OCC CREATES BROAD PREEMPTION POLICY FOR ELECTRONIC ACTIVITIES
The Office of the Comptroller of the Currency (OCC) has issued a final rule governing the ability of national banks to conduct business using electronic technologies. See 67 Fed. Reg. 34992‑01 (May 17, 2002).
The OCC has sparked debate over whether its preemption standard with respect to electronic activities could open the door to a broader preemption standard for national banks generally. Under the final rule, a state law would not be applicable to a national bank’s conduct of an authorized activity through electronic means if it would be preempted pursuant to traditional preemption doctrine under the supremacy clause of the United States Constitution.
The key language of the rule, hinting that this could be a broader standard of preemption than for non‑electronic activities, is the statement that state laws that stand as an obstacle to the ability of a national bank to exercise uniformly its federally authorized powers through electronic means of facilities are preempted. Uniformity may now be a legitimate argument for preemption of state laws not specifically regulating electronic activities.
The final rule, which also addresses the effect of electronic activities on the location of a national bank, the factors for determining whether electronic activities fall within the permissible “business of banking” and other technical matters, was effective June 17, 2002.
If we may be of assistance in helping you with initiating electronic business activities or if you would like to discuss the impact of this final rule on your business programs, please contact Judith M. Scheiderer at (614) 628-1607 or [email protected] .