401(k) Rule On Alternative Assets Reaches White House Review

The 401(k) rule on selecting investment options reached the White House on November 5, when the Labor Department sent over its final version. The regulatory review site lists it as "Fiduciary Duties In Selecting Designated Investment Alternatives," RIN 1210-AC38, stage Final Rule, marked economically significant.

The review listing. Source: Reginfo.gov, RIN 1210-AC38.

Nothing on the listing mentions crypto. The link comes from the proposal this rule finishes, which ran in the Federal Register on March 31, 2026. That text is public, while the final wording is still under wraps.

What the 401(k) rule proposal sets out

The proposed rule creates a safe harbor for plan fiduciaries who pick designated investment alternatives. It names six factors a fiduciary can weigh. When one is considered objectively, thoroughly and analytically, the judgment is presumed reasonable and gets significant deference. The Department says that should let fiduciaries rely on a decision without undue fear of litigation.

One carve-out matters for crypto. The proposal says the term designated investment alternative excludes brokerage windows and self-directed brokerage accounts. Those let participants pick investments beyond the plan's menu.

It carries out Executive Order 14330, titled "Democratizing Access to Alternative Assets for 401(k) Investors." People could send comments until June 1, 2026. The Department's own estimate counts about 721,000 individual account plans in 2023. They covered roughly 118 million participants and more than $8.8 trillion in assets.

Where crypto appears

The Department's preamble describes digital assets as assets stored and transmitted digitally, including cryptocurrencies such as Bitcoin and other tokens. The executive order's definition of alternative assets includes holdings in actively managed vehicles investing in digital assets. The proposal also covers private markets, real estate, commodities, infrastructure and lifetime income strategies.

The 401(k) rule is not written for crypto alone. It reaches asset allocation funds with exposure to those categories, and it is not limited to them. A fiduciary picking any menu option could use the same process.

A reversal on earlier 401(k) crypto guidance

Back in March 2022 the Department told plan fiduciaries to use "extreme care" before putting a crypto option on a 401(k) menu. That guidance added that fiduciaries should expect questions about how such options fit their duties of prudence and loyalty. The Department pulled it in May 2025, and the proposal says the "extreme care" standard has no basis in ERISA and departs from ordinary fiduciary principles.

What the final text still has to settle

The proposal drew public comments until June 1, and the final version may respond to them. Review at the Office of Information and Regulatory Affairs has no legal deadline, according to the listing. The Department has not published the final rule. Whether the six factors survive the comment period unchanged is therefore unknown.

The 401(k) rule matters to crypto only through that wider process. Readers will learn more when the text is released and given an effective date. Until then the March proposal remains the one document that shows how the Department treats digital assets inside a retirement plan.

The proposed rule's Federal Register notice. Source: Federal Register, document 2026-06178.