To address the applicability and preservation of certain State authorities, and for other purposes.

SA 4071.  Mr. CARPER (for himself, Mr. Bayh, Mr. Johnson, and Mr.
Warner) submitted an amendment intended to be proposed to amendment SA
3739 proposed by Mr. Reid (for Mr. Dodd (for himself and Mrs. Lincoln))
to the bill S. 3217, to promote the financial stability of the United
States by improving accountability and transparency in the financial
system, to end ``too big to fail'', to protect the American taxpayer by
ending bailouts, to protect consumers from abusive financial services
practices, and for other purposes; as follows:

On page 1309, strike line 15, and all that follows through
page 1325, line 20 and insert the following:

[[Page S3917]]

SEC. 1042. PRESERVATION OF ENFORCEMENT POWERS OF STATES.

(a) In General.--
(1) Action by state.--Except as provided in paragraph (2),
the attorney general (or the equivalent thereof) of any State
may bring a civil action in the name of such State in any
district court of the United States in that State or in State
court that is located in that State and that has jurisdiction
over the defendant, to enforce provisions of this title or
regulations issued under this title, and to secure remedies
under provisions of this title or remedies otherwise provided
under other law. A State regulator may bring a civil action
or other appropriate proceeding to enforce the provisions of
this title or regulations issued under this title with
respect to any entity that is State-chartered, incorporated,
licensed, or otherwise authorized to do business under State
law (except as provided in paragraph (2)), and to secure
remedies under provisions of this title or remedies otherwise
provided under other provisions of law with respect to such
an entity.
(2) Action by state against national bank or federal
savings association to enforce rules.--
(A) In general.--Except as permitted under subparagraph
(B), the attorney general (or equivalent thereof) of any
State may not bring a civil action in the name of such State
against a national bank or Federal savings association with
respect to an act or omission that would be a violation of a
provision of this title.
(B) Enforcement of rules permitted.--The attorney general
(or the equivalent thereof) of any State may bring a civil
action in the name of such State against a national bank or
Federal savings association in any district court of the
United States in the State or in State court that is located
in that State and that has jurisdiction over the defendant to
enforce a regulation prescribed by the Bureau under a
provision of this title and to secure remedies under
provisions of this title or remedies otherwise provided under
other law.
(3) Rule of construction.--No provision of this title shall
be construed as modifying, limiting, or superseding the
operation of any provision of an enumerated consumer law that
relates to the authority of a State attorney general or State
regulator to enforce such Federal law.
(b) Consultation Required.--
(1) Notice.--
(A) In general.--Before initiating any action in a court or
other administrative or regulatory proceeding against any
covered person as authorized by subsection (a) to enforce any
provision of this title, including any regulation prescribed
by the Bureau under this title, a State attorney general or
State regulator shall timely provide a copy of the complete
complaint to be filed and written notice describing such
action or proceeding to the Bureau and the prudential
regulator, if any, or the designee thereof.
(B) Emergency action.--If prior notice is not practicable,
the State attorney general or State regulator shall provide a
copy of the complete complaint and the notice to the Bureau
and the prudential regulator, if any, immediately upon
instituting the action or proceeding.
(C) Contents of notice.--The notification required under
this paragraph shall, at a minimum, describe--
(i) the identity of the parties;
(ii) the alleged facts underlying the proceeding; and
(iii) whether there may be a need to coordinate the
prosecution of the proceeding so as not to interfere with any
action, including any rulemaking, undertaken by the Bureau, a
prudential regulator, or another Federal agency.
(2) Bureau response.--In any action described in paragraph
(1), the Bureau may--
(A) intervene in the action as a party;
(B) upon intervening--
(i) remove the action to the appropriate United States
district court, if the action was not originally brought
there; and
(ii) be heard on all matters arising in the action; and
(C) appeal any order or judgment, to the same extent as any
other party in the proceeding may.
(c) Regulations.--The Bureau shall prescribe regulations to
implement the requirements of this section and, from time to
time, provide guidance in order to further coordinate actions
with the State attorneys general and other regulators.
(d) Preservation of State Authority.--
(1) State claims.--No provision of this section shall be
construed as altering, limiting, or affecting the authority
of a State attorney general or any other regulatory or
enforcement agency or authority to bring an action or other
regulatory proceeding arising solely under the law in effect
in that State.
(2) State securities regulators.--No provision of this
title shall be construed as altering, limiting, or affecting
the authority of a State securities commission (or any agency
or office performing like functions) under State law to adopt
rules, initiate enforcement proceedings, or take any other
action with respect to a person regulated by such commission
or authority.
(3) State insurance regulators.--No provision of this title
shall be construed as altering, limiting, or affecting the
authority of a State insurance commission or State insurance
regulator under State law to adopt rules, initiate
enforcement proceedings, or take any other action with
respect to a person regulated by such commission or
regulator.

SEC. 1043. PRESERVATION OF EXISTING CONTRACTS.

This title, and regulations, orders, guidance, and
interpretations prescribed, issued, or established by the
Bureau, shall not be construed to alter or affect the
applicability of any regulation, order, guidance, or
interpretation prescribed, issued, and established by the
Comptroller of the Currency or the Director of the Office of
Thrift Supervision regarding the applicability of State law
under Federal banking law to any contract entered into on or
before the date of enactment of this Act, by national banks,
Federal savings associations, or subsidiaries thereof that
are regulated and supervised by the Comptroller of the
Currency or the Director of the Office of Thrift Supervision,
respectively.

SEC. 1044. STATE LAW PREEMPTION STANDARDS FOR NATIONAL BANKS
AND SUBSIDIARIES CLARIFIED.

(a) In General.--Chapter one of title LXII of the Revised
Statutes of the United States (12 U.S.C. 21 et seq.) is
amended by inserting after section 5136B the following new
section:

``SEC. 5136C. STATE LAW PREEMPTION STANDARDS FOR NATIONAL
BANKS AND SUBSIDIARIES CLARIFIED.

``(a) Definitions.--For purposes of this section, the
following definitions shall apply:
``(1) National bank.--The term `national bank' includes--
``(A) any bank organized under the laws of the United
States; and
``(B) any Federal branch established in accordance with the
International Banking Act of 1978.
``(2) State consumer financial laws.--The term `State
consumer financial law' means a State law that does not
directly or indirectly discriminate against national banks
and that directly and specifically regulates the manner,
content, or terms and conditions of any financial transaction
(as may be authorized for national banks to engage in), or
any account related thereto, with respect to a consumer.
``(3) Other definitions.--The terms `affiliate',
`subsidiary', `includes', and `including' have the same
meanings as in section 3 of the Federal Deposit Insurance
Act.
``(b) Preemption Standard.--
``(1) In general.--State consumer financial laws are
preempted, only if--
``(A) application of a State consumer financial law would
have a discriminatory effect on national banks, in comparison
with the effect of the law on a bank chartered by that State;
``(B) the State consumer financial law is preempted in
accordance with the legal standard of the decision of the
Supreme Court of the United States in Barnett Bank of Marion
County, N.A. v. Nelson, Florida Insurance Commissioner, et
al., 517 U.S. 25 (1996), and any preemption determination
under this subparagraph may be made by a court, or by
regulation or order of the Comptroller of the Currency on a
case-by-case basis, in accordance with applicable law; or
``(C) the State consumer financial law is preempted by a
provision of Federal law other than this title.
``(2) Savings clause.--This title and section 24 of the
Federal Reserve Act (12 U.S.C. 371) do not preempt, annul, or
affect the applicability of any State law to any subsidiary
or affiliate of a national bank (other than a subsidiary or
affiliate that is chartered as a national bank).
``(3) Case-by-case basis.--
``(A) Definition.--As used in this section the term `case-
by-case basis' refers to a determination pursuant to this
section made by the Comptroller concerning the impact of a
particular State consumer financial law on any national bank
that is subject to that law, or the law of any other State
with substantively equivalent terms.
``(B) Consultation.--When making a determination on a case-
by-case basis that a State consumer financial law of another
State has substantively equivalent terms as one that the
Comptroller is preempting, the Comptroller shall first
consult with the Bureau of Consumer Financial Protection and
shall take the views of the Bureau into account when making
the determination.
``(4) Rule of construction.--This title does not occupy the
field in any area of State law.
``(5) Standards of review.--
``(A) Preemption.--A court reviewing any determinations
made by the Comptroller regarding preemption of a State law
by this title or section 24 of the Federal Reserve Act (12
U.S.C. 371) shall assess the validity of such determinations,
depending upon the thoroughness evident in the consideration
of the agency, the validity of the reasoning of the agency,
the consistency with other valid determinations made by the
agency, and other factors which the court finds persuasive
and relevant to its decision.
``(B) Savings clause.--Except as provided in subparagraph
(A), nothing in this section shall affect the deference that
a court may afford to the Comptroller in making
determinations regarding the meaning or interpretation of
title LXII of the Revised Statutes of the United States or
other Federal laws.
``(6) Comptroller determination not delegable.--Any
regulation, order, or determination made by the Comptroller
of the Currency under paragraph (1)(B) shall be made by the
Comptroller, and shall not be delegable to another officer or
employee of the Comptroller of the Currency.

[[Page S3918]]

``(c) Substantial Evidence.--No regulation or order of the
Comptroller of the Currency prescribed under subsection
(b)(1)(B), shall be interpreted or applied so as to
invalidate, or otherwise declare inapplicable to a national
bank, the provision of the State consumer financial law,
unless substantial evidence, made on the record of the
proceeding, supports the specific finding regarding the
preemption of such provision in accordance with the legal
standard of the decision of the Supreme Court of the United
States in Barnett Bank of Marion County, N.A. v. Nelson,
Florida Insurance Commissioner, et al., 517 U.S. 25 (1996).
``(d) Periodic Review of Preemption Determinations.--
``(1) In general.--The Comptroller of the Currency shall
periodically conduct a review, through notice and public
comment, of each determination that a provision of Federal
law preempts a State consumer financial law. The agency shall
conduct such review within the 5-year period after
prescribing or otherwise issuing such determination, and at
least once during each 5-year period thereafter. After
conducting the review of, and inspecting the comments made
on, the determination, the agency shall publish a notice in
the Federal Register announcing the decision to continue or
rescind the determination or a proposal to amend the
determination. Any such notice of a proposal to amend a
determination and the subsequent resolution of such proposal
shall comply with the procedures set forth in subsections (a)
and (b) of section 5244 of the Revised Statutes of the United
States (12 U.S.C. 43 (a), (b)).
``(2) Reports to congress.--At the time of issuing a review
conducted under paragraph (1), the Comptroller of the
Currency shall submit a report regarding such review to the
Committee on Financial Services of the House of
Representatives and the Committee on Banking, Housing, and
Urban Affairs of the Senate. The report submitted to the
respective committees shall address whether the agency
intends to continue, rescind, or propose to amend any
determination that a provision of Federal law preempts a
State consumer financial law, and the reasons therefor.
``(e) Application of State Consumer Financial Law to
Subsidiaries and Affiliates.--Notwithstanding any provision
of this title or section 24 of Federal Reserve Act (12 U.S.C.
371), a State consumer financial law shall apply to a
subsidiary or affiliate of a national bank (other than a
subsidiary or affiliate that is chartered as a national bank)
to the same extent that the State consumer financial law
applies to any person, corporation, or other entity subject
to such State law.
``(f) Preservation of Powers Related to Charging
Interest.--No provision of this title shall be construed as
altering or otherwise affecting the authority conferred by
section 5197 of the Revised Statutes of the United States (12
U.S.C. 85) for the charging of interest by a national bank at
the rate allowed by the laws of the State, territory, or
district where the bank is located, including with respect to
the meaning of `interest' under such provision.
``(g) Transparency of OCC Preemption Determinations.--The
Comptroller of the Currency shall publish and update no less
frequently than quarterly, a list of preemption
determinations by the Comptroller of the Currency then in
effect that identifies the activities and practices covered
by each determination and the requirements and constraints
determined to be preempted.''.
(b) Clerical Amendment.--The table of sections for chapter
one of title LXII of the Revised Statutes of the United
States is amended by inserting after the item relating to
section 5136B the following new item:
``Sec. 5136C. State law preemption standards for national
banks and subsidiaries clarified.''.

SEC. 1045. CLARIFICATION OF LAW APPLICABLE TO NONDEPOSITORY
INSTITUTION SUBSIDIARIES.

Section 5136C of the Revised Statutes of the United States
(as added by this subtitle) is amended by adding at the end
the following:
``(h) Clarification of Law Applicable to Nondepository
Institution Subsidiaries and Affiliates of National Banks.--
``(1) Definitions.--For purposes of this subsection, the
terms `depository institution', `subsidiary', and `affiliate'
have the same meanings as in section 3 of the Federal Deposit
Insurance Act.
``(2) Rule of construction.--No provision of this title or
section 24 of the Federal Reserve Act (12 U.S.C. 371) shall
be construed as preempting, annulling, or affecting the
applicability of State law to any subsidiary, affiliate, or
agent of a national bank (other than a subsidiary, affiliate,
or agent that is chartered as a national bank).''.

SEC. 1046. STATE LAW PREEMPTION STANDARDS FOR FEDERAL SAVINGS
ASSOCIATIONS AND SUBSIDIARIES CLARIFIED.

(a) In General.--The Home Owners' Loan Act (12 U.S.C. 1461
et seq.) is amended by inserting after section 5 the
following new section:

``SEC. 6. STATE LAW PREEMPTION STANDARDS FOR FEDERAL SAVINGS
ASSOCIATIONS CLARIFIED.

``(a) In General.--Any determination by a court or by the
Director or any successor officer or agency regarding the
relation of State law to a provision of this Act or any
regulation or order prescribed under this Act shall be made
in accordance with the laws and legal standards applicable to
national banks regarding the preemption of State law.
``(b) Principles of Conflict Preemption Applicable.--
Notwithstanding the authorities granted under sections 4 and
5, this Act does not occupy the field in any area of State
law.''.
(b) Clerical Amendment.--The table of sections for the Home
Owners' Loan Act (12 U.S.C. 1461 et seq.) is amended by
striking the item relating to section 6 and inserting the
following new item:
``Sec. 6. State law preemption standards for Federal
savings associations and subsidiaries clarified.''.

SEC. 1047. VISITORIAL STANDARDS FOR NATIONAL BANKS AND
SAVINGS ASSOCIATIONS.

(a) National Banks.--Section 5136C of the Revised Statutes
of the United States (as added by this subtitle) is amended
by adding at the end the following:
``(i) Visitorial Powers.--
``(1) In general.--In accordance with the decision of the
Supreme Court of the United States in Cuomo v. Clearing House
Assn., L. L. C. (129 S. Ct. 2710 (2009)), no provision of
this title which relates to visitorial powers or otherwise
limits or restricts the visitorial authority to which any
national bank is subject shall be construed as limiting or
restricting the authority of any attorney general (or other
chief law enforcement officer) of any State to bring an
action against a national bank in a court of appropriate
jurisdiction to enforce an applicable law and to seek relief
as authorized by such law.
``(j) Enforcement Actions.--The ability of the Comptroller
of the Currency to bring an enforcement action under this
title or section 5 of the Federal Trade Commission Act does
not preclude any private party from enforcing rights granted
under Federal or State law in the courts.''.
(b) Savings Associations.--Section 6 of the Home Owners'
Loan Act (as added by this title) is amended by adding at the
end the following:
``(c) Visitorial Powers.--The provisions of sections
5136C(i) of the Revised Statutes of the United States shall
apply to Federal savings associations, and any subsidiary
thereof, to the same extent and in the same manner as if such
savings associations, or subsidiaries thereof, were national
banks or subsidiaries of national banks, respectively.
______