A final Department of Labor regulation addressing how fiduciaries select investment options for participant-directed retirement plans has arrived at the White House Office of Information and Regulatory Affairs for review, marking the last formal step before possible publication.
The package, titled “Fiduciary Duties In Selecting Designated Investment Alternatives” (RIN 1210-AC38), was logged by OIRA on November 5, 2026. It is classified as economically significant and has no statutory deadline for completion.
The measure implements Executive Order 14330, signed on August 7, 2025, which directed agencies to expand access to alternative assets in 401(k) plans when fiduciaries determine such options can improve net risk-adjusted returns for participants.
The March 2026 proposed rule, published in the Federal Register, establishes a process-based safe harbor under the Employee Retirement Income Security Act.
Fiduciaries who objectively, thoroughly, and analytically evaluate designated investment alternatives against a non-exhaustive list of six factors—performance, fees, liquidity, valuation, performance benchmarks, and complexity—would be presumed to have satisfied the duty of prudence and entitled to significant deference.
The proposal is expressly asset-neutral: it neither requires nor forbids any particular class of investment, including digital assets held through actively managed vehicles, private equity, real estate, commodities, or infrastructure.
Because the rule does not set a minimum market-capitalization threshold or name specific digital assets, smaller tokens are not categorically excluded. In practice, however, the six-factor analysis creates substantial barriers for most of them.
Plan committees must be able to document reliable, timely pricing, adequate liquidity for participant transactions, meaningful benchmarks, and a track record sufficient to support risk-adjusted return projections.
Assets lacking regulated wrappers that produce daily independent valuations are unlikely to clear these hurdles, even if they meet size criteria in theory.
The framework does not compel any employer to add alternative assets.
It simply reduces litigation risk for those that choose to do so after following the documented process.
Direct ownership of digital assets would still raise separate operational questions around custody, cybersecurity, and recordkeeping that packaged products—such as exchange-traded funds or asset-allocation funds containing limited digital-asset exposure—may more readily satisfy.
Adoption, if it occurs, is therefore expected to proceed through existing investment vehicles rather than standalone token holdings.
OIRA review typically lasts up to ninety days, after which the Department of Labor may publish the final rule in the Federal Register with an effective date often set sixty days later.
Even after publication, employers will retain full discretion over plan menus, and ongoing monitoring duties remain unchanged.
Future administrations could revise or withdraw the guidance, and courts have grown less deferential to agency interpretations, leaving the practical weight of the safe harbor open to later litigation.
These considerations, combined with the time required to adapt recordkeeping systems and investment policy statements, suggest that any meaningful expansion of digital asset options in 401(k) plans will unfold gradually over several years rather than immediately upon finalization.
