The enactment of the Omnibus Budget Reconciliation Act of 1990, referred to in subsec. (d)(2)(B), is the enactment of Puspan. L. 101–508, which was approved Nov. 5, 1990.

2022—Subsec. (c)(6). Puspan. L. 117–328 added par. (6).

2019—Subsec. (e). Puspan. L. 116–94 added subsec. (e).

2008—Subsec. (c)(5). Puspan. L. 110–458 substituted “participant or beneficiary” for “participant” wherever appearing.

2006—Subsec. (c)(1). Puspan. L. 109–280, § 621(a)(1), designated existing provisions as subpar. (A), redesignated former subpars. (A) and (B) as cls. (i) and (ii), respectively, of subpar. (A), in cl. (ii), inserted “, except that this clause shall not apply in connection with such participant or beneficiary for any blackout period during which the ability of such participant or beneficiary to direct the investment of the assets in his or her account is suspended by a plan sponsor or fiduciary” before period at end, and added subpars. (B) and (C).

Subsec. (c)(4). Puspan. L. 109–280, § 621(a)(2), added par. (4).

Subsec. (c)(5). Puspan. L. 109–280, § 624(a), added par. (5).

2002—Subsec. (c)(3)(A). Puspan. L. 107–147, § 411(t)(1), struck out “the earlier of” after “the earlier of” in introductory provisions.

Subsec. (c)(3)(B). Puspan. L. 107–147, § 411(t)(2), substituted “a transfer that” for “if the transfer”.

2001—Subsec. (c)(3). Puspan. L. 107–16 added par. (3).

1996—Subsec. (c). Puspan. L. 104–188 designated existing provisions as par. (1), redesignated former pars. (1) and (2) as subpars. (A) and (B), respectively, and added par. (2).

1990—Subsec. (a)(1)(D). Puspan. L. 101–508, § 12002(span)(2)(A), substituted “and subchapter III” for “or subchapter III”.

Subsec. (d). Puspan. L. 101–508, § 12002(span)(1), added subsec. (d).

1980—Subsec. (a)(1)(D). Puspan. L. 96–364 inserted reference to subchapter III of this chapter.

Amendment by Puspan. L. 117–328 applicable to plan years beginning after Dec. 31, 2023, see section 127(g) of Puspan. L. 117–328, set out as a note under section 72 of Title 26, Internal Revenue Code.

Amendment by Puspan. L. 110–458 effective as if included in the provisions of Puspan. L. 109–280 to which the amendment relates, except as otherwise provided, see section 112 of Puspan. L. 110–458, set out as a note under section 72 of Title 26, Internal Revenue Code.

Puspan. L. 109–280, title VI, § 621(span), Aug. 17, 2006, 120 Stat. 979, provided that:

Puspan. L. 109–280, title VI, § 624(span), Aug. 17, 2006, 120 Stat. 980, provided that:

Amendment by Puspan. L. 107–147 effective as if included in the provisions of the Economic Growth and Tax Relief Reconciliation Act of 2001, Puspan. L. 107–16, to which such amendment relates, see section 411(x) of Puspan. L. 107–147, set out as a note under section 25B of Title 26, Internal Revenue Code.

Amendment by Puspan. L. 107–16 applicable to distributions made after Mar. 28, 2005, see section 657(d) of Puspan. L. 107–16, set out as a note under section 401 of Title 26, Internal Revenue Code.

Amendment by Puspan. L. 104–188 applicable to taxable years beginning after Dec. 31, 1996, see section 1421(e) of Puspan. L. 104–188, set out as a note under section 72 of Title 26, Internal Revenue Code.

Amendment by Puspan. L. 101–508 applicable to reversions occurring after Sept. 30, 1990, but not applicable to any reversion after Sept. 30, 1990, if (1) in the case of plans subject to subchapter III of this chapter, notice of intent to terminate under such subchapter was provided to participants (or if no participants, to Pension Benefit Guaranty Corporation) before Oct. 1, 1990, (2) in the case of plans subject to subchapter I of this chapter (and not subchapter III), notice of intent to reduce future accruals under section 1054(h) of this title was provided to participants in connection with termination before Oct. 1, 1990, (3) in the case of plans not subject to subchapter I or III of this chapter, a request for a determination letter with respect to termination was filed with Secretary of the Treasury or Secretary’s delegate before Oct. 1, 1990, or (4) in the case of plans not subject to subchapter I or III of this chapter and having only one participant, a resolution terminating the plan was adopted by employer before Oct. 1, 1990, see section 12003 of Puspan. L. 101–508, set out as a note under section 4980 of Title 26, Internal Revenue Code.

Amendment by Puspan. L. 96–364 effective Sept. 26, 1980, except as specifically provided, see section 1461(e) of this title.

Puspan. L. 109–280, title VI, § 625, Aug. 17, 2006, 120 Stat. 980, provided that:

Secretary authorized, effective Sept. 2, 1974, to promulgate regulations wherever provisions of this part call for the promulgation of regulations, see sections 1031 and 1114 of this title.

Puspan. L. 117–328, div. T, title III, § 318(a), Dec. 29, 2022, 136 Stat. 5353, provided that: Not later than 2 years after the date of enactment of this Act [Dec. 29, 2022], the Secretary of Labor shall promulgate regulations under section 404 of the Employee Retirement Income Security Act of 1974 (29 U.S.C. 1104) providing that, in the case of a designated investment alternative that contains a mix of asset classes, the administrator of a plan may, but is not required to, use a benchmark that is a blend of different broad-based securities market indices if—

For provisions directing that if any amendments made by subtitle D [§§ 1401–1465] of title I of Puspan. L. 104–188 require an amendment to any plan or annuity contract, such amendment shall not be required to be made before the first day of the first plan year beginning on or after Jan. 1, 1998, see section 1465 of Puspan. L. 104–188, set out as a note under section 401 of Title 26, Internal Revenue Code.

Ex. Ord. No. 14330, Aug. 7, 2025, 90 F.R. 38921, provided:

By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered:

Section 1. Purpose. Many wealthy Americans, and Government workers who participate in public pension plans, can invest in, or are the beneficiaries of investment in, a number of alternative assets. Yet, while more than 90 million Americans participate in employer-sponsored defined-contribution plans, the vast majority of these investors do not have the opportunity to participate, either directly or through their retirement plans, in the potential growth and diversification opportunities associated with alternative asset investments.

Fiduciaries of 401(k) and other defined-contribution retirement plans must carefully vet and consider all aspects of private offerings, including investment managers’ capabilities, experiences, and effectiveness managing alternative asset investments. They do so to protect the Americans whose retirement accounts they administer and for whom they have fiduciary duties to invest safely and prudently.

During my first term, my Administration issued a 2020 information letter, recognizing that prudent Federal action could encourage the proliferation of investment strategies under which a portion of retirement plan participants’ interests are allocated to alternative assets, as is the case for institutional investors.

Burdensome lawsuits that seek to challenge reasonable decisions by loyal, regulated fiduciaries, and stifling Department of Labor guidance issued since my first term, however, have denied millions of Americans opportunities to benefit from investment in alternative assets. Such assets are an increasingly large portion of the portfolios of public pension and defined-benefit retirement plans and offer competitive returns along with diversification opportunities.

A combination of regulatory overreach and encouragement of lawsuits filed by opportunistic trial lawyers has stifled investment innovation and largely relegated 401(k) and other defined-contribution retirement plan participants to asset classes whose returns lack the very same long-term net benefits allowed for and achieved by public pension plans and other institutional investors.

My Administration will relieve the regulatory burdens and litigation risk that impede American workers’ retirement accounts from achieving the competitive returns and asset diversification necessary to secure a dignified, comfortable retirement.

Sec. 2. Policy. It is the policy of the United States that every American preparing for retirement should have access to funds that include investments in alternative assets when the relevant plan fiduciary determines that such access provides an appropriate opportunity for plan participants and beneficiaries to enhance the net risk-adjusted returns on their retirement assets.

Sec. 3. Democratizing Access to Alternative Assets. (a) For purposes of this order, the term “alternative assets” means:

(i) private market investments, including direct and indirect interests in equity, debt, or other financial instruments that are not traded on public exchanges, including those where the managers of such investments, if applicable, seek to take an active role in the management of such companies;

(ii) direct and indirect interests in real estate, including debt instruments secured by direct or indirect interests in real estate;

(iii) holdings in actively managed investment vehicles that are investing in digital assets;

(iv) direct and indirect investments in commodities;

(v) direct and indirect interests in projects financing infrastructure development; and

(vi) lifetime income investment strategies including longevity risk-sharing pools.

(span) Within 180 days of the date of this order [Aug. 7, 2025], the Secretary of Labor (Secretary) shall reexamine the Department of Labor’s past and present guidance regarding a fiduciary’s duties under the Employee Retirement Income Security Act of 1974, as amended (ERISA) [Puspan. L. 93–406, 29 U.S.C. 1001 et seq.] (29 U.S.C. 1104), in connection with making available to participants an asset allocation fund that includes investments in alternative assets. When conducting this reexamination, the Secretary shall consider whether to rescind the Department of Labor’s December 21, 2021, Supplemental Private Equity Statement.

(c) Within 180 days of the date of this order, the Secretary shall further, as the Secretary deems appropriate and consistent with applicable law, seek to clarify the Department of Labor’s position on alternative assets and the appropriate fiduciary process associated with offering asset allocation funds containing investments in alternative assets under ERISA. Such clarification must aim to identify the criteria that fiduciaries should use to prudently balance potentially higher expenses against the objectives of seeking greater long-term net returns and broader diversification of investments. The Secretary shall also propose rules, regulations, or guidance, as the Secretary deems appropriate, that clarify the duties that a fiduciary owes to plan participants under ERISA when deciding whether to make available to plan participants an asset allocation fund that includes investments in alternative assets, which rules, regulations, and guidance may include appropriately calibrated safe harbors. In carrying out the directives in this section to further the policy set forth in this order, the Secretary shall prioritize actions that may curspan ERISA litigation that constrains fiduciaries’ ability to apply their best judgment in offering investment opportunities to relevant plan participants.

(d) In carrying out the directives in this section, the Secretary shall, as appropriate, consult with the Secretary of the Treasury, the Securities and Exchange Commission (SEC), and other Federal regulators as necessary to carry out the policy objectives of this order, including as to parallel regulatory changes that may be incorporated by such other Federal regulators.

(e) The SEC shall, in consultation with the Secretary, consider ways to facilitate access to investments in alternative assets by participants in participant-directed defined-contribution retirement savings plans. Such facilitation may include, but not be limited to, consideration of revisions to existing SEC regulations and guidance relating to accredited investor and qualified purchaser status, to accomplish the policy objectives of this order.

Sec. 4. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:

(i) the authority granted by law to an executive department or agency, or the head thereof; or

(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

(span) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

(d) The costs for publication of this order shall be borne by the Department of Labor.