The White House has begun reviewing a final Department of Labor rule that would make it easier for 401(k) retirement plans to offer crypto and other alternative assets.
Rule reaches its last checkpoint
The Labor Department’s Employee Benefits Security Administration sent the rule, titled “Fiduciary Duties in Selecting Designated Investment Alternatives,” to the White House Office of Management and Budget on Nov. 5.
OMB clearance is the last step before the department can publish the rule in the Federal Register, and the Office of Information and Regulatory Affairs has classified it as economically significant.
There is no deadline for clearing the rule, though the Insured Retirement Institute expects the review to take between 60 and 90 days.
In its filing, the DOL said:
“Such clarification must aim to identify the criteria that fiduciaries should use to prudently balance potentially higher expenses against the objectives of seeking greater long-term net returns and broader diversification of investments.”
“Such clarification must aim to identify the criteria that fiduciaries should use to prudently balance potentially higher expenses against the objectives of seeking greater long-term net returns and broader diversification of investments.”
A safe harbor for plan managers
The department first proposed the rule in March to implement President Donald Trump’s Aug. 7, 2025 executive order on access to alternative assets for 401(k) investors.
Under the proposal, plan fiduciaries would receive legal protection when selecting alternative investments, as long as they assess six factors: performance, fees, liquidity, valuation, performance benchmarks, and complexity.
The rule would not require employers to offer crypto, and its final text has not yet been made public.
When the proposal was unveiled, Deputy Secretary of Labor Keith Sonderling said:
“The department’s days of picking winners and losers are over. Our rule clearly spells out that managers must evaluate any and all potential product offerings by following a prudent process.”
“The department’s days of picking winners and losers are over. Our rule clearly spells out that managers must evaluate any and all potential product offerings by following a prudent process.”
He added:
“This proposal is decidedly neutral and refrains from saying that any asset class is any better or worse than other investment types, as the law requires.”
“This proposal is decidedly neutral and refrains from saying that any asset class is any better or worse than other investment types, as the law requires.”
Pushback from lawmakers
The proposal drew more than 47,000 public comments, and House and Senate committee leaders called for investigations after thousands of near-identical comments were submitted in support.
Earlier this year, Sens. Bernie Sanders and Elizabeth Warren pushed the DOL to scrap the rule, saying it would expose investors to volatile assets, including crypto.
The final regulation is expected to take effect toward the end of the first quarter of 2027.
