In a letter to the Department of Labor this week, ABA and several financial and retirement trade groups requested that the DOL withdraw regulatory guidance that intends to discourage plan investment options in cryptocurrencies and other digital assets. The guidance states that DOL “expects to conduct an investigative program aimed at plans that offer investments in cryptocurrencies and related products.”
While the groups did not take a position on the appropriateness of retirement plan investments in cryptocurrency, they noted that the DOL guidance—which was issued without public notice or input—should have been subject to the formal rulemaking process.
Additionally, they pointed out that the guidance is inconsistent with the fiduciary standard of care under Employee Retirement Income Security Act; DOL regulations governing plans’ availability of brokerage windows to plan participant; and substitution of the fiduciary’s judgment with the DOL’s judgment concerning appropriate and inappropriate plan investments. The trades requested that the department develop guidance on retirement plan investment options in cryptocurrencies and other digital assets through notice-and-comment rulemaking.