A final rule from the U.S. Department of Labor that would facilitate retirement plans’ inclusion of alternative assets such as private equity, real estate and cryptocurrencies
A final rule from the U.S. Department of Labor that would facilitate retirement plans’ inclusion of alternative assets such as private equity, real estate and cryptocurrencies was submitted to the White House Office of Information and Regulatory Affairs (OIRA) for review on Thursday. Submission for review indicates that the rule is close to completion and public release, but it remains under review and the final text has not yet been made public.
The Department of Labor announced the related proposal on March 30. Under the proposal, fiduciaries could receive legal safe harbor protection when adding private assets to 401(k) plan investment options if six factors are met. The six factors are investment performance, fees, liquidity, valuation, benchmarks and complexity.
The rule aims to provide fiduciaries with procedural protection and reduce litigation risk from including alternative assets, while expanding the range of investments available to participants. The rule covers private market instruments, real estate and actively managed digital asset vehicles, implementing a related executive order previously signed by Trump.
Original source:
Title: 401(k) Private Asset Rule Lands at White House for Final Review
Publisher: Bloomberg Law
Publication date: November 6, 2026
URL: https://news.bloomberglaw.com/employee-benefits/401k-private-asset-rule-lands-at-white-house-for-final-review
Nature of source: legal industry media report
Verification status: The publicly available portion of the report was read and cross-checked against the reginfo.gov entry and the publicly available proposal information, with consistent results
Supporting content: The rule reached OIRA on Thursday, is nearing completion, the March 30 proposal, and the six safe-harbor factors (performance, fees, liquidity, valuation, benchmark, complexity)
ABAB AI Insight
The rule turns procedural compliance into legal protection for fiduciaries, reducing the litigation costs of including private equity, real estate and digital asset vehicles in 401(k) plans. Historically, fiduciaries under ERISA have been vulnerable to lawsuits for choosing nontraditional assets; the proposal provides a documented prudent process through a six-factor checklist, giving fiduciaries' judgments substantial deference.
On the capital-access side, private equity and real estate managers have long sought entry into the multi-trillion-dollar defined contribution plan market. The safe harbor is expected to reduce plan sponsors' and investment committees' concerns and accelerate product embedding in target-date funds or dedicated menus. For cryptocurrencies, the rule focuses on actively managed investment vehicles rather than direct spot holdings, and the boundary will still depend on the final text's specific requirements for valuation and liquidity.
The structural change is a shift from avoiding alternative assets to avoid lawsuits to obtaining protection by following a checklist. This changes plan designers' risk-reward calculus: compliance costs shift from unpredictable litigation to manageable due diligence and recordkeeping. Beneficiaries include private asset and digital asset managers seeking allocation channels, as well as plan sponsors wanting to expand options; participants face greater complexity and potential liquidity constraints.
Whether the final text retains the proposal's six factors, expands monitoring duties, or imposes additional conditions on digital asset vehicles will still depend on the outcome of OIRA review and subsequent adjustments by the Department of Labor. Once the rule takes effect, actual adoption will depend on plan fiduciaries' assessment of liquidity, auditability of valuation and the cost of participant education.
ABAB News · Cognitive Law
The safe harbor turns litigation risk into documentable procedure
The six-factor checklist determines whether alternative assets can enter 401(k)s
OIRA review is the final administrative gate from proposal to effectiveness