The OCC issued a final rule implementing several Dodd-Frank provisions, including revisions to its preemption and visitorial powers regulations. The OCC’s final rule codifies its view that Dodd-Frank did not create a new “prevents or significantly interferes” preemption standard, and instead adopts the broader conflict preemption standard and all of the supporting reasoning applying that standard in Barnett Bank. The OCC refused calls to repeal the regulations, rejecting arguments that the regulations applied a field preemption standard and that the Dodd-Frank requirement of case-by-case preemption determinations applied to regulations issued long before the Act’s effective date.
The OCC adopted its proposal to eliminate the “obstruct, impair, or condition” language from the regulations. In doing so, the OCC reconsidered its position concerning precedent relying on this standard, explaining cases that relied exclusively on that phrase “would need to be reexamined” to ensure the ruling was consistent with the conflict preemption analysis.
The final rule also implements the Dodd- Frank provisions making federal thrifts subject to national bank preemption standards, including the OCC regulations.