US Code

Public Law 119-134

29 U.S.C. § 1104

Fiduciary duties

Section text and notes

(a)

Prudent man standard of care

(1)
Subject to sections 1103(c) and (d), 1342, and 1344 of this title, a fiduciary shall discharge his duties with respect to a plan solely in the interest of the participants and beneficiaries and—
(A)
for the exclusive purpose of:
(i)
providing benefits to participants and their beneficiaries; and
(ii)
defraying reasonable expenses of administering the plan;
(B)
with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims;
(C)
by diversifying the investments of the plan so as to minimize the risk of large losses, unless under the circumstances it is clearly prudent not to do so; and
(D)
in accordance with the documents and instruments governing the plan insofar as such documents and instruments are consistent with the provisions of this subchapter and subchapter III.
(2)
section 1107(d)(3) of this title In the case of an eligible individual account plan (as defined in ), the diversification requirement of paragraph (1)(C) and the prudence requirement (only to the extent that it requires diversification) of paragraph (1)(B) is not violated by acquisition or holding of qualifying employer real property or qualifying employer securities (as defined in section 1107(d)(4) and (5) of this title).
(b)

Indicia of ownership of assets outside jurisdiction of district courts

Except as authorized by the Secretary by regulations, no fiduciary may maintain the indicia of ownership of any assets of a plan outside the jurisdiction of the district courts of the United States.

(c)

Control over assets by participant or beneficiary

(1)
(A)
In the case of a pension plan which provides for individual accounts and permits a participant or beneficiary to exercise control over the assets in his account, if a participant or beneficiary exercises control over the assets in his account (as determined under regulations of the Secretary)—
(i)
such participant or beneficiary shall not be deemed to be a fiduciary by reason of such exercise, and
(ii)
no person who is otherwise a fiduciary shall be liable under this part for any loss, or by reason of any breach, which results from such participant’s or beneficiary’s exercise of control, 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.
(B)
If a person referred to in subparagraph (A)(ii) meets the requirements of this subchapter in connection with authorizing and implementing the blackout period, any person who is otherwise a fiduciary shall not be liable under this subchapter for any loss occurring during such period.
(C)
section 1021(i)(7) of this title For purposes of this paragraph, the term “blackout period” has the meaning given such term by .
(2)
section 408(p) of title 26 In the case of a simple retirement account established pursuant to a qualified salary reduction arrangement under , a participant or beneficiary shall, for purposes of paragraph (1), be treated as exercising control over the assets in the account upon the earliest of—
(A)
an affirmative election among investment options with respect to the initial investment of any contribution,
(B)
a rollover to any other simple retirement account or individual retirement plan, or
(C)
one year after the simple retirement account is established.
section 1021(g) of this titleNo reports, other than those required under , shall be required with respect to a simple retirement account established pursuant to such a qualified salary reduction arrangement.
(3)
section 401(a)(31)(B) of title 26 In the case of a pension plan which makes a transfer to an individual retirement account or annuity of a designated trustee or issuer under , the participant or beneficiary shall, for purposes of paragraph (1), be treated as exercising control over the assets in the account or annuity upon—
(A)
the earlier of—
(i)
a rollover of all or a portion of the amount to another individual retirement account or annuity; or
(ii)
one year after the transfer is made; or
(B)
a transfer that is made in a manner consistent with guidance provided by the Secretary.
(4)
(A)
In any case in which a qualified change in investment options occurs in connection with an individual account plan, a participant or beneficiary shall not be treated for purposes of paragraph (1) as not exercising control over the assets in his account in connection with such change if the requirements of subparagraph (C) are met in connection with such change.
(B)
For purposes of subparagraph (A), the term “qualified change in investment options” means, in connection with an individual account plan, a change in the investment options offered to the participant or beneficiary under the terms of the plan, under which—
(i)
the account of the participant or beneficiary is reallocated among one or more remaining or new investment options which are offered in lieu of one or more investment options offered immediately prior to the effective date of the change, and
(ii)
the stated characteristics of the remaining or new investment options provided under clause (i), including characteristics relating to risk and rate of return, are, as of immediately after the change, reasonably similar to those of the existing investment options as of immediately before the change.
(C)
The requirements of this subparagraph are met in connection with a qualified change in investment options if—
(i)
at least 30 days and no more than 60 days prior to the effective date of the change, the plan administrator furnishes written notice of the change to the participants and beneficiaries, including information comparing the existing and new investment options and an explanation that, in the absence of affirmative investment instructions from the participant or beneficiary to the contrary, the account of the participant or beneficiary will be invested in the manner described in subparagraph (B),
(ii)
the participant or beneficiary has not provided to the plan administrator, in advance of the effective date of the change, affirmative investment instructions contrary to the change, and
(iii)
the investments under the plan of the participant or beneficiary as in effect immediately prior to the effective date of the change were the product of the exercise by such participant or beneficiary of control over the assets of the account within the meaning of paragraph (1).
(5)

Default investment arrangements.—

(A)

In general .—

For purposes of paragraph (1), a participant or beneficiary in an individual account plan meeting the notice requirements of subparagraph (B) shall be treated as exercising control over the assets in the account with respect to the amount of contributions and earnings which, in the absence of an investment election by the participant or beneficiary, are invested by the plan in accordance with regulations prescribed by the Secretary. The regulations under this subparagraph shall provide guidance on the appropriateness of designating default investments that include a mix of asset classes consistent with capital preservation or long-term capital appreciation, or a blend of both.
(B)

Notice requirements.—

(i)

In general .—

The requirements of this subparagraph are met if each participant or beneficiary—
(I)
receives, within a reasonable period of time before each plan year, a notice explaining the employee’s right under the plan to designate how contributions and earnings will be invested and explaining how, in the absence of any investment election by the participant or beneficiary, such contributions and earnings will be invested, and
(II)
has a reasonable period of time after receipt of such notice and before the beginning of the plan year to make such designation.
(ii)

Form of notice .—

section 401(k)(12)(D) of title 26The requirements of clauses (i) and (ii) of shall apply with respect to the notices described in this subparagraph.
(6)

Default investment arrangements for a pension-linked emergency savings account .—

section 1193(c)(1)(A)(iii) of this titleFor purposes of paragraph (1), a participant in a pension-linked emergency savings account shall be treated as exercising control over the assets in the account with respect to the amount of contributions and earnings which are invested in accordance with .
(d)

Plan terminations

(1)
section 4980(d) of title 26 If, in connection with the termination of a pension plan which is a single-employer plan, there is an election to establish or maintain a qualified replacement plan, or to increase benefits, as provided under , a fiduciary shall discharge the fiduciary’s duties under this subchapter and subchapter III in accordance with the following requirements:
(A)
In the case of a fiduciary of the terminated plan, any requirement—
(i)
section 4980(d)(2)(B) of title 26 under with respect to the transfer of assets from the terminated plan to a qualified replacement plan, and
(ii)
under section 4980(d)(2)(B)(ii) or 4980(d)(3) of title 26 with respect to any increase in benefits under the terminated plan.
(B)
In the case of a fiduciary of a qualified replacement plan, any requirement—
(i)
section 4980(d)(2)(A) of title 26 under with respect to participation in the qualified replacement plan of active participants in the terminated plan,
(ii)
section 4980(d)(2)(B) of title 26 under with respect to the receipt of assets from the terminated plan, and
(iii)
section 4980(d)(2)(C) of title 26 under with respect to the allocation of assets to participants of the qualified replacement plan.
(2)
For purposes of this subsection—
(A)
section 4980(d) of title 26 any term used in this subsection which is also used in shall have the same meaning as when used in such section, and
(B)
any reference in this subsection to title 26 shall be a reference to title 26 as in effect immediately after the enactment of the Omnibus Budget Reconciliation Act of 1990.
(e)

Safe harbor for annuity selection

(1)

In general

With respect to the selection of an insurer for a guaranteed retirement income contract, the requirements of subsection (a)(1)(B) will be deemed to be satisfied if a fiduciary—
(A)
engages in an objective, thorough, and analytical search for the purpose of identifying insurers from which to purchase such contracts;
(B)
with respect to each insurer identified under subparagraph (A)—
(i)
considers the financial capability of such insurer to satisfy its obligations under the guaranteed retirement income contract; and
(ii)
considers the cost (including fees and commissions) of the guaranteed retirement income contract offered by the insurer in relation to the benefits and product features of the contract and administrative services to be provided under such contract; and
(C)
on the basis of such consideration, concludes that—
(i)
at the time of the selection, the insurer is financially capable of satisfying its obligations under the guaranteed retirement income contract; and
(ii)
the relative cost of the selected guaranteed retirement income contract as described in subparagraph (B)(ii) is reasonable.
(2)

Financial capability of the insurer

A fiduciary will be deemed to satisfy the requirements of paragraphs (1)(B)(i) and (1)(C)(i) if—
(A)
the fiduciary obtains written representations from the insurer that—
(i)
the insurer is licensed to offer guaranteed retirement income contracts;
(ii)
the insurer, at the time of selection and for each of the immediately preceding 7 plan years—
(I)
operates under a certificate of authority from the insurance commissioner of its domiciliary State which has not been revoked or suspended;
(II)
has filed audited financial statements in accordance with the laws of its domiciliary State under applicable statutory accounting principles;
(III)
maintains (and has maintained) reserves which satisfies all the statutory requirements of all States where the insurer does business; and
(IV)
is not operating under an order of supervision, rehabilitation, or liquidation;
(iii)
the insurer undergoes, at least every 5 years, a financial examination (within the meaning of the law of its domiciliary State) by the insurance commissioner of the domiciliary State (or representative, designee, or other party approved by such commissioner); and
(iv)
the insurer will notify the fiduciary of any change in circumstances occurring after the provision of the representations in clauses (i), (ii), and (iii) which would preclude the insurer from making such representations at the time of issuance of the guaranteed retirement income contract; and
(B)
after receiving such representations and as of the time of selection, the fiduciary has not received any notice described in subparagraph (A)(iv) and is in possession of no other information which would cause the fiduciary to question the representations provided.
(3)

No requirement to select lowest cost

Nothing in this subsection shall be construed to require a fiduciary to select the lowest cost contract. A fiduciary may consider the value of a contract, including features and benefits of the contract and attributes of the insurer (including, without limitation, the insurer’s financial strength) in conjunction with the cost of the contract.

(4)

Time of selection

(A)

In general

For purposes of this subsection, the time of selection is—
(i)
the time that the insurer and the contract are selected for distribution of benefits to a specific participant or beneficiary; or
(ii)
if the fiduciary periodically reviews the continuing appropriateness of the conclusion described in paragraph (1)(C) with respect to a selected insurer, taking into account the considerations described in such paragraph, the time that the insurer and the contract are selected to provide benefits at future dates to participants or beneficiaries under the plan.
Nothing in the preceding sentence shall be construed to require the fiduciary to review the appropriateness of a selection after the purchase of a contract for a participant or beneficiary.
(B)

Periodic review

A fiduciary will be deemed to have conducted the periodic review described in subparagraph (A)(ii) if the fiduciary obtains the written representations described in clauses (i), (ii), and (iii) of paragraph (2)(A) from the insurer on an annual basis, unless the fiduciary receives any notice described in paragraph (2)(A)(iv) or otherwise becomes aware of facts that would cause the fiduciary to question such representations.

(5)

Limited liability

A fiduciary which satisfies the requirements of this subsection shall not be liable following the distribution of any benefit, or the investment by or on behalf of a participant or beneficiary pursuant to the selected guaranteed retirement income contract, for any losses that may result to the participant or beneficiary due to an insurer’s inability to satisfy its financial obligations under the terms of such contract.

(6)

Definitions

For purposes of this subsection—
(A)

Insurer

The term “insurer” means an insurance company, insurance service, or insurance organization, including affiliates of such companies.

(B)

Guaranteed retirement income contract

The term “guaranteed retirement income contract” means an annuity contract for a fixed term or a contract (or provision or feature thereof) which provides guaranteed benefits annually (or more frequently) for at least the remainder of the life of the participant or the joint lives of the participant and the participant’s designated beneficiary as part of an individual account plan.

Pub. L. 93–406, title I, § 40488 Stat. 877 Pub. L. 96–364, title III, § 30994 Stat. 1296 Pub. L. 101–508, title XII, § 12002(b)(1)104 Stat. 1388–565 Pub. L. 104–188, title I, § 1421(d)(2)110 Stat. 1799 Pub. L. 107–16, title VI, § 657(c)(1)115 Stat. 136 Pub. L. 107–147, title IV, § 411(t)116 Stat. 51 Pub. L. 109–280, title VI120 Stat. 978 Pub. L. 110–458, title I, § 106(d)122 Stat. 5107 Pub. L. 116–94, div. O, title II, § 204133 Stat. 3165 Pub. L. 117–328, div. T, title I, § 127(d)136 Stat. 5324 (, , ; , , ; , (2)(A), , , 1388–566; , , ; , , ; , , ; , §§ 621(a), 624(a), , , 980; , , ; , , ; , , .)

Editorial Notes

References in Text

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

Amendments

Pub. L. 117–3282022—Subsec. (c)(6). added par. (6).

Pub. L. 116–942019—Subsec. (e). added subsec. (e).

Pub. L. 110–4582008—Subsec. (c)(5). substituted “participant or beneficiary” for “participant” wherever appearing.

Pub. L. 109–280, § 621(a)(1)2006—Subsec. (c)(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).

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

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

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

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

Pub. L. 107–162001—Subsec. (c)(3). added par. (3).

Pub. L. 104–1881996—Subsec. (c). designated existing provisions as par. (1), redesignated former pars. (1) and (2) as subpars. (A) and (B), respectively, and added par. (2).

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

Pub. L. 101–508, § 12002(b)(1)Subsec. (d). , added subsec. (d).

Pub. L. 96–3641980—Subsec. (a)(1)(D). inserted reference to subchapter III of this chapter.

Statutory Notes and Related Subsidiaries

Effective Date of 2022 Amendment

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

Effective Date of 2008 Amendment

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

Effective Date of 2006 Amendment

Pub. L. 109–280, title VI, § 621(b)120 Stat. 979

“(1)

In general .—

The amendments made by this section [amending this section] shall apply to plan years beginning after .
“(2)

Special rule for collectively bargained agreements .—

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 [], paragraph (1) shall be applied to benefits pursuant to, and individuals covered by, any such agreement by substituting for ‘’ the earlier of—
“(A)
the later of—
“(i)
, or
“(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)
.”
, , , provided that:

Pub. L. 109–280, title VI, § 624(b)120 Stat. 980

“(1)

In general .—

The amendments made by this section [amending this section] shall apply to plan years beginning after .
“(2)

Regulations .—

29 U.S.C. 1104(c)(5)(A)Final regulations under section 404(c)(5)(A) of the Employee Retirement Income Security Act of 1974 [] (as added by this section) shall be issued no later than 6 months after the date of the enactment of this Act [].”
, , , provided that:

Effective Date of 2002 Amendment

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

Effective Date of 2001 Amendment

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

Effective Date of 1996 Amendment

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

Effective Date of 1990 Amendment

Pub. L. 101–508section 1054(h) of this titlesection 12003 of Pub. L. 101–508section 4980 of Title 26Amendment by applicable to reversions occurring after , but not applicable to any reversion after , 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 , (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 was provided to participants in connection with termination before , (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 , 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 , see , set out as a note under , Internal Revenue Code.

Effective Date of 1980 Amendment

Pub. L. 96–364section 1461(e) of this titleAmendment by effective , except as specifically provided, see .

Regulations

Pub. L. 109–280, title VI, § 625120 Stat. 980

“(a)

In General .—

Not later than 1 year after the date of the enactment of this Act [], the Secretary of Labor shall issue final regulations clarifying that the selection of an annuity contract as an optional form of distribution from an individual account plan to a participant or beneficiary—
“(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)

Effective Date .—

This section shall take effect on the date of enactment of this Act [].”
, , , provided that:

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

Performance Benchmarks for Asset Allocation Funds

Pub. L. 117–328, div. T, title III, § 318(a)136 Stat. 5353 29 U.S.C. 1104

“(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.”
, , , provided that: Not later than 2 years after the date of enactment of this Act [], the Secretary of Labor shall promulgate regulations under section 404 of the Employee Retirement Income Security Act of 1974 () 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—

Plan Amendments Not Required Until January 1, 1998

Pub. L. 104–188section 1465 of Pub. L. 104–188section 401 of Title 26For provisions directing that if any amendments made by subtitle D [§§ 1401–1465] of title I of 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 , see , set out as a note under , Internal Revenue Code.

Executive Documents

Ex. Ord. No. 14330. Democratizing Access to Alternative Assets for 401(k) Investors

Ex. Ord. No. 14330, , 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:

SectionPurpose 1. . 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.Policy 2. . 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.Democratizing Access to Alternative Assets 3. . (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.

Pub. L. 93–40629 U.S.C. 100129 U.S.C. 1104(b) Within 180 days of the date of this order [], 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) [, et seq.] (), 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 , 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 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.

Sec.General Provisions 4. . (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.

(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.

Donald J. Trump.
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