The Office of the Comptroller of the Currency (OCC) has issued a Notice of Proposed Rulemaking aimed at clarifying the permissible activities of national trust banks. The proposal seeks to amend chartering regulations to explicitly state that national trust companies may engage in nonfiduciary activities, such as asset custody, without being required to obtain a full-service national bank charter. However, the proposed rule does not address what specific nonfiduciary activities are permissible, nor does it indicate whether a national trust company must engage in a minimum level of fiduciary activities.

While the proposal is couched by the OCC as a “clarification” of existing authority, it touches on a significant fault line in the banking industry: the ability of fintech and crypto-native firms to operate under federal charters without meeting the deposit-taking requirements of traditional commercial banks.

The Language at Issue in the 2003 Rule

The current confusion stems from language in a 2003 final rule regarding special purpose banks. That rule implies that a special purpose bank conducting business other than “fiduciary activities” must also perform at least one of three core banking functions: receiving deposits, paying checks, or lending money.

The OCC’s new proposal addresses this implication by amending the regulatory text to replace references to “fiduciary activities” with “operations of a trust company and activities related thereto” — the same language from the National Bank Act that the OCC already relies on to charter national trust banks. This change creates a clear distinction: a national trust bank can engage in standard trust operations, including nonfiduciary custody, without triggering the requirement to take deposits or lend money. In practical terms, this change is meant to shut down the argument that a national trust bank must either limit itself to purely fiduciary activities or also engage in one of the traditional, enumerated banking functions.

It is also important to note that the proposed rule would not change the activities or chartering requirements for other types of OCC-chartered special purpose banks, like credit card banks. Because those institutions almost by definition engage in activities beyond “the operations of a trust company and activities related thereto,” they would still be required to conduct at least one of the traditional, enumerated banking functions.

Codifying the “Gould View”

The proposal effectively codifies some, but not all, of Interpretive Letter 1176, which was authored in January 2021 by Comptroller Jonathan Gould when he was serving as the OCC’s Chief Counsel. Comptroller Gould has taken the position that the OCC has “permitted national trust banks to engage in nonfiduciary custody activity for decades.”

The OCC emphasizes that the proposal would “neither expand nor contract” existing authority, but is intended to resolve the ambiguity that has fueled recent challenges to charter applications. The OCC stated that the previous language “was not intended, and has never been interpreted by the OCC … to prohibit a national trust bank from engaging in nonfiduciary activities.”

The Crypto & Fintech Context

While the proposal avoids explicit references to cryptocurrency, the context is unmistakable. Following the passage of the federal stablecoin law, the GENIUS Act, a growing number of national trust bank charter applications have been received from non-traditional financial institutions. Interest has been particularly strong following enactment of the GENIUS Act, which allows uninsured national banks to register with the OCC to issue payment stablecoins. The combination of heightened demand for national trust bank charters and the innovative business models of many applicants has raised concerns about the permissible scope of activities for such banks. The proposed rule would offer some clarity on the general range of activities that national trust banks may conduct, but it does not address any specific activities or categories of nonfiduciary activities.

These applications have faced opposition from traditional banking trade groups. Incumbent banks have argued that because these crypto firms propose “nonfiduciary” services (like holding reserves) rather than discretionary wealth management, they should not qualify for a trust charter and instead should be subject to the stricter capital and compliance regimes of full-service banks.

Looking Ahead

If finalized, this rule would remove a primary legal hurdle for fintech and crypto firms seeking federal preemption through the OCC. By explicitly categorizing nonfiduciary custody as a core “operation of a trust company,” the OCC is effectively shielding its chartering decisions from arguments that these applicants are engaging in regulatory arbitrage.

For the banking industry, this signals that the OCC intends to modernize the trust charter to accommodate digital asset business models, despite objections that this blurs the line between special purpose entities and full-service banking.

If the OCC adopts this rule, it would help clarify the general boundaries of what national trust banks can do. Paired with the recent preliminary approvals of several national trust bank applications, this proposal signals that the OCC is open to these charters — even for applicants with more innovative or non-traditional business models — and will likely keep interest in the charter strong. That said, the proposal leaves some big questions unanswered. It does not spell out which specific nonfiduciary activities are allowed for national trust banks, or whether there’s a minimum level of fiduciary activity they still have to maintain. For now, we are left looking to existing guidance like Interpretive Letter 1176, which says a national trust bank can generally do anything a state trust company in the same state can do under state law — and potentially even more, so long as those activities are permitted for a national bank under other authority. Because of that, the exact list of permissible activities for national trust banks remains a hot topic and may be the topic of significant further discussion, as the proposal does not address how previously issued OCC guidance regarding trust operations should be interpreted.

It will be worth watching to see whether the OCC follows up with more detailed rules or guidance, and we’d expect commenters to use this proposal as an opportunity to push for more clarity.

The deadline to submit comments on the proposal is February 11, 2026.