange notes that TOCOM is not an ISG 
member and the Exchange does not have in place a comprehensive 
surveillance sharing agreement with such market.
---------------------------------------------------------------------------

Information Bulletin
    Prior to the commencement of trading, the Exchange will inform its 
ETP Holders in an Information Bulletin

[[Page 22999]]

of the special characteristics and risks associated with trading the 
Shares. Specifically, the Information Bulletin will discuss the 
following: (1) The procedures for purchases and redemptions of Shares 
in Baskets (including noting that Shares are not individually 
redeemable); (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 Shares; (3) how 
information regarding the ITV is disseminated; (4) the requirement that 
ETP Holders deliver a prospectus to investors purchasing newly issued 
Shares prior to or concurrently with the confirmation of a transaction; 
(5) the possibility that trading spreads and the resulting premium or 
discount on the Shares 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. For 
example, the Information Bulletin will advise ETP Holders, prior to the 
commencement of trading, of the prospectus delivery requirements 
applicable to the Trust. The Exchange notes that investors purchasing 
Shares directly from the Trust (by delivery of the Creation Basket 
Deposit) will receive a prospectus. ETP Holders purchasing Shares from 
the Trust for resale to investors will deliver a prospectus to such 
investors.
    In addition, the Information Bulletin will reference that the Trust 
is subject to various fees and expenses described in the Registration 
Statement. The Information Bulletin will also reference the fact that 
there is no regulated source of last sale information regarding 
physical gold, that the Commission has no jurisdiction over the trading 
of gold as a physical commodity, and that the CFTC has regulatory 
jurisdiction over the trading of gold futures contracts and options on 
gold futures contracts.
    The Information Bulletin will also discuss any relief, if granted, 
by the Commission or the staff from any rules under the Act.
2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent 
with Section 6(b) \21\ of the Act, in general, and furthers the 
objectives of Section 6(b)(5),\22\ in particular, because it is 
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. The Exchange believes that the proposed rule change 
will facilitate the listing and trading of an additional type of 
commodity-based product that will enhance competition among market 
participants, to the benefit of investors and the marketplace.
---------------------------------------------------------------------------

    \21\ 15 U.S.C. 78f(b).
    \22\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------

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

    The Exchange does not believe that the proposed rule change will 
impose any burden on competition that is not necessary or appropriate 
in furtherance of the purposes of the Act.

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. 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 e-mail to <a href="/cdn-cgi/l/email-protection#f587809990d8969a9898909b8186b5869096db929a83"><span class="__cf_email__" data-cfemail="a4d6d1c8c189c7cbc9c9c1cad0d7e4d7c1c78ac3cbd2">[email protected]</span></a>. Please include 
File Number SR-NYSEArca-2009-40 on the subject line.

Paper Comments

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

    All submissions should refer to File Number SR-NYSEArca-2009-40. 
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 inspection 
and copying 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 the principal office of the Exchange. 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 publicly available. All 
submissions should refer to File Number SR-NYSEArca-2009-40 and should 
be submitted on or before June 5, 2009.

IV. Commission's Findings and Order Granting Accelerated Approval of 
the Proposed Rule Change

    After careful consideration, the Commission finds that the proposed 
rule change is consistent with the requirements of the Act and the 
rules and regulations thereunder applicable to a national securities 
exchange.\23\ In particular, the Commission believes that the proposal 
is consistent with Section 6(b)(5) \24\ in particular, in that it is 
designed to prevent fraudulent and manipulative acts and practices, to 
promote just and equitable principles of trade, to foster cooperation 
and coordination with persons engaged in regulating, clearing, 
settling, processing information with respect to, and facilitating 
transaction in securities, and, in general to protect investors and the 
public interest. The listing and trading of an additional type of 
commodity-based product should enhance competition among market 
participants and thereby benefit investors and the marketplace.
---------------------------------------------------------------------------

    \23\ In approving this rule change, the Commission notes that it 
has considered the proposed rule's impact on efficiency, 
competition, and capital formation. See 15 U.S.C. 78c(f).
    \24\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------

    The Commission believes that the proposal to list and trade the 
Shares on the Exchange is consistent with Section 11A(a)(1)(C)(iii) of 
the Act,\25\ which sets forth Congress' finding that it is in the 
public interest and appropriate for the protection of investors and the 
maintenance of fair and orderly markets to assure the availability to 
brokers, dealers, and investors of information with respect to 
quotations for and transactions in securities. The Exchange will make 
available, through the facilities of the CTA, the last sale price 
information for the Shares, quotation

[[Page 23000]]

information, trading volume, closing prices and the NAV for the Shares 
from the previous day. The Web site for the Trust, which may be 
accessed through a link provided by the Exchange on its Web site, will 
disseminate the last-sale price information for Shares, NAV, and 
information related to the NAV, including the Bid-Ask Price, the 
Creation Basket Deposit, calculation information and data related to 
the premium or discount of the Bid-Ask Price against the NAV. The Web 
site for the Trust will also disseminate the IIV per Share, updated at 
least every 15 seconds, during the Exchange's Core Trading Session. 
Information on gold prices and markets is available on public Web sites 
and through professional and subscription services, and investors may 
obtain on a 24-hour basis gold pricing information based on the spot 
price of an ounce of gold from various financial information service 
providers. Complete real-time data for gold futures contracts and 
options prices traded on the COMEX is available by subscription from 
information services such as Reuters or Bloomberg, and information on 
gold is available from published or other public sources. NYMEX also 
provides delayed futures and options information free of charge.
---------------------------------------------------------------------------

    \25\ 15 U.S.C. 78k-1(a)(1)(C)(iii).
---------------------------------------------------------------------------

    Additionally, the Commission believes that the proposal to list and 
trade the Shares is reasonably designed to promote fair disclosure of 
information that may be necessary to price the Shares appropriately. As 
noted above, the Trust Web site will make available the NAV of the 
Trust as calculated each business day by the Trustee. In addition, NYSE 
Arca Equities Rule 8.201(i) provides that, in connection with trading 
in an underlying physical commodity, related commodity futures or 
options on commodity futures, or any other related commodity 
derivative, including Commodity-Based Trust Shares, an ETP Holder 
acting as a Market Maker (as defined in NYSE Arca Equities Rule 1.1(u)) 
in the Shares is restricted from using any material non-public 
information received from any person associated with such ETP Holder 
regarding trading by such person in the underlying physical commodity, 
related commodity futures or options on commodity futures, or other 
related commodity derivatives.
    The Commission also believes that the Exchange's trading halt rules 
are reasonably designed to prevent trading in the Shares when 
transparency is impaired. NYSE Arca Equities Rule 8.201(e)(2) provides 
that, when the Exchange is the listing market, if the value of the 
underlying commodity or ITV (also known as the IIV) is no longer 
calculated or available on at least a 15-second delayed basis, the 
Exchange would consider suspending trading in the Shares. The Exchange 
has further represented that trading on the Exchange in the Shares may 
be halted because of market conditions or for reasons that, in the view 
of the Exchange, make trading in the Shares inadvisable. These may 
include: (1) The extent to which 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 Shares will be subject to trading halts caused by 
extraordinary market volatility pursuant to the Exchange's ``circuit 
breaker'' rule. NYSE Arca Equities Rule 8.201(e)(2) also provides that 
the Exchange may seek to delist the Shares in the event the value of 
the underlying gold or the ITV is no longer calculated or available as 
required.
    The Commission further believes that the trading rules and 
procedures to which the Shares will be subject pursuant to this 
proposal are consistent with the Act. The Exchange has represented that 
any securities listed pursuant to this proposal will be deemed equity 
securities, and subject to existing Exchange rules governing the 
trading of equity securities.
    In support of this proposal, the Exchange has made representations, 
including:
    (1) The Exchange's surveillance procedures are adequate to deter 
and detect violations of Exchange rules and applicable federal 
securities laws.
    (2) The Exchange will distribute an Information Bulletin, the 
contents of which are more fully described above, to ETP Holders in 
connection with the trading of the Shares.

    This approval order is based on the Exchange's representations.
    The Commission finds good cause, pursuant to Section 19(b)(2) of 
the Act,\26\ for approving the proposed rule change prior to the 30th 
day after the date of publication of notice in the Federal Register. 
The Exchange's proposal to list and trade the Shares does not present 
any novel or significant regulatory issues. Previously, the Commission 
approved two proposals by the Exchange to list and trade shares of 
trusts that hold gold bullion pursuant to NYSE Arca Equities Rule 
8.201.\27\
---------------------------------------------------------------------------

    \26\ 15 U.S.C. 78s(b)(2).
    \27\ See Securities Exchange Act Release Nos. 56041 (July 11, 
2007), 72 FR 39114 (July 17, 2007) (SR-NYSEArca-2007-43) (approving 
listing and trading of shares of the iShares COMEX Gold Trust) and 
56224 (August 8, 2007), 72 FR 45850 (August 15, 2007) (SR-NYSEArca-
2007-76) (approving listing and trading of shares of the 
streetTRACKS Gold Trust).
---------------------------------------------------------------------------

V. Conclusion

    It is therefore ordered, pursuant to Section 19(b)(2) of the 
Act,\28\ that the proposed rule change (SR-NYSEArca-2009-40) be, and it 
hereby is, approved on an accelerated basis.
---------------------------------------------------------------------------

    \28\ 15 U.S.C. 78s(b)(2).

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\29\
---------------------------------------------------------------------------

    \29\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

Florence E. Harmon,
Deputy Secretary.
[FR Doc. E9-11397 Filed 5-14-09; 8:45 am]
BILLING CODE 8010-01-P


</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>