The Rule That Would Open 401(k) Menus to Private Assets Drew Nearly 37,000 Comments. It Is Still Not Final.

A Labor Department proposal that would make it easier for 401(k) plans to offer investment options holding private equity, private credit and cryptocurrency drew 36,969 public comments before the window shut on June 1, 2026. More than 25,400 of them had been posted to the public docket by late May. The department has not issued a final rule, and until it does, nothing in the proposal has legal effect.

The proposal is frequently described as approving alternative assets for retirement plans. It does not do that, and the distinction is the whole substance of it.

What the proposal actually changes

Under the Employee Retirement Income Security Act, the person who chooses a retirement plan's investment menu is a fiduciary and owes duties of prudence and loyalty. Prudence under ERISA has long been understood as a standard about process rather than outcome: the question a court asks is how the decision was reached, not whether the investment subsequently did well.

The Employee Benefits Security Administration's proposal, announced on March 30, 2026, would write that process down. It would establish a safe harbor: a fiduciary who follows the specified procedure in selecting a designated investment alternative would be treated as having satisfied the duty of prudence with respect to that selection. The safe harbor is asset-neutral by design. It does not bless any category of investment, and it does not require any plan to offer one.

The six factors

To rely on the safe harbor, a fiduciary would have to consider — in the department's phrasing, objectively, thoroughly and analytically — the following:

1. Performance
2. Fees
3. Liquidity
4. Valuation
5. Performance benchmarking
6. Complexity

Four of those six are the ones that distinguish private assets from public ones. A publicly traded fund has a daily market price, a long comparable track record and a standard benchmark. A private equity or private credit sleeve has none of those automatically: it is valued periodically by a process rather than priced continuously by a market, it cannot always be sold on demand, and finding a benchmark that fairly represents it is itself a judgment call. Listing valuation, liquidity, benchmarking and complexity as mandatory considerations is the mechanism by which the rule addresses those features without naming them.

Why it exists now

The proposal responds to Executive Order 14330 on expanding access to alternative assets. In announcing it, the department framed the change as a withdrawal from judgment about particular products.

The department's days of picking winners and losers are over. Our rule clearly spells out that managers must evaluate any and all potential product offerings by following a prudent process.

Labor Secretary Chavez-DeRemer said in the same release that "this rule will show how plans can consider products that better reflect today's investment landscape."

The scale involved

EBSA's remit covers 156 million workers, retirees and family members and roughly $13.8 trillion in plan assets. The department said more than 90 million Americans could gain access to the kinds of options the rule addresses. Those figures describe the population a change in plan-menu rules could reach, not the number of people who would see any change to their own plan — that decision stays with each plan's fiduciaries.

What happens next

The department must consider the comments it received and may issue a final rule, modify the proposal, re-propose it or let it lapse. There is no statutory deadline. A comment volume near 37,000 on a technical fiduciary regulation is high, and large comment files generally lengthen the interval between proposal and final rule rather than shortening it.