§ 43. Interpretations concerning preemption of certain State laws

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(a)Notice and opportunity for comment required Before 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 required The 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 basis This 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)Emergency The 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.)

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