{
    "schema": "amendsignal.record/1",
    "generated_on": "2026-11-02",
    "publisher": {
        "name": "AmendSignal",
        "url": "https://amendsignal.com/"
    },
    "notice": "Coverage is limited, so a missing record does not mean nothing changed. General information, not legal advice. Check the official source. Please cite the record's url.",
    "change": {
        "id": 15,
        "url": "https://amendsignal.com/changes/employee-benefits-security-administration-proposes-a-safe-harbor-for-fiduciaries-choosing-retirement/",
        "title": "Employee Benefits Security Administration proposes a safe harbor for fiduciaries choosing retirement plan investment options",
        "change_type": "proposed_rule",
        "change_type_label": "Proposed rule",
        "status": "proposed",
        "status_label": "Proposed",
        "status_statement": "As of our last check on November 2, 2026, this is a proposal, not a requirement. Comments closed June 1, 2026.",
        "significance": "Proposed, nothing required yet",
        "jurisdiction": {
            "code": "US",
            "name": "United States"
        },
        "authority": {
            "name": "Employee Benefits Security Administration",
            "short_name": "EBSA"
        },
        "identifiers": [
            {
                "type": "fr_document_number",
                "label": "FR document",
                "value": "2026-06178"
            },
            {
                "type": "fr_citation",
                "label": "Citation",
                "value": "91 FR 16088"
            },
            {
                "type": "rin",
                "label": "RIN",
                "value": "1210-AC38"
            },
            {
                "type": "cfr_citation",
                "label": "CFR",
                "value": "29 CFR 2550"
            }
        ],
        "dates": [
            {
                "type": "publication",
                "label": "Published",
                "value": "2026-03-31",
                "precision": "day"
            },
            {
                "type": "comment_close",
                "label": "Comments due",
                "value": "2026-06-01",
                "precision": "day"
            }
        ],
        "in_short": {
            "what_changed": "The Employee Benefits Security Administration (EBSA) proposes a rule under the Employee Retirement Income Security Act (ERISA) on how fiduciaries choose investment options for participant-directed retirement plans such as 401(k) plans. A fiduciary that weighs six factors (performance, fees, liquidity, valuation, benchmark and complexity) would be presumed to have acted prudently, and the proposal says ERISA neither requires nor bars any type of investment, including alternative assets.",
            "whos_affected": "Employers that sponsor participant-directed plans and the people or committees who pick the plan's investment menu, along with their investment advisers and plan service providers. The agency expects many small plans to be affected mostly through their service providers.",
            "what_to_do": "This proposal creates no new duties for employers, and the safe harbor would be voluntary if finalized. Comments are due on or before June 1, 2026. Plan investment committees may want to review how they document fund selections against the six proposed factors."
        },
        "summary": "The Employee Benefits Security Administration (EBSA), part of the Department of Labor, proposes a rule under the Employee Retirement Income Security Act (ERISA) on how fiduciaries of participant-directed retirement plans, such as 401(k) plans, choose the plan's investment options, including funds that hold alternative assets like private equity. A fiduciary that follows a process covering six factors (performance, fees, liquidity, valuation, benchmark and complexity) would be presumed to have acted prudently. This is a proposal that creates no requirements, and comments are due June 1, 2026.",
        "business_functions": {
            "state": "limited",
            "functions": [
                {
                    "slug": "benefits",
                    "name": "Benefits"
                },
                {
                    "slug": "legal-and-compliance",
                    "name": "Legal and compliance"
                }
            ]
        },
        "added_on": "2026-11-02",
        "updated_on": null,
        "updates_in_progress": null,
        "last_checked": "2026-11-02",
        "record_url": "https://amendsignal.com/changes/employee-benefits-security-administration-proposes-a-safe-harbor-for-fiduciaries-choosing-retirement/record.json",
        "what_changed": [
            {
                "kind": "fact",
                "kind_label": "From the source",
                "text": "EBSA proposes a new section of the Code of Federal Regulations (CFR), 29 CFR 2550.404a-6, that would clarify, and provide a safe harbor for, a fiduciary's duty of prudence under ERISA when selecting investment options (designated investment alternatives) for a participant-directed individual account plan.",
                "evidence": [
                    {
                        "source": "https://www.federalregister.gov/documents/2026/03/31/2026-06178/fiduciary-duties-in-selecting-designated-investment-alternatives",
                        "locator": "SUMMARY",
                        "excerpt": "a proposed regulation that clarifies, and provides a safe harbor for, a fiduciary's duty of prudence under the Employee Retirement Income Security Act of 1974 (ERISA) in connection with selecting designated investment alternatives for a participant-directed individual account plan"
                    }
                ]
            },
            {
                "kind": "fact",
                "kind_label": "From the source",
                "text": "The proposal carries out section 3(c) of Executive Order 14330 on access to alternative assets for 401(k) investors.",
                "evidence": [
                    {
                        "source": "https://www.federalregister.gov/documents/2026/03/31/2026-06178/fiduciary-duties-in-selecting-designated-investment-alternatives",
                        "locator": "SUMMARY",
                        "excerpt": "This proposal implements section 3(c) of President Trump's Executive Order 14330, Democratizing Access to Alternative Assets for 401(k) Investors."
                    }
                ]
            },
            {
                "kind": "fact",
                "kind_label": "From the source",
                "text": "The proposal lists six factors for fiduciaries to consider when selecting an investment option: performance, fees, liquidity, valuation, benchmarking and complexity.",
                "evidence": [
                    {
                        "source": "https://www.federalregister.gov/documents/2026/03/31/2026-06178/fiduciary-duties-in-selecting-designated-investment-alternatives",
                        "locator": "Supplementary Information, 4.5 Safe Harbor",
                        "excerpt": "the six factors are as follows: performance, fees, liquidity, valuation, benchmarking, and the complexity of the designated investment alternative."
                    }
                ]
            },
            {
                "kind": "fact",
                "kind_label": "From the source",
                "text": "A fiduciary that follows the proposed process for a factor would be presumed to have met ERISA's prudence duty for that factor and would be entitled to significant deference.",
                "evidence": [
                    {
                        "source": "https://www.federalregister.gov/documents/2026/03/31/2026-06178/fiduciary-duties-in-selecting-designated-investment-alternatives",
                        "locator": "Proposed 29 CFR 2550.404a-6(f)",
                        "excerpt": "the plan fiduciary's judgment with respect to the particular factor or factors, including the relationship between the factors, is presumed to have met the duties under section 404(a)(1)(B) of ERISA of such fiduciary and is entitled to significant deference."
                    }
                ]
            },
            {
                "kind": "fact",
                "kind_label": "From the source",
                "text": "The proposal states that ERISA's prudence duty neither requires nor restricts any specific type of investment option, unless the investment is otherwise illegal.",
                "evidence": [
                    {
                        "source": "https://www.federalregister.gov/documents/2026/03/31/2026-06178/fiduciary-duties-in-selecting-designated-investment-alternatives",
                        "locator": "Proposed 29 CFR 2550.404a-6(c)",
                        "excerpt": "Section 404(a)(1)(B) of ERISA does not require or restrict any specific type of designated investment alternative, except insofar as a designated investment alternative might be otherwise illegal."
                    }
                ]
            },
            {
                "kind": "fact",
                "kind_label": "From the source",
                "text": "Brokerage windows and self-directed brokerage accounts would not count as designated investment alternatives under the proposal.",
                "evidence": [
                    {
                        "source": "https://www.federalregister.gov/documents/2026/03/31/2026-06178/fiduciary-duties-in-selecting-designated-investment-alternatives",
                        "locator": "Proposed 29 CFR 2550.404a-6(m)(2)",
                        "excerpt": "The term ``designated investment alternative'' shall not include ``brokerage windows,'' ``self-directed brokerage accounts,'' or similar plan arrangements"
                    }
                ]
            },
            {
                "kind": "fact",
                "kind_label": "From the source",
                "text": "The proposal does not cover the ongoing duty to monitor investments after they are selected. EBSA says it expects to issue separate interpretive guidance on monitoring.",
                "evidence": [
                    {
                        "source": "https://www.federalregister.gov/documents/2026/03/31/2026-06178/fiduciary-duties-in-selecting-designated-investment-alternatives",
                        "locator": "Supplementary Information, 4.1 Scope",
                        "excerpt": "The proposed regulation does not address ERISA's well-established duty for fiduciaries to monitor designated investment options at regular intervals after their selection."
                    },
                    {
                        "source": "https://www.federalregister.gov/documents/2026/03/31/2026-06178/fiduciary-duties-in-selecting-designated-investment-alternatives",
                        "locator": "Supplementary Information, 4.1 Scope",
                        "excerpt": "The Department anticipates issuing interpretive guidance in the near term concerning fiduciary obligations under ERISA to monitor designated investment alternatives following their inclusion on a plan's investment menu."
                    }
                ]
            },
            {
                "kind": "fact",
                "kind_label": "From the source",
                "text": "The proposal does not change the existing 1979 investment duties regulation or the separate duties of loyalty and the rules against conflicts of interest.",
                "evidence": [
                    {
                        "source": "https://www.federalregister.gov/documents/2026/03/31/2026-06178/fiduciary-duties-in-selecting-designated-investment-alternatives",
                        "locator": "Supplementary Information, 2.2",
                        "excerpt": "Nothing in today's proposed regulation is intended to disturb the 1979 Investment Duties Regulation."
                    },
                    {
                        "source": "https://www.federalregister.gov/documents/2026/03/31/2026-06178/fiduciary-duties-in-selecting-designated-investment-alternatives",
                        "locator": "Supplementary Information, 4.4",
                        "excerpt": "nothing in the proposed regulation excuses a fiduciary from complying with its obligations to act loyally or avoid prohibited conflicts of interest under sections 404(a)(1)(A) or 406 of ERISA respectively."
                    }
                ]
            }
        ],
        "who_is_affected": [
            {
                "kind": "fact",
                "kind_label": "From the source",
                "text": "The proposal addresses fiduciaries who select investment options for participant-directed individual account plans, which are defined contribution plans.",
                "evidence": [
                    {
                        "source": "https://www.federalregister.gov/documents/2026/03/31/2026-06178/fiduciary-duties-in-selecting-designated-investment-alternatives",
                        "locator": "Proposed 29 CFR 2550.404a-6(b)",
                        "excerpt": "The selection of a designated investment alternative (as defined in paragraph (m) of this section) for a participant-directed individual account plan is a fiduciary act governed by the fiduciary standards of section 404(a)(1)(B) of ERISA."
                    },
                    {
                        "source": "https://www.federalregister.gov/documents/2026/03/31/2026-06178/fiduciary-duties-in-selecting-designated-investment-alternatives",
                        "locator": "Supplementary Information, 2.3.3",
                        "excerpt": "today's proposed regulation applies to defined contribution plans"
                    }
                ]
            },
            {
                "kind": "fact",
                "kind_label": "From the source",
                "text": "EBSA expects the proposal to affect most participant-directed defined contribution plans and their participants, and many plan service providers.",
                "evidence": [
                    {
                        "source": "https://www.federalregister.gov/documents/2026/03/31/2026-06178/fiduciary-duties-in-selecting-designated-investment-alternatives",
                        "locator": "Regulatory Impact Analysis, 12.6 Affected Entities",
                        "excerpt": "The proposed rule would likely affect most participant-directed defined contribution plans as well as their participants and beneficiaries"
                    },
                    {
                        "source": "https://www.federalregister.gov/documents/2026/03/31/2026-06178/fiduciary-duties-in-selecting-designated-investment-alternatives",
                        "locator": "Regulatory Impact Analysis, 12.6 Affected Entities",
                        "excerpt": "The Department anticipates that many service providers would also be affected by the proposed rule."
                    }
                ]
            },
            {
                "kind": "fact",
                "kind_label": "From the source",
                "text": "EBSA says smaller plans often rely on a service provider to build their investment menu and likely would not use the rule directly.",
                "evidence": [
                    {
                        "source": "https://www.federalregister.gov/documents/2026/03/31/2026-06178/fiduciary-duties-in-selecting-designated-investment-alternatives",
                        "locator": "Regulatory Impact Analysis, 12.6 Affected Entities",
                        "excerpt": "Smaller plans, on the other hand, often rely on a service provider to design their plan's menu. In such cases, they likely would not utilize the proposed rule directly"
                    }
                ]
            },
            {
                "kind": "inference",
                "kind_label": "Our analysis",
                "text": "Employer staff can be the plan fiduciary. One of the proposal's examples names a human resources director as the named fiduciary, so human resources and benefits leaders who sit on investment committees would be among those the proposal speaks to.",
                "evidence": [
                    {
                        "source": "https://www.federalregister.gov/documents/2026/03/31/2026-06178/fiduciary-duties-in-selecting-designated-investment-alternatives",
                        "locator": "Proposed 29 CFR 2550.404a-6(h)(2)",
                        "excerpt": "The plan document specifies that the director of human resources is the named fiduciary of the plan"
                    }
                ]
            }
        ],
        "business_implications": [
            {
                "kind": "fact",
                "kind_label": "From the source",
                "text": "EBSA estimates that, if finalized, the rule would reduce costs by $488.0 million in the first year and $591.9 million in later years, mainly through shorter investment committee work on litigation risk.",
                "evidence": [
                    {
                        "source": "https://www.federalregister.gov/documents/2026/03/31/2026-06178/fiduciary-duties-in-selecting-designated-investment-alternatives",
                        "locator": "Regulatory Impact Analysis, 12.8 Costs",
                        "excerpt": "The Department expects the rule, when finalized, will reduce costs by $488.0 million in the first year and $591.9 million in subsequent years"
                    },
                    {
                        "source": "https://www.federalregister.gov/documents/2026/03/31/2026-06178/fiduciary-duties-in-selecting-designated-investment-alternatives",
                        "locator": "Regulatory Impact Analysis, 12.8.3",
                        "excerpt": "The Department assumes that these time reductions will be most felt at Investment Committee Meetings, where litigation trends and their impact on plan investments are routinely discussed."
                    }
                ]
            },
            {
                "kind": "fact",
                "kind_label": "From the source",
                "text": "EBSA estimates that reviewing the rule would take legal staff about 5 hours for plans that handle administration in-house and 10 hours for service providers.",
                "evidence": [
                    {
                        "source": "https://www.federalregister.gov/documents/2026/03/31/2026-06178/fiduciary-duties-in-selecting-designated-investment-alternatives",
                        "locator": "Regulatory Impact Analysis, 12.8.1 Rule Review",
                        "excerpt": "it will take legal professionals roughly 5 hours to review the proposed rule for those plans that handle plan administration in-house, and 10 hours for service providers."
                    }
                ]
            },
            {
                "kind": "fact",
                "kind_label": "From the source",
                "text": "The safe harbor would be voluntary: plans would not have to use it or change their investment menus, and written representations from fund managers described in the examples would not be required.",
                "evidence": [
                    {
                        "source": "https://www.federalregister.gov/documents/2026/03/31/2026-06178/fiduciary-duties-in-selecting-designated-investment-alternatives",
                        "locator": "Regulatory Impact Analysis, 12.11.1",
                        "excerpt": "plans are under no obligation to use the safe harbor or to change their plan investment menu in response to the proposed rule."
                    },
                    {
                        "source": "https://www.federalregister.gov/documents/2026/03/31/2026-06178/fiduciary-duties-in-selecting-designated-investment-alternatives",
                        "locator": "Regulatory Flexibility Act, 14.5.5",
                        "excerpt": "Plans are not required to obtain this written documentation by the proposal"
                    }
                ]
            },
            {
                "kind": "inference",
                "kind_label": "Our analysis",
                "text": "Plan sponsors may see more target date funds that include alternative assets offered by their providers, since EBSA expects that to be the main way alternative assets reach these plans.",
                "evidence": [
                    {
                        "source": "https://www.federalregister.gov/documents/2026/03/31/2026-06178/fiduciary-duties-in-selecting-designated-investment-alternatives",
                        "locator": "Regulatory Impact Analysis, 12.6.2",
                        "excerpt": "The Department anticipates that the main channel through which this proposal would lead to greater defined contribution plan investment in alternative assets would be within target date funds."
                    }
                ]
            }
        ],
        "required_actions": [],
        "recommended_actions": [
            {
                "kind": "recommendation",
                "kind_label": "Our suggestion",
                "text": "Consider whether your organization or plan committee wants to submit comments on the proposal.",
                "evidence": [
                    {
                        "source": "https://www.federalregister.gov/documents/2026/03/31/2026-06178/fiduciary-duties-in-selecting-designated-investment-alternatives",
                        "locator": "DATES",
                        "excerpt": "Comments are due on or before June 1, 2026."
                    }
                ]
            },
            {
                "kind": "recommendation",
                "kind_label": "Our suggestion",
                "text": "Consider confirming who the named fiduciary for investment selection is under your plan documents, and reviewing how your investment committee records its review of performance, fees, liquidity, valuation, benchmark and complexity.",
                "evidence": [
                    {
                        "source": "https://www.federalregister.gov/documents/2026/03/31/2026-06178/fiduciary-duties-in-selecting-designated-investment-alternatives",
                        "locator": "Supplementary Information, 4.5 Safe Harbor",
                        "excerpt": "the six factors are as follows: performance, fees, liquidity, valuation, benchmarking, and the complexity of the designated investment alternative."
                    }
                ]
            },
            {
                "kind": "recommendation",
                "kind_label": "Our suggestion",
                "text": "Consider asking your plan's investment adviser or service provider how they expect to respond to the proposal, especially if they build or recommend your investment menu.",
                "evidence": [
                    {
                        "source": "https://www.federalregister.gov/documents/2026/03/31/2026-06178/fiduciary-duties-in-selecting-designated-investment-alternatives",
                        "locator": "Regulatory Impact Analysis, 12.6 Affected Entities",
                        "excerpt": "Smaller plans, on the other hand, often rely on a service provider to design their plan's menu. In such cases, they likely would not utilize the proposed rule directly"
                    }
                ]
            },
            {
                "kind": "recommendation",
                "kind_label": "Our suggestion",
                "text": "Consider watching for EBSA's separate interpretive guidance on the duty to monitor plan investments after selection.",
                "evidence": [
                    {
                        "source": "https://www.federalregister.gov/documents/2026/03/31/2026-06178/fiduciary-duties-in-selecting-designated-investment-alternatives",
                        "locator": "Supplementary Information, 4.1 Scope",
                        "excerpt": "The Department anticipates issuing interpretive guidance in the near term concerning fiduciary obligations under ERISA to monitor designated investment alternatives following their inclusion on a plan's investment menu."
                    }
                ]
            }
        ],
        "required_actions_assessment": {
            "state": "assessed",
            "text": "This is a proposed rule, so it creates no requirement for employers. Even if finalized, the safe harbor would be voluntary: the agency says plans are under no obligation to use it. Comments are due on or before June 1, 2026."
        },
        "applicability": [
            {
                "criterion": "where",
                "label": "Where",
                "answer": "United States, nationwide",
                "kind": "fact",
                "kind_label": "From the source",
                "evidence": []
            },
            {
                "criterion": "employer_type",
                "label": "Employers",
                "answer": "Employers that sponsor participant-directed retirement plans, through the fiduciaries who pick the plan's investment options.",
                "kind": "inference",
                "kind_label": "Our analysis",
                "evidence": [
                    {
                        "source": "https://www.federalregister.gov/documents/2026/03/31/2026-06178/fiduciary-duties-in-selecting-designated-investment-alternatives",
                        "locator": "Proposed 29 CFR 2550.404a-6(b)",
                        "excerpt": "The selection of a designated investment alternative (as defined in paragraph (m) of this section) for a participant-directed individual account plan is a fiduciary act governed by the fiduciary standards of section 404(a)(1)(B) of ERISA."
                    }
                ]
            },
            {
                "criterion": "size",
                "label": "Size",
                "answer": "The proposal sets no size threshold and has no special rules for small plans, though the agency expects many small plans to rely on service providers.",
                "kind": "inference",
                "kind_label": "Our analysis",
                "evidence": [
                    {
                        "source": "https://www.federalregister.gov/documents/2026/03/31/2026-06178/fiduciary-duties-in-selecting-designated-investment-alternatives",
                        "locator": "Regulatory Flexibility Act, 14.5.5",
                        "excerpt": "the Department's proposal does not include any direct requirements from the Department that could be delayed, exempted, or otherwise tailored to small entities."
                    }
                ]
            },
            {
                "criterion": "industries",
                "label": "Industries",
                "answer": "All industries; plan service providers, fund providers and insurers are the most directly affected businesses.",
                "kind": "inference",
                "kind_label": "Our analysis",
                "evidence": [
                    {
                        "source": "https://www.federalregister.gov/documents/2026/03/31/2026-06178/fiduciary-duties-in-selecting-designated-investment-alternatives",
                        "locator": "Regulatory Impact Analysis, 12.6 Affected Entities",
                        "excerpt": "The Department anticipates that many service providers would also be affected by the proposed rule."
                    }
                ]
            },
            {
                "criterion": "functions",
                "label": "Functions",
                "answer": "Benefits and legal teams, and the plan investment committee.",
                "kind": "inference",
                "kind_label": "Our analysis",
                "evidence": [
                    {
                        "source": "https://www.federalregister.gov/documents/2026/03/31/2026-06178/fiduciary-duties-in-selecting-designated-investment-alternatives",
                        "locator": "Regulatory Impact Analysis, 12.8.3",
                        "excerpt": "The Department assumes that these time reductions will be most felt at Investment Committee Meetings, where litigation trends and their impact on plan investments are routinely discussed."
                    }
                ]
            },
            {
                "criterion": "applies_if",
                "label": "Applies if",
                "answer": "You sponsor a defined contribution plan where participants direct their own investments, and someone at your organization selects the plan's investment options.",
                "kind": "inference",
                "kind_label": "Our analysis",
                "evidence": [
                    {
                        "source": "https://www.federalregister.gov/documents/2026/03/31/2026-06178/fiduciary-duties-in-selecting-designated-investment-alternatives",
                        "locator": "Supplementary Information, 4.1 Scope",
                        "excerpt": "These provisions collectively limit the proposed regulation's applicability to ERISA's duty of prudence, specifically as it pertains to a plan fiduciary's selection of a designated investment alternative within a participant-directed individual account plan."
                    }
                ]
            },
            {
                "criterion": "action",
                "label": "Action",
                "answer": "Review the proposal and consider commenting by June 1, 2026.",
                "kind": "recommendation",
                "kind_label": "Our suggestion",
                "evidence": [
                    {
                        "source": "https://www.federalregister.gov/documents/2026/03/31/2026-06178/fiduciary-duties-in-selecting-designated-investment-alternatives",
                        "locator": "DATES",
                        "excerpt": "Comments are due on or before June 1, 2026."
                    }
                ]
            }
        ],
        "open_questions": [
            {
                "question": "How would the proposed factors apply to the ongoing duty to monitor plan investments after they are selected?",
                "context": "The proposal does not address monitoring; EBSA says it is generally of the view that the same factors apply and plans separate interpretive guidance."
            },
            {
                "question": "How much weight would courts give the safe harbor if it is finalized?",
                "context": "EBSA argues the rule should carry persuasive weight with courts, but notes that one federal appeals court has questioned the type of deference it relies on."
            },
            {
                "question": "Will a final rule add participant profiles or characteristics as a seventh factor?",
                "context": "EBSA specifically asks for comments on whether to add this factor, either for all investment options or only for target date funds and managed accounts."
            }
        ],
        "events": [
            {
                "event_type": "originating_action",
                "label": "Issued",
                "occurred_on": "2026-03-31",
                "summary": "Fiduciary Duties in Selecting Designated Investment Alternatives",
                "source": "https://www.federalregister.gov/documents/2026/03/31/2026-06178/fiduciary-duties-in-selecting-designated-investment-alternatives"
            }
        ],
        "corrections": [],
        "sources": [
            {
                "label": "Fiduciary Duties in Selecting Designated Investment Alternatives, 91 FR 16088 (March 31, 2026)",
                "publisher": "Federal Register",
                "role": "primary",
                "url": "https://www.federalregister.gov/documents/2026/03/31/2026-06178/fiduciary-duties-in-selecting-designated-investment-alternatives",
                "pdf_url": "https://www.govinfo.gov/content/pkg/FR-2026-03-31/pdf/2026-06178.pdf"
            }
        ]
    }
}