Key Takeaways
- • The Department of Labor sent its final-stage rule, "Fiduciary Duties in Selecting Designated Investment Alternatives," to the White House Office of Information and Regulatory Affairs (OIRA) on November 5, 2026, but the rule has not yet taken effect and no legal deadline for review is listed.
- • The proposed safe harbor would give plan managers a presumption of meeting legal standards if they carefully assess six factors: performance, fees, liquidity, valuation, benchmarks and complexity.
- • The framework is "decidedly neutral" across investment types, according to Deputy Secretary Keith Sonderling, and would not require employers to add Bitcoin or other digital assets to their plans.
- • The rule follows President Donald Trump's August 7, 2025 executive order calling for wider access to alternative assets in retirement accounts.
- • Senators Elizabeth Warren and Bernie Sanders and Representative Bobby Scott urged Labor in June to withdraw the proposal, arguing it would "compound, rather than address, the problem" of protecting retirement savings.
Summary
The Trump administration has moved closer to changing how 401(k) retirement plans evaluate cryptocurrency and other alternative investments. According to the primary report, the Department of Labor's Employee Benefits Security Administration submitted its final-stage rule to OIRA on November 5. The White House filing does not publish the rule's text, and OIRA may review the measure before the department releases its final version. The review has not changed the investments currently available to retirement savers.
The rule builds on a proposal Labor published on March 31. That proposal outlines six factors plan managers should assess when selecting investments: performance, fees, liquidity, valuation, benchmarks and complexity. Managers who carefully weigh these factors would receive a presumption that they met legal standards for prudent selection. Examples include evaluating expected returns after costs and whether an investment offers enough liquidity to meet retirement withdrawals or plan transfers. Labor Deputy Secretary Keith Sonderling described the framework as "decidedly neutral" toward investment types, and it would apply to investment options generally rather than only to cryptocurrency. It would not compel employers to offer Bitcoin or other digital assets.
The measure follows President Trump's August 7, 2025 executive order, which directed Labor to clarify plan managers' duties when considering funds holding digital assets and other investments. Labor also reversed its earlier stance in May 2025, withdrawing 2022 guidance that had urged managers to exercise "extreme care" with crypto. The department said it would neither endorse nor reject an investment solely because it involved digital assets.
The proposal has drawn opposition from Democratic lawmakers. Senators Elizabeth Warren and Bernie Sanders and Representative Bobby Scott urged Labor in June to withdraw the plan, citing risks tied to digital assets and private investments. They argued that retirement plans should prioritize costs, stability and safety rather than expose workers to products carrying higher fees or greater uncertainty.
The White House review is the next step before Labor can publish its final rule. Even after publication, employers and plan managers would still decide which investments to offer, subject to their duties under federal retirement law.
The rule builds on a proposal Labor published on March 31. That proposal outlines six factors plan managers should assess when selecting investments: performance, fees, liquidity, valuation, benchmarks and complexity. Managers who carefully weigh these factors would receive a presumption that they met legal standards for prudent selection. Examples include evaluating expected returns after costs and whether an investment offers enough liquidity to meet retirement withdrawals or plan transfers. Labor Deputy Secretary Keith Sonderling described the framework as "decidedly neutral" toward investment types, and it would apply to investment options generally rather than only to cryptocurrency. It would not compel employers to offer Bitcoin or other digital assets.
The measure follows President Trump's August 7, 2025 executive order, which directed Labor to clarify plan managers' duties when considering funds holding digital assets and other investments. Labor also reversed its earlier stance in May 2025, withdrawing 2022 guidance that had urged managers to exercise "extreme care" with crypto. The department said it would neither endorse nor reject an investment solely because it involved digital assets.
The proposal has drawn opposition from Democratic lawmakers. Senators Elizabeth Warren and Bernie Sanders and Representative Bobby Scott urged Labor in June to withdraw the plan, citing risks tied to digital assets and private investments. They argued that retirement plans should prioritize costs, stability and safety rather than expose workers to products carrying higher fees or greater uncertainty.
The White House review is the next step before Labor can publish its final rule. Even after publication, employers and plan managers would still decide which investments to offer, subject to their duties under federal retirement law.
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