[Federal Register Volume 72, Number 44 (Wednesday, March 7, 2007)]
[Notices]
[Pages 10280-10283]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-4038]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-55380; File No. SR-NASDAQ-2007-014]


Self-Regulatory Organizations; The NASDAQ Stock Market LLC; 
Notice of Filing and Order Granting Accelerated Approval of Proposed 
Rule Change Relating to the Trading of the iShares COMEX Gold Trust 
Pursuant to Unlisted Trading Privileges

March 1, 2007.

    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 February 28, 2007, The NASDAQ Stock Market LLC (``Nasdaq'' or 
``Exchange'') filed with the Securities and Exchange Commission 
(``Commission'') the proposed rule change as described in Items I and 
II below, which Items have been substantially prepared by Nasdaq. 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.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    Nasdaq is proposing to trade shares (``Shares'') of the iShares 
COMEX Gold Trust (``Trust'') pursuant to unlisted trading privileges 
(``UTP''). The text of the proposed rule change is available from 
Nasdaq's Web site at nasdaq.complinet.com, at Nasdaq'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, Nasdaq included statements 
concerning the purpose of, and basis for, the proposed rule change and 
discussed any comments it received on the proposed rule change. The 
text of these statements may be examined at the places specified in 
Item III below. The Exchange has prepared summaries, set forth in 
Sections A, B, and C below, of the most significant aspects of such 
statements.

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

1. Purpose
    Nasdaq is proposing to trade the Shares on a UTP basis. Nasdaq is 
submitting this filing because its current listing standards do not 
extend to the Shares. However, systems operated by Nasdaq and its 
affiliates currently trade the Shares on an over-the-counter basis as 
facilities of NASD. This filing will allow Nasdaq to trade the Shares 
as an exchange.
    The Shares represent units of fractional undivided beneficial 
interest in and ownership of the Trust. The purpose of the Trust is to 
hold gold bullion, and the investment objective of the Trust is for the 
Shares to reflect the performance of the price of gold, less the 
Trust's expenses. The Trust is not an investment company under the 
Investment Company Act of 1940.
    The Commission previously approved the listing and trading of the 
Shares on the American Stock Exchange LLC (``Amex'').\3\ Nasdaq deems 
the Shares to be equity securities, thus rendering trading in the 
Shares subject to Nasdaq's existing rules governing the trading of 
equity securities, including Nasdaq Rule 4630.\4\ The trading hours for 
the Shares

[[Page 10281]]

on Nasdaq would be 9:30 a.m. to 4 p.m. Eastern Time (``ET'').
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    \3\ See Securities Exchange Act Release No. 51058 (January 19, 
2005), 70 FR 3749 (January 26, 2005) (SR-Amex-2004-38).
    \4\ On November 16, 2006, the Commission approved a rule filing 
by Nasdaq to adopt Rule 4630, which governs the trading of and 
surveillance procedures applicable to Commodity-Based Trust Shares. 
See Securities Exchange Act Release No. 54765 (November 16, 2006), 
71 FR 67668 (November 22, 2006) (SR-NASDAQ-2006-009). Because gold 
is included within the rule's definition of a commodity, Rule 4630 
is applicable to the Shares.
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    Shares are issued only in baskets of 50,000 shares or multiples 
thereof (such aggregation referred to as the ``Basket Aggregation'' or 
``Basket''). The Trust issues and redeems the Shares on a continuous 
basis, by or through participants that have entered into participant 
agreements (each, an ``Authorized Participant'') \5\ at the net asset 
value (``NAV'') \6\ per Share next determined after an order to 
purchase or redeem Shares in a Basket Aggregation is received in proper 
form. Authorized Participants are the only persons that may place 
orders to create and redeem Baskets. Authorized Participants purchasing 
Baskets are able to separate a Basket into individual Shares for 
resale.
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    \5\ An ``Authorized Participant'' is a person, who at the time 
of submitting to the trustee an order to create or redeem one or 
more Baskets: (a) Is a registered broker-dealer, (b) is a Depository 
Trust Company (``DTC'') Participant or Indirect Participant, and (c) 
has in effect a valid Authorized Participant Agreement.
    \6\ The Bank of New York, as trustee of the Trust (the 
``Trustee'') calculates the NAV by multiplying the fine ounces of 
gold held by the Trust (after gold has been sold for that day to pay 
that day's fees and expenses of the Trust) by the daily settlement 
value of the COMEX spot month gold futures contract.
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    Basket Aggregations are issued in exchange for a corresponding 
amount of gold, measured in fine ounces (the ``Basket Gold Amount''). 
The Basket Gold Amount is determined at or about 4 p.m. ET each 
business day by the Trustee.\7\ On each day that Amex is open for 
regular trading, the Trustee adjusts the quantity of gold constituting 
the Basket Gold Amount as appropriate to reflect sales of gold, any 
loss of gold that may occur, and accrued expenses. The Trustee 
determines the Basket Gold Amount for a given business day by 
multiplying the NAV for each Share by the number of Shares in each 
Basket (50,000) and dividing the resulting product by that day's COMEX 
settlement price for the spot month gold futures contract. Authorized 
Participants that submitted an order prior to 4 p.m. ET to purchase a 
Basket must transfer the Basket Gold Amount to the Trust in exchange 
for a Basket.
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    \7\ At the same time, the Trustee determines an ``Indicative 
Basket Gold Amount'' that Authorized Participants can use as an 
indicative amount of gold to be deposited for issuance of the Shares 
on the next business day. The Trustee disseminates daily the 
Indicative Basket Gold Amount on the Trust's Web site (http://www.ishares.com). Because the creation/redemption process is based 
entirely on the physical delivery of gold (and does not contemplate 
a cash component), the actual number of fine ounces required for the 
Indicative Basket Gold Amount does not change intraday, even though 
the value may change based on the market price of gold.
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    Quotations for and last sale information regarding the Shares are 
disseminated through the Consolidated Tape System. The Web site for the 
Trust at http://www.ishares.com, which is publicly accessible at no 
charge, contains the following information about the Shares: (a) The 
prior business day's NAV, Basket Gold Amount, the reported closing 
price, and the present day's Indicative Basket Gold Amount; (b) the 
mid-point of the bid-ask price in relation to the NAV as of the time 
the NAV is calculated (the ``Bid-Ask Price''); (c) calculation of the 
premium or discount of such price against such NAV; (d) data in chart 
form 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; (e) the Prospectus; and (f) 
other applicable quantitative information, such as expense ratios, 
trading volumes, and the total return of the Shares. Nasdaq will 
provide a hyperlink from its Web site (http://www.nasdaq.com) to the 
Trust's Web site.
    Nasdaq will also provide a hyperlink on its Web site to the Amex 
Web site at http://www.amex.com, on which Amex will make available 
daily trading volume, closing prices, and the NAV from the previous day 
for the Shares. Amex also disseminates during regular Amex trading 
hours from 9:30 a.m. to 4:15 p.m. ET through the facilities of the 
Consolidated Tape Association (``CTA'') the last sale price for the 
Shares on a real-time basis. In addition, Amex disseminates each day 
the prior day's NAV and shares outstanding through the facilities of 
the CTA. Amex also disseminates the Indicative Trust Value on a per-
Share basis every 15 seconds through the facilities of the CTA during 
regular Amex trading hours of 9:30 a.m. to 4:15 p.m. ET.\8\ Shortly 
after 4 p.m. ET each business day, the Trustee, Amex, and the sponsor 
of the Trust will disseminate the NAV for the Shares, the Basket Gold 
Amount (for orders placed during the day), and the Indicative Basket 
Gold Amount (for use by Authorized Participants contemplating placing 
orders the following business day). The Basket Gold Amount, the 
Indicative Basket Gold Amount, and the NAV are communicated by the 
Trustee to all Authorized Participants via facsimile or electronic mail 
and will be available on the Trust's Web site at http://www.ishares.com.
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    \8\ The Indicative Trust Value is calculated based on the 
estimated amount of gold required for creations and redemptions on 
that day (e.g., Indicative Basket Gold Amount) and a price of gold 
derived from the most recently reported trade price in the active 
gold futures contract. The prices reported for the active contract 
month will be adjusted based on the prior day's spread differential 
between settlement values for that contract and the spot month 
contract. In the event that the spot month contract is also the 
active contract, the last sale price for the active contract will 
not be adjusted. The Indicative Trust Value will not reflect changes 
to the price of gold between the close of trading at the COMEX, 
typically 1:30 p.m. ET, and the open of trading on the NYMEX ACCESS 
market at 2 p.m. ET. While the market for the gold futures is open 
for trading, the Indicative Trust Value can be expected to closely 
approximate the value per share of the Indicative Basket Gold 
Amount. The Indicative Trust Value on a per-Share basis disseminated 
during Amex trading hours should not be viewed as a real-time update 
of the NAV, which is calculated only once a day.
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    The Trust's Web site also provides at no charge continuously 
updated bids and offers indicative of the spot price of gold.\9\ 
Complete real-time data for gold futures and options prices traded on 
the COMEX is available by subscription from Reuters and Bloomberg. The 
closing price and settlement prices of the COMEX gold futures contracts 
are publicly available from the NYMEX at http://www.nymex.com, 
automated quotation systems, published or other public sources, or on-
line information services such as Bloomberg or Reuters. NYMEX also 
provides delayed futures and options information on current and past 
trading sessions and market news free of charge on its Web site.
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    \9\ The Trust's Web site's gold spot price is provided by The 
Bullion Desk (http://thebulliondesk.com), which is not affiliated 
with Amex, the Trust, the Trustee, or the sponsor of the Trust.
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    Nasdaq will halt trading in the Shares under the conditions 
specified in Nasdaq Rules 4120 and 4121. The conditions for a halt 
include a regulatory halt by the listing market. UTP trading in the 
Shares will also be governed by provisions of Nasdaq Rule 4120(b) 
relating to temporary interruptions in the calculation or wide 
dissemination of the Indicative Trust Value (which is comparable to the 
intraday indicative value or the intraday optimized portfolio value of 
an ETF) or the value of the underlying COMEX gold futures contract. 
Additionally, Nasdaq may cease trading the Shares if other unusual 
conditions or circumstances exist which, in the opinion of Nasdaq, make 
further dealings on Nasdaq detrimental to the maintenance of a fair and 
orderly market. Nasdaq will also follow any procedures with respect to 
trading halts as set forth in Nasdaq Rule 4120(c).

[[Page 10282]]

Finally, Nasdaq will stop trading the Shares if the listing market 
delists them.
    Nasdaq believes that its surveillance procedures are adequate to 
address any concerns about the trading of the Shares on Nasdaq. Trading 
of the Shares through NASD facilities operated by Nasdaq is currently 
subject to NASD's surveillance procedures for equity securities in 
general and ETFs in particular. After Nasdaq begins to trade the Shares 
as an exchange, the NASD, on behalf of Nasdaq, will continue to surveil 
Nasdaq trading, including Nasdaq trading of the Shares. Nasdaq's 
transition to exchange status will not result in any change in the 
surveillance process with respect to the Shares.\10\
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    \10\ Surveillance of all trading on NASD facilities operated by 
Nasdaq, including the trading of the Shares, is currently being 
conducted by NASD. After Nasdaq begins to trade the Shares as an 
exchange, NASD will continue to surveil trading pursuant to a 
regulatory services agreement. Nasdaq is responsible for NASD's 
performance under this regulatory services agreement.
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    Nasdaq is able to obtain information regarding trading in the 
Shares and the underlying COMEX gold futures contract through its 
members in connection with the proprietary or customer trades that such 
members effect on any relevant market. In addition, Nasdaq has entered 
into an Information Sharing Agreement with NYMEX for the purpose of 
providing information in connection with trading in or related to COMEX 
gold futures contracts.
    Nasdaq will distribute an Information Circular to its members in 
connection with the trading of the Shares. The Information Circular 
will discuss the special characteristics and risks of trading this type 
of security. Specifically, the Information Circular, among other 
things, will discuss what the Shares are, how a basket is created and 
redeemed, the requirement that members deliver a prospectus to 
investors purchasing the Shares prior to or concurrently with the 
confirmation of a transaction, applicable Nasdaq rules, dissemination 
information regarding the per-share Indicative Trust Value, and trading 
information. The Information Circular will also explain that the Gold 
Trust is subject to various fees and expenses described in the 
Registration Statement and that the number of ounces of gold required 
to create a basket or to be delivered upon redemption of a basket will 
gradually decrease over time because the Shares comprising a basket 
will represent a decreasing amount of gold due to the sale of the 
Trust's gold to pay Trust expenses. The Information Circular will also 
reference the fact that there is no regulated source of last-sale 
information regarding physical gold and that the Commission has no 
jurisdiction over the trading of gold as a physical commodity.
    The Information Circular will also notify members about the 
procedures for purchases and redemptions of Shares in baskets and that 
Shares are not individually redeemable but are redeemable only in 
basket-size aggregations or multiples thereof. The Information Circular 
will advise members of their suitability obligations under Nasdaq Rule 
2310 with respect to recommended transactions to customers in Shares. 
The Information Circular will also discuss any relief granted by the 
Commission or the staff from any rules under the Act. Finally, the 
Information Circular will disclose that the NAV for Shares will be 
disseminated shortly after 4 p.m. ET each trading day based on the 
COMEX daily settlement value, which is disseminated shortly after 1:30 
p.m. ET each trading day.
2. Statutory Basis
    Nasdaq believes that the proposal is consistent with Section 6(b) 
of the Act \11\ in general and Section 6(b)(5) of the Act \12\ in 
particular, in that in that it is designed to prevent fraudulent and 
manipulative acts and practices, to promote just and equitable 
principles of trade, remove impediments to a free and open market and a 
national market system, and, in general, to protect investors and the 
public interest. In addition, Nasdaq believes that the proposal is 
consistent with Rule 12f-5 under the Act \13\ because it deems the 
Shares to be an equity securities, thus rendering trading in the Shares 
subject to Nasdaq's existing rules governing the trading of equity 
securities.
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    \11\ 15 U.S.C. 78f(b).
    \12\ 15 U.S.C. 78f(b)(5).
    \13\ 17 CFR 240.12f-5.
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B. Self-Regulatory Organization's Statement on Burden on Competition

    Nasdaq 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

    Written comments on the proposed rule change were neither solicited 
nor received.

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 [email protected]. Please include 
File Number SR-NASDAQ-2007-014 on the subject line.

Paper Comments

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

All submissions should refer to File Number SR-NASDAQ-2007-014. 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. Copies of such 
filing also will be available for inspection and copying at the 
principal offices of Nasdaq. All comments received will be posted 
without change; the Commission does not edit personal identifying 
information from submissions. You should submit only information that 
you wish to make available publicly. All submissions should refer to 
File Number SR-NASDAQ-2007-014 and should be submitted on or before 
March 28, 2007.

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

    After careful review, 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

[[Page 10283]]

securities exchange.\14\ In particular, the Commission finds that the 
proposed rule change is consistent with Section 6(b)(5) of the Act,\15\ 
which requires that an exchange have rules designed, among other 
things, to promote just and equitable principles of trade, to remove 
impediments to and perfect the mechanism of a free and open market and 
a national market system, and in general to protect investors and the 
public interest. The Commission believes that this proposal should 
benefit investors by increasing competition among markets that trade 
the Shares.
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    \14\ 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).
    \15\ 15 U.S.C. 78f(b)(5).
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    In addition, the Commission finds that the proposal is consistent 
with Section 12(f) of the Act,\16\ which permits an exchange to trade, 
pursuant to UTP, a security that is listed and registered on another 
exchange.\17\ The Commission notes that it previously approved the 
listing and trading of the Shares on Amex and NYSE Arca, Inc.\18\ The 
Commission also finds that the proposal is consistent with Rule 12f-5 
under the Act,\19\ which provides that an exchange shall not extend UTP 
to a security unless the exchange has in effect a rule or rules 
providing for transactions in the class or type of security to which 
the exchange extends UTP. The Exchange has represented that it meets 
this requirement because it deems the Shares to be equity securities, 
thus rendering trading in the Shares subject to the Exchange's existing 
rules governing the trading of equity securities.
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    \16\ 15 U.S.C. 78l(f).
    \17\ Section 12(a) of the Act, 15 U.S.C. 78l(a), generally 
prohibits a broker-dealer from trading a security on a national 
securities exchange unless the security is registered on that 
exchange pursuant to Section 12 of the Act. Section 12(f) of the Act 
excludes from this restriction trading in any security to which an 
exchange ``extends UTP.'' When an exchange extends UTP to a 
security, it allows its members to trade the security as if it were 
listed and registered on the exchange even though it is not so 
listed and registered.
    \18\ See supra note 3 and Securities Exchange Act Release No. 
51067 (January 21, 2005), 70 FR 3952 (January 27, 2005) (SR-PCX-
2004-132).
    \19\ 17 CFR 240.12f-5.
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    The Commission further believes that the proposal is consistent 
with Section 11A(a)(1)(C)(iii) of the Act,\20\ 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. Quotations for and last sale information regarding the 
Shares is disseminated through the Consolidated Tape System. The 
Commission notes that there is a considerable amount of gold price and 
gold market information available 24 hours per day on public Web sites 
and through professional and subscription services, and the Exchange 
will link to the Amex and Trust Web sites, which provide trading 
information about the Shares. Furthermore, Amex disseminates the 
Indicative Trust Value on a per-Share basis every 15 seconds through 
the facilities of the CTA during regular Amex trading hours of 9:30 
a.m. to 4:15 p.m. ET (except between 1:30 p.m. and 2 p.m., the time 
from the close of regular trading of the COMEX gold futures contract 
and the start of trading of COMEX gold futures contracts on NYMEX 
ACCESS). The Commission also notes that the Trust's Web site is 
publicly accessible at no charge and will contain the NAV of the Shares 
and the Basket Gold Amount as of the prior business day, the Bid-Ask 
Price, and a calculation of the premium or discount of the Bid-Ask 
Price in relation to the closing NAV. Additionally, the Trust's Web 
site will also provide data in chart form 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 Prospectus; and other applicable quantitative 
information. If Amex halts trading in the Shares, or the Indicative 
Trust Value or the value of the underlying COMEX gold futures contract 
is not being calculated or disseminated, the Exchange would halt 
trading in the Shares.
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    \20\ 15 U.S.C. 78k-1(a)(1)(C)(iii).
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    The Commission notes that, if the Shares should be delisted by the 
listing exchange, the Exchange would no longer have authority to trade 
the Shares pursuant to this order.
    In support of this proposal, the Exchange has made the following 
representations:
    (1) The Exchange's surveillance procedures are adequate to address 
any concerns associated with the trading of the Shares on a UTP basis.
    (2) The Exchange would inform its members in an Information 
Circular of the special characteristics and risks associated with 
trading the Shares, including suitability recommendation requirements.
    (3) The Exchange would require its members to deliver a prospectus 
or product description to investors purchasing Shares prior to or 
concurrently with a transaction in such Shares and will note this 
prospectus delivery requirement in the Information Circular.
    This approval order is conditioned on the Exchange's adherence to 
these representations.
    The Commission finds good cause for approving this proposal before 
the thirtieth day after the publication of notice thereof in the 
Federal Register. As noted above, the Commission previously found that 
the listing and trading of the Shares on Amex and NYSE Arca is 
consistent with the Act. The Commission presently is not aware of any 
regulatory issue that should cause it to revisit those findings or 
would preclude the trading of the Shares on the Exchange pursuant to 
UTP. Furthermore, accelerated approval of this proposal will facilitate 
Nasdaq's ability to continue trading these securities as Nasdaq becomes 
an exchange with respect to non-Nasdaq-listed securities, where there 
appears to be no regulatory concerns about such trading. Therefore, 
accelerating approval of this proposal should benefit investors by 
creating, without undue delay, additional competition in the market for 
such Shares.

V. Conclusion

    It is therefore ordered, pursuant to Section 19(b)(2) of the 
Act,\21\ that the proposed rule change (SR-NASDAQ-2007-014), be, and it 
hereby is, approved on an accelerated basis.
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    \21\ 15 U.S.C. 78s(b)(2).

    For the Commission, by the Division of Market Regulation, 
pursuant to delegated authority.\22\
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    \22\ 17 CFR 200.30-3(a)(12).
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Florence E. Harmon,
Deputy Secretary.
[FR Doc. E7-4038 Filed 3-6-07; 8:45 am]
BILLING CODE 8010-01-P