1. What is the final rule on crypto in 401(k) plans?
The Labor Department has sent its final rule on how 401(k) fiduciaries choose alternative investments, a category that includes some crypto funds, to the White House for review. The Office of Information and Regulatory Affairs logged the submission on November 5, and the review must finish before the department can publish the rule, so crypto in 401(k) plans remains in limbo.
The Office of Information and Regulatory Affairs, known as OIRA, is a unit of the White House Office of Management and Budget. Its public review record lists the rule under the identifier 1210-AC38, at the final rule stage, and labels it economically significant, a designation reserved for rules expected to have a large effect on the economy. As of Monday, November 9, the review was pending and the text of the final rule had not been released.
A 401(k) is an employer-sponsored retirement savings plan in which workers choose from a menu of investments selected by the plan's fiduciaries. Those fiduciaries are legally obliged to act prudently, which is why the question of what they may safely offer, and how a court would judge their choices, matters so much to the retirement industry.
Because the text is still unpublished, what is known about the rule comes from the March proposal and from the public review record. Final rules often differ from proposals, sometimes in important ways, since agencies revise them after reading thousands of comments. Until the final language appears, any description of its details should be treated as provisional, and the review entry confirms only that a final version exists and is under White House review.
2. What the proposal would do
The department first proposed the rule in the Federal Register on March 31. It implements Executive Order 14330, which President Donald Trump signed on August 7, 2025. The proposal lists six factors that a fiduciary should weigh when selecting investment options: performance, fees, liquidity, valuation, benchmarking and complexity.
The central feature is a presumption in the fiduciary's favor. Under the proposal, a fiduciary's judgment on those factors would be presumed to be reasonable and entitled to significant deference. In legal terms, that works as a safe harbor: a plan sponsor that documents a thoughtful process on the six factors would be protected from challenge more easily than it is today.
The reason this matters is litigation risk. Plan sponsors have often been wary of adding unconventional assets because a poor result can invite lawsuits from participants. A clearer standard that gives courts reason to defer to a documented process is meant to reduce that fear, and the department's regulatory agenda entry says the effort aims to relieve regulatory burdens and litigation risk that limit returns and diversification in workers' retirement accounts.
The six factors are a deliberately practical list. Performance and fees are the familiar measures of any investment. Liquidity asks how quickly an asset can be sold to meet withdrawals. Valuation matters for assets that do not trade on public exchanges every day. Benchmarking asks what an option should be compared against, and complexity asks whether participants and the fiduciary can understand what they are holding. Alternatives such as private funds often raise questions on several of these points at once.
A presumption of reasonableness does not guarantee that every decision is protected. It shifts the starting point in a dispute, so that a challenger would have to overcome the deference courts are asked to give to the fiduciary's process. Whether that reads as a sensible clarification or as a weakening of oversight is the core of the disagreement over the rule.
3. Does the rule mention crypto by name?
No. The proposal does not mention crypto by name. It repeats the executive order's list of alternative assets, which includes holdings in actively managed vehicles that invest in digital assets. That means crypto funds fall within the scope of the rule through the list, while the rule itself speaks in general terms about alternatives.
The approach reflects a shift in the department's stance. In May 2025, the Labor Department withdrew 2022 guidance that had urged fiduciaries to use extreme care before adding crypto to plan menus. The withdrawn guidance had been widely read as a strong discouragement; its removal took away a warning that many plan sponsors had treated as a reason to stay away.
For a typical saver, the practical effect would be indirect. Employers decide which options appear in their plans, and a final rule would not force any of them to add crypto exposure. It would instead change how risky it feels for them to do so, with any real change in menus depending on the choices of plan sponsors and the providers who build the funds.
Crypto-linked products that could reach a 401(k) menu are typically packaged funds managed by professionals, not individual tokens bought directly by savers. That packaging is why the executive order's reference to actively managed vehicles investing in digital assets is the relevant hook. Fiduciaries evaluate a fund as a whole against factors such as fees and liquidity, in the same manner as any other menu option.
It is also worth noting what the rule does not do. It does not require any plan to hold alternative assets, and it does not endorse crypto as an investment. Its subject is the legal protection given to the decision-maker, and the choice of which products reach workers stays with employers and the firms that design plan menus.
4. Pushback from Congress
Public comments on the proposal closed on June 1. On that day, Senators Bernie Sanders and Elizabeth Warren and Representative Bobby Scott wrote to Acting Labor Secretary Keith Sonderling, urging the department to rescind the proposal and retain its long-held legal and regulatory investor protections.
The lawmakers argued that the rule would expose retirement accounts to exceptionally volatile assets, like digital currency. Their objection is a familiar one in the debate: retirement savings are meant to last decades, and critics say assets with large price swings and limited track records are poorly suited to savers who cannot easily recover from losses close to retirement.
Supporters of the rule make the opposite case, that diversification into alternatives can improve long-run outcomes and that workers in 401(k) plans should have access to the kinds of assets already available to large institutional investors. The final text, which has not been published, will show how far the department moved in response to either side.
The letter from the three lawmakers shows the shape of the political divide. Its authors want the existing investor protections to stay as they are, while the administration's order treats those protections as obstacles to wider participation in alternative assets. Both camps describe their position as protecting workers; they differ on whether the main danger is exclusion from opportunity or exposure to loss.
The senators and the representative addressed their letter to Acting Labor Secretary Keith Sonderling, the official who leads the department that wrote the proposal. Comment-period letters from members of Congress do not bind an agency, but they become part of the public record and can shape how the final rule is defended if it is later challenged in court or revisited by lawmakers.
5. How long has the rule taken to reach the White House?
By a simple count, the final rule arrived at OIRA 157 days after the comment period closed, counting from June 1 to November 5. That is a little over five months, a period in which the department reviewed the comments and prepared the final version.
Rules designated economically significant must go through OIRA before publication, and the review can take weeks or months. The agency uses it to check the rule against the administration's policies and to coordinate the views of other federal departments. Once the review is complete, the department can publish the final rule in the Federal Register, which would also set the date on which it takes effect.
The review record does not give a deadline for OIRA to finish, and the department has not said when it expects to publish.
The gap between the close of comments and the White House submission is not unusual for a rule of this importance. Agencies must read and respond to the comments, revise the text, estimate the economic effects and obtain internal clearances before sending a final version forward. The count of 157 days simply gives readers a sense of how much time passed between those two public markers.
6. What to watch next
The immediate milestone is the end of the OIRA review, which will allow the Labor Department to publish the final text. The first thing readers will look for is whether the six factors survived unchanged, whether the presumption of reasonableness keeps its strong wording, and whether the final rule refers to digital assets more explicitly than the proposal did.
After publication, attention will turn to plan sponsors, recordkeepers and fund providers, who will decide whether the new standard changes what they offer. Lawmakers who objected during the comment period may respond with oversight efforts or legislation, though no such step has been announced.
For now, the rule is where it was on November 5: submitted for White House review, unpublished, and awaiting a decision that will determine how much room 401(k) fiduciaries have to include crypto-linked funds among their options.
A final point concerns timing. Executive orders set policy direction, but it is the final rule that gives plan fiduciaries a legal standard they can rely on. Until it is published and takes effect, plan sponsors operate under the existing framework, with the 2022 crypto guidance no longer in place since its withdrawal in May 2025.