In our view, the Illinois Promissory Note and Bank Holiday Act (the “Act”) does not apply to national banks.

State officials may not exercise visitorial powers with respect to national banks (with very limited exceptions). In general, visitorial powers include conducting examinations, inspecting or requiring the production of books or records, requiring the filings of notices and applications, and prosecuting enforcement actions. The Act, which requires banks to submit documents regarding their operating hours to the Illinois Commissioner of Banks and Real Estate (now the Division of Banking of the Illinois Department of Financial and Professional Regulation), would constitute an impermissible exercise of visitorial powers if it were to be applied to national banks.

In addition, the National Bank Act grants national banks the specific authority to remain open on state-designated holidays, along with the general authority to exercise any incidental powers necessary to carry on the business of banking. These provisions add to the strong argument that federal law preempts the Act’s requirements regarding a bank’s operating hours. In fact, in an analogous situation, one Illinois state court determined that the National Bank Act preempts the Illinois Bank Holiday Act (although on appeal, the appellate court did not reach the issue of preemption because it decided the case on other grounds).

For resources related to our guidance, please see:

• Illinois Promissory Note and Bank Holiday Act, 205 ILCS 630/17  (Requiring all banks doing business in Illinois to submit certain records and documents to the Commissioner of Banks and Real Estate if the banks wish to remain closed on certain days)

• 12 CFR 7.4000 (“Under 12 U.S.C. 484, only the OCC or an authorized representative of the OCC may exercise visitorial powers with respect to national banks. State officials may not exercise visitorial powers with respect to national banks, such as conducting examinations, inspecting or requiring the production of books or records of national banks, or prosecuting enforcement actions, except in limited circumstances authorized by federal law.”)

• 12 USC 484(a) (“No national bank shall be subject to any visitorial powers except as authorized by Federal law, vested in the courts of justice or such as shall be, or have been exercised or directed by Congress or by either House thereof or by any committee of Congress or of either House duly authorized.”)

• OCC Advisory Letter, 2002-9, Questions Concerning the Applicability and Enforcement of State  Laws (setting up a procedure by which the OCC can address the applicability of a state law to a national bank)

• National Bank Act, 12 USC 95(b)(1) (“In the event that a State or a State official authorized by law designates any day as a legal holiday for ceremonial or emergency reasons, for the State or any part thereof, that same day shall be a legal holiday for all national banking associations or their offices located in that State or the part so affected. A national banking association or its affected offices may close or remain open on such a State-designated holiday unless the Comptroller of the Currency by written order directs otherwise.”)

• National Bank Act, 12 USC 24 (National banks shall have “all such incidental powers as shall be necessary to carry on the business of banking.”)

• Larned v. First Chicago Corp., 636 N.E.2d 1004, 1005 (Ill. App. 1st Dist. 1994) (“On March 23, 1993, the circuit court granted defendants' motion to dismiss finding that the National Bank Act preempted the Holiday Act ….  We find section 9 of the Visa card agreement explicit “language to the contrary” and controlling in this dispute…. Accordingly, we affirm the circuit court's dismissal of Larned's cause of action by concluding that the Visa card agreement validly excluded the effect of the Holiday Act.”)