---
kind: "section"
citation: "12 U.S.C. § 43"
title: "12"
title_heading: "Banks and Banking"
number: "43"
heading: "Interpretations concerning preemption of certain State laws"
release: "119-102"
url: "https://uscodex.org/usc/12/43"
units:
  - "Chapter 2 — National Banks"
  - "Subchapter I — Organization and General Provisions"
---

# §43. Interpretations concerning preemption of certain State laws

- (a) **Notice and opportunity for comment required—** Before issuing any opinion letter or interpretive rule, in response to a request or upon the [agency](/usc/12/1422.md?p=12)’s own motion, that concludes that Federal law preempts the application to a [national bank](/usc/12/221a.md?p=a) of any [State](/usc/12/1707.md?p=d) law regarding community reinvestment, [consumer](/usc/12/5481.md?p=4) protection, [fair lending](/usc/12/5481.md?p=13), or the establishment of intrastate branches, or before making a determination under [section 36(f)(1)(A)(ii) of this title](/usc/12/36.md?p=f-1-A-ii), the [appropriate Federal banking agency](/usc/12/24a.md?p=g-2) (as defined in [section 1813 of this title](/usc/12/1813.md)) shall—
  - (1) publish in the Federal Register notice of the preemption or discrimination issue that the [agency](/usc/12/1422.md?p=12) is considering ([including](/usc/12/25b.md?p=a-3) a description of each [State](/usc/12/1707.md?p=d) 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](/usc/12/1422.md?p=12), or making any determination under [section 36(f)(1)(A)(ii) of this title](/usc/12/36.md?p=f-1-A-ii), consider any comments received.
- (b) **Publication required—** The [appropriate Federal banking agency](/usc/12/24a.md?p=g-2) shall publish in the Federal Register—
  - (1) any final opinion letter or interpretive rule concluding that Federal law preempts the application of any [State](/usc/12/1707.md?p=d) law regarding community reinvestment, [consumer](/usc/12/5481.md?p=4) protection, [fair lending](/usc/12/5481.md?p=13), or establishment of intrastate branches to a [national bank](/usc/12/221a.md?p=a); and
  - (2) any determination under [section 36(f)(1)(A)(ii) of this title](/usc/12/36.md?p=f-1-A-ii).
- (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](/usc/12/1707.md?p=d) law that are essentially identical to those previously resolved by the courts or on which the [agency](/usc/12/1422.md?p=12) 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](/usc/12/1426a.md?p=g-1) of Congress, or for intragovernmental use.
  - (3) **Emergency—** The [appropriate Federal banking agency](/usc/12/24a.md?p=g-2) may make exceptions to [subsection (a)](#a) if—
    - (A) the [agency](/usc/12/1422.md?p=12) determines in writing that the exception is necessary to avoid a serious and imminent threat to the safety and soundness of any [national bank](/usc/12/221a.md?p=a); or
    - (B) the opinion letter or interpretive rule is issued in connection with—
      - (i) an acquisition of 1 or more [banks](/usc/12/221a.md?p=a) in [default](/usc/12/1467a.md?p=e-7-A) or [in danger of default](/usc/12/1467a.md?p=e-7-A) (as such terms are defined in [section 1813 of this title](/usc/12/1813.md)); or
      - (ii) an acquisition with respect to which the Federal [Deposit](/usc/12/5301.md?p=18-A) Insurance [Corporation](/usc/12/2277a.md?p=2) provides assistance under [section 1823(c) of this title](/usc/12/1823.md?p=c).

## Source credit

(R.S. § 5244, as added Pub. L. 103–328, title I, § 114, Sept. 29, 1994, 108 Stat. 2366.)

## Notes

### Editorial Notes

### Codification

Another R.S. § 5244 is classified to section 8 of Title 33, Navigation and Navigable Waters.