The Office of Information and Regulatory Affairs (OIRA), the White House unit that reviews major regulations, received the final-stage version of a rule governing 401(k) investment selections on November 5, according to its official review record. The record classifies the rule as economically significant and lists no legal deadline, meaning that no statute or court order sets a completion date. OIRA review is not the same as publication of a final rule or its effective date, so the review record alone does not change what plans may offer.

Under Executive Order 12866, review generally runs for up to 90 days and can be extended. The record does not indicate which parts of the Department of Labor’s March proposal changed before the rule entered final-stage review. The March proposal was published in the Federal Register.

Why 401(k) menus have remained conservative

A 401(k) investment menu is selected by fiduciaries, such as an employer, an investment committee or an adviser appointed by the employer. Under the Employee Retirement Income Security Act (ERISA), fiduciaries must act with the care of a prudent expert. Participants can sue when an investment choice falls short of that standard.

That litigation risk has influenced the options offered to workers. Figures cited in the department’s March proposal show that only 4% of defined contribution plans offered any alternative investment in 2024, while alternatives represented about 0.1% of the assets held by those plans. The same document cites a 2025 American Benefits Council survey in which roughly 29% of employer members said they had rejected investment options or services simply because similar plans were not using them.

Crypto faced an additional obstacle. The department’s 2022 guidance told fiduciaries to exercise “extreme care” before adding cryptocurrency to a plan. A May 2025 rescission notice restored a neutral stance, as described in the department’s compliance assistance release.

After that warning was withdrawn, Executive Order 14330 followed in August 2025. The order directed the department to clarify fiduciary duties for funds holding alternative assets and to prioritize efforts to curb litigation. Its definition of alternative assets includes actively managed vehicles that invest in digital assets.

A process-based presumption

The proposal’s response to the litigation pressure is a process-based safe harbor. When a fiduciary objectively, thoroughly and analytically evaluates six listed factors and reaches a determination on them, the fiduciary’s judgment on those factors would be presumed reasonable and given substantial weight by courts.

Courts already assess prudence by examining the process followed when a decision was made, rather than judging the decision solely by later investment returns. A codified presumption would provide a written standard that a plan committee could cite when arguing that its process met that requirement.

The proposal estimates that the change would save plans money overall, largely by reducing litigation exposure. It also states that ERISA “does not require or restrict any specific type” of menu investment. Crypto would not receive a special category, either favorable or unfavorable. ERISA’s separate loyalty and conflict-of-interest requirements would remain unchanged.

Three routes into a retirement account

The proposed rule covers investments that a plan places on its menu, including qualified default investment alternatives. These are the funds into which contributions are directed when a worker does not make a selection, usually target-date funds. Within that scope, crypto exposure could reach retirement accounts through three distinct routes.

A standalone menu option. A worker would decide whether to use the option, subject to limits established by the plan. Fidelity’s workplace Digital Assets Account, announced in 2022, follows this model. It holds Bitcoin alongside short-term money market investments, while employers set contribution and exchange caps. The announcement was reported by Business Wire.

A sleeve inside a diversified fund. A manager could hold some crypto within a broader investment mandate. If the fund were the plan’s default option, a worker could gain indirect crypto exposure without selecting it directly. Asset-allocation funds of this kind were the format singled out by Executive Order 14330.

A brokerage window. Participants could buy from a broader marketplace outside the plan’s regular menu. The proposal places this route outside its definition, while noting that fiduciary principles may apply somewhat differently. It would neither block crypto purchases through a brokerage window nor bring those purchases under the proposed presumption.

Six tests for a crypto product

None of the six factors underlying the proposed safe harbor is specific to crypto. Each, however, presents a distinct issue for a digital-asset product compared with a conventional index fund.

Performance. The rule asks fiduciaries to consider risk-adjusted returns, net of fees, over a period suited to the workforce and its capacity for risk. The same price swings can affect a 25-year-old very differently from a worker who is five years from retirement.

Fees. The relevant question is whether the cost is justified by the value delivered; the cheapest comparable option would not necessarily be required. For crypto products, custody charges, trading spreads and fund expenses can accumulate, making the full layered cost the figure to compare.

Liquidity. An investment option need not be fully liquid, but any liquidity promised to participants must be reliable, including when other investors redeem. The existence of round-the-clock crypto markets does not guarantee that a fund can meet a wave of withdrawals on its stated terms.

Valuation. Fiduciaries must consider whether pricing is timely and accurate. Holdings priced on regulated U.S. securities exchanges have the simplest path under the proposal. A fund holding listed spot Bitcoin exchange-traded funds could plausibly use that approach, while a fund holding coins directly would need to document its pricing source and cutoff time.

Benchmarking. Each option must have a meaningful comparator, although blended composite benchmarks are acceptable. A crypto sleeve with a short performance history might require a custom composite, similar to the one the proposal creates for a private-equity sleeve in its own example.

Complexity. Fiduciaries must understand a product well enough to oversee it or retain a qualified adviser. Custody, key management and the handling of forks or staking may fall outside the experience of many plan committees.

Benchmarking issue reaches the Supreme Court

One of the six factors is already before the Supreme Court. In Anderson v. Intel Corp. Investment Policy Committee, participants argue that Intel’s fiduciaries acted imprudently by building custom target-date and diversified funds with allocations to hedge funds and private equity. The participants also claim that the funds underperformed.

The Ninth Circuit dismissed the claims because the plaintiffs had not identified a meaningful benchmark: a genuinely comparable investment showing what a prudent choice would have earned. The Supreme Court heard arguments on October 6, with the Solicitor General arguing on Intel’s side, and has not ruled. The case concerns what a complaint must establish to proceed. It does not ask whether alternative investments belong in 401(k) plans generally. The case docket is available on the Supreme Court’s website.

The connection to crypto is direct. The proposal defines a meaningful benchmark as a comparator with similar mandates, strategies, objectives and risks, and says that new designs face no presumption against them. For a crypto sleeve with few close peers, selecting a comparator could itself become a judgment challenged by a plaintiff.

The Intel ruling would help determine how much of that argument a plaintiff must establish before reaching discovery, the costly stage that the proposal identifies as the main source of settlement pressure on plans.

Where the proposed legal protection ends

The Supreme Court has held twice that a fiduciary’s responsibility continues after an investment is added to a plan menu. In Tibble v. Edison International in 2015 and Hughes v. Northwestern University in 2022, the court affirmed a continuing duty to monitor every option and remove investments that no longer fit.

The March proposal states that it does not address that monitoring duty. The department said it expects to issue interpretive guidance on monitoring in the near term and that, in its view, the same six factors would apply. Interpretive guidance carries less legal force than a codified presumption. The published final rule would be the place to determine whether that gap has been narrowed.

For crypto products, the gap could be wider because more aspects of a product may change after approval. A product could alter its holdings, custodian, fees or redemption terms. The workforce could also move into a period in which a deep decline causes greater harm. Existing Labor Department guidance on target-date funds already expects periodic review of a fund’s strategy, management and fees, including charges inside its underlying investments. The department’s guidance is described in its target-date retirement fund fact sheet.

The proposal also explains how a mid-course change would be treated. In one example, adding hedge funds and private equity to an existing default target-date fund counts as selecting a new investment. Under that reasoning, a default fund that adds a digital-asset sleeve would restart the analysis rather than inherit its earlier approval.

What would show that money is moving

The first indicators are legal: publication of the final text in the Federal Register with an effective date, the treatment of monitoring in that text and the Supreme Court’s ruling in Intel. None of those developments, by itself, would move a dollar of retirement savings into crypto.

Actual adoption would appear through named employers adding a crypto option, target-date providers disclosing digital-asset sleeves and plan filings reporting the amounts invested.

Checking an individual plan

Participants can ask a plan administrator whether any fund they already hold, including the default fund, has a digital-asset allocation. A product fact sheet can show whether the fund holds coins, exchange-traded fund shares or futures.

Participants should also review the total cost, including trading or custody charges outside the expense ratio, and check for caps on contributions or transfers into the option. Restrictions on transferring money back out are also relevant.

Until those disclosures appear, the rule’s practical reach is narrower than the headlines surrounding it. The proposal would make one decision easier for fiduciaries to defend, while a crypto option would still have to justify its place at every subsequent review.