What Is a DOL Notice of Proposed Rulemaking for a 401(k) Plan?

A regulatory proposal can tell a fiduciary exactly what DOL may require later without giving the fiduciary that rule today.

That sounds simple until a proposal contains:

• mandatory verbs
• detailed tests
• safe harbors
• examples
• draft CFR language
• cost estimates
• compliance procedures.

The March 31, 2026 Fiduciary Duties in Selecting Designated Investment Alternatives proposal does all of that.^[4]

It identifies six factors for investment selection and supplies proposed safe-harbor examples.^[4]

As of the August 14, 2026 federal regulatory plan, the action remained at the:

Proposed Rule Stage.^[6]

The safe harbor is therefore still proposed.

A 401(k) committee can study it.

A product provider can design toward it.

Counsel can comment on it.

A fiduciary cannot honestly write in current committee minutes:

"The plan complied with DOL's 2026 safe harbor."

There is no final 2026 safe harbor yet.

What Does an NPRM Actually Do?

An NPRM moves an agency from:

studying a problem

to:

putting a regulatory solution on the table.

The Office of the Federal Register describes an NPRM as a document that:

• announces possible changes to the CFR
• sets out proposed regulatory text or describes the proposal
• solicits public comment
• initiates APA notice-and-comment rulemaking.^[1]

That is more consequential than an RFI.

INV-189 covers the earlier information-gathering stage.

A proposal says, in substance:

"This is the regulatory approach under consideration. Comment now."

It still does not say:

"This is the operative regulation."

The ACTION Line Should Be Read Before the Headline

A Federal Register rulemaking document has standard identifying information.

The most useful status field is:

ACTION.

Examples include:

• proposal
• final rule
• interim final rule
• notice
• request for information.

The February 25, 2026 paper-statement document says:

ACTION: Proposed rule.^[8]

The March 31 investment-selection document says the same.^[4]

That single line should stop a researcher from copying draft requirements into a current-law checklist.

What Does the RIN Tell You?

The Regulation Identifier Number tracks the regulatory action.

The 2026 investment-selection proposal uses:

RIN 1210-AC38.^[4]

The paper-statement proposal uses:

RIN 1210-AC27.^[8]

A RIN helps connect:

• Unified Agenda entries
• Federal Register documents
• agency web pages
• comments
• later final rules.

It does not tell the reader whether the action is final.

A RIN can follow a project through multiple stages.

Treat it as a tracking number.

Not a legal-status badge.

What Is the Docket?

The docket is the rulemaking record.

It can contain:

• the proposal
• public comments
• data
• studies
• hearing material
• agency supporting documents
• later notices.

For a contested retirement rule, the docket can become enormous.

DOL's 2023 Retirement Security comment page lists hundreds of submissions.^[11]

That record matters because the agency must consider relevant public input during notice-and-comment rulemaking.

A docket does not convert every document inside it into agency policy.

INV-189 covers that attribution problem.

Comment Deadline Is Not Effective Date

The March 31, 2026 investment proposal gave commenters until:

June 1, 2026.^[4]

The February 25 paper-statement proposal gave commenters until:

April 27, 2026.^[8]

Those dates controlled participation in the rulemaking record.

They did not tell plans when new regulations became enforceable.

A final rule normally has its own:

• publication date
• effective date
• sometimes a separate applicability or compliance date.^[1]

Never put a proposal's comment deadline into a compliance calendar labeled:

effective date.

They serve different functions.

What Is Proposed Regulatory Text?

Near the end of a typical NPRM, the agency shows how it proposes to amend the CFR.

The document may say:

For the reasons stated in the preamble, the Department proposes to amend 29 CFR Part...

Then it provides:

• amendatory instructions
• proposed sections
• proposed paragraphs
• definitions
• conditions.

That text is the closest thing to tomorrow's regulation.

It is still draft law.

Until finalized, the current CFR remains the current regulation.

What Does "To Be Codified" Mean?

It means:

if validly finalized, this text is intended for the CFR.

It does not mean:

already codified.

This is a common vendor-document error.

A compliance chart copies a paragraph from an NPRM.

The footnote says:

"to be codified at 29 CFR..."

Six months later, the chart drops the words:

"to be."

Now the organization is treating future text as current law.

Version control should prevent that.

The Preamble and Proposed Text Do Different Jobs

INV-181 covers Federal Register preambles in depth.

In an NPRM:

the preamble explains.

the proposed regulatory text proposes.

The preamble may discuss:

• statutory authority
• historical guidance
• policy rationale
• alternatives considered
• economic effects
• specific questions for commenters.

Some statements in the preamble describe what DOL thinks the proposed text means.

Others ask whether the final should be different.

That distinction matters.

A sentence beginning:

"The Department requests comment on whether..."

is not a hidden requirement.

It is an unresolved question.

Why Do Proposals Include Economic Analysis?

Major rulemaking is not just legal drafting.

The agency can analyze:

• affected plans
• affected service providers
• costs
• benefits
• transfers
• small-entity effects
• paperwork burdens.

The March 2026 investment proposal spends substantial space estimating how a new investment-selection safe harbor could affect:

• plan review costs
• investment products
• litigation expense
• professional services
• defined contribution investment menus.^[4]

Those estimates matter to rulemaking.

They do not impose fiduciary duties by themselves.

A cost table is evidence supporting the proposal.

Not regulatory text.

The 2026 Alternative-Investment Proposal Is the Cleanest Current Example

DOL published Fiduciary Duties in Selecting Designated Investment Alternatives on March 31, 2026.^[4]

The proposal would create a more detailed process framework for selecting designated investment alternatives in participant-directed individual account plans.

Its stated scope includes asset-allocation funds containing alternative assets.^[4]

The proposal identifies six relevant factors:

1. performance
2. fees and expenses
3. liquidity
4. valuation
5. benchmarking
6. complexity.^[4]

It also contains examples designed as proposed safe-harbor applications of those factors.^[4]

This is substantive.

It is not current safe-harbor law.

What Makes the Proposed Safe Harbor Attractive?

Certainty.

ERISA prudence is process-based and fact-sensitive.

A regulatory safe harbor can give fiduciaries a clearer path for demonstrating compliance.

DOL's proposal says the framework could reduce litigation risk and give fiduciaries greater assurance when selecting designated investment alternatives.^[4][5]

That is especially relevant to products containing:

• private equity
• private credit
• real estate
• other less-liquid or harder-to-value assets.

The attraction of certainty is exactly why status discipline matters.

A fiduciary should not claim protection that DOL has only proposed to create.

Can a Committee Use the Six Factors Before Finalization?

Yes—as a diligence aid.

A committee can reasonably ask questions about:

• performance
• fees
• liquidity
• valuation
• benchmark quality
• complexity

because those subjects are economically relevant even apart from the proposal.

The committee should document them as:

its own prudent review factors under current law

if that is what it is doing.

It should not say:

"This review satisfies the DOL safe harbor."

The first statement describes current fiduciary process.

The second claims legal protection that has not yet been finalized.

Does the Proposal Require 401(k) Plans to Add Alternative Assets?

No.

The proposal itself says plans are under no obligation to use the proposed safe harbor or change their investment menu.^[4]

That matters because some public discussion compresses:

DOL proposes a framework for considering alternatives

into:

DOL wants every 401(k) to offer private markets.

Those are not the same proposition.

A final asset-neutral process rule, if adopted, would still leave plan fiduciaries responsible for deciding which options fit their participants and plan.

Is the Alternative-Investment Proposal Still Pending?

As reviewed August 30, 2026, yes.

The comment period ended June 1.^[4]

The August 14 federal regulatory plan still lists:

Fiduciary Duties in Selecting Designated Investment Alternatives

at the:

Proposed Rule Stage.^[6]

That is the correct status marker for a current compliance article.

Do not convert an expired comment period into an assumption that a final rule must already exist.

What Law Governs Investment Prudence While the Proposal Is Pending?

Current ERISA and current regulations.

For investment duties, current:

29 CFR 2550.404a-1

remains a primary regulatory source.^[7]

Other current law can include:

• ERISA Section 404
• current Section 404(c) regulations
• QDIA rules where relevant
• current court decisions
• valid exemptions
• applicable DOL interpretations.

The proposal can inform preparation.

It does not displace the law already in force.

The Paper-Statement Proposal Creates a Harder Status Problem

The February 25, 2026 proposal is a better test of legal reasoning.^[8]

It would amend DOL's electronic-disclosure safe harbors to implement SECURE 2.0 Section 338.

If the analysis stopped at:

"The regulation is only proposed, so nothing applies yet"

it would be wrong.

Congress had already amended ERISA.

That statutory change has its own effective date.

What Did SECURE 2.0 Already Change?

Section 338 added ERISA Section 105(a)(2)(E).

For plan years beginning after December 31, 2025, the statute requires specified pension benefit statements to be furnished on paper, subject to statutory exceptions.^[9][10]

For individual account plans, at least one statement for a calendar year is implicated by the statutory paper requirement.^[9]

DOL was then directed to update its existing electronic-disclosure safe harbors.^[8][10]

The legal stack became:

statute already changed → existing regulations not fully updated → implementing NPRM pending.

That is very different from the proposed alternative-investment safe harbor.

Why Is "Proposal Is Not Law" Incomplete Here?

Because the proposal is not the source of the paper duty.

Congress is.

The proposal addresses how DOL's 2002 and 2020 electronic-delivery safe harbors should work alongside the amended statute.^[8]

A plan cannot ignore the statute merely because DOL has not finished the regulatory amendments.

This is why every proposal should be traced back to its legal authority.

Ask:

Is the agency proposing a new discretionary rule?

or:

Is the agency implementing a statute that already changed the law?

The operational answer can be completely different.

What Did DOL Do While the Paper Rule Remained Pending?

It issued:

Field Assistance Bulletin 2026-02 on May 12, 2026.^[9]

The Bulletin recognizes that plans were facing compliance questions while final regulations were absent.

DOL announced a temporary enforcement policy.

Until final regulations or other applicable administrative guidance are issued, DOL says it will not take enforcement action against administrators that comply in good faith with a reasonable interpretation of:

• the NPRM, or
• ERISA Section 105(a)(2)(E).^[9]

That is a major practical development.

It still does not finalize the NPRM.

Proposal and Enforcement Policy Must Stay Separate

The paper-statement stack is:

ERISA statute creates the underlying duty.

NPRM proposes how electronic-delivery safe harbors should be updated.

FAB 2026-02 states how DOL will temporarily approach enforcement while final rules are pending.

Those documents do different jobs.

A compliance memo that says:

"The proposed rule is enforceable because DOL issued a FAB"

gets the hierarchy wrong.

The FAB is the enforceable-agency-discretion piece.

The statute is the legal duty.

The proposal remains proposed.

Worked Example: Alternative-Asset Safe Harbor Claimed Too Early

Investment committee considers a target-date fund containing private-market exposure.

Minutes state:

"The committee followed all six DOL factors and therefore receives the 2026 safe harbor."

Problem:

The six-factor safe harbor remains proposed.^[4][6]

Better minutes:

"The committee considered performance, fees, liquidity, valuation, benchmarking and complexity as part of its prudence analysis under current ERISA standards. The committee separately monitored DOL's pending RIN 1210-AC38 proposal."

Same diligence.

Accurate legal status.

Worked Example: Paper Statements Delayed Until Final Rule

Calendar-year 401(k) administrator says:

"DOL's February regulation is only proposed, so paper statements can wait until final regulations."

Problem:

SECURE 2.0 already amended ERISA Section 105 and made the statutory paper-statement requirement effective for plan years beginning after December 31, 2025.^[9]

The administrator needs to analyze:

• the statute
• current electronic-delivery rules
• the NPRM
• FAB 2026-02.^[8][9]

The proposal's nonfinal status does not switch off Congress's amendment.

Public Comments Can Change the Final Rule

Notice-and-comment rulemaking exists because the proposal is not supposed to be immutable.

Commenters can challenge:

• legal authority
• definitions
• cost estimates
• assumptions
• compliance burdens
• examples
• effective dates
• unintended consequences.

The agency can respond by:

• retaining the proposal
• revising it
• narrowing it
• expanding aspects within lawful notice limits
• delaying it
• withdrawing it.^[1][2]

The final rule should be read as its own document.

Not as the proposal with the word final pasted onto the cover.

The Retirement Security Rule Shows the Full Lifecycle

DOL released the proposed Retirement Security Rule on October 31, 2023 and published it in the Federal Register on November 3.^[11][12]

The proposal addressed the definition of investment-advice fiduciary status and was accompanied by proposed amendments to several prohibited-transaction exemptions.^[11][12]

The process included:

• hundreds of public comments
• a December 2023 public hearing
• written testimony
• agency review.^[11][13]

DOL issued a final rule and final PTE amendments in April 2024.^[14]

That was not the end.

Final Does Not Mean Immune From Later Litigation

Federal courts stayed the 2024 Retirement Security rule and related amendments.

Final judgments later vacated them.

DOL restored the long-standing five-part investment-advice rule in March 2026.^[14][15]

The sequence was:

proposal → comments and hearing → final rule → litigation → stays → vacatur → restored prior regulation.

That history should make a compliance team skeptical of slogans such as:

"DOL issued it, so the legal status is settled forever."

Legal status is a timeline.

Proposed PTE Amendments Are Separate Instruments

The 2023 Retirement Security project also illustrates another trap.

DOL proposed:

• a fiduciary-definition regulation
• amendments to PTE 2020-02
• amendments to PTE 84-24
• amendments to other PTEs.^[11][12]

Those instruments interacted.

They were not one legal document.

A proposed regulation changes regulatory rules if finalized.

A proposed PTE amendment changes exemption relief if finalized through the applicable exemption process.

INV-173 and INV-174 cover PTE mechanics.

When a rulemaking package contains both, track each separately.

The QDIA History Shows a Proposal Can Change Before Final

DOL proposed the QDIA regulation in 2006.^[16]

The proposal described the initial structure for default-investment fiduciary relief.

DOL later issued the final QDIA rule.

Current:

29 CFR 2550.404c-5

is the operative regulation.^[17]

The final framework was not identical in every detail to the proposal-stage design.

One notable development was treatment of capital-preservation products for limited periods in the final QDIA architecture.

The point is not that proposals are unreliable.

The point is that they are unfinished.

Why Should a Plan Read the Final Preamble Even If It Read the Proposal?

Because the agency has had a chance to change its mind.

A final preamble typically explains:

• comments received
• changes from proposal
• rejected alternatives
• final rationale
• effective dates
• compliance dates.

A rulemaking file that contains only the NPRM can be stale the moment the final rule publishes.

The final preamble tells the reader why the final text looks different.

INV-181 covers that source in depth.

Public Inspection Copy vs Published Federal Register Copy

This distinction is easy to miss during fast-moving rulemaking.

The Public Inspection version of the March 2026 investment proposal was available before formal publication.

Its DATES section used a placeholder tied to publication:

comments due 60 days from publication.

The published March 31 Federal Register version inserted the actual deadline:

June 1, 2026.^[4]

That is normal publication mechanics.

For final citation work, use the published document.

Why Does the Official Publication Source Matter?

FederalRegister.gov itself warns that its web rendition is an informational resource and tells legal researchers to verify against the official Federal Register edition.^[8]

GovInfo provides the official electronic Federal Register PDF.

For a compliance file, preserve:

• official FR citation
• publication date
• RIN
• docket
• final comment deadline
• official PDF.

A pre-publication draft is excellent for early review.

It is weaker for final citation details.

Can a Press Release Be Used Instead?

For a summary, yes.

For legal status, no.

A DOL release may explain:

• purpose
• headline changes
• administration policy
• expected effects.^[5][12]

It rarely contains every:

• definition
• exception
• condition
• proposed paragraph
• request for comment.

Use the press release to understand the announcement.

Use the NPRM to understand the proposal.

Does a Proposal Create Any Practical Work Before Finalization?

Often.

A plan or service provider may need time for:

• system changes
• contract changes
• data fields
• participant communications
• investment due diligence
• staff training.

Waiting until the final rule's effective date can be operationally impossible.

That creates a planning problem:

prepare without pretending the proposal is final.

The solution is scenario planning.

Not premature compliance claims.

A Three-Column Rulemaking File

For a major DOL proposal, maintain three separate columns.

Current law

Include:

• statute
• current CFR
• current PTEs
• current binding or operative court outcomes
• current applicable guidance.

This column drives today's compliance.

Proposed change

Include:

• NPRM
• proposed text
• comment deadline
• questions
• expected systems impact
• unresolved issues.

This column drives planning.

Interim status

Include:

• FABs
• Technical Releases
• delayed dates
• stays
• court orders
• transition relief.

This column explains what happens while the legal transition is incomplete.

The paper-statement rulemaking belongs in all three columns.

The alternative-investment proposal currently belongs mainly in the second.

Proposed-Rule Validation Checklist

Before a proposal affects a committee memo or implementation project, verify:

Status

Does ACTION say:

• proposed rule
• final rule
• interim final rule
• notice?

Published version

Is the source:

• Public Inspection
• Federal Register web rendition
• official GovInfo PDF?

Current law

Which statute and CFR provisions apply today?

Proposed text

Which paragraphs would actually change?

Comment record

What issues are disputed?

Deadline

Is the date for:

• comments
• hearing
• effective date
• applicability
• compliance?

Later action

Has DOL:

• finalized
• withdrawn
• extended
• reopened
• supplemented
• delayed?

Litigation

Has a court stayed or vacated later action?

Implementation dependency

Does the proposal create a new rule, or implement a statute already effective?

Temporary policy

Has DOL issued a FAB, Technical Release or other transition position?

Those ten questions prevent most proposal-stage mistakes.

A Practical Status Matrix

The NPRM is a bridge.

It is not the destination.

Fast Answers

Is a DOL proposed rule law?

Not merely because it has been proposed. Current compliance remains grounded in operative statute, current regulations and other valid authority.

What does NPRM mean?

Notice of Proposed Rulemaking.

Does proposed regulatory text appear in the Federal Register?

Yes. A proposal can include detailed draft CFR text.

Can a plan rely on a proposed safe harbor?

Not as a current legal safe harbor unless another operative source independently provides the protection.

Is the 2026 designated-investment-alternatives safe harbor final?

No. As of the August 14, 2026 regulatory plan, the action remains at the Proposed Rule Stage.^[6]

When did comments close on that proposal?

June 1, 2026.^[4]

Does the proposal require 401(k) plans to add alternative assets?

No. The proposal says plans are not required to use the safe harbor or change their investment menus.^[4]

What are the six proposed investment-selection factors?

Performance, fees and expenses, liquidity, valuation, benchmarking and complexity.^[4]

Is the 2026 paper-statement requirement only proposed?

No. SECURE 2.0 already amended ERISA. DOL's implementing safe-harbor amendments remain proposed.^[8][9]

What does FAB 2026-02 do?

It states a temporary enforcement policy for good-faith compliance with a reasonable interpretation of the NPRM or ERISA Section 105(a)(2)(E) while final regulations are pending.^[9]

Does the FAB finalize the NPRM?

No.

Can final text differ from the proposal?

Yes. Notice-and-comment rulemaking allows the agency to revise its approach in response to the record, subject to applicable law.^[1][2]

Can a final DOL rule later be vacated?

Yes. The 2024 Retirement Security Rule was later vacated, and DOL restored the prior five-part framework in 2026.^[14][15]

What is the safest one-sentence rule?

Use proposals to prepare for possible change; use current law to decide what the plan must do today.

Sources & References

1. National Archives — Office of the Federal Register: Federal Register Tutorial — Proposed Rules — https://www.archives.gov/federal-register/tutorial/text
2. National Archives: Administrative Procedure Act — 5 U.S.C. §553 — https://www.archives.gov/federal-register/laws/administrative-procedure/553.html
3. U.S. Department of Labor — Employee Benefits Security Administration: Rules & Regulations — https://www.dol.gov/agencies/ebsa/laws-and-regulations/rules-and-regulations
4. U.S. Department of Labor — Employee Benefits Security Administration / GovInfo: Fiduciary Duties in Selecting Designated Investment Alternatives — Proposed Rule, 91 FR 16088, March 31, 2026 — https://www.govinfo.gov/content/pkg/FR-2026-03-31/pdf/2026-06178.pdf
5. U.S. Department of Labor: Department Proposes Rule on Alternative Investments in 401(k) Plans, March 30, 2026 — https://beta.dol.gov/news-events/press-releases/2026/03/30/us-department-labor-proposes-landmark-rule-democratize-access-alternative-investments-401k-plans
6. Federal Register / GovInfo: Federal Regulatory Plan, August 14, 2026 — RIN 1210-AC38 — https://www.govinfo.gov/content/pkg/FR-2026-08-14/pdf/2026-16603.pdf
7. Electronic Code of Federal Regulations / Legal Information Institute: 29 CFR §2550.404a-1 — Investment Duties — https://www.law.cornell.edu/cfr/text/29/2550.404a-1
8. U.S. Department of Labor — Employee Benefits Security Administration / Federal Register: Requirement To Provide Paper Statements in Certain Cases — Amendments to Electronic Disclosure Safe Harbors, Proposed Rule, 91 FR 9213, February 25, 2026 — https://www.federalregister.gov/documents/2026/02/25/2026-03723/requirement-to-provide-paper-statements-in-certain-cases-amendments-to-electronic-disclosure-safe
9. U.S. Department of Labor — Employee Benefits Security Administration: Field Assistance Bulletin 2026-02 — Temporary Enforcement Policy Regarding Pension Benefit Statements, May 12, 2026 — https://www.dol.gov/agencies/ebsa/employers-and-advisers/guidance/field-assistance-bulletins/2026-02
10. U.S. Department of Labor — Employee Benefits Security Administration: SECURE 2.0 Act of 2022 — https://www.dol.gov/agencies/ebsa/laws-and-regulations/laws/secure-2-0-act-of-2022
11. U.S. Department of Labor — Employee Benefits Security Administration: Proposed Retirement Security Rule — Public Comments, RIN 1210-AC02 — https://www.dol.gov/agencies/ebsa/laws-and-regulations/rules-and-regulations/public-comments/1210-AC02
12. U.S. Department of Labor — Employee Benefits Security Administration: Department Announces Proposed Retirement Security Rule, October 31, 2023 — https://www.dol.gov/newsroom/releases/ebsa/ebsa20231031
13. U.S. Department of Labor — Employee Benefits Security Administration: Proposed Retirement Security Rule Public Hearing — https://www.dol.gov/agencies/ebsa/laws-and-regulations/rules-and-regulations/public-comments/1210-AC02-hearing
14. U.S. Department of Labor — Employee Benefits Security Administration: ERISA — Retirement Security Rule and Court Vacatur Resources — https://www.dol.gov/agencies/ebsa/laws-and-regulations/laws/erisa
15. U.S. Department of Labor — Employee Benefits Security Administration: Department Restores Long-Standing Investment Advice Rule After Court Vacatur, March 18, 2026 — https://www.dol.gov/newsroom/releases/ebsa/ebsa20260318
16. U.S. Department of Labor — Employee Benefits Security Administration: Default Investment Alternatives Under Participant-Directed Individual Account Plans — Proposed Regulation Fact Sheet — https://www.dol.gov/agencies/ebsa/about-ebsa/our-activities/resource-center/fact-sheets/default-investment-alternatives-under-participant-directed-individual-account-plans
17. Electronic Code of Federal Regulations / Legal Information Institute: 29 CFR §2550.404c-5 — Qualified Default Investment Alternatives — https://www.law.cornell.edu/cfr/text/29/2550.404c-5
18. U.S. Department of Labor — Employee Benefits Security Administration: Regulatory Procedure Notice No. 2025-01 — Procedures for Rulemaking Petitions — https://www.dol.gov/agencies/ebsa/laws-and-regulations/rules-and-regulations/regulatory-procedure-notice-2025-01

Educational Disclaimer

ROIStreet publishes educational content about 401(k) plans, ERISA, Department of Labor rulemaking, Federal Register documents, proposed regulations, public comments, fiduciary duties and plan administration. This article is not legal, fiduciary, tax, investment, regulatory, litigation or plan-administration advice. A notice of proposed rulemaking ordinarily describes possible future regulatory requirements and does not itself replace current CFR text. The underlying statute may independently impose current obligations before implementing regulations are finalized, and DOL may issue separate transition or enforcement guidance while rulemaking remains pending. Current compliance should be tested against the statute, current CFR, valid exemptions, current judicial decisions, applicable agency guidance and the exact status of the rulemaking.

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