OCC Considers Rule Changes on Fiduciary Capacity, Non-Fiduciary Custody Activities

The OCC is issuing an advance notice of proposed rulemaking regarding the scope of activities that are fiduciary in nature, as well as the requirements of non-fiduciary custody activities of national banks, federal thrifts and federal branches of foreign banks.

In particular, the OCC is considering amending the definition of “fiduciary capacity” to include trust-related roles allowed under state law that do not involve investment discretion — for example the roles of “trust protector,” “trust director” and “distribution trust adviser.” The OCC is also exploring the possibility of issuing explicit regulations governing non-fiduciary custody activities, activities which are currently subject to non-regulatory guidance in OCC handbooks and bulletins.

American Bankers Association staff are currently reviewing the ANPR, which has a comment deadline of June 28. For more information, or to provide feedback for ABA’s comment letter, contact ABA’s Phoebe Papageorgiou.