AGO 97054.

• Court: Nebraska

Nebraska Attorney General Opinions 1997. AGO 97054. DATE: October 10, 1997SUBJECT: Application of Deposit Limitation Provisions of the Nebraska Bank Holding Company Act to Formation of De Novo National Banks in this State by Bank Holding Companies REQUESTED BY: James A. Hansen Director of Banking and FinanceWRITTEN BY: Don Stenberg, Attorney General Fredrick F. Neid, Assistant Attorney General This is in response to your request for an opinion of the Attorney General regarding application of provisions of the Nebraska Bank Holding Company Act of 1995, Neb. Rev. Stat. §§ 8-908 to 8-917 (Cum. Supp. 1996) (the "Nebraska Act") to the organization of newly-chartered national banks in this state by an out-of-state bank holding company and its parent company, a Nebraska bank holding company. The specific question you ask is whether the Nebraska Act prohibits the formation and acquisition of a Nebraska bank by an out-of-state bank holding company, that is owned or controlled by a Nebraska bank holding company. Under the facts you present, the Nebraska Bank holding company and its affiliated companies have deposits greater than fourteen percent of the total deposits of certain Nebraska financial institutions as described in Neb. Rev. Stat. § 8-910(2)(c) (Cum. Supp. 1996). It is the opinion of this office that the deposit limit provisions of the Nebraska Act are applicable and prohibit the formation of de novo national banks by the bank holding companies under the facts you describe. BACKGROUND A Nebraska bank holding company and its wholly-owned subsidiary, an out-of-state bank holding company, have made application to the Comptroller of the Currency and the Board of Governors of the Federal Reserve System for approval to establish newly-chartered national banks in two cities in Nebraska. It is related that the applicant Nebraska bank holding company, together with its affiliated companies, presently have deposits exceeding the fourteen percent deposit limitation set forth in the Nebraska Act. It is in the context of these facts that we respond to your question. Section 3(d) of the federal Bank Holding Company Act of 1956, as amended by § 101 of the Riegle-Neal Interstate Banking and Efficiency Act of 1994, 12 U.S.C. §§ 1842 (d)(1)(A) and (B) and 1842 (d)(2)(A) and (B), allows the Federal Reserve Board to approve an application by a bank holding company to acquire control of a bank in a state other than the home state if certain conditions are met. The federal Bank Holding Company Act, as amended, among other things, expressly preserves state deposit limits and provides in particular part: (C) Effectiveness of State deposit caps No provision of this subsection shall be construed as affecting the authority of any State to limit, by statute, regulation, or order, the percentage of the total amount of deposits of insured depository institutions in the State which may be held or controlled by any bank or bank holding company (including all insured depository institutions which are affiliates of the bank or bank holding company) to the extent the application of such limitation does not discriminate against out-of-State banks, out-of-State bank holding companies, or subsidiaries of such banks or holding companies. 12 U.S.C. § 1842(d)(2) (emphasis added). Provisions of the Nebraska Act make it unlawful for certain actions to be taken by banks and bank holding companies unless the banks owned or controlled would have deposits no greater than fourteen percent of the total deposits of certain financial institutions in Nebraska as determined by the Director of the Department of Department...