PLANADVISER -May/June 2022 - 31

through investigations. " Sheaks added that EBSA should
seek the input of the regulated community by first issuing a
request for information to gather more facts on the issue and
possible solutions.
Carol Buckmann, an employee benefits and ERISA
attorney, and a partner in Cohen & Buckmann PC in New
York City, agrees with Sheaks. She says the process of developing
law through investigation " bypasses the important
element of public comment and can leave many in the dark
about what the actual legal standards are. "
The language in the release is " very broad and imprecise, "
Buckmann says, adding, " [it] potentially makes even indirect
cryptocurrency investments through funds presumptively
imprudent. " She says EBSA should defer implementing
any investigation program until it considers and evaluates
the feedback from the release.
'Only Sub-Regulatory Guidance'
However, the guidance's bark may be worse than its bite as,
Buckmann says, the courts may give it less deference as a
regulation-it is sub-regulatory guidance, which " doesn't
have the status of an advisory opinion or regulation. "
Amid the criticism and the confusion, EBSA has
defended the release. In a response letter to Senator Tommy
Tuberville, R-Alabama, who had written to Labor Secretary
Martin Walsh, objecting to the release, Khawar said EBSA
had not taken a " novel position " with the guidance.
" The department has long indicated that fiduciaries have
responsibilities with respect to brokerage windows, " Khawar
wrote. He cited Field Assistance Bulletin No. 2012-02R (1),
issued by EBSA in 2012, that said fiduciaries of plans with
self-directed brokerage accounts are still bound by ERISA's
duties of prudence and loyalty to the participants and beneficiaries.
" It's reasonable, " Khawar wrote, " to expect plan
fiduciaries to be able to respond to questions about their
decisions to make cryptocurrency investments available to
plan participants and beneficiaries whether as designated
investment alternatives or through a self-directed brokerage
account or similar arrangement. "
But he also noted that the guidance is limited to cryptocurrency
investments and " focuses on the need for ERISA
fiduciaries to exercise extreme care at this stage of cryptocurrency's
development. It does not, and should not, be read
to address other types or classes of investments. "
Unpersuaded by Khawar's letter, Tuberville introduced a
bill that would prevent the DOL from issuing rules or guidance
that limits the type of investments self-directed 401(k)
plan participants may choose through a brokerage window.
" The federal government has no business interfering
with the ability of American workers to invest their 401(k)
planadviser.com May-June 2022 | 31

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PLANADVISER -May/June 2022

Table of Contents for the Digital Edition of PLANADVISER -May/June 2022

PLANADVISER Industry Leaders Awards
Paving the Way
2022 DCIO Survey
Fool's Gold for 401(k)s?
Design and Stability
A Collective Effort
Cryptocurrency In DC Plans
Real Estate Fund Investments
PLANADVISER -May/June 2022 - Cover1
PLANADVISER -May/June 2022 - Cover2
PLANADVISER -May/June 2022 - 1
PLANADVISER -May/June 2022 - 2
PLANADVISER -May/June 2022 - 3
PLANADVISER -May/June 2022 - 4
PLANADVISER -May/June 2022 - 5
PLANADVISER -May/June 2022 - 6
PLANADVISER -May/June 2022 - 7
PLANADVISER -May/June 2022 - 8
PLANADVISER -May/June 2022 - 9
PLANADVISER -May/June 2022 - PLANADVISER Industry Leaders Awards
PLANADVISER -May/June 2022 - 11
PLANADVISER -May/June 2022 - 12
PLANADVISER -May/June 2022 - 13
PLANADVISER -May/June 2022 - 14
PLANADVISER -May/June 2022 - 15
PLANADVISER -May/June 2022 - 16
PLANADVISER -May/June 2022 - 17
PLANADVISER -May/June 2022 - 18
PLANADVISER -May/June 2022 - 19
PLANADVISER -May/June 2022 - Paving the Way
PLANADVISER -May/June 2022 - 21
PLANADVISER -May/June 2022 - 22
PLANADVISER -May/June 2022 - 23
PLANADVISER -May/June 2022 - 2022 DCIO Survey
PLANADVISER -May/June 2022 - 25
PLANADVISER -May/June 2022 - 26
PLANADVISER -May/June 2022 - 27
PLANADVISER -May/June 2022 - 28
PLANADVISER -May/June 2022 - 29
PLANADVISER -May/June 2022 - Fool's Gold for 401(k)s?
PLANADVISER -May/June 2022 - 31
PLANADVISER -May/June 2022 - 32
PLANADVISER -May/June 2022 - 33
PLANADVISER -May/June 2022 - Design and Stability
PLANADVISER -May/June 2022 - 35
PLANADVISER -May/June 2022 - A Collective Effort
PLANADVISER -May/June 2022 - 37
PLANADVISER -May/June 2022 - 38
PLANADVISER -May/June 2022 - Cryptocurrency In DC Plans
PLANADVISER -May/June 2022 - Real Estate Fund Investments
PLANADVISER -May/June 2022 - Cover3
PLANADVISER -May/June 2022 - Cover4
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https://www.planadviserdigital.com/planadviser/september_october_2017
https://www.planadviserdigital.com/planadviser/july_august_2017
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