The crypto 401(k) rule has reached the White House in its final review stage, according to Bloomberg Law. The Department of Labor package arrived on Thursday for consideration by the Office of Information and Regulatory Affairs, the office responsible for the last interagency checkpoint before a rule can be published in the Federal Register. Its arrival does not mean approval, but it puts a proposal for wider retirement-plan access to alternative assets closer to public release.
crypto 401(k) rule: Final-stage review advances without approval
OIRA logged the package on Nov. 5 as Fiduciary Duties In Selecting Designated Investment Alternatives, RIN 1210-AC38. The filing identifies the Department of Labor’s Employee Benefits Security Administration as the authoring office, classifies the measure as a final rule and flags it as economically significant. It also lists no legal deadline for completion, meaning investors should not treat the review milestone as a firm publication date.
The Department of Labor unveiled the proposal on March 30. Its draft offered a legal safe harbor under the Employee Retirement Income Security Act of 1974 to fiduciaries that follow a documented process when adding private assets to a 401(k) menu. The proposal named six factors: performance, fees, liquidity, valuation, performance benchmarks and complexity. Meeting the factors would not compel any plan to offer cryptocurrency. The practical effect would be to reduce litigation risk for employers and plan committees that choose to add eligible exposure after completing the prescribed review.
The March proposal completed its earlier White House review on March 24, while public comments on the subsequent draft closed June 1. That earlier OIRA pass took roughly two months after the package was submitted in January. Bitcoin Magazine reported that heavy comment volume reflected opposing arguments from industry and labor groups over the prudence standard, a dispute that may have altered the language sent back for final review.
Six factors remain central, but final wording is unknown
The final text has not been made public. Bitcoin Magazine said it remains unclear whether the six-factor safe harbor survived the comment process intact, how the rule describes digital-asset vehicles or what effective date the Department of Labor selected. Those are material details for plan sponsors and asset managers. A framework that survives unchanged would provide a clearer route into retirement menus, while revisions could narrow the types of products or processes that qualify.
Blockonomi reported that the draft excluded ongoing investment monitoring from the selection-focused safe harbor and also excluded the selection of service providers from those protections. Those limits would leave separate fiduciary duties in place. The final version remains unpublished, so investors cannot yet know whether the finished rule changes either boundary. Providers would also continue to depend on plan fiduciaries selecting suitable products, while employers would retain responsibility for assessing options against participants’ financial interests.
The proposal is rooted in President Donald Trump’s Aug. 7, 2025 executive order, Democratizing Access to Alternative Assets for 401(k) Investors. The order directed the Labor secretary to reexamine ERISA guidance and, where appropriate, propose rules with appropriately calibrated safe harbors. Its definition of alternative assets covered private-market equity and debt, real estate, holdings in actively managed vehicles that invest in digital assets, commodities, infrastructure and lifetime-income strategies.
Deputy Labor Secretary Keith Sonderling characterized the approach as neutral, saying the department’s days of picking winners and losers were over. Bitcoin Magazine reported that a Department of Labor fact sheet described prudence under ERISA as process-based and said fiduciaries could select any designated investment alternative if they followed the outlined review. The policy therefore shifts the emphasis away from federal approval of an individual asset and toward the quality of a plan’s selection process.
Policy shift follows withdrawal of prior caution
The proposal reverses a prior restrictive position. In May 2025, the Department of Labor rescinded its March 2022 compliance release that told fiduciaries to use extreme care before putting cryptocurrency on a 401(k) menu. The department said the phrase extreme care was not found in ERISA and restored a context-specific standard. That change placed cryptocurrency alongside other assets subject to the same general fiduciary framework rather than a special warning standard.
The policy has drawn opposition from Sens. Bernie Sanders and Elizabeth Warren, who pressed the Department of Labor to abandon the crypto-friendly path. House Republicans have separately pushed to codify Trump’s crypto order in statute. That political contest underscores why the final text matters. A legally durable safe harbor could shape how plans evaluate digital assets, while congressional resistance or a narrower rule could preserve uncertainty for employers.
Bitcoin Magazine said the stakes sit in plan menus rather than spot ETF flows. Trump’s August order also framed digital assets as a retirement-access issue for more than 90 million defined-contribution savers. Even so, a finalized safe harbor would not place cryptocurrency on every lineup overnight. It would give committees a clearer map for adding exposure through an asset-allocation sleeve that holds digital assets, subject to their assessment of fees, liquidity, valuation and other factors.
Large retirement market, limited impact data
The Investment Company Institute reported $10.8 trillion in US 401(k) assets at June 30, 2026. Blockonomi said that figure demonstrates the scale of the retirement market rather than indicating how much money might move into cryptocurrencies. The market value also does not settle the legal questions surrounding plan selection, fees, liquidity and monitoring, which remain more immediate than estimates of potential asset inflows.
The Department of Labor lacked data to estimate how many digital-asset businesses might benefit from the proposal and requested additional information about firms marketing products to retirement plans. That admission limits forecasts about the rule’s commercial effect. A final rule could create a clearer compliance path for providers that satisfy the framework, but distribution would still depend on fiduciaries selecting products and employers accepting responsibility for participant interests.
The most important immediate catalyst is OIRA’s return of the rule. If the six-factor process remains intact, plan committees would gain a more defined route for considering digital-asset exposure. If comment-period changes narrowed the framework, the practical impact could be smaller. Until the final text is released, the crypto 401(k) rule is advancing, not yet complete, and the safe harbor’s final scope remains the central question for investors, employers and retirement-plan providers.