The US Department of Labor (DOL) has rescinded its 2022 guidance, which discouraged fiduciaries from including cryptocurrency investments in 401(k) retirement plans, citing an “overreach” by the previous administration. DOL Rescinds Biden Admin’s Crypto Guidance On Wednesday, the Department of Labor’s Employee Benefits Security Administration (EBSA) rescinded its 2022 compliance release. The guidance was issued in March 2022 following former US President Joe Biden’s executive order that required the government to assess the risks and benefits of cryptocurrencies. It directed plan fiduciaries under the Employee Retirement Income Security Act (ERISA) to exercise “extreme care” before adding digital assets to their investment menus, asserting that the digital asset industry’s early stage could pose significant risks. At this early stage in the history of cryptocurrencies, the Department has serious concerns about the prudence of a fiduciary’s decision to expose a 401(k) plan’s participants to direct investments in cryptocurrencies, or other products whose value is tied to cryptocurrencies. These investments present significant risks and challenges to participants’ retirement accounts, including significant risks of fraud, theft, and loss. The EBSA release noted that the Securities and Exchange Commission (SEC) staff had cautioned that digital asset investments were “highly speculative.” It also cited custodial, recordkeeping, and valuation concerns as part of the reasons for the warning. Moreover, it alleged that the evolving regulatory environment made digital asset investments for retirement plans difficult for fiduciaries to comply with the law. “Rules and regulations governing the cryptocurrency markets may be evolving, and some market participants may be operating outside of existing regulatory frameworks or not complying with them,” the guidance stated. In 2023, Reuters reported that a US federal judge dismissed an investment adviser company’s case against the DOL. ForUsAll sued the agency over the 2022 compliance release, alleging that the guidance was “unlawful,” illegally skipped the rulemaking process, and pushed customers away from crypto offerings. However, the judge considered that, even if it was rescinded, it would not have changed the DOJ’s view about cryptocurrencies. A Neutral Approach To Digital Assets According to the DOL’s May 28 release, the language used in the 2022 guidance “deviated from the requirements of the Employee Retirement Income Security Act and marked a departure from the department’s historically neutral, principled-based approach to fiduciary investment decisions.” The DOJ highlighted that it had a neutral approach to specific investment types and strategies before the 2022 compliance release. As such, it is restoring its historical approach by neither endorsing nor disapproving of plan fiduciaries that concluded digital asset investments are appropriate for the plan’s menu. “By rescinding the 2022 guidance, the department reaffirms its neutral stance, neither endorsing, nor disapproving of, plan fiduciaries who conclude that the inclusion of cryptocurrency in a plan’s investment menu is appropriate,” the statement reads. Moreover, US Secretary of Labor, Lori Chavez-DeRemer, criticized the previous administration for overstepping with the 2022 guidance, affirming that “The Biden administration’s Department of Labor made a choice to put their thumb on the scale.” “We’re rolling back this overreach and making it clear that investment decisions should be made by fiduciaries, not DC bureaucrats,” Chavez-DeRemer concluded, seemingly supporting the Trump administration’s efforts to halt the previous “regulation by enforcement” approach and turn the US into “the crypto capital of the world.”
