A U.S. Department of Labor (DOL) rule on 401(k) investment selection under White House review could influence how fiduciaries assess crypto-related options, although records available so far show no mandate to add them.
The Office of Information and Regulatory Affairs (OIRA) docket shows the final-rule submission arrived Nov. 5 and remained pending Nov. 7. OIRA classifies it as economically significant and lists no legal deadline.
The potential crypto connection comes from President Donald J. Trump’s Aug. 7, 2025, executive order. Its definition of alternative assets includes investments in actively managed vehicles that invest in digital assets, alongside private-market investments, real estate, commodities, infrastructure projects and lifetime-income strategies.
The final rule’s text is not publicly available. The detailed text available is the DOL’s March 31 proposal, which would give fiduciaries a process-based safe harbor when choosing investments for participant-directed retirement plans. It sets out six considerations: performance, fees, liquidity, valuation, benchmarking and investment complexity. For each factor addressed through the proposed process, a fiduciary would receive a presumption that its judgment met the Employee Retirement Income Security Act’s (ERISA) duty of prudence for that factor.
The DOL says plans would not have to use the proposed safe harbor or change their investment menus. The proposal alone therefore would not require a plan to offer crypto-related investments.
The department says concerns about litigation and regulatory uncertainty have discouraged fiduciaries from considering alternative investments. It says the proposed process is intended to give them more certainty. The proposal also notes liquidity and valuation challenges with some alternatives and says it is uncertain how many plans or participants would adopt them. Fiduciaries could gain greater certainty if the approach is adopted, while firms offering alternative-asset products could see more demand.
In May 2025, the department withdrew its 2022 guidance urging “extreme care” before cryptocurrency was added to a 401(k) menu. It said the change returned the department to a neutral position on fiduciaries’ choices.
OIRA has not listed a date for completing its review. The final rule’s provisions and effective date remain unavailable in the public records cited.
