The White House Office of Information and Regulatory Affairs completed its review on March 24, 2026 of a proposed Department of Labor rule titled "Fiduciary Duties in Selecting Designated Investment Alternatives," clearing a key regulatory gate for digital assets to enter the $49.1 trillion U.S. ...
"Allowing crypto into American retirement accounts creates fertile ground for workers and families to lose big." — Senator Elizabeth Warren, Letter to SEC Chair Paul Atkins, January 2026
The White House Office of Information and Regulatory Affairs completed its review on March 24, 2026 of a proposed Department of Labor rule titled "Fiduciary Duties in Selecting Designated Investment Alternatives," clearing a key regulatory gate for digital assets to enter the $49.1 trillion U.S. retirement market. The rule, classified as "economically significant," now moves to the DOL's Employee Benefits Security Administration for formal publication and a 60-day public comment period.
The proposed regulation does not mandate crypto inclusion in any 401(k) plan. It establishes a fiduciary framework giving plan sponsors legal cover to offer digital assets alongside traditional options — provided they satisfy due diligence and disclosure requirements. The rule traces directly to an executive order President Donald Trump signed on August 7, 2025, directing agencies to expand access to alternative assets including digital assets, private equity, private credit, and infrastructure in ERISA-governed plans.
The move arrives at a contentious moment. Bitcoin has fallen roughly 42% from its October 2025 peak, the Fear & Greed Index sits at 8 (extreme fear), and a February 2025 GAO report found that actual 401(k) crypto participation remains negligible. The policy apparatus is accelerating while the market that would fill these retirement accounts is in retreat.
The path from prohibition-by-deterrence to permissive framework spans four years and three administrations:
March 2022: The DOL under the Biden administration issued Compliance Assistance Release No. 2022-01, warning plan fiduciaries to "exercise extreme care" before including cryptocurrencies in 401(k) menus. The release explicitly stated the DOL intended to investigate plans that offered crypto options and warned fiduciaries they "should expect to be questioned about how they can square [crypto offerings] with their duties of prudence and loyalty."
August 7, 2025: President Trump signed an executive order directing federal agencies to expand access to alternative assets in defined contribution plans governed by ERISA. The order named digital assets, private equity, venture capital, private credit, commodities, and life insurance strategies as target asset classes.
May 28, 2025: The DOL issued Compliance Assistance Release No. 2025-01, formally rescinding the 2022 guidance. The department stated it was returning to its "historical approach of taking a neutral standard toward particular investment types" — neither endorsing nor disapproving of crypto inclusion. According to the DOL, this restored "investment neutrality" without reducing fiduciary duties.
January 13, 2026: The proposed rule "Fiduciary Duties in Selecting Designated Investment Alternatives" entered OIRA review.
March 24, 2026: OIRA completed its interagency review, marking the rule "consistent with change" and clearing it for DOL publication.
The proposed regulation is a fiduciary safe harbor framework, not a crypto mandate. Three operational details matter:
1. Permissive, Not Prescriptive. No plan sponsor is required to add digital assets. The rule provides legal clarity for those who choose to, establishing what constitutes adequate due diligence, disclosure, and ongoing monitoring.
2. Alternative Asset Scope. Digital assets are one category among several. The executive order and resulting rule encompass private equity, private debt, infrastructure, real estate, commodities, and life insurance strategies. Crypto is not singled out — it is mainstreamed into a broader alternative-asset framework.
3. Fiduciary Liability Remains. According to analysis by Mayer Brown and Pillsbury Law, the 2025 rescission and pending rule do not reduce fiduciary duties. Plan sponsors who include crypto must still demonstrate prudence, diversification, and loyalty under ERISA Section 404(a). The legal liability for poor outcomes remains with the fiduciary.
The 60-day public comment period, once triggered, will draw input from the American Bankers Association (historically opposed to crypto in retirement accounts), consumer advocacy groups, the crypto industry lobby, and members of Congress. According to the ASPPA (American Society of Pension Professionals and Actuaries), publication is expected in the coming weeks.
According to the Investment Company Institute's Q4 2025 data release, U.S. retirement assets totaled $49.1 trillion as of December 31, 2025 — up 11.2% year-over-year. The breakdown:
| Asset Category | Q4 2025 Value | |---|---| | Individual Retirement Accounts (IRAs) | $19.2 trillion | | All employer-based DC plans | $14.2 trillion | | 401(k) plans specifically | $10.1 trillion | | Government defined benefit plans | $10.0 trillion | | Private-sector DB plans | $3.8 trillion | | Annuity reserves | $1.9 trillion |
Retirement assets represented 34% of all household financial assets in the United States at year-end 2025. Mutual funds comprised $14.7 trillion, or 44%, of IRA and DC plan assets. Within 401(k) plans specifically, mutual funds managed $5.8 trillion, or 57% of total assets.
The scale of the addressable market explains the policy significance. Even a 1% allocation shift from 401(k) assets alone toward digital-asset-linked products would represent approximately $101 billion — more than the entire current market capitalization of most individual cryptocurrencies outside the top five.
Despite the policy momentum, actual usage data tells a different story. The Government Accountability Office published report GAO-25-106161 in February 2025, titled "401(k) Plans: Industry Data Show Low Participant Use of Crypto Assets Although DOL's Data Limitations Persist."
Key findings from the GAO survey of 13 record keepers (covering 55% of all 401(k) plans, 52% of participants, and 65% of assets):
The GAO characterized the risk profile directly: investment in crypto assets is "uniquely volatile," with potential for high returns accompanied by "considerably high risk." The report recommended that the DOL develop better data-collection mechanisms — a recommendation that remains unaddressed.
While federal rulemaking proceeds, state legislatures are moving independently:
Indiana (HB 1042, signed March 3, 2026): Governor Mike Braun signed the bill making Indiana the first state to mandate cryptocurrency investment options in public pension plans. The law requires state retirement plans — including the legislators' defined contribution plan, the Hoosier START education savings program, and certain public employee and teacher accounts — to offer a self-directed brokerage option with at least one crypto investment product by July 1, 2027. The bill also bars state and local authorities from imposing special taxes on crypto payments or penalizing self-custody.
Florida (HB 183, filed January 2026): State Representative Webster Barnaby introduced legislation authorizing the State Board of Administration to invest up to 10% of the Florida Retirement System Trust Fund — which holds approximately $218 billion — in digital assets including bitcoin, tokenized securities, and NFTs. The bill defines eligible custodians as the CFO, qualified custodians, or SEC-registered ETFs. It is currently in committee review. If enacted, it would take effect July 1, 2026.
Arizona: Governor Katie Hobbs signed HB 2749, establishing a state-managed Bitcoin and Digital Assets Reserve Fund for unclaimed digital assets. However, she vetoed SB 1025, which would have enabled the state treasurer and retirement system to invest 10% of available funds in virtual currencies — demonstrating that even in crypto-receptive states, pension-fund allocation remains politically contentious.
According to CoinDesk, at least 31 states had filed bitcoin- or digital-asset-related bills as of early 2026.
The case against crypto in retirement accounts rests on volatility data that is difficult to dismiss:
| Period | Bitcoin Drawdown | S&P 500 Worst Drawdown | |---|---|---| | 2013 | -50%+ | N/A (positive year) | | 2017-2018 | -70% | N/A (positive year) | | 2020 | -57% | -34% | | 2022 | -65% | -23% | | Oct 2025 – Mar 2026 | -42% | ~-8% |
Senator Elizabeth Warren, in a January 2026 letter to SEC Chair Paul Atkins, argued that crypto in retirement accounts creates risks of "higher fees, limited transparency, and large losses during market downturns," particularly for retirees with limited financial buffers.
A Seeking Alpha poll of more than 1,500 respondents found that only 32% support including crypto in 401(k) plans; 68% oppose it.
According to a CoinDesk report from February 2026, Bitcoin's brutal crash "became a nightmare for the plan to put crypto in Americans' retirement" — though this did not halt the regulatory process.
The counter-argument, advanced by proponents including the crypto lobby and some Republican lawmakers, centers on participant choice: the rule does not force anyone to buy crypto, it merely removes the regulatory barrier for those who want to. According to the Center for Retirement Research at Boston College, this framing obscures the behavioral reality that default options and menu design heavily influence participant allocation decisions.
Two firms currently dominate the crypto-in-401(k) space:
Fidelity Investments — the largest U.S. 401(k) administrator by assets — announced in April 2022 its intention to allow participants to invest up to 20% of account balances in Bitcoin through its Digital Assets Account. Fidelity has not publicly disclosed how many plan sponsors have activated the feature or what aggregate assets have flowed into it.
ForUsAll operates as a smaller competitor with $1.7 billion in assets under management across more than 500 plans serving over 80,000 retirement savers. ForUsAll takes a more restrictive approach: a default 5% cap on crypto allocations with proactive portfolio alerts when participants exceed that threshold. Unlike Fidelity's Bitcoin-only approach, ForUsAll provides access to multiple cryptocurrencies.
Neither firm has published participation-rate data for their crypto options, which aligns with the GAO's finding that the DOL lacks systematic measurement capability.
The federal government is building a regulatory on-ramp for digital assets to enter America's retirement system. The OIRA clearance on March 24 moves the process forward, but multiple friction points remain: a public comment period that will attract organized opposition, potential legal challenges from consumer groups, and a crypto market currently experiencing severe drawdowns.
The fundamental tension is structural. Retirement accounts are designed for long-horizon, low-volatility wealth accumulation. Crypto assets exhibit drawdown patterns that are 2-3x more severe than equities. The proposed rule addresses this by maintaining fiduciary liability — plan sponsors who include crypto must still justify the decision under ERISA's prudence standard — but it removes the investigatory threat that the 2022 guidance imposed.
Whether significant capital actually flows from 401(k) accounts into digital assets depends less on rule publication and more on three variables: plan sponsor appetite for fiduciary risk, participant demand (currently near zero by GAO measurement), and crypto market conditions at the time of adoption. The policy scaffolding is being erected. The question is whether anyone will use it.