A final Department of Labor rule designed to facilitate the inclusion of alternative assets, including cryptocurrency, in 401(k) retirement plans has arrived at the White House for final regulatory review. The Office of Information and Regulatory Affairs logged the rule package on November 5 under the title “Fiduciary Duties In Selecting Designated Investment Alternatives,” with RIN 1210-AC38.
The filing identifies the DOL’s Employee Benefits Security Administration as the authoring office and marks the stage as a final rule. The agency flagged the regulation as economically significant but noted there is no legal deadline for the completion of the review process. Bloomberg Law reported that the arrival of the rule at the Office of Information and Regulatory Affairs signals the package is nearing completion.
Safe Harbor Framework
The Department of Labor unveiled the initial proposal on March 30. The draft sought to provide a legal safe harbor under the Employee Retirement Income Security Act of 1974 for plan fiduciaries who follow a documented process when adding private assets to a 401(k) menu. The proposal outlined six specific factors for consideration: performance, fees, liquidity, valuation, performance benchmarks, and complexity.
Satisfying these six factors does not mandate that plans offer cryptocurrency or other alternative assets. Instead, the framework aims to lower litigation risk for employers who choose to include such investments. The final text of the rule is not yet public. Details regarding the survival of the six-factor safe harbor, the specific description of digital-asset vehicles, and the effective date will remain unknown until the Office of Information and Regulatory Affairs returns the rule and the department posts it.
Policy Shift and Political Context
This regulatory development follows an executive order issued by President Donald Trump on August 7, 2025, titled “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.” The executive order defined alternative assets to include private-market equity and debt, real estate, holdings in actively managed vehicles that invest in digital assets, commodities, infrastructure, and lifetime-income strategies.
In May 2025, the DOL rescinded its March 2022 compliance release that had advised fiduciaries to use “extreme care” before putting cryptocurrency on a 401(k) menu. Deputy Labor Secretary Keith Sonderling described the department’s current approach as neutral, stating that “the department’s days of picking winners and losers are over.”
The rule has faced political scrutiny. Bitcoin Magazine reported that Senators Bernie Sanders and Elizabeth Warren pressed the DOL to abandon the crypto-friendly path. Separately, House Republicans have pushed to codify Trump’s crypto order in statute.
