DOL Final Rule: Retirement Security Rule: Definition of an Investment Advice Fiduciary: Notice of
Court Vacatur, 29 CFR Part 2510, 91 Red. Reg. 13503 (Mar. 20, 2026)
Available at https://www.govinfo.gov/content/pkg/FR-2026-03-20/pdf/2026-05492.pdf
The DOL has formally withdrawn its 2024 regulations regarding the ERISA fiduciary status of persons rendering “investment advice” for a fee with respect to “moneys or other property” of an employee benefit plan. Under the 2024 regulations, investment recommendations directed to specific investors were ERISA investment advice if the advisor (1) regularly provided professional investment recommendations in a manner suggesting that they were tailored to an investor’s specific circumstances and reflected professional judgment intended to advance the investor’s interests; or (2) represented or acknowledged acting as an ERISA fiduciary with respect to the recommendations. When the regulations were issued, the DOL also amended a previously issued prohibited transaction exemption, PTE 2020-02, regarding rollover advice. Shortly thereafter, however, two federal trial courts placed a hold on the 2024 regulations and the related PTE amendments.
Reflecting those decisions, the DOL has removed the 2024 regulations from the Code of Federal Regulations, expressly reinstating regulations issued in 1975 that set forth a five-part test for ERISA fiduciary status of investment advice providers. In addition, PTE 2020-02 has been restored to its original version (i.e., prior to the 2024 amendments). Moreover, the DOL specifies that it no longer considers any part of the PTE 2020-02 preamble to be reliable due to the courts’ vacatur of portions of the preamble as amended. For convenience, the 1975 regulations and the original version of PTE 2020-02 (without any preamble) are republished in the Federal Register notice. While the action is officially effective April 20, 2026, the DOL explains that the 1975 regulations have always applied because the 2024 regulations never took effect. The DOL also notes that this action is not subject to notice-and-comment rulemaking because it only implements the courts’ decisions.
EBIA Comment: The ERISA fiduciary status of persons providing individualized investment advice regarding benefit plan assets, including rollover of those assets, has long been a contentious topic. According to the related DOL news release, the 2024 regulations (which were issued under the previous presidential administration) “wrongly sought to impose ERISA fiduciary status on securities brokers and insurance agents when there was not a relationship of trust or confidence,” and in any event these entities are sufficiently regulated by the Securities and Exchange Commission and state regulators. The news release adds that the DOL has no current plans to engage in notice-and-comment rulemaking on this subject, so the topic appears to be closed—at least for the moment. For more information, see EBIA’s 401(k) Plans manual at Section XXIV.D (“Investment Advice Fiduciaries”) and EBIA’s Consumer-Driven Health Care manual at Section XVI.E.2 (“Who Is a ‘Fiduciary’ With Respect to an HSA?”).
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