TLDR
- The US Department of Labor proposed a new 401(k) rule on March 30, 2026.
- This base could expand access to cryptocurrencies, private equity, and other alternative assets.
- It creates a six-factor safe harbor for fiduciaries who choose plan investments.
- The proposal does not apply to brokerage windows or self-directed brokerage accounts.
- Public comments will be accepted for 60 days after publication in the Federal Register.
The US Department of Labor has proposed a new rule that could expand retirement investment options for more than 90 million Americans. The proposal would give 401(k) plan fiduciaries a clearer process for considering alternative assets, including private equity, real estate, infrastructure, commodities and digital assets such as cryptocurrencies.
The rule was issued by the Employee Benefits Security Administration on March 30, 2026. It follows President Donald Trump’s executive order on expanding access to alternative assets in 401(k) plans. The ministry said the proposal aims to reduce the regulatory burden and litigation risks while keeping fiduciary standards linked to the process.
According to Reuters, the US Department of Labor has proposed a rule clarifying how alternative assets such as private equity and cryptocurrencies can be incorporated into 401(k) plans. The proposal requires agents to evaluate factors including performance, fees… pic.twitter.com/U1yktnlThv
— Wu Blockchain (@WuBlockchain) March 30, 2026
Labor Minister Lauri Chavez de Remer said the proposal aims to reflect the current investment landscape. Treasury Secretary Scott Besent said the effort is part of a broader push to expand retirement plan options while protecting retirement assets. Chairman of the Supreme Education Council Paul Atkins He also said the proposal could expand long-term wealth-building opportunities for savers.
The proposed regulation is titled “Fiduciary Duties in Selecting Specific Investment Alternatives.” It would create a process-based safe harbor for fiduciaries under ERISA when making plan investment options in participant-directed defined contribution plans.
The proposal returns focus to the fiduciary process
The Labor Department said the rule is asset class neutral. It does not require any plan to add cryptocurrencies, private stocks, or any other alternative assets. It also does not prohibit any asset class, unless such investment is illegal under current law.
Instead, the proposal returns to ERISA’s long-standing principle that wisdom depends on process. The department said fiduciaries should have maximum discretion in selecting investments, as long as they conduct a careful and objective review.
The proposal also represents a policy shift from previous guidance. In 2022, the Biden administration warned fiduciaries against including them Cryptocurrency options In 401(k) rolls. The new rule will replace this approach with a broader framework that does not designate digital assets for special treatment.
Defined contribution plan administrators already have the authority to consider alternative assets, the department said. However, very few plans have used them due to legal uncertainty and high litigation risk. The proposal cites years of litigation over fees related to retirement plans and says a clearer framework might reduce that pressure.
Six safe harbor factors set the standard
Under the proposed rule, fiduciaries would have to evaluate six key factors when reviewing investment alternatives. These factors are performance, fees, liquidity, valuation, performance benchmarks, and complexity. The ministry said that the decisions made through this process are considered reasonable.
In terms of performance, fiduciaries will need to compare a reasonable number of similar options and review the expected risk-adjusted returns. Regarding fees, they will need to determine whether the costs are appropriate in relation to the expected returns and other benefits of the plan.
Liquidity is also part of the framework. The proposal says retirement plans need not hold only fully liquid products. However, fiduciaries must decide whether the investment has sufficient liquidity for both the plan and individual participants.
The evaluation factor requires fiduciaries to ensure that the investment can be evaluated accurately and in a timely manner. The benchmark requires that each investment have a meaningful benchmark. Complexity requires fiduciaries to decide whether they understand the product or need qualified outside assistance.
The rule will not cover brokerage windows
The proposed safe harbor will apply to investment alternatives identified in plans directed to participants. This does not apply to brokerage windows or self-directed brokerage accounts. This means that the rule focuses on choosing a plan menu, not on every possible investment path within a retirement account.
If finalized, this rule may make it easier for plan sponsors to consider adding alternative assets without assuming that these products will raise automatic regulatory concerns. At the same time, fiduciaries will remain responsible for documenting decisions and acting in the best interest of plan participants.
The Employee Benefits Security Administration said it protects more than 156 million workers, retirees and their family members. It oversees about 801,000 private retirement and benefit plans holding approximately $13.8 trillion in assets.
The department is now inviting the public to comment on the proposal. Comments will be accepted for 60 days after publication in the Federal Register. Until then, plan sponsors and fiduciaries are expected to review the proposed six-factor framework and consider its potential impact on future 401(k) investment decisions.
