The U.S. Department of Labor’s Employee Benefits Security Administration has submitted its final rule on allowing alternative assets—including cryptocurrency—to 401(k) retirement plans for review by the White House Office of Information and Regulatory Affairs (OIRA). The filing, logged on Nov. 5 under the title “Fiduciary Duties In Selecting Designated Investment Alternatives” (RIN 1210‑AC38), marks the last procedural step before the rule can be published in the Federal Register, according to Bloomberg Law.

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What the Rule Proposes

The proposal, first unveiled on March 30, establishes a safe‑harbor framework that protects plan fiduciaries who follow a documented process when adding non‑traditional assets to a 401(k) menu. The framework lists six factors—performance, fees, liquidity, valuation, performance benchmarks and complexity—that must be evaluated. Satisfying these criteria does not obligate plans to offer crypto, but it reduces litigation risk for employers that choose to do so. The Department of Labor’s fact sheet emphasizes that fiduciaries retain discretion to select any designated investment alternative as long as the outlined review is completed.

Policy Background

The rule implements President Donald Trump’s Aug. 7, 2025 executive order titled “Democratizing Access to Alternative Assets for 401(k) Investors,” which directed the Labor Secretary to revisit ERISA guidance and create calibrated safe‑harbors for assets such as private‑market equity, real‑estate, digital‑asset vehicles, commodities and infrastructure. In May 2025 the DOL rescinded a 2022 compliance release that had warned fiduciaries to exercise “extreme care” before adding crypto, arguing the phrase was not grounded in ERISA. Deputy Labor Secretary Keith Sonderling described the new approach as neutral, saying the department’s “days of picking winners and losers are over.”

Political Landscape and Next Steps

The rule has attracted attention from both sides of the aisle. Senators Bernie Sanders and Elizabeth Warren have urged the DOL to abandon the crypto‑friendly path, while House Republicans are pushing to codify the Trump executive order into statute. OIRA review under Executive Order 12866 is the final inter‑agency checkpoint; Bloomberg Law notes that the review could take weeks to months. The final text, including whether the six‑factor safe‑harbor survives unchanged, has not yet been released.

What to Watch Next

Stakeholders will be watching for OIRA’s decision and the eventual publication date in the Federal Register. Industry groups expect clarification on how digital‑asset vehicles are described, while labor organizations will monitor any changes to the prudence standard. The rule’s effective date and any post‑implementation guidance will determine how quickly retirement plan sponsors can incorporate crypto exposure for the roughly 90 million defined‑contribution savers in the U.S. market.