Key Takeaways

• Comptroller Gould prioritizes federal preemption, outlining a strategy to defend OCC regulations and mobilize support.
• The OCC is actively working to preempt state AI laws, assessing them based on their impact on national banks.
• A key consideration for the OCC is whether state AI laws fall under “consumer financial laws,” affecting how they will be addressed.

Gould’s Strategy for Federal Preemption

Comptroller Gould has placed significant emphasis on federal preemption, establishing a clear three-part strategy in November 2025. This includes filing friend of the court briefs, collaborating with the Treasury to update regulations, and rallying industry and political allies to support these efforts. Gould articulated that federal preemption is vital for facilitating nationwide markets, a sentiment echoed in President Trump’s December 2025 executive order aimed at creating a federal AI framework.

A notable case where the OCC defended preemption was against the Illinois Interchange Fee Prohibition Act (IFPA), which restricted banks from charging fees on certain transactions. The OCC’s approach involved filing briefs in court, engaging in public feedback to gain support, and formally determining that the IFPA did not apply to national banks.

Defining Consumer Financial Laws

Before the OCC can act on AI regulations, it must discern whether state AI laws qualify as “consumer financial laws” under 12 U.S.C. § 25b. If deemed consumer financial laws, the OCC would need to evaluate preemption on a case-by-case basis. Conversely, a determination that they don’t fall under this definition would allow for broader, categorical preemption.

Many state AI regulations, such as Texas’ and California’s laws aimed at commercial applications, are unlikely to be categorized as consumer financial laws. However, more consumer-focused regulations from states like Utah and Colorado may be scrutinized more rigorously.

OCC’s Likely Preemptions

The OCC’s preemption decisions will vary based on the type of AI legislation. Machine-learning underwriting is highly likely to be preempted, as it directly pertains to national banks’ lending powers. Meanwhile, employment-related AI regulations, which align more closely with civil rights laws, may face challenges if the OCC attempts to preempt them. Disclosure mandates present their own complexities and are less likely to be preempted without establishing a federal standard.

Impact of AI Agents

The OCC could also explore the role of AI agents in banking, specifically whether these agents can act as representatives for national banks. If confirmed, this could enhance legal clarity around the deployment of AI in banking operations. This initiative would serve as a significant step toward federal uniformity regarding AI use in banking, with potential preemption implications for state laws that restrict such deployments.

The OCC’s historical approach to clarifying bank regulations, similar to its handling of the Illinois interchange law, suggests a structured method for advancing clarity in AI regulatory frameworks.

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