Final 401(k) Crypto Rule Reaches White House Review Stage

A completed Labor Department rule that could let alternative holdings — private equity, real estate and crypto among them — enter 401(k) retirement plans went to the White House for review on Thursday, according to Bloomberg Law. The move is typically a preliminary step before a rule becomes public.

On Nov. 5, the Office of Information and Regulatory Affairs entered the package into its log as “Fiduciary Duties In Selecting Designated Investment Alternatives,” RIN 1210-AC38. According to the filing, the Employee Benefits Security Administration at the DOL is the author, the stage is marked as a final rule, and it is classified as economically significant; the paperwork also notes the agency faces no legal deadline.

The department first presented the proposed rule on March 30. Under that version, fiduciaries who use a documented procedure to place private assets on a 401(k) menu would receive a legal safe harbor under the Employee Retirement Income Security Act of 1974.

Six factors appear in the draft: performance, fees, liquidity, valuation, performance benchmarks and complexity. Meeting those criteria would not obligate a plan to offer cryptocurrency. What it would do is reduce the threat of litigation for employers that choose to make it available.

What the DOL safe harbor covers

The executive order signed by President Donald Trump on Aug. 7, 2025 — “Democratizing Access to Alternative Assets for 401(k) Investors” — told the Labor secretary to revisit ERISA guidance and, where suitable, put forward rules with “appropriately calibrated safe harbors.” Its definition of alternative assets covered private-market equity and debt, real estate, positions in actively managed vehicles invested in digital assets, commodities, infrastructure and lifetime-income arrangements.

The proposed rule issued in March carries out that directive. The department’s fact sheet described ERISA prudence as grounded in process, adding that fiduciaries keep the latitude to pick any designated investment alternative as long as they follow the review described. Deputy Labor Secretary Keith Sonderling framed the policy as neutral: “The department’s days of picking winners and losers are over.”

The current approach is a turn from an earlier position. In May 2025, the DOL scrapped a compliance release from March 2022 that had directed fiduciaries to exercise “extreme care” before adding cryptocurrency to a 401(k) menu. The agency said that language appears nowhere in ERISA and brought back a context-specific test.

After that, reports emerged that Sens. Bernie Sanders and Elizabeth Warren urged the Labor Department to drop its crypto-friendly approach. In a separate track, House Republicans have sought to write Trump’s crypto order into law.

Why OIRA review matters for bitcoin and crypto

Under Executive Order 12866, OIRA review serves as the final interagency gate before any final rule can be printed in the Federal Register. Bloomberg Law characterized the arrival as a sign the package is close to being finished. That same office had signed off on the earlier, proposed version in late March ahead of the DOL’s publication; that review lasted about two months after the January submission, according to earlier Bloomberg reporting on the roughly $12 trillion 401(k) market.

The actual final text remains under wraps. Whether the six-factor safe harbor made it through the comment period unchanged, how digital-asset vehicles are characterized, and what effective date the department selected will become clear only when OIRA sends the rule back and the DOL publishes it. The proposal drew heavy comment volume, with industry and labor organizations taking opposite positions on the prudence standard for months.

For bitcoin, what matters is the lineup of plans, not the flow into spot ETFs. Trump’s August order helped turn digital assets into a retirement-access concern for more than 90 million defined-contribution savers. If the DOL safe harbor is finalized, bitcoin and crypto would not instantly appear in every investment menu. It would, however, give plan committees a clearer route if they want exposure via an asset-allocation sleeve containing digital assets.

The open question is how quickly OIRA will let the economically significant package through — and whether the final published rule preserves the procedural protection for fiduciaries that the March draft held out, or the comment battle reshaped the safe harbor before the White House gave its sign-off.