In our view, the Illinois Promissory Note and Bank Holiday Act (the “Act”) does not apply to national banks, and clearly your bank would not be required to notify the IDFPR of your intention to close for half days on Christmas Eve and New Year’s Eve.

We agree that the Act’s provisions apply only to “state banks.” Although this term is not defined in the Act, the Illinois Banking Act defines “state banks” as banks that hold a bank charter issued by the Secretary of the Illinois Department of Financial and Professional Regulation (IDFPR) under the Illinois Banking Act. Accordingly, as a nationally-chartered bank, we do not believe your bank would be considered a “state bank” under the Act.

More importantly, federal law prohibits state officials from exercising visitorial powers with respect to national banks (with very limited exceptions). Visitorial powers include “inspecting or requiring the production of books or records of national banks.” 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 IDFPR), 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 “close or remain open” on state-designated holidays. This provision makes clear that federal law preempts the Act’s requirements regarding a bank’s operating hours. In fact, in an analogous situation, an Illinois state court has determined that the National Bank Act preempts the state Act entirely (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(c) (“If an occasion arises when a state bank wishes to remain closed on a particular day, other than a day on which the bank has selected to remain closed on a regular basis as provided in this Section, such state bank may remain closed on such an occasion after first sending to the Commissioner a copy of a resolution adopted by the board of directors authorizing the bank to remain closed on such occasion and notice of the intent to remain closed on such occasion shall be conspicuously posted in the lobby of the main banking office and any branches of such bank for at least 3 weeks in advance of such occasion. Any day which any bank doing business within the State shall select to remain closed pursuant to this Section shall, with respect to such bank, be treated and considered as a Sunday.”)

• Illinois Banking Act, 205 ILCS 5/2 (“‘State bank’ means any banking corporation that has a banking charter issued by the Commissioner under this Act.”)

• Illinois Banking Act, 205 ILCS 5/2 (“‘Commissioner’ means the Commissioner of Banks and Real Estate, except that beginning on April 6, 2009 (the effective date of Public Act 95-1047), all references in this Act to the Commissioner of Banks and Real Estate are deemed, in appropriate contexts, to be references to the Secretary of Financial and Professional Regulation.”)

• 12 USC 484(A) (“No national bank shall be subject to any visitorial powers except as authorized by Federal law . . . .”)

• 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.”)

• OCC, Visitorial Powers Final Rule Q&A (January 7, 2004) (“Federal law — at 12 U.S.C. § 484 — clearly vests the OCC with exclusive visitorial powers over the business of banking conducted by national banks. Equally clearly, courts have stated that visitorial powers include the power to enforce compliance with applicable law. With certain narrow exceptions, Federal law does not grant visitorial authority over national banks to the states.”)

• 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, 1005–1006 (1st Dist. 1994) (“On March 23, 1993, the circuit court granted defendants’ motion to dismiss finding that the National Bank Act preempted the [Illinois Promissory Note and Bank] Holiday Act . . . . Defendants argue that the Visa card agreement, by requiring payments to be made in accordance with its terms, excluded the effect of the Holiday Act. We agree. . . . 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.”)