The US Department of Labor's (DOL) final rule on fiduciary duties in selecting 401(k) investment options reached the White House Office of Information and Regulatory Affairs (OIRA) on Thursday. OIRA review is the final stage before publication in the Federal Register, and the rule covers vehicles investing in digital assets alongside private equity and real estate.
What the OIRA filing shows
The entry on reginfo.gov lists the package under the title "Fiduciary Duties In Selecting Designated Investment Alternatives".
- RIN: 1210-AC38
- Received date: November 5, 2026
- Agency: DOL, via the Employee Benefits Security Administration (EBSA)
- Stage: final rule
- Economically significant: yes
- Legal deadline: none
The final text is not public. The OIRA entry does not include the rule's content, so it is not yet known whether the final version differs from the March proposal.
Where the rule comes from
The rule implements Executive Order 14330, signed by Donald Trump on August 7, 2025. The order notes that more than 90 million Americans participate in employer-sponsored defined-contribution plans, but the vast majority have no access to alternative assets.
The order defines alternative assets in six categories:
- private market investments - equity, debt and other instruments not traded on public exchanges
- direct and indirect interests in real estate
- holdings in actively managed investment vehicles that invest in digital assets
- direct and indirect investments in commodities
- interests in projects financing infrastructure development
- lifetime income strategies, including longevity risk-sharing pools
The order gave the DOL 180 days to reexamine existing guidance and propose rules that may include "appropriately calibrated safe harbors". The DOL published the proposal in the Federal Register on March 31, 2026, after consulting the Treasury, SEC staff and the PBGC.
What the proposal says about crypto
The proposal states there is no per se rule on including actively managed vehicles that invest in digital assets. Prudence under ERISA is judged on process: the fiduciary must give "appropriate consideration" to relevant facts, including the role the investment plays in the plan menu.
The DOL cites Compliance Assistance Release 2025-01 of May 28, 2025, which returned the department to a neutral position on crypto, neither endorsing nor disapproving its inclusion in a plan menu. That release rescinded 2022 guidance that told fiduciaries to exercise "extreme care" before adding a crypto option to a 401(k) plan.
The proposal does not require plans to offer crypto. The decision stays with the fiduciary, and the DOL restates its long-held position that mandating specific investment options would limit the ability of employers and workers to design their plans.
Litigation risk
The proposal cites industry letters from December 2025 alleging that plaintiffs' attorneys filed more than 500 ERISA fee cases between 2016 and 2024. The letters expected new filings to almost double, from 53 in 2024 to an estimated 99 in 2025.
The executive order directed the DOL to prioritize actions that curb ERISA litigation constraining fiduciaries in choosing investment options.
Date | Event |
|---|---|
May 28, 2025 | DOL rescinds 2022 guidance on crypto in 401(k)s |
August 7, 2025 | Trump signs Executive Order 14330 |
March 31, 2026 | DOL proposal appears in the Federal Register |
November 5, 2026 | Final rule reaches OIRA |