This morning, the White House Office of Management and Budget announced that it has received the proposed rule, "Fiduciary Duties in Selecting Investment Alternative[s]" (the "Proposal"). The Proposal responds to President Trump's Executive Order, "Democratizing Access to Alternative Assets for 401(k) Investors" (August 7, 2025) (the "Executive Order"). The Executive Order set a February 3, 2026 deadline for the Department of Labor ("DOL") and the Securities and Exchange Commission to propose regulations and issue subregulatory guidance designed to implement the Administration's policy 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."
While the Proposal will not be publicly released for at least a few days, today's announcement provides key information. First, DOL is likely going to meet the President's February 3 deadline. Second, the Proposal is likely going to include broad commentary on the investment responsibilities of retirement plan fiduciaries and also contain a safe harbor. DOL has indicated that the Proposal is designed to help curb the second-guessing of fiduciaries by the courts.
We will continue to provide updates on the Proposal and will prepare a summary when it is publicly released. After issuing the Proposal DOL will provide a period for the regulated community to provide comments that will help shape its final rule. We anticipate that DOL will complete work on a final rule by early fall.