The Office of the Comptroller of the Currency last week released an important interpretive letter with a comprehensive overview of the OCC's views on how Dodd-Frank affects preemption, including visitorial powers.
The OCC also provided its view on possible confusion related to the Dodd-Frank preemption provision. Although Dodd-Frank specifically references the Barnett Bank preemption standard, it also references an apparent stand-alone conflict preemption standard: whether state law "prevents or significantly interferes with the exercise by the national bank of its powers." This provision mirrors language in Barnett Bank, but the statute's separate reference to it raised the question of whether Congress intended to create a new statutory preemption regime, or whether it simply intended to incorporate the Barnett Bank standard. The OCC concluded that Dodd-Frank's preemption provision should be read to include "the whole of the conflict preemption analysis" in Barnett Bank, along with its judicial and regulatory progeny.