U.S. Code » Title 12 » Chapter CHAPTER 2— NATIONAL BANKS › Subchapter SUBCHAPTER I— ORGANIZATION AND GENERAL PROVISIONS

12 U.S.C. § 43

Interpretations concerning preemption of certain State laws

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(a) Notice and opportunity for comment requiredBefore issuing any opinion letter or interpretive rule, in response to a request or upon the agency’s own motion, that concludes that Federal law preempts the application to a national bank of any State law regarding community reinvestment, consumer protection, fair lending, or the establishment of intrastate branches, or before making a determination under section 36(f)(1)(A)(ii) of this title, the appropriate Federal banking agency (as defined in section 1813 of this title) shall—(1) publish in the Federal Register notice of the preemption or discrimination issue that the agency is considering (including a description of each State law at issue);(2) give interested parties not less than 30 days in which to submit written comments; and(3) in developing the final opinion letter or interpretive rule issued by the agency, or making any determination under section 36(f)(1)(A)(ii) of this title, consider any comments received.(b) Publication requiredThe appropriate Federal banking agency shall publish in the Federal Register—(1) any final opinion letter or interpretive rule concluding that Federal law preempts the application of any State law regarding community reinvestment, consumer protection, fair lending, or establishment of intrastate branches to a national bank; and(2) any determination under section 36(f)(1)(A)(ii) of this title.(c) Exceptions(1) No new issue or significant basisThis section shall not apply with respect to any opinion letter or interpretive rule that—(A) raises issues of Federal preemption of State law that are essentially identical to those previously resolved by the courts or on which the agency has previously issued an opinion letter or interpretive rule; or(B) responds to a request that contains no significant legal basis on which to make a preemption determination.(2) Judicial, legislative, or intragovernmental materials

This section shall not apply with respect to materials prepared for use in judicial proceedings or submission to Congress or a Member of Congress, or for intragovernmental use.

(3) EmergencyThe appropriate Federal banking agency may make exceptions to subsection (a) if—(A) the agency determines in writing that the exception is necessary to avoid a serious and imminent threat to the safety and soundness of any national bank; or(B) the opinion letter or interpretive rule is issued in connection with—(i) an acquisition of 1 or more banks in default or in danger of default (as such terms are defined in section 1813 of this title); or(ii) an acquisition with respect to which the Federal Deposit Insurance Corporation provides assistance under section 1823(c) of this title.(R.S. § 5244, as added Pub. L. 103–328, title I, § 114, Sept. 29, 1994, 108 Stat. 2366.)Editorial NotesCodification

Another R.S. § 5244 is classified to section 8 of Title 33, Navigation and Navigable Waters.

Notes of Decisions
Cited in 13 cases, 2005–2013 · leading case: Watters v. Wachovia Bank, N. A., 550 U.S. 1 (2007).
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Watters v. Wachovia Bank, N. A., 550 U.S. 1 (2007). · cites it 2× “2367 (codified at 12 U.S.C. § 43 (a)). The Riegle-Neal Act requires the OCC to jump through additional procedural hoops (specifically, notice and comment, even for opinion letters and interpretive rules) before "conclud[ing] that Federal law preempts the application to a…”
Ellsworth v. U.S. Bank, N.A., 908 F. Supp. 2d 1063 (N.D. Cal. 2012). · cites it 2× “2005)); see also 12 U.S.C. § 43 ; Watters v. Wachovia Bank, N.”
Smith v. BAC Home Loans Servicing, LP, 769 F. Supp. 2d 1033 (S.D.W. Va 2011). · cites it 2× “12 U.S.C. § 43 (a)(1). As there is no indication that the OCC ever took that step with respect to the WVCCPA provisions implicated here, it is even more doubtful that the OCC's regulation could possibly have any formal preemptive effect.”
Salvador v. Bank of Am., Nat'l Ass'n Ex Rel. Wells Fargo Bank, N.A. (In Re Salvador), 456 B.R. 610 (Bankr. M.D. Ga. 2011). · cites it 2× “Title 12 of the United States Code provides that, after proper notice and an opportunity for comments, the OCC may issue and publish in the Federal Register an opinion letter or interpretive rule that concludes that federal law preempts the application to a national bank any…”
Arevalo v. Bank of Am. Corp., 850 F. Supp. 2d 1008 (N.D. Cal. 2011). · cites it 2× “29, 2008) (citing 12 U.S.C. § 43 (a)). The OCC must (1) “publish in the Federal Register notice of the preemption or discrimination issue that the agency is considering (including a description of each State law at issue),” 12 U.”
Wells Fargo Bank N.A. v. Boutris, 419 F.3d 949 (9th Cir. 2005). · cites it 2× “Indeed, 12 U.S.C. § 43 specifically contemplates that the OCC sometimes has authority to preempt state laws such as those here at issue.”
Wachovia Bank, N.A. v. Burke, 414 F.3d 305 (2d Cir. 2005). “See 12 U.S.C. § 43 . Preemption is always a matter of congressional intent, de la Cuesta, 458 U.”
Hollingworth v. Beneficial Massachusetts, Inc. (In Re Hollingworth), 453 B.R. 32 (Bankr. D. Mass. 2011). “May 12, 2011) (citing 12 U.S.C. § 43 (a), (b), 1813(q)(1)). On August 5, 2003, the OCC issued a Preemption Determination and Order concluding that the Georgia Fair Lending Act (“GAFLA”) provisions affecting national bank real estate lending were preempted by TILA.”
Frykberg v. JPMorgan Chase Bank, Nat'l Ass'n (In re Frykberg), 490 B.R. 652 (1st Cir. BAP 2013). “2011) (citing 12 U.S.C. § 43 (a), (b), 1813(q)(1)). On August 5, 2003, the OCC issued a Preemption Determination and Order concluding that the Georgia Fair Lending Act (“GAFLA”) provisions affecting national bank real estate lending were preempted by TILA.”
Aguayo v. U.S. Bank, 658 F. Supp. 2d 1226 (S.D. Cal. 2009). “2005) (citing 12 U.S.C. § 43 ). OCC regulations carry the same weight as federal statutes when considering questions of state law preemption.”
Bate v. Wells Fargo Bank, N.A. (In Re Bate), 454 B.R. 869 (Bankr. M.D. Fla. 2011). · cites it 2× “Also, the OCC’s interpretive letter was not subject to notice and an opportunity for comment as required by 12 U.S.C. § 43 , and it is far from clear that the OCC was making a preemption determination of state debt collection laws in its letter.”
New Mexico ex rel. King v. Capital One Bank (USA) N.A., 980 F. Supp. 2d 1314 (D.N.M. 2013). “See 12 U.S.C. § 43 ; Wachovia Bank, N.A. v. Burke, 414 F.”
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