DOL Rule Opening 401(k)s to Crypto Reaches White House for Final Review

The U.S. Labor Department's final rule easing cryptocurrency, private equity and real estate into 401(k) retirement plans landed at the White House on Nov. 5 for its last regulatory review, according to a Bloomberg Law report and the Office of Information and Regulatory Affairs' public docket. The step usually precedes public release of the final text in the Federal Register.

OIRA logged the package under the title "Fiduciary Duties In Selecting Designated Investment Alternatives," regulatory identifier RIN 1210-AC38. The filing names the DOL's Employee Benefits Security Administration as the authoring office, marks the stage as a final rule, flags it as economically significant and notes there is no legal deadline for completion.

What does the rule actually do?

The DOL unveiled the proposal on March 30. Under the draft, plan fiduciaries who follow a documented process when adding private assets to a 401(k) menu would receive a legal safe harbor under the Employee Retirement Income Security Act of 1974.

The proposal names six factors for that process:

• Performance
• Fees
• Liquidity
• Valuation
• Performance benchmarks
• Complexity

Satisfying them doesn't force any plan to offer crypto. It lowers litigation risk for employers that choose to, by giving their selection process regulatory cover.

The rule implements President Donald Trump's Aug. 7, 2025 executive order, "Democratizing Access to Alternative Assets for 401(k) Investors," which directed the Labor secretary to reexamine ERISA guidance and propose rules with "appropriately calibrated safe harbors." The order defined alternative assets to include private-market equity and debt, real estate, actively managed vehicles holding digital assets, commodities, infrastructure and lifetime-income strategies.

A DOL fact sheet said prudence under ERISA is process-based and fiduciaries keep discretion to select any designated investment alternative if they follow the outlined review. Deputy Labor Secretary Keith Sonderling framed the approach as neutral: "The department's days of picking winners and losers are over."

How did we get here?

The rule reverses a prior chill. In May 2025 the DOL rescinded its March 2022 compliance release, which had told fiduciaries to use "extreme care" before putting cryptocurrency on a 401(k) menu. The department said that phrase appears nowhere in ERISA and restored a context-specific standard.

The path hasn't been uncontested. Sens. Bernie Sanders and Elizabeth Warren pressed the DOL to abandon the crypto-friendly direction, according to subsequent reporting. House Republicans have separately pushed to codify Trump's order in statute.

Why does OIRA review matter?

OIRA review under Executive Order 12866 is the final interagency checkpoint before a rule can be published. Bloomberg Law reported that the package's arrival signals it is nearing completion. The same office cleared the proposed version in late March; that earlier pass took roughly two months after a January submission, per prior Bloomberg coverage of the roughly $12 trillion 401(k) market.

What's still unknown is the final text itself. Whether the six-factor safe harbor survived the comment period intact, how digital-asset vehicles are described, and what effective date the DOL chose will only become clear when OIRA returns the rule and the department posts it. Comment volume was heavy, with industry and labor groups arguing opposite sides of the prudence standard for months.

For bitcoin, the stakes sit in plan menus rather than spot ETF flows. Trump's August order framed digital assets as a retirement-access issue for more than 90 million defined-contribution savers. A finalized safe harbor wouldn't put crypto on every lineup overnight. It would give plan committees a clearer map if they want exposure through an asset-allocation sleeve holding digital assets.

The open question is how fast OIRA clears the economically significant package — and whether the published rule still delivers the process cover the March draft promised, or whether the comment fight rewrote the safe harbor before the White House signs off.