When the Office of the Comptroller of the Currency (OCC) on Feb. 27 released its final rule on how it will now charter national trust banks under the National Bank Act, it was widely expected that the new language would make it clear these institutions are not limited to conducting fiduciary activities. But many banking industry groups had asked for and hoped the OCC would put some guidelines in place for the types of non-fiduciary activities national trust banks could engage in when the rule goes into effect April 1. Instead, the OCC merely replaced the term ‘‘fiduciary activities’ with ‘the operations of a trust company and activities related thereto.’”
It leaves the question of what national trust banks can and cannot do very open to interpretation, says Max Bonici, a partner with the law firm Davis Wright Tremaine, who works with both banks and non-banks. “What we know from this final rule is that national trust banks have broad powers,” he says. “We just don’t know what those broad powers are, necessarily.”
In fact, the OCC specifically states in the final rule that it did not seek to define the scope of fiduciary, non-fiduciary or other activities, instead, indicating it will make decisions on what activities are allowed on a case-by-case basis. “The OCC will make appropriate determinations in the course of reviewing licensing applications whether, based on the information provided, the proposed bank may be chartered in accordance with the OCC’s statutory authority,” the final rule reads.
Bonici says the OCC is essentially telling applicants to bring them fresh ideas on exactly what types of activities their national trust bank should engage in. “That doesn’t mean you’re going to necessarily get what you want, but they’re saying, ‘We’d rather hear from you and let this bear out in the application process than not,” he says.
The Conference of State Bank Supervisors (CSBS), which represents state banking and financial regulators, is one of several groups that strongly urged the OCC to provide guidelines on acceptable non-fiduciary activities, stating in a Feb. 11 comment letter that in failing to do so, “ … the OCC injects a fatal dose of ambiguity into the regulation.”
Mike Townsley, senior director of regulatory policy for the CSBS, says he is also concerned that most of the reasoning behind each approval will be nonpublic. “[It] provides no mechanism really for holding the OCC accountable,” he says. “We can’t be sure if they’re following these [statutory] limits if they’re taking this approach of, ‘We’ll just decide on a case-by-case basis what is and is not allowed.’”
Revisionist or Expansionist?
The CSBS doesn’t see the final rule as a revision, but as an expansion of the OCC’s chartering authority. It was long interpreted by the OCC that national trust bank charters were created to allow entities to provide fiduciary and custodial services, such as estate administration, investment management and asset safekeeping. But with the OCC giving conditional approvals for national trust bank charters to eight crypto firms since December 2025, the new rule could also allow them to not just maintain custody over digital assets, but also to issue stablecoins and even handle digital payment transactions and settlements.
The approach is consistent with what Comptroller of the Currency Jonathan Gould put in motion while serving as the OCC’s chief counsel in the final days of President Donald Trump’s first administration, when he released Interpretive Letter 1176. It effectively states his position that federal statutes allow for national trust banks to engage in non-fiduciary activities, reversing the prior interpretation and opening the door for this revised rule. Bonici says it is clear that Gould is sending a message that he wants to see new market entrants and more competition.
Crypto giants such as Coinbase Global, Ripple, Circle Internet Group, and Crypto.com are among those seeking to be new trust banks, but only a few crypto firms submitted comment letters in support of the OCC’s proposed final rule.
Fintech companies that do not manage digital assets have yet to join crypto firms in the rush to apply for national trust bank charters. But the Financial Technology Association (FTA), which lobbies on their behalf, also wrote a comment letter supporting the proposed final rule. Angelena Bradfield, head of policy for the FTA, believes the rule accurately reflects the powers Congress gave to the OCC under the National Bank Act in 1978. “This is an authority that’s been there for 50 years at this point,” she says. “It was never intended and has never been interpreted by the OCC to prohibit a national trust bank from engaging in non-fiduciary activities such as custody or safekeeping.”
Bradfield says the FTA chose to publicly comment on the rule because it supports broad chartering authority to ensure innovative financial firms can apply for the charter that best fits their risk profile and business models.
*This article has been updated to describe the role of the Conference of State Bank Supervisors.
Previous