37,000 Comments and Counting on DOL Investment Selection Proposal
A quick check today on the Federal Register shows that the Proposed Rule from the Department of Labor’s Employee Benefits Security Administration—Fiduciary Duties in Selecting Designated Investment Alternatives—has generated significant public interest with less than 12 days remaining in the 60-day comment period, which ends at 11:59 p.m. EDT on June 1, 2026.
To date, a staggering 36,969 comments have been received and more than 25,400 are already posted on the Federal Register.
By comparison, in early 2024 the DOL received around 20,000 public comments during the 60-day open comment period for the since-vacated Retirement Security Rule: Definition of an Investment Advice Fiduciary.
The proposed regulation on designated investment alternatives could reshape how plan fiduciaries select and monitor 401(k) fund menus.
On March 31, 2026, the DOL issued the proposed regulation that would clarify and expand fiduciary discretion when selecting designated investment alternatives for 401(k) and other defined contribution plans. The proposed rule responds to President Donald Trump’s Executive Order 14330, “Democratizing Access to Alternative Assets for 401(k) Investors,” which called for expanded access to private market investments and other alternative assets in retirement plans. The Executive Order directed the DOL to reexamine guidance and clarify the DOL’s position on fiduciary process regarding alternative assets, including considering “appropriately calibrated safe harbors.”
As explained in a May 21 Wagner Law Group Washington, D.C. Office Benefits Bulletin newsletter, the DOL’s proposed rule goes beyond the Executive Order by proposing an asset-neutral approach that involves a general, process-driven safe harbor for prudently selecting any designated investment alternative.
“The proposal emphasizes how ERISA is grounded in process, not outcomes, noting how prudence is evaluated based on the fiduciary’s reasoning at the time of the decision, not by hindsight. The proposed rule also confirms that fiduciaries have broad discretion to select investment types and emphasizes that plan fiduciaries who follow a prudent process should be given judicial deference by the courts,” write Wagner’s Camille Castro and Stephen Wilkes.
The proposed rule establishes a process-based safe harbor, which involves six non-exhaustive factors that should be evaluated by plan fiduciaries. These factors include (1) performance; (2) fees; (3) liquidity; (4) valuation; (5) performance benchmarking; and (6) complexity.
“Under the proposed safe harbor, there is a presumption of prudence if a fiduciary objectively, thoroughly, and analytically evaluates the listed factors when selecting an investment. The proposal includes detailed examples illustrating how the factors can be satisfied in practice. The proposed rule also notes that significant judicial deference should be given to fiduciaries that meet the safe harbor’s requirements,” Castro and Wilkes write.
“Tell us how we can make the proposed rule better before we work on the final rule.”
EBSA’s Daniel Aronowitz during the NAPA 401(k) Summit
At the NAPA 401(k) Summit in Tampa in late April, EBSA leader Daniel Aronowitz encouraged summit attendees to provide comments to help the agency fine-tune the proposed regulation.
“The details matter. Team EBSA is proud of our effort. But now it is your turn to comment on the record,” Aronowitz said during the NAPA Summit. “Tell us how we can make the proposed rule better before we work on the final rule.”
He said the DOL’s Investment Selection Rule is not about reckless institutional gambling with fiduciary plan assets, but is about potential diversification and maximizing risk-adjusted returns.
“The department’s days of picking winners and losers are over. Our rule clearly spells out that managers must evaluate any and all potential product offerings by following a prudent process,” said then-Deputy/now Acting Secretary of Labor Keith Sonderling when the proposal was first released to the public. “This proposal is decidedly neutral and refrains from saying that any asset class is any better or worse than other investment types, as the law requires.”
Still time to comment
Those interested in submitting comments before the June 1 deadline can do so here: https://www.federalregister.gov/documents/2026/03/31/2026-06178/fiduciary-duties-in-selecting-designated-investment-alternatives#open-comment.
All submissions received must include the agency name and Regulation Identifier Number (RIN) for this rulemaking. Comments received, including any personal information provided, will be posted without change to http://www.regulations.gov and http://www.dol.gov/ebsa, and made available for public inspection at the Public Disclosure Room, N-1513, Employee Benefits Security Administration, 200 Constitution Avenue NW, Washington, DC 20210.
Commenters are encouraged to include supporting facts, research, and evidence in their comments.
SEE ALSO:
• Employee Fiduciary Advocates for Participant Protections in DOL Comment Letter
• DOL Unveils Fiduciary Rule Opening Door to Alternative Investments in 401(k)s
• Industry Leaders React to DOL Proposal Expanding Alternatives to 401(k)s
• Experts Question DOL Proposal on Private Investments in 401(k)s
Veteran financial services industry journalist Brian Anderson joined 401(k) Specialist as Managing Editor in January 2019. He has led editorial content for a variety of well-known properties including Insurance Forums, Life Insurance Selling, National Underwriter Life & Health, and Senior Market Advisor. He has always maintained a focus on providing readers with timely, useful information intended to help them build their business.