The U.S. Department of Labor has sent a final rule on retirement-plan investment choices to the White House for review, advancing its effort to make it easier for 401(k) plans to offer crypto and other alternative investments.
The Office of Information and Regulatory Affairs docket lists “Fiduciary Duties In Selecting Designated Investment Alternatives,” regulatory identifier 1210-AC38, as pending review at the final-rule stage. OIRA received the rule from Labor’s Employee Benefits Security Administration on Nov. 5, 2026.
The practical change Labor has proposed is a safe harbor for fiduciaries—the people responsible for selecting a plan’s investment menu. Its March 31 proposal sets out a process for satisfying their duty of prudence when choosing investments, including funds holding alternative assets. The department’s stated aim is to reduce regulatory uncertainty and litigation risk around those decisions.
White House review itself changes no plan obligations and does not automatically give participants new investment options. The OIRA entry does not include the final text, so the published proposal is not a statement of the final provisions.
Under the proposal, fiduciaries would assess performance, fees, liquidity, valuation, performance benchmarks and complexity. Following the prescribed process would create a presumption that they met their prudence duties for the factors assessed, according to Labor’s explanation. The framework would apply to investment-menu selections generally, not just crypto or alternative assets.
Building on the 2025 Policy Reversal
Labor had already restored a neutral stance toward crypto in retirement plans. Its May 28, 2025, rescission withdrew guidance urging fiduciaries to exercise “extreme care” before adding cryptocurrency options. The department said it would neither endorse nor disapprove of those choices; fiduciaries still had to apply ERISA’s ordinary standards of care, skill, prudence and diligence to the circumstances of their plans.
The rule also follows President Donald Trump’s Aug. 7, 2025, executive order, part of the retirement-investment push previously covered by The Defiant. That order directed Labor to clarify fiduciary duties for offering asset-allocation funds containing alternative assets and consider safe harbors. Its definition included holdings in actively managed vehicles investing in digital assets, alongside private-market investments, real estate and other alternatives.
For participants, access would still depend on the investment options their plan’s fiduciaries select. The next regulatory step is completion of OIRA review; Labor would then need to publish a final rule specifying when its provisions become effective.