The enactment of the Omnibus Budget Reconciliation Act of 1990, referred to in subsec. (d)(2)(B), is the enactment of Pub. L. 101–508, which was approved
2022—Subsec. (c)(6). Pub. L. 117–328 added par. (6).
2019—Subsec. (e). Pub. L. 116–94 added subsec. (e).
2008—Subsec. (c)(5). Pub. L. 110–458 substituted “participant or beneficiary” for “participant” wherever appearing.
2006—Subsec. (c)(1). Pub. 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). Pub. L. 109–280, § 621(a)(2), added par. (4).
Subsec. (c)(5). Pub. L. 109–280, § 624(a), added par. (5).
2002—Subsec. (c)(3)(A). Pub. L. 107–147, § 411(t)(1), struck out “the earlier of” after “the earlier of” in introductory provisions.
Subsec. (c)(3)(B). Pub. L. 107–147, § 411(t)(2), substituted “a transfer that” for “if the transfer”.
2001—Subsec. (c)(3). Pub. L. 107–16 added par. (3).
1996—Subsec. (c). Pub. 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). Pub. L. 101–508, § 12002(b)(2)(A), substituted “and subchapter III” for “or subchapter III”.
Subsec. (d). Pub. L. 101–508, § 12002(b)(1), added subsec. (d).
1980—Subsec. (a)(1)(D). Pub. L. 96–364 inserted reference to subchapter III of this chapter.
Amendment by Pub. L. 117–328 applicable to plan years beginning after
Amendment by Pub. L. 110–458 effective as if included in the provisions of Pub. L. 109–280 to which the amendment relates, except as otherwise provided, see section 112 of Pub. L. 110–458, set out as a note under section 72 of Title 26, Internal Revenue Code.
Pub. L. 109–280, title VI, § 621(b), “(1) The amendments made by this section [amending this section] shall apply to plan years beginning after “(2) In the case of a plan maintained pursuant to 1 or more collective bargaining agreements between employee representatives and 1 or more employers ratified on or before the date of the enactment of this Act [“(A) the later of—“(i) “(ii) the date on which the last of such collective bargaining agreements terminates (determined without regard to any extension thereof after such date of enactment), or“(B)
Pub. L. 109–280, title VI, § 624(b), “(1) The amendments made by this section [amending this section] shall apply to plan years beginning after “(2) Final regulations under section 404(c)(5)(A) of the Employee Retirement Income Security Act of 1974 [29 U.S.C. 1104(c)(5)(A)] (as added by this section) shall be issued no later than 6 months after the date of the enactment of this Act [
Amendment by Pub. L. 107–147 effective as if included in the provisions of the Economic Growth and Tax Relief Reconciliation Act of 2001, Pub. L. 107–16, to which such amendment relates, see section 411(x) of Pub. L. 107–147, set out as a note under section 25B of Title 26, Internal Revenue Code.
Amendment by Pub. L. 107–16 applicable to distributions made after
Amendment by Pub. L. 104–188 applicable to taxable years beginning after
Amendment by Pub. L. 101–508 applicable to reversions occurring after
Amendment by Pub. L. 96–364 effective
Pub. L. 109–280, title VI, § 625, “(a) Not later than 1 year after the date of the enactment of this Act [“(1) is not subject to the safest available annuity standard under Interpretive Bulletin 95–1 (29 CFR 2509.95–1), and“(2) is subject to all otherwise applicable fiduciary standards.“(b) This section shall take effect on the date of enactment of this Act [
Secretary authorized, effective
Pub. L. 117–328, div. T, title III, § 318(a), “(1) the blend is reasonably representative of the asset class holdings of the designated investment alternative;“(2) for purposes of determining the blend’s returns for 1-, 5-, and 10-calendar-year periods (or for the life of the alternative, if shorter), the blend is modified at least once per year if needed to reflect changes in the asset class holdings of the designated investment alternative;“(3) the blend is furnished to participants and beneficiaries in a manner that is reasonably calculated to be understood by the average plan participant; and“(4) each securities market index that is used for an associated asset class would separately satisfy the requirements of such regulation for such asset class.”
For provisions directing that if any amendments made by subtitle D [§§ 1401–1465] of title I of Pub. 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
Ex. Ord. No. 14330,
By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered:
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.
(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.
(b) Within 180 days of the date of this order [
(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 curb 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.
(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.
(b) 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.