As more states weigh laws to restrict interchange fees, the Office of the Comptroller of the Currency will continue to defend federal preemption in courtrooms “as appropriate,” Comptroller Jonathan Gould said today. He also defended the OCC’s decision to grant national trust charters to entities such as those that deal primarily with cryptocurrencies, saying there is “pent-up demand” for new banks.
In 2024, Illinois enacted the Illinois Interchange Fee Prohibition Act, or IFPA, which bans banks, payment networks and other entities from charging or receiving interchange fees on the portion of a debit or credit card transaction attributable to tax or gratuity. Roughly a dozen states are considering similar laws, with Colorado lawmakers recently passing a bill prohibiting the collection of interchange fees for sales taxes. Colorado Gov. Jared Polis has not said whether he intends to sign the bill or veto it.
The OCC recently issued two interim final actions confirming the longstanding power for national banks to charge certain fees. Speaking at a bank policy event hosted by Semafor and the Financial Technology Association, Gould said the OCC will defend preemption for national banks as well as state-chartered banks, pointing to the agency’s intervention in a separate lawsuit seeking to overturn a Colorado law that caps interest rates and fees on loans to state residents.
“Preemption is not a big bank versus small bank thing,” Gould said. “The reality is, given modern technologies, even community banks benefit from preemption because they are not solely limited by arbitrary geographies.”
Trust charters
The OCC last year began conditionally approving national trust charter applications for institutions, including ones that will focus almost exclusively on cryptocurrencies. Gould said the OCC was getting roughly 100 applications a year before the 2008 financial crisis, but that slowed to two a year afterward, which he called “a disgrace.”
“The federal banking agencies, including the FDIC on deposit insurance applications, were sending a very clear message that applicants need not apply because you’re not going to get a charter,” he said.
“So what we are doing at the OCC is actually restoring regular working order in doing our jobs on the time frames that we’ve established and consistent with the statutory factors that Congress has given us,” he added. “We don’t have a zero-risk tolerance anymore. That’s not what the statute says. The statute talks about a reasonable chance of success … That’s how we will continue to evaluate applications as long as I’m the comptroller.”
