The Labor Department's rule on how 401(k) fiduciaries pick your investment options moved a step closer to law this week. On November 5, 2026, the Office of Information and Regulatory Affairs logged receipt of RIN 1210-AC38, Fiduciary Duties In Selecting Designated Investment Alternatives, at the final rule stage. The entry is flagged economically significant and carries no legal deadline.
That is a real milestone: the text has left the Employee Benefits Security Administration. It is not publication, and it is not an effective date.
What OIRA review actually controls
Under Executive Order 12866, OIRA must waive review or notify the agency of its results within 90 calendar days of submission for a rule at this stage. The review can be extended once by up to 30 more days with the OIRA Director's written approval, or at the agency head's request. OIRA can also return the rule to the agency for further consideration, with a written explanation.
So the realistic window before anything publishes runs from weeks to a quarter or more — and the final text can differ from what was proposed. Everything below describes the March 2026 proposal (91 FR 16088, comments closed June 1, 2026), not a finished rule.
The scope lines that decide whether it touches you
The proposal would add 29 CFR 2550.404a-6. Two definitional points matter more than the headlines:
It is not an "alternatives rule." Executive Order 14330 told the Department to address asset allocation funds holding alternative assets. The Department expressly declined to limit the rule to those funds, writing that doing so "could create the impression that those asset allocation funds are either favored or disfavored. They are not." As proposed, the standard applies to every designated investment alternative on a menu — index funds included — and explicitly covers a plan's qualified default investment alternative.
Brokerage windows are carved out. The proposed definition says the term does not include "brokerage windows," "self-directed brokerage accounts," or similar arrangements, or investments acquired through them. If you reach an asset through a window, no fiduciary selected it for you and no safe harbor attaches. The screening is yours.
Six factors, and one that savers should read closely
A fiduciary following the process earns a presumption of prudence "entitled to significant deference" after considering six factors: performance, fees, liquidity, valuation, performance benchmark, and complexity.
The liquidity paragraph is the one to read. It states there is "no requirement that a fiduciary select only fully liquid products," and that a prudent process "may regularly lead to a decision to sacrifice some plan- or individual-level liquidity, or both, in pursuit of additional risk-adjusted return." The proposal also bars investments that violate federal law, including in entities on Treasury's OFAC Specially Designated Nationals list.
Practical takeaways
- Nothing changes in your account this week. No plan is required to add anything, at any stage of this rulemaking.
- Watch for the Federal Register publication, then the applicability date — not the OIRA entry.
- When a menu change is announced, read the notice. Check valuation frequency and any redemption limits before the money moves.
- Know which side of the line your holdings sit on. Core menu means a fiduciary chose it. A brokerage window does not.
- Treat "alternatives" as separate asset classes. Private credit, real estate, commodities, and digital-asset vehicles share a regulatory vehicle, not a risk profile.
Sources: Reginfo.gov OIRA pending review entry for RIN 1210-AC38 (received November 5, 2026); Federal Register, "Fiduciary Duties in Selecting Designated Investment Alternatives," 91 FR 16088 (March 31, 2026); Executive Order 12866, Sec. 6(b); Executive Order 14330 (August 7, 2025).