WASHINGTON - National bank regulators say that institutions may permanently lose the right to branch into other jurisdictions if their home state "opts out" of the nation's interstate branching law.
In its first assessment of whether a state's decision to opt out of branching is reversible, the Office of the Comptroller of the Currency said that the law is unclear. The agency's view recently was solicited informally by one state and was repeated in a public meeting here this week.
The OCC's opinion lends credence to the arguments of interstate branching proponents, who say a state's decision to "opt out" of the Riegle-Neal Interstate Banking and Branching Act may be irreversible. Opting out could permanently isolate banks in certain states and hurt their business - a chance not worth taking, proponents say.
Ultimately, the courts may have to decide.
The interstate law "could be read either way," said Julie L. Williams, OCC chief counsel. "I don't want to be coming across as saying states may not be able to (opt back in) because we haven't addressed the issue in a thorough, formal way."
States have several options on branching. They may wait for the interstate law to take effect in June 1997, choose not to allow interstate branching, or opt in early to allow branching before 1997.
Most states wish for legal certainty as their legislatures consider their options. Instead, they face dueling opinions.
Ms. Williams said the OCC drew its views from the interstate law's legislative history. Early versions of the House and Senate bills said that opt-out decisions could later be reversed. Because that language did not survive in the final version, courts may argue that Congress meant to bar states from opting back in.
But law firms hired by the Conference of State Bank Supervisors and the Independent Community Banks of North Dakota concluded that states may opt back in. They point to remarks by Sen. William Roth, R-Del., in which he said, "Each state has the power to write its own script," and could opt out before 1997 and opt in later.
Three other firms - led by one hired by the Oklahoma Bankers Association, an interstate branching proponent - take the OCC's position.
It seems the only issue both sides can agree on is that the answer to the question is vitally important.
"It is a key matter that has to be resolved when states are deciding whether to fight the opt-out fight," said Kenneth Guenther, executive vice president of the Independent Bankers Association of America. "If an opt-out decision is irreversible - which it is not - that would influence states to take a different course of action than they are taking."
Take Texas.
Its House unanimously passed an opt-out bill earlier this month. A key state Senate committee plans to take up the matter Monday, and the full Senate could vote to bar branching in the state as early as next week.
Catherine Ghiglieri, Texas bank commissioner, said she has read all the opinions and believes that "a state that chooses to opt out can opt back in."
Chris Williston, president of the Independent Bankers Association of Texas, supports the state's opt-out bill. "We are not tying Texas' hands for the rest of its life," he said. "All of the legal opinions support that - at least the ones that we're counting on."
But one participant in the debate wondered, "Have you ever met a lawyer that could not give you the opinion you were seeking?"
