White House Receives Final Rule to Permit Crypto in 401(k)s

According to Bloomberg Law, a final Department of Labor (DOL) rule designed to facilitate the inclusion of alternative assets—such as cryptocurrency, real estate, and private equity—into 401(k) retirement accounts reached the White House on Thursday for review, marking a standard procedural milestone ahead of a public rollout.

The Office of Information and Regulatory Affairs (OIRA) formally logged the submission on Nov. 5 under the heading “Fiduciary Duties In Selecting Designated Investment Alternatives” (RIN 1210-AC38). The administrative filing identifies the DOL’s Employee Benefits Security Administration as the creator, designates the phase as a final rule, categorizes it as economically significant, and points out that there is no mandated statutory deadline for its completion.

The DOL first revealed the draft proposal on March 30. Under that initial framework, plan fiduciaries who adhere to a documented methodology when incorporating private assets into a 401(k) lineup would be granted a legal safe harbor under the Employee Retirement Income Security Act of 1974 (ERISA).

The draft outlines six mandatory factors: complexity, performance benchmarks, valuation, liquidity, fees, and performance. Meeting these criteria does not obligate plans to feature cryptocurrency; rather, it minimizes potential litigation exposure for employers choosing to do so.

What the DOL safe harbor covers

President Donald Trump issued an executive order on Aug. 7, 2025, titled “Democratizing Access to Alternative Assets for 401(k) Investors,” which instructed the Labor secretary to review existing ERISA policies and draft regulations featuring “appropriately calibrated safe harbors” where feasible. The directive categorized alternative investments to encompass private-market debt and equity, commodities, infrastructure, real estate, holdings in actively managed funds dealing in digital assets, and lifetime-income options.

The March blueprint serves to enact that executive mandate. A DOL fact sheet emphasized that ERISA prudence relies on proper procedure, allowing fiduciaries the autonomy to pick any designated investment alternative provided they complete the specified evaluations. Deputy Labor Secretary Keith Sonderling described this position as impartial, stating, “The department’s days of picking winners and losers are over.”

This approach marks a departure from previous restrictions. In May 2025, the DOL repealed a March 2022 compliance bulletin that urged fiduciaries to exercise “extreme care” prior to integrating digital assets into 401(k) choices. The agency noted that this specific phrase lacked statutory backing in ERISA and reinstated a standard tailored to individual circumstances.

Subsequently, reports indicated that Senators Elizabeth Warren and Bernie Sanders lobbied the DOL to step away from its crypto-friendly trajectory. Meanwhile, House Republicans have pursued legislative measures to permanently codify Trump’s executive order on digital assets.

Why OIRA review matters for bitcoin and crypto

Governed by Executive Order 12866, the OIRA review process acts as the final interagency evaluation prior to official publication in the Federal Register. Bloomberg Law noted that this arrival indicates the regulatory package is nearing its conclusion. OIRA previously cleared the draft version in late March, taking approximately two months following its January submission, according to earlier reports concerning the roughly $12 trillion 401(k) sector.

The exact wording of the final regulation remains unreleased. Details such as whether the six-factor safe harbor weathered public feedback unchanged, how digital asset products are characterized, and the timeline chosen by the DOL will only become apparent once OIRA returns the text and the agency publishes it. The proposal drew substantial public comments, with labor organizations and industry representatives debating opposite sides of the prudence standard over several months.

For bitcoin, the primary impact lies within retirement plan offerings rather than spot exchange-traded fund activity. Trump’s August directive framed digital currencies as a retirement inclusion matter affecting more than 90 million defined-contribution participants. Establishing a permanent DOL safe harbor would not instantly inject bitcoin and alternative tokens into every retirement portfolio, but it would provide plan administrators with a structured framework if they choose to allocate a portion of their holdings toward digital asset strategies.

The immediate question is how quickly OIRA will process the economically significant directive—and whether the final published text preserves the procedural protections outlined in the March draft, or if feedback from the comment period altered the safe harbor ahead of White House approval.

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