The Department of Labor’s final rule permitting cryptocurrency and alternative assets in 401(k) retirement plans arrived at the White House Office of Information and Regulatory Affairs on November 5 for interagency review before Federal Register publication.
The rule implements President Donald Trump’s August 2025 executive order “Democratizing Access to Alternative Assets for 401(k) Investors,” which directed the Labor Secretary to propose rules with “appropriately calibrated safe harbors” for private-market equity and debt, real estate, digital-asset vehicles, commodities, infrastructure, and lifetime-income strategies. The order affects 90 million defined-contribution savers and a $12 trillion 401(k) market.
Deputy Labor Secretary Keith Sonderling said in a statement: “The department’s days of picking winners and losers are over.” The safe harbor framework grants legal protection under the Employee Retirement Income Security Act (ERISA) to plan fiduciaries who follow a documented review process when adding private assets to 401(k) menus.
Safe Harbor Framework and Fiduciary Protection
The rule, titled “Fiduciary Duties In Selecting Designated Investment Alternatives,” codifies six factors for plan fiduciaries to evaluate when considering alternative investments: performance, fees, liquidity, valuation, performance benchmarks, and complexity. Fiduciaries who document their review using these criteria receive legal protection under ERISA when selecting private assets for plan menus.
The framework covers holdings in actively managed vehicles investing in digital assets alongside traditional alternatives. The DOL previously rescinded a March 2022 guidance telling fiduciaries to use “extreme care” with cryptocurrency, clearing regulatory language that had chilled institutional adoption.
Path to Publication
The DOL unveiled the proposal on March 30, 2026, after submitting an initial draft to OIRA in January. The proposed version passed OIRA review in late March, taking roughly two months. The final rule now enters OIRA’s standard interagency review process, the last checkpoint before publication in the Federal Register.
The regulatory pathway faced opposition from Senator Bernie Sanders and Senator Elizabeth Warren, who pressed the DOL to abandon the crypto-friendly path. House Republicans separately pushed to codify Trump’s crypto order in statute. Industry and labor groups argued opposite sides of the prudence standard during the public comment period.
