OCC Files Amicus Brief Supporting Challenge To Colorado’s Opt-Out Law And Defending Longstanding Interest-Rate Exportation Principles

On June 4, 2026, the Office of the Comptroller of the Currency (OCC) filed an amicus brief in the en banc proceedings before the U.S. Court of Appeals for the Tenth Circuit in National Association of Industrial Bankers v. Weiser, urging the court to affirm the district court’s preliminary injunction against Colorado’s opt-out statute and reject Colorado’s attempt to apply its interest-rate restrictions to loans made by out-of-state state-chartered banks.

This amicus brief supports the plaintiffs who recently filed their supplemental brief in the Tenth Circuit. It is very noteworthy and underscores the importance of this case that the OCC submitted an amicus brief in this case since the case involves state-chartered banks and not national banks which are subject to the OCC’s regulatory and supervisory jurisdiction The FDIC, which does have regulatory and supervisory jurisdiction over state-chartered banks, also submitted an amicus brief, which we will discuss in a separate blog.

The OCC’s filing follows closely on the heels of the Federal Deposit Insurance Corporation’s amicus brief supporting the plaintiffs-appellees. Together, the two federal banking agencies responsible for supervising national banks and state nonmember banks have now aligned behind the position that Colorado’s interpretation of Section 525 of the Depository Institutions Deregulation and Monetary Control Act of 1980 (DIDMCA) is inconsistent with the statute’s text, structure, purpose, and historical implementation. The OCC’s brief, however, offers a distinct perspective rooted in the agency’s administration of the National Bank Act and decades of precedent concerning interstate lending and interest-rate exportation.

DIDMCA Was Enacted to Put State Banks on Equal Footing with National Banks

The OCC begins with a discussion of the dual banking system and Congress’s longstanding efforts to preserve competitive equality between national banks and state-chartered banks. According to the OCC, DIDMCA Section 521 was enacted specifically to eliminate the competitive disadvantage that state banks faced because national banks had long enjoyed the ability under Section 85 of the National Bank Act to charge not only the interest rates allowed by their home states’ usury laws, but also 1% above the Federal Reserve discount rate. When DIDMCA was enacted, the Federal Reserve discount rate was above the usury limit in certain states, which placed state depository institutions in those states at a disadvantage in competing with national banks in their states.

Two years prior to DIDMCA, the Supreme Court’s decision in Marquette National Bank v. First of Omaha Service Corp., 439 U.S. 299 (1978) held that national banks could export the interest rates allowed under Section 85 and that usury limits in the borrower’s state were preempted, which greatly facilitated the development of interstate lending markets. DIDMCA gave state banks the same federal interest-rate and exportation authority enjoyed by national banks.

According to the OCC, Colorado’s interpretation of Section 525 of DIDMCA would undermine the very parity Congress sought to create.

Congress Borrowed National Bank Act Language—and Its Established Meaning

A central theme of the OCC’s brief is that Congress deliberately borrowed language from Section 85 of the National Bank Act when it enacted DIDMCA Section 521.

The OCC notes that both statutes authorize banks to charge interest based on the laws of the state “where the bank is located.” Because Congress used the same operative language, it also imported the established judicial and regulatory interpretations that had developed under the National Bank Act. Those interpretations consistently focus on the location of the bank rather than the location of the borrower.

The OCC emphasizes that when Congress enacted DIDMCA in 1980, it did so against the backdrop of the Supreme Court’s Marquette decision, which held that a national bank may export interest rates from the state where the bank is located regardless of where borrowers reside. The Court looked to the bank’s location, not the borrower’s location, to determine which state’s interest-rate laws applied.

That historical context, according to the OCC, strongly supports reading DIDMCA in the same manner.

OCC Highlights Decades of Regulatory Guidance Focusing on the Bank’s Location

The OCC further argues that decades of regulatory interpretations have consistently focused on where the bank conducts lending activities rather than where borrowers reside.

Following the advent of interstate branching, the OCC developed a framework for determining where a bank is located for interest-rate purposes. Under that framework, the relevant inquiry focuses on the bank’s lending functions and expressly disregards the borrower’s state of residence. The OCC notes that both OCC and FDIC guidance have long followed this approach.

The agency argues that these longstanding interpretations have become an integral part of the nation’s interstate banking system and should not be displaced by Colorado’s borrower-focused approach.

The Panel Majority Misapplied the Presumption Against Preemption

One of the more significant legal arguments in the OCC’s brief concerns federal preemption.

The OCC contends that the now-vacated panel majority improperly relied on a presumption against preemption. According to the OCC, Congress expressly preempted conflicting state usury laws in DIDMCA Section 521. Because Congress included an explicit preemption provision, courts should focus on the statutory text rather than invoke any presumption against preemption.

The OCC argues that once the statute is read according to its text, the result is straightforward: Section 521 establishes a broad rule based on the location of the bank, while Section 525 creates only a narrow exception. That exception should be interpreted consistently with the broader statutory framework and therefore should likewise depend on the bank’s location rather than the borrower’s location.

Colorado’s Interpretation Would Allow One State to Regulate Banks Nationwide

Like the FDIC, the OCC warns that Colorado’s interpretation would have consequences extending far beyond Colorado.

According to the OCC, Congress intended Section 525 to be a limited exception that allows a state to restore pre-DIDMCA treatment within its own borders. Colorado’s interpretation would transform that limited exception into a mechanism through which one state could effectively dictate the permissible interest rates for state-chartered banks located throughout the country whenever they lend to Colorado residents.

The OCC argues that such a result would be directly contrary to DIDMCA’s purpose of promoting competitive equality between state and national banks. It also would allow an opt-out state to export its own policy choices to institutions located in non-opt-out states.

OCC Warns Against Destabilizing Established Banking Law

Perhaps the most noteworthy portion of the brief appears near the end.

The OCC cautions that even if the court were ultimately to disagree regarding the proper interpretation of Section 525, it should not cast doubt on the longstanding meaning of the phrase “where the bank is located” in Section 521. The agency warns that disturbing decades of settled interpretations could create significant uncertainty throughout the banking system and potentially affect not only state banks operating under DIDMCA but also national banks operating under the National Bank Act.

The OCC specifically invokes the Supreme Court’s warning in Marquette against adopting interpretations that would throw the nation’s interstate banking system into confusion. In the OCC’s view, preserving established understandings regarding bank location is essential to maintaining a stable nationwide credit market.

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