The U.S. Department of Labor’s final rule that would ease the inclusion of cryptocurrency and other alternative assets in 401(k) retirement plans reached the White House Office of Information and Regulatory Affairs (OIRA) on November 5, 2026. Titled “Fiduciary Duties in Selecting Designated Investment Alternatives” (RIN 1210-AC38), the rule is classified as economically significant. OIRA review is the last major procedural step before potential publication in the Federal Register. The measure is not yet final or in effect, and the exact final text has not been released.
The rule would create a process-based legal safe harbor under the Employee Retirement Income Security Act (ERISA) for plan fiduciaries who follow a documented evaluation when adding alternative investments—such as private equity, real estate, and vehicles holding digital assets—to 401(k) menus. It does not require any plan to offer crypto or other alternatives.
The Drivers of the Current Situation
The process stems from President Trump’s Executive Order 14330, “Democratizing Access to Alternative Assets for 401(k) Investors,” signed August 7, 2025. The order directed the Labor Department to reexamine prior ERISA guidance and, where appropriate, develop rules with calibrated safe harbors to expand access for the more than 90 million Americans in employer-sponsored defined-contribution plans.
In May 2025 the department rescinded 2022 guidance that had urged fiduciaries to exercise “extreme care” before adding cryptocurrency options. The proposed version of the current rule was released around March 30–31, 2026, with a public comment period closing June 1. Under that draft, fiduciaries gain protection by assessing six factors: performance, fees, liquidity, valuation, performance benchmarks, and complexity. Crypto exposure is contemplated primarily through managed funds or vehicles rather than direct holdings of individual tokens.
Employer-sponsored retirement plans hold trillions of dollars (reports cite figures in the $12–15 trillion range as of mid-2026). Asset managers and industry groups have sought clearer rules to reduce litigation risk that previously deterred many plans from offering alternatives.
Impact and Broader Context
If finalized and published, the rule would lower legal barriers for employers and plan sponsors that choose to add alternative-asset options, potentially broadening diversification opportunities and long-term return profiles for participants. It would not mandate offerings, set allocation minimums or maximums, or automatically make Bitcoin, Ether, or other cryptocurrencies available inside every 401(k). Adoption would still depend on individual plan decisions, product availability, recordkeeping infrastructure, and participant demand.
Questions remain about the precise final wording (whether the six factors survived intact or were modified), effective date, treatment of smaller or less liquid digital assets, valuation and liquidity standards, and interaction with existing ERISA duties. Critics, including some Democratic lawmakers, have raised concerns about risk, fees, and complexity for ordinary savers. Supporters emphasize greater choice and alignment with private-market opportunities already available to wealthier investors.
OIRA review has no strict statutory deadline (reviews can take up to 90 days or longer). The proposed rule cleared the same office more quickly earlier in 2026. Once cleared, the Labor Department can publish the final rule; an effective date would typically follow. Until publication, no new safe harbor exists and prior practices continue.
This analysis draws on reports of the November 5, 2026, OIRA submission, the March 2026 proposed rule, Executive Order 14330, and related coverage. The rule’s final content, timing, and practical impact remain subject to the ongoing White House review and subsequent publication process.