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THe DoDD-FraNK aCT aND FeDeral PreemPTIoN

See generally Dodd-Frank §§ 1024-26 (entities subject to Bureau oversight), 1027 (entities exempt from Bureau oversight). 3

4 Dodd-Frank §§ 1022-23, 1031, 1061. Dodd-Frank § 1041(a). The Act does not expand on what constitutes a “nonfrivolous petition” or what persons would be considered “interested” for purposes of exercising this authority. Presumably states and persons that could be subject to competing regulatory burdens would be “interested.” But until the Bureau exercises its rulemaking authority to implement the Act, the applicability of these terms will remain unclear. 5 6

Dodd-Frank § 1041(c). Except as specifically provided in various sections of the CFP Act, the term “enumerated consumer law” includes the Consumer Leasing Act of 1976, the Electronic Fund Transfer Act, the Equal Credit Opportunity Act, the Fair Credit Billing Act, the Fair Credit Reporting Act, the Home Owners Protection Act of 1998, the Fair Debt Collection Practices Act, subsections of the Federal Deposit Insurance Act, sections of the Gramm-Leach-Bliley Act, the Home Mortgage Disclosure Act of 1975, the Home Ownership and Equity Protection Act of 1994, the Real Estate Settlement Procedures Act of 1974, the S.A.F.E. Mortgage Licensing Act of 2008, the Truth-in-Lending Act, the Truth-in-Savings Act, section 626 of the Omnibus Appropriations Act, 2009, and the Interstate Land Sales Full Disclosure Act. Dodd- Frank § 1002(12). 7 8

The Act grants the Bureau rulemaking authority to administer, implement and enforce federal consumer financial law. Dodd-Frank § 1022. Courts addressing challenges to Bureau rules are likely to defer to the Bureau where its interpretations of federal consumer financial law are reasonable. It is not clear if courts would be similarly deferential with respect to Bureau preemption determinations. See infra note 35. If so, then the Bureau could preempt more state laws than would otherwise be preempted if courts independently reviewed whether federal and state laws were inconsistent. 9

Dodd-Frank § 1044(a). This subsection adds a new section to the National Bank Act. To the extent that terms used in this definition are ambiguous, the Office of the Comptroller of the Currency (“OCC”) has the authority to provide reasonable definitions for these terms. See Smiley v. Citibank (S.D.), N.A., 517 U.S. 735, 738 (1996) (reiterating that OCC conclusions as to the meaning of the banking laws are entitled to deference). 10

11 517 U.S. 25 (1995). Dodd-Frank § 1044(a). The Act also states that such laws are preempted (1) if their application “would have a discriminatory effect on national banks” compared to their effect on state-chartered banks, or (2) if they are preempted by other federal 12

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