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THe DoDD-FraNK aCT aND FeDeral PreemPTIoN

reduced to nothing more than Chevron deference.35

Finally, the Act contains a provision that grandfathers certain preemption determinations for national banks, federal savings associations, and their sub- sidiaries.36 The Act prohibits Bureau regulations from affecting preemption regulations or interpretations made by the OCC or the Director of the Office of Thrift Supervision (“OTS”). This exception is limited to determinations respecting the applicability of state law to contracts entered into on or prior to July 21, 2010. Moreover, national banks, federal thrifts, and their subsid- iaries are eligible for this exception only if they were supervised by the OCC or OTS. Although this carve-out may provide some stability, note that it only addresses Bureau regulations: it does not prevent the OCC from reversing course and diminishing preemption for national banks and federal thrifts.

no Preemption of state laws related to charging interest

Dodd-Frank adds a provision to the National Bank Act which clarifies that it does not affect the authority conferred by 12 U.S.C. § 85 relating to “the charging of interest by a national bank at the rate allowed by the laws of the [s]tate, territory, or district where the bank is located.”37 As the Supreme Court has explained, the authority conferred on national banks is that they may charge interest rates authorized by the laws of the state in which they are organized — all other state and federal laws are preempted.38 Dodd-Frank does nothing to modify this interest rate exportation framework.

Preemption of state consumer Financial laws for Federal savings associations

The Act amends the Home Owners’ Loan Act in order to conform pre- emption of state law for federal savings associations to the preemption stan- dards for national banks. Any preemption determination made by a court, or the OTS or any successor, “shall be made in accordance with the laws and legal standards applicable to national banks.”39 The Act transfers OTS rulemaking and supervisory authority over federal thrifts to the OCC between July 2011 and January 2012 and abolishes the OTS.40 At that time, the OCC will have the authority to issue preemption determinations for both national banks and


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