A final U.S. Department of Labor rule on fiduciary duties for selecting designated investment alternatives in participant-directed retirement plans has reached the White House Office of Information and Regulatory Affairs (OIRA), the last formal step before possible publication. The package, titled “Fiduciary Duties In Selecting Designated Investment Alternatives” and assigned RIN 1210-AC38, was logged on November 5, 2026, and is classified as economically significant. The review could help open the roughly $12 trillion 401(k) retirement market to cryptocurrency investments, though publication has no statutory deadline.
The measure implements Executive Order 14330, signed by President Donald Trump on August 7, 2025, which directed agencies to expand access to alternative assets in 401(k) plans when fiduciaries determine they can improve net risk-adjusted returns. A March 2026 proposed rule would create a process-based safe harbor under the Employee Retirement Income Security Act. Fiduciaries who objectively and thoroughly evaluate designated investment alternatives against a non-exhaustive list of six factors—performance, fees, liquidity, valuation, performance benchmarks, and complexity—would be presumed to have satisfied the duty of prudence and receive significant deference. The rule is asset-neutral, neither requiring nor forbidding digital assets, private equity, real estate, commodities, or infrastructure.
For Bitcoin and other digital assets, the practical impact could be significant if packaged products such as exchange-traded funds or asset-allocation funds with limited crypto exposure clear the six-factor hurdles. However, smaller tokens face substantial barriers because plan committees must document reliable pricing, adequate liquidity, meaningful benchmarks, and sufficient track records. Direct ownership of digital assets would also raise custody, cybersecurity, and recordkeeping questions. Even after OIRA review—which typically lasts up to ninety days—any meaningful expansion of crypto options in 401(k) plans is expected to unfold gradually over several years, since employers retain discretion over plan menus and implementation requires system and policy updates.
