A Department of Labor rule that would let 401(k) plans add private equity, private credit and cryptocurrency to their investment lineups remains a proposal, not a rule in effect. The Employee Benefits Security Administration published the plan in the Federal Register on March 31, 2026, under docket EBSA-2026-0166 and Regulation Identifier Number 1210-AC38, then set a public comment deadline of June 1, 2026. That deadline passed more than three months ago with no final regulation issued, no plan required to add these assets, and no change yet to what any 401(k) fiduciary must do when building an investment menu.
A Fiduciary Safe Harbor, Not a Mandate
The proposal, formally titled “Fiduciary Duties in Selecting Designated Investment Alternatives,” would amend 29 CFR Part 2550 to give plan fiduciaries a defined safe harbor when they add alternative assets to a 401(k) menu, including inside target-date and asset-allocation funds. A fiduciary who weighs six specific factors — performance, fees, liquidity, valuation, benchmarking and complexity — “objectively, thoroughly, and analytically” would be presumed reasonable and entitled to deference if a participant later sued over losses. Nothing in the text requires any plan to adopt private equity, private credit or crypto; it only would change the legal footing for those that choose to.
Labor Secretary Lori Chavez-DeRemer called the proposal a “major win” for American workers, saying it would show “how plans can consider products that better reflect the investment landscape as it exists today.” The Securities and Exchange Commission, which coordinated with the department on the rule, separately called it a “long-overdue improvement” that would let savers participate more fully in innovation through diversified, long-term investments.
The rule traces to an executive order President Trump signed on August 7, 2025, “Democratizing Access to Alternative Assets for 401(k) Investors,” which directed the Labor Department to reconsider guidance that had discouraged fiduciaries from offering private equity, real estate, digital assets, commodities and other alternatives inside retirement plans. Acting on that instruction, the department rescinded a December 2021 supplemental statement that had cautioned fiduciaries against selecting a private-equity component for a typical 401(k) plan, retiring that caution on August 12, 2025, five days after the executive order was signed.
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What the Comment Period Showed
The docket drew unusually heavy public interest. Federal Register records show 47,104 comments were filed on docket EBSA-2026-0166 before the June 1 deadline, the formal record the Employee Benefits Security Administration must work through before it can finalize, revise or withdraw the proposal. Fred Wong, in the department’s Office of Regulations and Interpretations, is listed as the named contact for the rulemaking, and the same filing lays out the six-factor test in full alongside the case law the department cites to defend the safe harbor.
Opposition centered on litigation exposure and disclosure. Oscar Valdés Viera, senior policy analyst at Americans for Financial Reform, filed a comment with the Employee Benefits Security Administration calling the proposal “a dangerous rule” that would steer retirement savings into “risky, opaque, high-fee” investments, warning that opening 401(k)s to private equity risks turning workers’ savings into “a Ponzi-like scheme that throws a lifeline to an industry scrambling for fresh cash.” Anya Coverman, president of the Institute for Portfolio Alternatives, argued the opposite: a diligent fiduciary “should not be second-guessed by government officials or courts” once a prudent process is documented.
Bonnie Treichel, founder of Endeavor Retirement, told trade reporters the rule “paves the way for more alternatives” but predicted adoption would not happen “overnight,” pointing to plan sponsors still absorbing SECURE 2.0 administrative work such as the Roth catch-up provision. Her assessment lines up with the department’s own finding, stated in the proposal itself, that fiduciaries have long had legal room to add alternative assets and “almost none have done so.”
No Final Rule Yet, and Fiduciaries Still Decide
Federal rulemaking does not end when a comment period closes. The Employee Benefits Security Administration must first work through the record, decide whether to revise the safe harbor’s six factors or the definition of a designated investment alternative, and then send any final version to the White House Office of Management and Budget for interagency review before a final rule could appear in the Federal Register. None of those steps has produced a published final rule as of September 2026, which is why the proposal’s own docket still lists its status as a “Proposed Rule.”
That distinction matters for anyone with an existing 401(k). Plans have technically been permitted to include private equity, private credit or cryptocurrency inside diversified options for years; the department’s own 2020 guidance on asset-allocation funds with a private equity component said as much, and the 2025 rescission of the 2021 caution restored what officials describe as a neutral posture. But permission has never meant obligation, and the pending rule, even if finalized exactly as proposed, would still leave the decision to add or withhold any alternative asset with each plan’s own fiduciaries, not with Washington.
The Federal Register filing remains the controlling record: a proposed rule, docket EBSA-2026-0166, RIN 1210-AC38, published March 31, 2026, with its comment window closed and no successor final rule on file anywhere in that docket. Until the Employee Benefits Security Administration publishes that final text, the safe harbor those 47,104 commenters argued over does not yet exist, and every 401(k) fiduciary is still operating under the same prudence standard that predates the executive order.
Retirement Accounts While a Rule Is Pending
The Labor Department’s proposal spent its energy on assets nobody’s plan is required to add. Meanwhile, the accounts most savers already hold keep generating decisions with real deadlines attached: which account to draw from first in retirement, how a withdrawal interacts with the IRMAA income tiers that set Medicare premiums, and whether a taxpayer still qualifies for the temporary senior deduction now on the books. None of those questions wait on a final rule from Washington.
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This article was researched and drafted with the assistance of AI and reviewed by The Money Overview editorial team.
