Final Crypto 401(k) Rule Enters OIRA Review Before Federal Register Publication
The Labor Department's final regulation concerning cryptocurrency, real estate, and private equity in 401(k) plans has advanced to White House review by the Office of Information and Regulatory Affairs.
On Nov. 5, the Labor Department’s final regulation regarding the inclusion of crypto, real estate, and private equity in 401(k) plans—which held a combined $15 trillion at the close of June—advanced to White House review. Savers are awaiting the conclusion of this review, after which employers will determine whether to make these alternative investments available.
Authored by the Employee Benefits Security Administration within the Labor Department, the package has been logged by the Office of Information and Regulatory Affairs (OIRA) as an economically significant final rule. This filing marks the final interagency checkpoint preceding publication in the Federal Register, though no statutory deadline dictates when it must be completed.
The crypto 401(k) rule could shield employers that follow a review process
Plan sponsors are under no obligation to incorporate cryptocurrency or any other alternative assets into their offerings, as individual employers retain full authority over their investment lineups. A fiduciary that carefully documents its evaluation of six distinct factors may qualify for a legal safe harbor protected under the Employee Retirement Income Security Act.
These criteria consist of complexity, valuation, liquidity, fees, performance, and performance benchmarks. Meeting this standard can grant a plan committee the presumption of prudent behavior, thereby mitigating the threat of litigation regarding its selection of investments.
The concluding regulation stems from an initial proposal designed to minimize legal liabilities for employers exploring alternative assets. While this adjustment may simplify the process of evaluating digital assets for certain plans, it does not mean bitcoin will be automatically integrated into every 401(k).
Trump’s order and the March proposal set the terms
President Donald Trump issued an executive order on Aug. 7, 2025, instructing the Labor Department to re-evaluate retirement-plan guidance and consider properly tailored safe harbors. Subsequently, the department released its proposal on March 30. The final regulatory package currently undergoing evaluation will ultimately define how digital-asset investments are handled and set the timeline for implementation.
The Investment Company Institute, an advocate for the rule, views asset-allocation strategies and target-date funds as likely vehicles for private assets. According to the group’s modeling, incorporating a 20% private-asset allocation increased median retirement balances after 40 years by 12%.
Lawmakers and savers raise cost and risk concerns
Rep. Stephen Lynch alongside Sens. Elizabeth Warren and Edward Markey formally requested that the Labor Department withdraw the proposal. They contended that private equity historically lags behind stock indexes while imposing steeper fees, and cautioned against utilizing retirement funds to prop up the sector.
Should plans incorporate cryptocurrency alternatives, costs could become a significant factor. Standard S&P 500 index funds within 401(k) accounts generally entail annual fees between 0.03% and 0.10%, whereas a digital asset option referenced in reporting charges roughly 1%. Furthermore, data from a National Institute on Retirement Security poll indicated that 77% of Americans consider cryptocurrency in retirement accounts to be a high-risk venture.
OIRA review comes before any plan-level decision
Before the Labor Department can issue the final rule, OIRA must finish its assessment. A prior iteration moved from its submission to OIRA on Jan. 13 to clearance on March 24, followed by the department’s formal proposal a week later. Once officially published, individual employers will decide whether to alter their investment menus, meaning worker access will depend entirely on the choices made by their respective plans.
FAQ
01When did the crypto 401(k) rule reach White House review?
OIRA registered the final rule on Nov. 5, marking the final interagency step ahead of the Labor Department’s publication in the Federal Register.
02What assets does the rule cover?
The regulatory package addresses the inclusion of real estate, private equity, and crypto within retirement plan menus. Additionally, Trump’s executive order touched on alternative assets like infrastructure and commodities.
03Must employers add crypto to their 401(k) plans?
No. Because investment menu decisions remain entirely up to each employer, releasing the rule will not automatically introduce cryptocurrency into participant accounts.
04What must fiduciaries assess to qualify for the safe harbor?
They must document their review across six areas: complexity, benchmarks, valuation, liquidity, fees, and performance. The evaluation process itself is the cornerstone of the proposed protection, rather than any specific investment mandate.
05How do crypto fund costs compare with a typical index fund?
While a standard S&P 500 index fund in a 401(k) typically costs between 0.03% and 0.10% per year, a crypto option noted in the reports charges approximately 1%. This cost differential explains why the fee-review component of the rule is critical for plan committees.
This article is for information only and is not financial advice.
