401(k) Alternative Investments Rule Reaches Final White House Review
Key Facts
The U.S. Labor Department’s final rule on fiduciaries’ duties when selecting designated investment alternatives reached the Office of Information and Regulatory Affairs (OIRA) on November 5, 2026, and remains under review. The rule concerns the fiduciary process retirement-plan trustees follow when selecting investments, not direct authorization to add Bitcoin to 401(k) plans. Bloomberg Law said the text aims to facilitate access to alternative assets, including private equity, real estate and cryptocurrencies, in retirement plans. The review office lists the rule as economically significant, while its status remains “under review.” Its move to this stage sets out a potential regulatory framework for investment selection, while decisions about plan menus remain with fiduciaries.
The measure is numbered 1210-AC38. The regulatory agenda describes it as a final rule at OIRA, while the published agenda lists it at the proposed-rule stage. It is based on Executive Order 14330, issued in 2025, which directed the Labor Department to reexamine fiduciary-duty guidance and clarify the procedures for offering asset-allocation funds that include alternative investments. This category includes actively managed investment vehicles that invest in digital assets, as well as real estate, commodities, infrastructure and lifetime-income strategies. The executive order said more than 90 million Americans participate in employer-sponsored defined-contribution plans. But the policy language ties access to these assets to a fiduciary’s determination that they are appropriate; it does not turn broad participation in plans into a requirement to offer any particular investment.
The Labor Department published the proposed rule in the Federal Register on March 31, 2026, and closed the comment period on June 1 of that year. The text proposes a procedural safe harbor for fiduciaries selecting alternative investments, based on six factors: performance, fees, liquidity, valuation, benchmarking and complexity. The department says alternative assets were available in just 4% of defined-contribution plans in 2024 and accounted for 0.1% of those plans’ total assets in the same year. March 2026 data show that 70% of private-sector workers had access to defined-contribution plans, while 49% participated. These figures put the proposal in the context of a market with broad participation, while alternative investments remain marginal in plans, according to department data.
The Labor Department says plans are not required to use the safe harbor or change their investment menus in response to the proposal, and the rule’s actual effect on expanding alternative-asset offerings is uncertain. Fiduciaries remain responsible for monitoring all plan investments, not just options covered by the safe harbor. They must remove any option they determine, after careful review, is no longer appropriate, while the proposal does not create a safe harbor for this ongoing monitoring. The text’s arrival at final review therefore does not mean plans will add digital assets or that financial flows will move into them.
The OIRA record sets no statutory deadline for completing the review, listing the deadline field as “none.” The available facts do not provide a confirmed date for the rule to take effect. In EL7 data, Bitcoin closed at $76,816 on November 2, then at $74,851.44 on November 8, 2026. This price movement provides market context for the period around the review, but does not establish a causal effect from the rule. The next step remains tied to the completion of OIRA’s review, with no deadline on record.