The measure, titled “Fiduciary Duties In Selecting Designated Investment Alternatives,” was submitted by the department’s Employee Benefits Security Administration. OIRA classifies it as economically significant and assigns it rule identifier 1210-AC38. The filing marks a final-rule stage following a March proposal and public comment period that ended June 1.
The proposal set out six non-exhaustive considerations for fiduciaries: performance, fees, liquidity, valuation, performance benchmarks and complexity. It would establish a process for assessing any designated investment alternative, not only funds holding private equity, real estate or digital assets. Following the process would create a presumption that a fiduciary had met the Employee Retirement Income Security Act’s prudence requirement for the factors considered.
The department said plan managers already had authority to consider alternative assets, though historically few had done so. Deputy Labor Secretary Keith Sonderling described the proposal as neutral, saying it “refrains from saying that any asset class is any better or worse than other investment types.” The proposal does not require managers to pick the cheapest option, but says higher costs should be justified by expected returns or other benefits. Liquidity reviews would account for needs such as withdrawals, job departures, hardship, reallocations and plan loans.
The rule’s progress has drawn attention to a crypto-allocation estimate shared by Sweep on X on Nov. 6. The company said a 2% allocation of U.S. 401(k) assets to crypto would amount to $216 billion in inflows. That calculation applies 2% to the Investment Company Institute’s reported $10.8 trillion in 401(k) assets as of June 30, 2026. It is a scenario, not an announced commitment or forecast with a timetable. ICI reported that mutual funds managed $6.2 trillion, or 58%, of the total; equity funds held $3.7 trillion and hybrid funds, including target-date funds, held $1.7 trillion.
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