A final DOL rule that would ease alternative assets such as private equity, real estate and cryptocurrency into 401(k) retirement plans arrived at the White House on Thursday for review, Bloomberg Law reported, a procedural step that usually precedes public release.
The Office of Information and Regulatory Affairs logged the package on Nov. 5 under the title “Fiduciary Duties In Selecting Designated Investment Alternatives,” RIN 1210-AC38. The filing lists the DOL’s Employee Benefits Security Administration as the authoring office, marks the stage as a final rule, flags it as economically significant and notes that there is no legal deadline for completion.
The DOL unveiled the proposal on March 30. In that draft, plan fiduciaries who follow a documented process when adding private assets to a 401(k) menu would get a legal safe harbor under the Employee Retirement Income Security Act of 1974.
The six factors named in the proposal are performance, fees, liquidity, valuation, performance benchmarks and complexity. Satisfying them does not force plans to offer crypto. It lowers the litigation risk for employers that decide they want to.
What the DOL safe harbor covers
President Donald Trump’s Aug. 7, 2025, executive order, “Democratizing Access to Alternative Assets for 401(k) Investors,” directed the Labor secretary to reexamine ERISA guidance and, where appropriate, propose rules with “appropriately calibrated safe harbors.” The order defined alternative assets to include private-market equity and debt, real estate, holdings in actively managed vehicles that invest in digital assets, commodities, infrastructure and lifetime-income strategies.
The March proposal implements that order. A DOL fact sheet said prudence under ERISA is process-based and that fiduciaries retain discretion to select any designated investment alternative if they follow the outlined review. Deputy Labor Secretary Keith Sonderling cast the approach as neutral: “The department’s days of picking winners and losers are over.”
That stance reverses a prior chill. In May 2025 the DOL rescinded its March 2022 compliance release that told fiduciaries to use “extreme care” before putting cryptocurrency on a 401(k) menu. The department said that phrase was not found in ERISA and restored a context-specific standard.
Later, it was reported that Sens. Bernie Sanders and Elizabeth Warren pressed the DOL to abandon the crypto-friendly path. House Republicans have separately pushed to codify Trump’s crypto order in statute.
Why OIRA review matters for bitcoin and crypto
OIRA review under Executive Order 12866 is the last interagency checkpoint before a final rule can be published in the Federal Register. Bloomberg Law said the arrival signals the package is nearing completion. The same office cleared the proposed version in late March before the DOL published it; that earlier pass took roughly two months after the January submission, per prior Bloomberg coverage of the roughly $12 trillion 401(k) market.
What is not yet public is the final text itself. Whether the six-factor safe harbor survived comment intact, how digital-asset vehicles are described, and what effective date the DOL chose will only be clear when OIRA returns the rule and the department posts it. Comment volume on the proposal was heavy; industry and labor groups have argued opposite sides of the prudence standard for months.
For bitcoin, the stakes sit in plan menus rather than spot ETF flows. Trump’s August order helped frame digital assets as a retirement-access issue for more than 90 million defined-contribution savers. A finalized DOL safe harbor would not put bitcoin and crypto on every lineup overnight. It would give plan committees a clearer map if they want exposure through an asset-allocation sleeve that holds digital assets.
The test now is how fast OIRA clears the economically significant package — and whether the published final rule still gives fiduciaries the process cover the March draft promised, or whether the comment fight rewrote the safe harbor before the White House stamps it.
