OCC Finalizes Amendments to Affirm the Authority of National Trust Banks to Engage in Non-Fiduciary Activities
On March 2, 2026, the Office of the Comptroller of the Currency (OCC) finalized amendments to its existing rule on national bank chartering to affirm the authority of national trust banks to engage in non-fiduciary activities, including certain custody and safekeeping activities. The final rule adopts the revisions contained in the OCC's Notice of Proposed Rulemaking (NPR), issued on January 12, 2026, without change. The revised regulation (the Amended Rule) takes effect April 1, 2026.
Summary of Changes in Final National Bank Chartering Rule
The final Amended Rule replaces the phrase "fiduciary activities," when used in the OCC's rule on national bank chartering in reference to the activities of national trust banks, with the phrase "the operations of a trust company and activities related thereto." According to the OCC, this change is being made in order to align the rule with the language of the National Bank Act (12 U.S.C. 27(a)), and prevent the rule from being improperly interpreted to impose limits on the activities of national trust banks that are not otherwise contained in the National Bank Act, for example, limiting the authority of national trust banks to solely engage in fiduciary activities.
Notably, in response to comments on the NPR, the OCC stated it was declining to amend the rule to clarify that a national trust bank need not conduct any activities in a fiduciary capacity with respect to the required scope of fiduciary activities. Rather, the OCC will review charter applications on their own merits and make a determination on a case-by-case basis. The OCC further clarified that the language of the regulation (12 C.F.R. § 5.20(e)(1)) was not intended, and has never been interpreted by the OCC, to prohibit a national trust bank from engaging in non-fiduciary activities.
Background on the Status / Authority of National Trust Banks
The Amended Rule was finalized in the wake of the OCC's conditional approval of several crypto-focused national trust banks over the last few months, and is the latest measure taken by the OCC under the Trump administration to reinforce federal preemption and the authorities of federally-chartered financial institutions.
Other key actions taken by the OCC related to these initiatives include:
- Interpretive Letter No. 1167, issued on May 20, 2020, determined that a national trust bank may conduct federally authorized fiduciary activities in any state without a money transmitter license, even if the trust bank's activities are considered money transmission.
- Interpretive Letter No. 1170, issued on July 22, 2020, confirmed that national banks may provide digital asset custody services in a fiduciary or non-fiduciary capacity.
- Interpretive Letter No. 1176, issued on January 11, 2021, affirmed the authority of national trust banks to engage in activities permissible for state trust companies / state trust banks, even if such state-authorized activities are non-fiduciary in nature.
- Interpretive Letter No. 1184, issued on May 7, 2025, confirmed the authority of national banks to engage in digital asset and fiat currency exchange and trade execution services.
Diverging Federal and State Approaches to Fintech Regulation
The rise of national trust banks (and, in particular, uninsured national trust banks that are authorized to engage in certain non-fiduciary activities, including digital asset custody), has raised concerns among the states, which have made efforts in recent years, such as adopting the Model Money Transmission Modernization Act (MMTMA), to unify their non-bank regulatory regimes since resisting the OCC's efforts during President Trump's first term to establish a national fintech charter.
Numerous state fintech laws/regulations, including the MMTMA, exempt federal trust banks solely to the extent that they are federally insured, and national trust banks are generally uninsured. As such, the OCC's desire to defend federal preemption pertaining to the activities of uninsured national trust banks, combined with states' previously demonstrated willingness to fight to preserve their role in the dual banking system, has set the stage for a new showdown regarding the authority of national trust banks to engage in non-fiduciary activities under the National Bank Act and the scope of federal preemption.
Stinson LLP attorneys are closely monitoring federal and state developments impacting national trust banks in order to advise clients on regulatory structures that best align with their business objectives. For more information on the authority of national trust banks and related considerations under state financial services laws, please contact Heidi Wicker, Tom Witherspoon, Audrey Carroll, Matthew Grimaldi, or the Stinson LLP contact with whom you regularly work.
