Federal Register / Vol. 74, No. 93 / Friday, May 15, 2009 / Notices 22993 

6 17 CFR 200.30–3(a)(12). 

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

2 17 CFR 240.19b–4. 

3Commodity-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. 4See 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). 5See 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). 6See 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). 7See 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)). 8See 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). 

9See 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. 

10The 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. 

11The 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. 

12With 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). 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.6

Florence E. Harmon, 

Deputy Secretary. 

[FR Doc. E9–11360 Filed 5–14–09; 8:45 am] 

BILLING CODE 8010–01–P 

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. 

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

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

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

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

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 exchangetraded futures and options. The OTC 

market trades on a 24-hour per day 

continuous basis and accounts for most 

global gold trading. 

22994 Federal Register / Vol. 74, No. 93 / Friday, May 15, 2009 / Notices 

13Terms relating to the Trust and the Shares 

referred to, but not defined, herein are defined in 

the Registration Statement. 

Market makers, as well as others in 

the OTC market, trade with each other 

and with their clients on a principal-toprincipal 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 marketmaking 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), Socie ́te ́ Ge ́ne ́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 openoutcry meeting place.13

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., Socie ́te ́ Ge ́ne ́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 

Federal Register / Vol. 74, No. 93 / Friday, May 15, 2009 / Notices 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 UKbased 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 

22996 Federal Register / Vol. 74, No. 93 / Friday, May 15, 2009 / Notices 

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 nonrefundable 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. 

Federal Register / Vol. 74, No. 93 / Friday, May 15, 2009 / Notices 22997 

14The 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. 

15See e-mail from Tim Malinowski, Director, 

NYSE Euronext, to Christopher W. Chow, Special 

Counsel, Commission, dated May 7, 2009 (‘‘Email’’). 

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

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. 

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 

22998 Federal Register / Vol. 74, No. 93 / Friday, May 15, 2009 / Notices 

16See E-mail, supra note 15. 

17See 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. 

18The 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. 

19See NYSE Arca Equities Rule 7.12. 

20A 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. 

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. 

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

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. 

Information Bulletin 

Prior to the commencement of 

trading, the Exchange will inform its 

ETP Holders in an Information Bulletin 

Federal Register / Vol. 74, No. 93 / Friday, May 15, 2009 / Notices 22999 

21 15 U.S.C. 78f(b). 

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

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). 

25 15 U.S.C. 78k–1(a)(1)(C)(iii). 

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. 

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 

• 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–2009–40 on the 

subject line. 

Paper Comments 

• 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. 

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 

23000 Federal Register / Vol. 74, No. 93 / Friday, May 15, 2009 / Notices 

26 15 U.S.C. 78s(b)(2). 

27See 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). 

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

29 17 CFR 200.30–3(a)(12). 

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

2 17 CFR 240.19b–4. 

3Changes are marked to the rule text that appears 

in the electronic manual of Nasdaq found at 

http://nasdaqomxbx.cchwallstreet.com. 

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. 

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

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. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.29

Florence E. Harmon, 

Deputy Secretary. 

[FR Doc. E9–11397 Filed 5–14–09; 8:45 am] 

BILLING CODE 8010–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–59894; File No. SR–BX– 

2009–023] 

Self-Regulatory Organizations; 

NASDAQ OMX BX, Inc.; Notice of Filing 

and Immediate Effectiveness of 

Proposed Rule Change To Temporarily 

Implement a Cap on Certain Fees for 

Members 

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, NASDAQ OMX BX, Inc. (‘‘BX’’ or 

‘‘Exchange’’) 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 Exchange. The 

Commission is publishing this notice to 

solicit comments on the proposed rule 

from interested persons. 

I. Self-Regulatory Organization’s 

Statement of the Terms of the Substance 

of the Proposed Rule Change 

BX proposes to adopt a temporary cap 

on fees charged for OUCH ports to the 

Equities Market. The text of the 

proposed rule change is below. 

Proposed new language is in italics.3

* * * * * 

7015. Access Services. 

The following charges are assessed by 

the Exchange for ports to establish 

connectivity to the NASDAQ OMX BX 

Equities Market, as well as ports to