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Overview
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 In
general
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Federal statutes and regulations generally preempt state laws and regulations
with respect to the permissible activities of national banks
- True regardless of
whether those activities are conducted at branches or non-branch facilities such
as loan production offices, deposit production offices, remote service units,
automated teller machines or over the Internet
- Applicability of state laws to national banks and
their operating subsidiariesand the authority to enforce those lawsraise
complex issues of both federal preemption and the statutory authority of the OCC
as the supervisor and regulator of national banks
- Because of the complexity of these issues, national banks
should consult with the OCC if they are contacted by state officials seeking
information that may constitute an attempt to exercise visitorial or enforcement
powers over the bank
- State officials are also encouraged to contact the OCC if
they have information indicating that a national bank may be violating federal
or applicable state law or if they seek information from a national bank
- See
OCC Advisory Letter 2002-9
11.25.02
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Agency
determinations regarding particular actions and services
Agency-specific
preemption regulations
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The OCC has specific regulations and interpretations dealing with
the specific subject of state "Visitation"
of national banks
 FRB
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202.11 Equal Opportunity Laws
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205.12 Electronic Funds Transfers
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213.9 Consumer
leasing
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226 Preemption - Truth in Lending
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229.20 Availability of
funds and collection of checks
FDIC
- There are no FDIC regulations
or interpretations dealing specifically with preemption of
state law
OCC
 12
CFR Part 7 Subpart D - Preemption
- 7.4000
Visitorial powers
- 7.4001 Charging interest at rates permitted
- 7.4002 National bank charges
- 7.4003 Establishment and operation of a remote
service
unit by a national
bank - 7.4004 Establishment and operation of a deposit
production office
by a national bank
- 7.4005 Combination of loan production office,
deposit
production office,
and remote service unit - 7.4006 Applicability of State law to national bank
operating
subsidiaries - 7.4007 Deposit-taking
- 7.4008 Lending
- 7.4009 Applicability of state law to national bank
operations
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12
CFR Part 34.4 - Real Estate Lending & Appraisals -
Applicability of State
Law
OTS
SEC_CODE_REF_0090001192884
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545.2 Operations of Federal Savings Associations
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545.92 Branches of Federal Savings Associations
12
CFR Part 590 - Usury
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590.1 Authority, purpose and scope
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590.2 Definitions
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590.3 Operation
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590.4 Federally-related residential manufactured housing
loans--consumer
protection provisions
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590.100 Status of interpretations issued under
Public Law 96-161
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590.101 State criminal usury statutes
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560.110
Most favored lender usury preemption
NCUA
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Cases
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Fasano
v Federal Reserve Bank of NY
- Federal Reserve Act preempts state
"whistle-blower" laws
- 457 F3d 274 3rd Cir 2006,
cert denied,
2007 US Lexis 100 1.08.07
Watters v Wachovia Bank
- Activities conducted by a national bank's
subsidiary that could have been conducted by the bank itself are subject solely
to the regulation and supervision of the OCC and are outside to scope of a
state's licensing, reporting and visitorial regimes
- 550 US ___ (2007)
Beneficial
National Bank v Anderson
- National Bank Act completely preempts state usury
law claims against nationally chartered, federally insured banks
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123 S
Ct 2058 2003
Johnson
v Bank of Bentonville
- Challenging GLBA regulations
- Avoiding state constitutional provision and
allowing instate banks to charge same interest rates as instate branches of out
of state banks
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122
FSupp 2d 994 WD AK 2000
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Commentary
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