Key takeaways
- On November 5, 2026, the White House's regulatory review office (OIRA) received the Labor Department's final rule "Fiduciary Duties In Selecting Designated Investment Alternatives." OIRA review is usually the last major step before a final rule is published.
- The March 2026 proposal gave employers and the people who pick a 401(k) plan's funds a safe harbor: if they work through six factors (performance, fees, liquidity, valuation, benchmarking and complexity), their choice is presumed reasonable. It applies to any fund on a plan's menu, including funds that hold alternative assets such as crypto.
- The rule doesn't put crypto in anyone's 401(k). It doesn't require or forbid any type of investment, and the final text isn't public yet, so changes from the proposal aren't known.
- Nothing changes for your account today. If your plan ever adds a crypto option, check what it holds, what it costs and how much of your savings you'd want in something that volatile.
A Labor Department rule that could make employers more comfortable offering crypto in 401(k) plans has reached what is usually its last stop before publication: review at the White House. Here's what the rule does, what it doesn't do, and what it means for your retirement account.
What happened
OIRA, the White House office that reviews major federal rules, lists a final rule (opens in a new tab) from the Labor Department's Employee Benefits Security Administration as received on November 5, 2026. Its title is "Fiduciary Duties In Selecting Designated Investment Alternatives." OIRA marks it as economically significant, pending review, with no legal deadline. The Block (opens in a new tab), crypto.news (opens in a new tab) and Cointelegraph (opens in a new tab) reported the filing.
OIRA's listing doesn't include the rule's text. Until the department publishes the final version, we can't say whether it changed from the proposal described below.
What the March proposal would do
The department published the proposal (opens in a new tab) in the Federal Register on March 31, 2026, and took public comments until June 1. It carries out President Trump's August 7, 2025 executive order, "Democratizing Access to Alternative Assets for 401(k) Investors."
The people who choose a 401(k) plan's investment menu are fiduciaries under ERISA, the federal law that governs private-sector retirement plans. They must act prudently, and they can be sued if they don't. The proposal gives them a process-based safe harbor built on six factors:
- Performance: expected returns after fees, adjusted for risk, compared with similar options.
- Fees: whether the costs are justified by what the option brings to the plan.
- Liquidity: whether money can come out when the plan and its members need it.
- Valuation: whether the option can be priced on time and accurately.
- Benchmarking: what the option is measured against.
- Complexity: how hard the product is to understand and oversee.
When fiduciaries follow that process for a factor, the proposal says their judgment on it is "presumed to be reasonable" and gets significant deference. In plain terms, it's meant to cut the lawsuit risk that has kept many employers away from alternative investments.
Where crypto fits
The executive order lists alternative assets that include private markets, real estate, commodities and "actively managed investment vehicles" that invest in digital assets. In the proposal's description, digital assets cover bitcoin, other cryptocurrencies and tokens.
The proposal doesn't name any coin or set a size test. It says ERISA's prudence duty doesn't require or restrict any particular type of investment, unless it is otherwise illegal. It also leaves out brokerage windows, the self-directed accounts some plans offer, from its definition of a designated investment alternative.
It builds on an earlier reversal. In March 2022, the department warned plan fiduciaries to use "extreme care" before adding crypto. A May 28, 2025 release rescinded that warning and returned the department to a neutral stance that neither endorses nor disapproves of crypto on a plan menu.
Not everyone agrees. The Block reports that Senators Bernie Sanders and Elizabeth Warren urged the department earlier this year to drop the rule, saying it would expose savers to volatile assets. Experts quoted by Cointelegraph expect funds and ETFs to show up in plans before any direct crypto holdings, since funds fit the custody and recordkeeping systems plans already use.
What this means for you
- Nothing changes in your account today. The rule is still under review, and even a final rule wouldn't add crypto to any plan. Your employer decides what's on the menu.
- If a crypto option appears, read what it holds. A fund that owns bitcoin works differently from one that owns crypto company stocks. Our crypto ETF guide explains how these funds work and what they charge.
- Volatility matters more for retirement money. Crypto prices can fall sharply, and money you need soon has less time to recover. How much risk fits your plan is a personal decision; a licensed financial professional can help.
- Watch for pitches using this headline. Be wary of anyone who cold-calls or messages you to move retirement savings into a "crypto 401(k)" or "crypto IRA." See our scam guides for the warning signs.
Follow how US crypto rules are made in our laws and regulations guide. This is education, not legal or financial advice. It reflects OIRA's listing, the March 2026 proposal and news reports as of November 7, 2026.
Frequently asked questions
Can I buy bitcoin in my 401(k) now?
Only if your plan already offers a way to. The rule isn't final yet, and even once it is, it doesn't require any employer to add crypto. Each plan decides what it offers.
What is OIRA review?
The Office of Information and Regulatory Affairs, part of the White House budget office, reviews significant rules before agencies publish them. OIRA lists this rule as received on November 5, 2026, pending review, with no legal deadline.
Would the rule let my employer pick any crypto?
The proposal doesn't name any coin or set a size limit. It asks the people choosing funds to weigh six factors, and it treats every kind of investment the same way. The final text could differ, and it hasn't been published yet.
Is this a reason to move my retirement savings into crypto?
No. This is education, not financial advice. Crypto prices can swing sharply, and the rule only changes the legal process employers follow when choosing funds. Consider talking to a licensed financial professional before changing retirement investments.
Sources
- EO 12866 regulatory review: Fiduciary Duties In Selecting Designated Investment Alternatives (RIN 1210-AC38), received November 5, 2026 (opens in a new tab) — OIRA, RegInfo.gov
- Pending EO 12866 regulatory reviews (opens in a new tab) — OIRA, RegInfo.gov
- Fiduciary Duties in Selecting Designated Investment Alternatives (proposed rule, March 31, 2026) (opens in a new tab) — Employee Benefits Security Administration, Department of Labor (Federal Register)
- Trump administration moves closer to allowing crypto in 401(k) retirement plans (opens in a new tab) — The Block
- Crypto 401(k) rule reaches White House for final review (opens in a new tab) — crypto.news
- US 401(k) proposal leaves door open to altcoins, but hurdles remain (opens in a new tab) — Cointelegraph
Published November 7, 2026 by Dave McNaught. Educational content, not financial, legal or tax advice. Spot an error? Request a correction.
Dave McNaught
Dave McNaught has worked in IT since 1999 and founded All Business Technologies (ABT) in 2003, a Boston-area firm providing Managed IT, Cybersecurity, Managed AI, Web Design and App Development. He publishes The Crypto Guide.