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THe baNKING laW JourNal

“substantively equivalent” to the law of another state. If the OCC is deter- mining whether a state consumer financial law is substantively equivalent to a law in another state, the OCC must consult the Bureau and take its views into account. The OCC’s authority to make preemption determinations is non-delegable.

The import of these provisions is that the OCC (or a court) must make discrete preemption determinations for each state law that is to be preempted. It may also determine if preempted state laws are substantively equivalent to the laws of other states, but only in consultation with the Bureau. These determi- nations must be published and updated at least quarterly.33 Furthermore, the OCC must review each determination that federal law preempts a state con- sumer financial law at least every five-year period after it has issued the decision. This review, which must be conducted through notice and public comment, as well as the OCC’s decision to continue, rescind or modify each determination, must be summarized and reported in the ederal Register. The OCC also must submit a report to Congress that addresses its reasons for continuing, rescind- ing or modifying each determination. These publication requirements should make it easier to track federal preemption of state law.

The Act enumerates factors that courts should consider when reviewing OCC determinations regarding preemption by the National Bank Act or Sec-

tion 24 of the Federal Reserve Act (12 U.S.C. § 371).34 must evaluate:

A reviewing court

  • (1)

    Whether the determination is valid (based on the OCC’s thoroughness in considering the issue);

  • (2)

    Whether the OCC’s reasoning is valid;

  • (3)

    Whether the determination is consistent with other valid determina- tions; and

  • (4)

    Any other factors that the court finds to be relevant and persuasive.

However, the Act also says that this standard of review does not affect the deference that courts may afford to the OCC in interpreting federal law other than the National Bank Act or Section 24 of the Federal Reserve Act. Thus, the standard for judicial review of many preemption determinations may be


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