[Federal Register Volume 74, Number 229 (Tuesday, December 1, 2009)]
[Rules and Regulations]
[Pages 62687-62688]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-28746]


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FEDERAL RESERVE SYSTEM

12 CFR Part 233

[Regulation GG; Docket No. R-1298]

DEPARTMENT OF THE TREASURY

31 CFR Part 132

RIN 1505-AB78


Prohibition on Funding of Unlawful Internet Gambling

AGENCIES: Board of Governors of the Federal Reserve System and 
Departmental Offices, Department of the Treasury.

ACTION: Final rule; extension of compliance date.

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SUMMARY: This document is published jointly by the Board of Governors 
of the Federal Reserve System (``Board'') and Departmental Offices, 
Department of the Treasury (``Treasury'') (collectively, the 
``Agencies'') to extend the compliance date for the final regulation 
implementing applicable provisions of the Unlawful Internet Gambling 
Enforcement Act of 2006 (the ``Act'').\1\ The final regulation requires 
non-exempt participants in designated payment systems to establish and 
implement written policies and procedures that are reasonably designed 
to identify and block or otherwise prevent or prohibit unlawful 
Internet gambling transactions restricted by the Act. In extending the 
compliance date, the Agencies have consulted with the Department of 
Justice, as required by the Act.
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    \1\ The final regulation adopted by the Board is Regulation GG 
(12 CFR Part 233) and the final regulation adopted by the Treasury 
is codified in 31 CFR Part 132. Regulation GG and 31 CFR Part 132 
duplicate one another.

DATES: The effective date of the final regulation published November 
18, 2008 (73 FR 69382) remains January 19, 2009. The compliance date of 
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the final regulation is extended from December 1, 2009 to June 1, 2010.

FOR FURTHER INFORMATION CONTACT:
    Board: Christopher W. Clubb, Senior Counsel (202/452-3904), Legal 
Division; Jeffrey S. Yeganeh, Manager, or Joseph Baressi, Financial 
Services Project Leader (202/452-3959), Division of Reserve Bank 
Operations and Payment Systems; for users of Telecommunication Devices 
for the Deaf (TDD) only, contact 202/263-4869.
    Treasury: Charles Klingman, Director, Office of Critical 
Infrastructure Protection and Compliance Policy; or Steven D. Laughton, 
Senior Counsel, Office of the Assistant General Counsel (Banking & 
Finance), 202/622-9209.

SUPPLEMENTARY INFORMATION:

 I. Summary

    On November 18, 2008, the Agencies issued a joint final regulation 
implementing the Act.\2\ Among other things, the final regulation 
designates payment systems that could be utilized in connection with or 
to facilitate unlawful Internet gambling transactions restricted by the 
Act; exempts certain participants in designated payment systems; 
requires non-exempt participants in designated payment systems to 
establish policies and procedures reasonably designed to identify and 
block or otherwise prevent or prohibit unlawful Internet gambling 
transactions restricted by the Act; and identifies types of policies 
and procedures (including non-exclusive examples) that would be deemed 
to be reasonably designed to identify and block or otherwise prevent or 
prohibit unlawful Internet gambling transactions restricted by the Act. 
The final regulation established an effective date of January 19, 2009 
and a compliance date of December 1, 2009.
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    \2\ 73 FR 69382 (Nov. 18, 2008).
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    By letter dated September 18, 2009, the Agencies received a 
petition requesting an extension of the compliance date of the final 
regulation for an additional twelve months to December 1, 2010.\3\ The 
petitioners assert that an extension of the compliance date is 
necessary because a significant number of regulated entities will not 
have in place the necessary policies and procedures by the current 
December 1, 2009 compliance date. Petitioners assert that many small 
regulated entities do not have the resources necessary to develop and 
implement appropriate policies and procedures by the December 1, 2009 
compliance date and cite the possibility of confusion regarding the 
term ``unlawful Internet gambling.''
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    \3\ The petition was submitted on behalf of three gambling 
industry associations; specifically, the Poker Players Alliance, the 
National Thoroughbred Racing Association, and the American Greyhound 
Track Owners Association.
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    The Agencies have received letters in support of the petition from 
regulated financial institutions, associations representing regulated 
financial institutions, and members of Congress.\4\ Some of these 
commenters assert that the compliance date of December 1, 2009 will not 
be achievable for many regulated entities despite their good-

[[Page 62688]]

faith efforts to achieve full compliance. Commenters expressed concern 
that the Act and the final regulation do not provide a clear definition 
of ``unlawful Internet gambling,'' which is central to compliance.\5\ 
In addition, certain members of Congress acknowledged that the Act does 
not contain a clear definition of ``unlawful Internet gambling'' and 
expressed an intent to consider legislation that would allow 
problematic aspects of the Act to be addressed.\6\ Several of these 
members of Congress stated that there is considerable interest in 
Congress in clarifying the laws underlying Internet gambling, and that 
it would be prudent to defer the compliance date until Congress has had 
time to act. The Agencies have also received letters opposing the 
petition citing, among other things, the speculative nature of the 
problems raised by petitioners, the associations and other interest 
groups.\7\ All of the opposition letters are from members of 
Congress.\8\
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    \4\ See, e.g., letters from Wells Fargo (Oct. 21, 2009); the 
American Bankers Association (Nov. 4, 2009); the Credit Union 
National Association (Oct. 5, 2009); the National Association of 
Federal Credit Unions (Nov. 9, 2009); and members of Congress (Rep. 
Frank et al.) (Oct. 1, 2009).
    \5\ See, e.g., letter from the Independent Community Bankers of 
America (Nov. 5, 2009), p. 1.
    \6\ See, e.g., letter from Senator Reid (Nov. 9, 2009); letter 
from Chairman Frank, House Committee on Financial Services (Oct. 1, 
2009); and letter from Reps. Cohen, Berkley et al. (Sept. 25, 2009).
    \7\ See, e.g., letter from Senator Kyl and Representative Bachus 
(Nov. 3, 2009).
    \8\ The petition and comment letters are available for public 
inspection and copying in the Treasury Library, Room 1428, Main 
Treasury Building, 1500 Pennsylvania Avenue, NW., Washington, DC. 
You can make an appointment to inspect the petition and the comments 
by calling (202) 622-0990. The petition and comment letters are 
available from the Board's Web site at http://www.federalreserve.gov/generalinfo/foia/index.cfm?doc_id=R%2D1298&doc_ver=1.
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    While the final regulation affords regulated entities maximum 
flexibility in establishing and implementing policies and procedures 
that are reasonably designed to prevent or prohibit unlawful Internet 
gambling transactions restricted by the Act, the Agencies acknowledge 
some of the challenges regulated entities are experiencing with the 
Act's definition of ``unlawful Internet gambling.'' \9\ Moreover, as 
noted above, several members of Congress have indicated interest in 
revising the Act.
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    \9\ In the final regulation, the Agencies address the desire for 
more certainty that would result from a precise regulatory 
definition of ``unlawful Internet gambling'' through the due 
diligence guidance contained in section ------.6(b) of the final 
regulation. See 73 FR 69382, 69384 (Nov. 18, 2008).
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    The Agencies are thus persuaded that a limited extension of the 
compliance date for regulated entities is appropriate. While 
representations made by the associations whose members are required to 
comply with the final regulation and thus are in a position to assess 
the level of difficulty and burden in achieving compliance by the 
December 1, 2009, compliance date indicate that compliance is not 
achievable by some institutions by December 1, 2009, neither 
petitioners nor commenters supporting the petition have provided the 
Agencies with sufficient data or documentation to justify a twelve 
month extension of the compliance date. The Agencies believe that a six 
month extension is sufficient for regulated entities to address issues 
related to the definition of ``unlawful Internet gambling.'' For 
example, section -- . 6(b) of the final regulation makes it clear that 
non-exempt participants may rely on documentation provided by a 
commercial customer regarding the legality of Internet gambling 
activities. This shifting of the burden will enhance the ability of 
regulated entities to comply with the challenging definition of 
``unlawful Internet gambling'' contained in the Act and the final 
regulation. In particular, the six month extension of the compliance 
period will facilitate the establishment of policies and procedures 
that require gambling businesses to document the legality of their 
activities to regulated entities. Accordingly, the compliance date for 
the final regulation is extended to June 1, 2010.\10\ The final 
regulation's effective date of January 19, 2009 remains unchanged.
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    \10\ Regulated entities may establish and implement the written 
policies and procedures required by the Act and the final regulation 
before the June 1, 2010 compliance date.
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II. Administrative Law Matters

A. Executive Order 12866

    It has been determined that this final rule is not a significant 
regulatory action as defined in Executive Order 12866. Therefore, a 
Regulatory Assessment is not required.

B. Regulatory Flexibility Act

    Because no notice of proposed rulemaking is required for this final 
rule, the provisions of the Regulatory Flexibility Act (5 U.S.C. 601 et 
seq.) do not apply.

C. Administrative Procedure Act

    The Agencies find that, for good cause and the reasons cited above, 
including the brief length of the extension we are granting, notice and 
solicitation of comment regarding the extension of the compliance date 
for the final regulation are impracticable, unnecessary, or contrary to 
the public interest.\11\ In this regard, the Agencies also believe that 
regulated entities need to be informed as soon as possible of the 
extension and its length in order to plan and adjust their 
implementation process accordingly. The change to the compliance date 
is effective upon publication in the Federal Register.\12\
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    \11\ See Section 553(b)(3)(B) of the Administrative Procedure 
Act (5 U.S.C. 553(b)(3)(B)) (hereinafter ``APA'') (an agency may 
dispense with prior notice and comment when it finds, for good 
cause, that notice and comment are ``impracticable, unnecessary, or 
contrary to the public interest.'').
    \12\ This date is less than 30 days after publication in the 
Federal Register, in accordance with the APA, which allows 
effectiveness in less than 30 days after publication for ``good 
cause.'' See 5 U.S.C. 553(d)(3). The legislative history of Section 
553(d)(3) indicates that its primary purpose was to afford persons 
affected a reasonable time to prepare for the effective date of a 
rule. The Agencies believe that there is good cause for dispensing 
with the 30 day delayed effective date because the immediate 
extension of the compliance date will have the beneficial effect of 
affording regulated entities additional preparation time.
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D. Unfunded Mandates Reform Act (Sec. 202, Pub. L. 104-4; 2 U.S.C. 
1532)

    Treasury has concluded the extension of the compliance date does 
not contain a Federal mandate that may result in the expenditure by 
State, local and Tribal governments, in aggregate, or by the private 
sector, of $100 million or more (adjusted for inflation) in any one 
year.

E. Plain Language

    Each Federal banking agency, such as the Board, is required to use 
plain language in all proposed and final rulemakings published after 
January 1, 2000. 12 U.S.C. 4809. In addition, in 1998, the President 
issued a memorandum directing each agency in the Executive branch, such 
as Treasury, to use plain language for all new proposed and final 
rulemaking documents issued on or after January 1, 1999. The Agencies 
have sought to present this final rule, to the extent possible, in a 
simple and straightforward manner.

    By order of the Board of Governors of the Federal Reserve 
System, November 25, 2009.
Jennifer J. Johnson,
Secretary of the Board.

    Dated: November 24, 2009.

    By the Department of the Treasury.
Michael S. Barr,
Assistant Secretary for Financial Institutions.
[FR Doc. E9-28746 Filed 11-27-09; 8:45 am]
BILLING CODE 6210-01-P; 4810-25-P