The OCC has issued a proposed rule implementing several provisions of the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank Act”), including changes to preemption standards for national banks and federal savings associations, and changes to the OCC’s visitorial authority. The proposed rule announced on May 25 would eliminate preemption for national bank operating subsidiaries consistent with Dodd-Frank Act requirements and remove language from OCC rules that provides that state laws that “obstruct, impair or condition” a national bank’s powers are preempted. The proposal would also revise the OCC’s visitorial powers rule to conform to the holding of a recent Supreme Court decision, and would apply national bank preemption standards to federal savings associations and their subsidiaries. The proposed rule would also make a number of other changes needed to facilitate the regulatory transition of the examination, supervision and regulation of federal savings associations from the OTS to the OCC. Comments on the proposed rule are due by June 27, 2011.

Nutter Notes: Separately, the OCC issued a legal interpretation on May 12 that addresses how the OCC would interpret particular aspects of the preemption provisions of the Dodd-Frank Act and which existing judicial decisions, interpretations and OCC rules are preserved by the Dodd-Frank Act. The interpretation (OCC Interpretive Letter No. 1132) responds to questions about the Dodd-Frank Act preemption provisions posed by Senators Thomas R. Carper and Mark Warner, who authored the preemption provisions that were included in the Senate version of the bill that became the Dodd-Frank Act. The Senators specifically asked the OCC to provide more information about how it would interpret the provision of the new law that incorporates the standard for preemption articulated in the Supreme Court’s decision in Barnett Bank of Marion County, N.A. v. Nelson. According to the OCC interpretation, the OCC takes the view that the provision is a directive to apply the “conflict preemption” standard articulated in the Barnett decision as the starting point in a preemption analysis. The interpretive letter said that the OCC’s analysis would not stop there and must consider “the whole of the conflict preemption analysis in the Supreme Court’s decision.”