Labor Department Sends Final 401(k) Crypto Rule to the White House for Review

Published November 7, 2026, 9:20 AM PKT. Based on the White House Office of Information and Regulatory Affairs docket for rule RIN 1210-AC38 (primary source), with reporting by The Block on November 6, 2026, and crypto.news (secondary reporting).

The US Department of Labor sent its final rule on alternative assets in 401(k) retirement plans to the White House for review on Thursday, November 5, 2026, the last review step before the rule can be published. The filing, logged by the White House Office of Information and Regulatory Affairs (OIRA) under identifier RIN 1210-AC38, is titled "Fiduciary Duties In Selecting Designated Investment Alternatives" and is classified as an economically significant final rule. It would open a clearer path for employers to offer 401(k) funds that hold cryptocurrencies such as Bitcoin ($BTC) and Ethereum ($ETH), along with private equity, real estate and other alternative assets. The review is pending, and the docket lists no legal deadline for OIRA to finish it.

The six factors fiduciaries must weigh

The rule would create a legal safe harbor under the Employee Retirement Income Security Act of 1974 (ERISA) for the fiduciaries who choose the investment options on a 401(k) menu. Under the proposal the Labor Department published on March 30, 2026, fiduciaries who follow a documented process when adding an asset allocation fund that holds alternative assets would be protected from some litigation risk. The proposal names six factors they must consider: performance, fees, liquidity, valuation, performance benchmarks and complexity. The Labor Department said in its filing that it is still considering the costs of the rule. The final text has not been made public, so it is not yet known whether the six-factor safe harbor survived the comment process intact.

What the rule does not do

The rule would not force any employer to offer alternative assets, and it would not let workers buy Bitcoin ($BTC) directly inside a 401(k) on its own. Investment decisions would stay with plan fiduciaries, and any crypto exposure would come through managed funds that hold digital assets, not through direct purchases of coins by individual savers. The framework sets out a process for evaluating investment products rather than favoring or excluding cryptocurrencies by name. The proposal drew scrutiny on Capitol Hill earlier this year, when Senators Bernie Sanders and Elizabeth Warren pushed the Labor Department to scrap it, saying it would expose retirement savers to volatile assets, including crypto.

A $10.8 trillion market, and a $216 billion scenario

Americans held about $10.8 trillion in 401(k) plans at the end of June 2026, according to the Investment Company Institute. A market scenario shared by the firm Sweep suggested that moving 2 percent of that money into crypto would amount to about $216 billion, a figure that assumes an allocation across the entire asset pool and is a scenario, not a forecast of actual flows. Even a small shift in how plan menus are built would matter because 401(k) plans are one of the largest pools of long-term savings in the United States, and most workers can only invest through the options their employer puts on the menu.

The road from the August 2025 order to the final rule

The rule carries out President Donald Trump's executive order of August 2025, titled "Democratizing Access to Alternative Assets for 401(k) Investors", which directed the Labor secretary to clarify the duties fiduciaries owe when deciding whether to offer asset allocation funds containing alternative assets, and to propose appropriately calibrated safe harbors. The order defined alternative assets broadly, covering private-market equity and debt, real estate, actively managed vehicles investing in digital assets, commodities, infrastructure and lifetime-income strategies. In May 2025, before the order, the department had already withdrawn a March 2022 compliance release that told fiduciaries to use extreme care before considering crypto in retirement plans. The department published its proposed rule on March 30, 2026, in the Federal Register the next day, and the comment period closed on June 1, 2026. The OIRA docket shows the department spent the months since then analyzing the comments before sending the final version to the White House on November 5.

What happens next

The rule must clear White House review, be published in the Federal Register and take effect before plan managers can rely on it. Because OIRA lists no deadline, the timing of publication is not fixed, and the final text could still differ from the March proposal in how it describes digital-asset vehicles, what effective date it sets and whether the six-factor safe harbor survived intact. If the rule is published as proposed, employers would still decide for themselves whether to add alternative-asset funds, and the first crypto options in 401(k) menus would likely arrive through diversified funds rather than single-coin products.

Sources

• Office of Information and Regulatory Affairs, View Rule: Fiduciary Duties In Selecting Designated Investment Alternatives (RIN 1210-AC38) (primary source: Department of Labor, Employee Benefits Security Administration, economically significant, no legal deadline, implements Executive Order 14330, proposed rule published March 31, 2026, 91 FR 16088, comment period ended June 1, 2026, comments analyzed from August 2026, costs still under development)
• The Block, Trump administration moves closer to allowing crypto in 401(k) retirement plans, November 6, 2026 (secondary reporting: Labor Department filed the rule with OIRA on Thursday, November 5, 2026, to further the executive order on alternative assets in 401(k) plans, the department said it was still considering the costs, Senators Bernie Sanders and Elizabeth Warren pushed the department to scrap the rule earlier this year, the department earlier reversed guidance discouraging retirement managers from considering crypto)
• crypto.news, Crypto 401(k) rule reaches White House for final review, November 6, 2026 (secondary reporting: OIRA received the final rule on November 5, 2026, review pending with no legal deadline, the March proposal names six factors, performance, fees, liquidity, valuation, performance benchmarks and complexity, Americans held $10.8 trillion in 401(k) plans at the end of June 2026 according to the Investment Company Institute, a 2 percent allocation scenario would amount to about $216 billion)
• TheStreet, Trump's 401(k) private assets rule reaches White House, November 6, 2026 (secondary reporting: the final rule arrived at OIRA on November 5, 2026, the final text has not been made public, the rule must clear White House review, get published in the Federal Register and take effect before plan managers can rely on it, the rule would not force any employer to offer alternative assets, workers would not automatically be able to buy bitcoin directly inside a 401(k))

This article is news reporting and is not investment advice.