Crypto in 401(k)s: the Labor Department’s final rule reaches the White House, and nobody has seen the text

The US Department of Labor has sent the White House its final rule on how employers choose the investment options in 401(k) plans, the rule that would make room for crypto in a 401(k) without ever naming it. The Office of Information and Regulatory Affairs (OIRA) logged it on Thursday 5 November 2026, according to Bitcoin Magazine and crypto.news; Bloomberg Law first reported the arrival. The review record on reginfo.gov showed only an error page when we tried to open it on 6 November, so the date rests on those reports. The rule is called “Fiduciary Duties in Selecting Designated Investment Alternatives” (RIN 1210-AC38) and comes from the department’s Employee Benefits Security Administration (EBSA). In the OIRA listing described by crypto.news, it is rated economically significant, its status is pending and no legal deadline is set.

Under review is all it is. OIRA has not cleared the rule, the department has not published it and the text is not public. Bitcoin Magazine listed what nobody outside government knows yet: whether the safe harbor of the March proposal survived the comment period, how vehicles holding digital assets are described, and when the rule would take effect.

Nor would the rule put bitcoin into anyone’s retirement account. It sets out how an employer documents the choice of a fund. Whether a plan adds a fund holding crypto, private equity or real estate stays the employer’s decision.

Where the crypto 401(k) rule stands on 6 November

The final rule closes a process opened by the White House. Executive Order 14330, “Democratizing Access to Alternative Assets for 401(k) Investors”, signed by President Trump on 7 August 2025, counts among alternative assets “holdings in actively managed investment vehicles that are investing in digital assets”. It gave the Labor Department 180 days to reexamine its guidance and to propose rules or guidance, a window that ran to early February 2026.

EBSA sent its proposal to OIRA in January 2026, inside that window. The review ended on 24 March, according to The Block and crypto.news, roughly two months after the January submission in Bitcoin Magazine’s count. The department announced the proposal on 30 March, and it appeared in the Federal Register the next day (91 FR 16088, docket EBSA-2026-0166). Comments closed on 1 June.

So the March clearance concerned the proposal. Thursday’s filing is the first time a final version, rewritten after the comments, has reached the same office.

From “extreme care” to no position: the Labor Department’s turn on crypto

On 10 March 2022, EBSA’s Compliance Assistance Release 2022-01 told plan fiduciaries to use “extreme care” before adding cryptocurrency options to a 401(k) menu. The March 2026 proposal recalls a sharper line from the same release: fiduciaries who oversaw such options, or allowed them through brokerage windows, were told to expect questions on how they could square that with their duties of prudence and loyalty.

That release was withdrawn in full on 28 May 2025 by Compliance Assistance Release 2025-01. The department said it would neither endorse nor disapprove of fiduciaries who decide that crypto belongs on a menu, and that the standard of “extreme care” “is not found in” ERISA, the 1974 law that governs private workplace retirement plans. The proposal builds on that. It says there is no per se rule on including actively managed vehicles that invest in digital assets, and that no type of fund is prudent or imprudent in itself.

The man in charge has changed title along the way. Keith Sonderling was deputy secretary of labor when the proposal went to OIRA, has led the department as acting secretary since April 2026 and was sworn in as the 31st Secretary of Labor in October, according to a Labor Department release of 9 October. Bitcoin Magazine, which still calls him deputy secretary, quoted his line on the approach on 6 November without saying when he said it: “The department’s days of picking winners and losers are over.” He also said the proposal “refrains from saying that any asset class is any better or worse than other investment types”, crypto.news reported.

What the safe harbor says: six factors and a presumption of prudence

The proposal is not a crypto rule. Its abstract says it “clarifies, and provides a safe harbor for” a fiduciary’s duty of prudence when selecting designated investment alternatives in participant-directed plans, “including asset allocation funds that include alternative assets”. As crypto.news pointed out, the framework applies to any designated investment alternative, and funds holding alternative assets are one case among many. A plain stock index fund falls under it as much as a target-date fund with a slice of private credit.

The fiduciary, usually the employer or a plan committee, must consider six factors and reach a determination on each. The list is not exhaustive, and the fiduciary can rely on an investment adviser or manager for one or more of them. As described in the proposal and in crypto.news:

• Performance, judged on risk-adjusted expected returns over an appropriate horizon, compared with a reasonable number of similar options, knowing that a lower-return strategy can still be prudent.
• Fees, where the cheapest option is not required but a higher cost has to be supported by expected returns or other benefits.
• Liquidity, judged for the plan and for each participant, who may need money on retirement, on leaving a job, for a hardship, a plan loan or a switch between funds.
• Valuation, where the fund must have adequate measures to be valued on time and accurately, a harder test for assets that do not trade on a public exchange.
• A meaningful benchmark, similar to the fund in mandate, strategy, objectives and risks.
• Complexity, where the fiduciary must decide whether it has the skills, knowledge, experience and capacity to understand the fund, or must get help from a qualified adviser or manager.

The reward is a presumption. A fiduciary that follows the process sees its judgment on those factors “presumed to have met the duties” of prudence under section 404(a)(1)(B) of ERISA and “entitled to significant deference”, in the proposal’s words. The department wrote that such a fiduciary should be able to rely confidently on its determination “without undue fear of litigation”. Bitcoin Magazine summed up the effect: following the factors does not require anyone to offer crypto, it lowers the litigation risk for employers who choose to.

Two limits matter for crypto. Proposed paragraph (m)(2) says a designated investment alternative does not include brokerage windows, self-directed brokerage accounts or similar arrangements that let workers pick investments beyond the plan’s list. A worker buying a spot bitcoin exchange-traded fund through a brokerage window inside the plan is therefore outside this rule, at least as proposed. And the proposal leaves aside how to build a prudent menu as a whole: the department asked whether the optional rules under section 404(c) of ERISA “continue to be best practice”. On monitoring a fund once it is on the menu, it said the same factors apply and asked for comments on best practices.

47,104 comments, and a fraud complaint from three lawmakers

The docket drew heavy traffic. The Federal Register’s record of docket EBSA-2026-0166 shows 47,104 comments, a count it last refreshed from regulations.gov on 4 August 2026, about two months after the 1 June deadline. It is a snapshot of that day, not a live total.

In September, Representatives Bobby Scott and Jamie Raskin and Senator Bernie Sanders asked the Attorney General and the FBI to open an immediate inquiry into whether the comments supporting the rule were authentic, The Paypers reported on 21 September, citing a Bloomberg report of 18 September. Scott and Sanders also asked the Labor Department’s inspector general to audit the comment process.

Their letters flagged about 12,000 of the roughly 47,000 comments. Those comments had no signature or location, followed one of five recurring templates, and arrived in near-equal volumes over a single week before stopping. At least two were filed in the names of people who had died, and several people whose names appeared said they knew nothing of them. No equivalent pattern was found among comments opposing the rule, according to the reporting the letters cite.

These are allegations from lawmakers, known to us through a secondary outlet, and nothing has been proven. The Labor Department said its review weighs the substance of comments, not the identity or number of the people who send them. No inquiry has been confirmed.

The same names led the political case against the rule. On 1 June, the day comments closed, Sanders, Senator Elizabeth Warren and Scott sent Sonderling, then acting secretary, a 14-page letter urging the department to drop the proposal, Decrypt reported. They argued that presuming fiduciaries prudent, instead of asking them to show it, conflicts with Supreme Court precedent and with ERISA, and that the rule could widen the market for digital assets tied to the Trump family, such as World Liberty Financial’s WLFI and USD1 and the official Trump meme coin. “The proposed rule is harmful to American workers and counter to statute,” Sanders and Warren wrote. A department spokesperson told Decrypt at the time that it had received the letter and was reviewing it.

What happens next, and what nobody knows yet

OIRA review under Executive Order 12866 is the last interagency checkpoint before a rule is published in the Federal Register, Bitcoin Magazine noted. No law sets its length, and the filing lists no deadline. The proposal spent roughly two months there; nothing says the final text will take as long, or as little.

After clearance, the department publishes the final rule with its effective date. Until then, these questions stay open:

• Whether the six-factor safe harbor and its presumption of prudence came through the comment period unchanged.
• How the final text describes funds that hold digital assets.
• Whether brokerage windows are still left out of the definition.
• When the rule takes effect, and whether the department answers the complaint about coordinated comments in its preamble.

Neither Bitcoin Magazine nor crypto.news links the filing to the 3 November midterms, and we found no source that does. The link is in the names. Sanders, Warren and Scott have led the opposition to the rule, and Warren is set to chair the Senate Banking Committee after the Democratic gains, as covered in our report on Warren, Senate Banking and the CLARITY Act. On the other side, House Republicans have pushed to write the executive order into law, according to Bitcoin Magazine. Our earlier piece on how the midterms could affect crypto sets out the races and the bills at stake.

What a final rule would change for 401(k) savers

How a 401(k) menu works

A 401(k) is a US workplace retirement plan: the employee saves part of the salary, often with an employer contribution, and chooses among the funds the plan offers. Those funds are the designated investment alternatives of the rule. The people who pick them are fiduciaries under ERISA, bound by a duty of prudence, and they can be sued if a choice looks careless. The rule is about them, not about the saver.

Nothing changes until an employer adds a fund

The OIRA filing changes nothing on its own. Even after publication, no plan has to add crypto. A saver would see a change only if the employer adds a new fund to the menu, most likely a target-date or asset-allocation fund holding a share of alternative assets, the kind the proposal’s abstract names. Liquidity and valuation, two of the six factors, are where such funds differ most from listed stocks and bonds, and where a fiduciary’s file will need the most work.

The blockchain that runs exactly as written when it is called, holding and moving funds according to its code, without an intermediary able to change the outcome.">smart contract holding reserves of two or more tokens, supplied by users, that a decentralized exchange uses to execute trades automatically at a price set by a formula.">pool is large. Americans held $10.8 trillion in 401(k) plans on 30 June 2026, according to Investment Company Institute data cited by crypto.news. Mutual funds managed $6.2 trillion of it, or 58%, with $3.7 trillion in equity funds and $1.7 trillion in hybrid funds, a group that includes target-date funds. Bitcoin Magazine counts more than 90 million defined-contribution savers and puts the 401(k) market at about $12 trillion; we use the ICI figure.

Some have already put a number on it. In a post on X on 6 November, paraphrased by crypto.news, the account Sweep worked out that if 2% of American 401(k) money moved into crypto, that would mean $216 billion of new inflows, which is 2% of the ICI total. The sum is Sweep’s arithmetic, not a forecast by Coindaro or by crypto.news. As crypto.news noted, it assumes an allocation across the whole pool, sets no timetable and rests on no commitment from any employer, plan manager or saver.

Readers in France, Italy and the rest of Europe

There is no direct effect. The 401(k) is a US plan governed by ERISA and is not open to savers in France, Italy or elsewhere in Europe, and we found no European rule linked to this one. The indirect channel is demand. US retirement money that reached crypto funds would add buyers for products such as spot bitcoin ETFs, but beyond hypothetical sums like Sweep’s, no estimate of that flow exists in our sources.

The next date is the end of the OIRA review, which will appear on the federal review record, followed by publication of the final text in the Federal Register. Until that text is out, the six factors above describe the proposal, not the rule.