DOL Crypto 401(k) Rule Enters Final White House Review
RIN 1210-AC38 is a final-rule package from Labor's EBSA, separate from the SEC crypto broker draft reviewed this week. The final text is not public yet.
A U.S. Department of Labor final rule on how 401(k) fiduciaries pick investment options, including vehicles that can hold crypto, entered White House review on Nov. 5, an Office of Information and Regulatory Affairs listing shows.
The package is titled "Fiduciary Duties In Selecting Designated Investment Alternatives" (RIN 1210-AC38). It is staged as a final rule from Labor's Employee Benefits Security Administration, flagged economically significant, and carries no legal deadline. This is a different file from the SEC crypto broker-dealer draft (RIN 3235-AN48) that entered review earlier this week.
What the March proposal offered
Labor published the proposal on March 30. Under that draft, plan fiduciaries who follow a documented process when adding alternative assets to a 401(k) menu would receive a process-based safe harbor under the Employee Retirement Income Security Act of 1974. The six factors named were performance, fees, liquidity, valuation, benchmarks and complexity, Bitcoin Magazine reported, summarizing the DOL proposal and a department fact sheet.
A safe harbor does not require plans to offer crypto. It lowers litigation risk for committees that choose exposure through an allocation sleeve that can hold digital assets, private equity or real estate. The March draft followed President Trump's Aug. 7, 2025, executive order directing Labor to reexamine ERISA guidance on alternative assets in defined-contribution plans. In May 2025 the department had already rescinded a 2022 compliance release that told fiduciaries to use "extreme care" before putting cryptocurrency on a 401(k) menu.
OIRA review under Executive Order 12866 is the last interagency stop before a final rule can be published in the Federal Register. The final wording, any changes to the six-factor test and the effective date will be clear only when Labor posts the cleared text.
In our opinion: agency and RIN are the map here. Labor's ERISA fiduciary file (1210-AC38) sits apart from the SEC broker rewrite (3235-AN48). The next document to watch is the Federal Register final rule once OIRA returns the Labor package.
Sources: OMB / reginfo.gov, EO 12866 review RIN 1210-AC38 · Bitcoin Magazine
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