DOL files crypto-in-401(k) proposal with OIRA, moving a Trump executive order toward rule text

The U.S. Department of Labor (DOL) filed a proposed rule on alternative assets, including cryptocurrencies, in 401(k) retirement plans with the White House Office of Information and Regulatory Affairs (OIRA) this week, moving an earlier Trump executive order one step closer to concrete rule text. The filing is logged under RIN 1210-AC38 on the federal rules dashboard (reginfo.gov entry); coverage from The Block.

What was filed

The document is a proposed rule, not a final rule. OIRA review is the pre-publication step: the proposal is reviewed by White House regulatory staff before DOL may publish it in the Federal Register for public comment.

Per the reginfo.gov entry, the rulemaking would clarify the criteria plan fiduciaries should use when considering alternative assets, including digital assets and private equity, in participant-directed defined-contribution plans. The release does not identify specific tokens; "cryptocurrencies" is the asset class.

• Agency: Employee Benefits Security Administration (EBSA), within DOL.
• RIN: 1210-AC38.
• Stage: Proposed Rule (NPRM pending OIRA clearance).
• Status as of Nov 6: at OIRA for review; not yet published in the Federal Register.

DOL filing text (excerpt, via The Block): "Such clarification must aim to identify the criteria that fiduciaries should use…"

How this fits the earlier executive order

The filing implements a Trump executive order on alternative assets in retirement plans. In an earlier action dated to a March 30, 2026 rulemaking, DOL rolled back Biden-era sub-regulatory guidance that had discouraged plan fiduciaries from offering crypto exposure in 401(k) menus. The current filing replaces that guidance posture with a formal fiduciary-criteria rule.

Sens. Elizabeth Warren and Bernie Sanders earlier this year asked DOL to scrap the rulemaking, arguing it would expose retirement savers to volatile assets. DOL's filing on this week acknowledges "still considering the costs of the proposal," per the text excerpt.

What's not in the filing

Specifics builders and plan providers need are not yet public:

• Which cryptocurrencies, or classes of cryptocurrencies, are covered (spot tokens, ETFs, staked assets, stablecoins).
• Allocation caps or liquidity requirements for fiduciaries.
• Custody standards and qualified-custodian definitions.
• Expected comment period length (DOL NPRMs typically run 30–60 days once published).
• Effective date.

The 401(k) market-size figure was not cited in the filing. (U.S. private-sector DC plan assets are tracked by ICI; the filing itself doesn't give a dollar figure.)

Action checklist

1. Watch the OIRA dashboard for the status transition on RIN 1210-AC38 from "Concluded" to "Received" to "Completed" — Federal Register publication follows shortly after "Completed."
2. When published, read the NPRM itself rather than press summaries: comment period, specific asset classes, and custodian definitions are the operative text.
3. Plan sponsors and recordkeepers who paused crypto-sleeve work after the Biden-era 2022 guidance should re-engage ERISA counsel ahead of the comment close; this is the window to shape the fiduciary-criteria text.
4. Crypto custodians and ETF issuers: note that the NPRM is the first regulatory on-ramp that will force a formal, written comparison between spot tokens, ETPs, and wrapped products on the ERISA fiduciary standard.

Context

Retirement-plan access has been a slow-moving front in U.S. crypto policy since Fidelity's 2022 bitcoin-in-401(k) offering drew a Biden-era DOL letter warning plan fiduciaries off direct crypto exposure. The 2026 Trump executive order and this week's DOL filing mark the formal reversal of that posture via notice-and-comment rulemaking, not subregulatory guidance. The rule will not be final in 2026; if DOL publishes in late November or December, a 60-day comment close puts final-rule action into Q2 2027 at the earliest.