OCC says banks may broker crypto assets for customers

• Key insight: Banks may now execute crypto transactions on behalf of counterparties in the same manner as they execute trades through a securities brokerage.
• Supporting data: Interpretive Letter 1188 affirms that market risk is minimized through near-instant offsetting trades, leaving banks with only limited credit exposure.
• Forward look: Comptroller Gould has been highlighting the value of bringing nonbanks, including digital asset-focused firms, into the regulatory fold through national trust charter applications. 

The Office of the Comptroller of the Currency Tuesday announced that banks may act as  middlemen in low-risk crypto transactions under the National Bank Act, as they already do with traditional assets like securities.

OCC Interpretive Letter 1188 gives banks authority to engage in risk-free principal transactions — that is, situations where a national bank buys a crypto-asset from one counterparty and promptly resells it to a customer on their behalf. OCC says this activity constitutes "the legal and economic equivalent of a broker acting as agent" and fits within the business of banking under the National Bank Act.

The agency says the practice is already permissible for securities, and makes it OCC's policy that crypto-assets fit into banks' established brokerage and custody activities. Because the bank acts merely as an intermediary, the relative risk of the transactions to the bank is low, the OCC argued.

"In these activities, the bank neutralizes its market risk through offsetting transactions but retains credit risk due primarily to the ongoing financial obligations of the parties to the transaction," OCC letter stated. "A bank that acts as riskless principal in crypto-assets would face a similar set of risks. In the event of a settlement default, the bank would face limited market risk but would typically have in place procedures to sell the crypto-assets as soon as possible."

The OCC points to the fact that state banks have long engaged in riskless principal securities transactions and notes that nothing in emerging state crypto rules explicitly bars analogous crypto activity as evidence the procedure is legally permissible. 

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"Different facts and circumstances could result in a different conclusion. As with any activity, a bank that conducts riskless principal crypto-asset transactions must do so in a safe and sound manner and in compliance with applicable law," the agency concluded. "The OCC will examine riskless principal crypto-asset activities as part of its ongoing supervisory process."

The guidance comes just the day after Comptroller of the Currency Jonathan Gould voiced support for a more open policy towards crypto-oriented tech giants gaining national trust licenses to conduct banking services. Gould pushed back against concerns that a recent wave of trust charter applications from big tech companies reflects an alteration of the charter's original purpose.

Gould has repeatedly highlighted the importance of cultivating a "diversity" of banks, including by ensuring new technologies are welcomed into the banking perimeter. Gould argues that new ideas, products and services, including crypto, rely on competition from newly formed institutions, which in turn drives consumer choice and innovation. Most of all, he says regulators should not prohibit banks from engaging with digital assets just because the technology is new, noting that embracing new products is essential to keeping the system current.

The agency received 14 new bank charters this year, including from heavy-hitting crypto firms like Coinbase, Circle, Ripple and Paxos. Palmer Luckey-backed Erebor bank received conditional approval in November, only months after it applied in June.

That spurt of national trust charter applications came after the agency published interpretive letter 1176 — authored in 2021 by Gould, who was serving as OCC General Counsel at the time. That interpretive letter allowed trust banks to engage in "activities that are non-fiduciary in nature, such as non-fiduciary custody."