When US banking regulators published a comprehensive overhaul of the country’s bank capital framework on March 19, they covered credit risk, market risk, operational risk and counterparty exposures across the largest American financial institutions. What the proposals did not mention, even once, was Bitcoin, cryptocurrency or digital assets of any kind.
Pierre Rochard, CEO of The Bitcoin Bond Company, has filed a formal comment with the Federal Reserve, the Federal Deposit Insurance Corporation and the Office of the Comptroller of the Currency arguing that silence on this question is not a neutral position — and that finalising rules which implicitly determine Bitcoin’s capital treatment without explicitly explaining the framework behind that determination could expose the entire rulemaking to legal vulnerability.
What the Proposals Left Unanswered
The March 19 package represents a broad attempt to rewrite how the largest US banks calculate the capital they must hold against various risk exposures. Its scope is substantial. What it does not do is clarify how existing capital categories apply to Bitcoin-related activities — direct holdings, Bitcoin-collateralised lending, custody services, and derivatives exposure.
That ambiguity has real consequences. Under the Basel Committee’s existing crypto asset framework, known as SCO60, unbacked crypto assets including Bitcoin attract a 1,250% risk weight — one of the most punitive capital treatments available under the international standard. US regulators have not stated whether they intend to adopt that standard, apply elements of it selectively, or rely on existing domestic capital categories that were designed without Bitcoin in mind.
For banks evaluating whether to offer Bitcoin custody, extend credit against Bitcoin collateral or take positions through derivatives, the economics of those activities depend entirely on how capital requirements are calculated. Leaving that question unresolved does not create a neutral environment — it creates uncertainty that functions as a practical deterrent, regardless of what the rules were intended to achieve.
The Contrast With Tokenised Securities Guidance
Rochard’s comment highlights a specific inconsistency in how regulators have approached different aspects of digital assets. On March 5, the same three agencies issued a tokenised securities FAQ stating that eligible tokenised securities should generally receive the same capital treatment as their non-tokenised counterparts, and that the capital framework is technology neutral. Banks received clear, explicit guidance on that category.
No comparable explanation exists for Bitcoin. The contrast is difficult to explain on technical grounds alone — if regulators can articulate a clear framework for tokenised securities, the absence of equivalent clarity for Bitcoin reflects a choice rather than an oversight. Rochard’s argument is that regulators cannot defend that asymmetry in a final rule without providing the analytical basis for it.
The Legal Exposure Argument
The core of Rochard’s formal comment is an administrative law argument. US regulatory agencies are required to explain the evidence and reasoning behind their rulemaking in ways that are open to public scrutiny and legal review. A final rule that effectively determines capital treatment for Bitcoin-related activities — whether by applying SCO60’s 1,250% risk weight implicitly or by leaving banks to interpret existing categories without guidance — without explicitly explaining that determination, could be challenged on the grounds that the agency failed to provide adequate reasoning.
That is not a theoretical concern. Post-Chevron, US courts have been increasingly willing to scrutinise agency rulemaking where the analytical basis for a determination is unclear or unexplained. A capital rule that quietly shapes Bitcoin banking economics without transparent justification creates exactly the kind of record that invites legal challenge after finalisation.
“The fiat system should stop sabotaging itself,” Rochard wrote in an accompanying post. “Bitcoin banking rules would improve bank net interest margins and lower interest rates for borrowers.”
What Clarity Would Actually Change
The practical stakes are significant. Prior to the proposal’s release, analysts had expected the Basel rewrite might ease capital requirements and potentially unlock liquidity for Bitcoin-related banking activities. The absence of any Bitcoin-specific guidance means that potential remains unrealised — and the uncertainty itself has a cost.
Banks that might otherwise offer Bitcoin custody or collateralised lending products are operating without a clear regulatory framework for how those activities affect their capital position. That uncertainty, as Rochard’s comment makes clear, does not simply delay Bitcoin banking — it shapes the entire economics of whether such services are viable at all.
The comment calls on the three agencies to explicitly state whether SCO60 applies, whether existing domestic categories govern Bitcoin exposures, or whether a separate framework will be developed — and to provide the evidence and reasoning behind whichever path they choose.
