II 

117TH CONGRESS 

2D SESSION S. 4484 

To amend the Employee Retirement Income Security Act of 1974 to clarify 

the fiduciary duty of plan administrators to select and maintain investments based solely on pecuniary factors, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

JUNE 23, 2022 

Mr. DAINES introduced the following bill; which was read twice and referred 

to the Committee on Health, Education, Labor, and Pensions 

A BILL 

To amend the Employee Retirement Income Security Act 

of 1974 to clarify the fiduciary duty of plan administrators to select and maintain investments based solely on 

pecuniary factors, and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Securing Employee 

5 Retirement Returns Act’’. 


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1 SEC. 2. FIDUCIARY DUTY REGARDING THE CONSIDERATION 

2 OF CERTAIN FACTORS IN INVESTMENT DECI3 SIONS FOR EMPLOYEE BENEFIT PLANS. 

4 (a) IN GENERAL.—Subsection (a) of section 404 of 

5 the Employee Retirement Income Security Act of 1974 

6 (29 U.S.C. 1104) is amended by adding at the end the 

7 following new paragraph: 

8 ‘‘(3)(A) The duties under paragraph (1) shall include 

9 the duty to select and maintain investments (including 

10 designated investment alternatives for purposes of a de11 fined contribution plan) based, except as provided in sub12 paragraph (B) or (C), solely on pecuniary factors. 

13 ‘‘(B) Notwithstanding subparagraph (A), when 

14 choosing between or among investment alternatives that 

15 a fiduciary is unable to distinguish on the basis of pecu16 niary factors alone, the fiduciary may use non-pecuniary 

17 factors as the deciding factor in the selection or mainte18 nance of an investment if the fiduciary documents the fol19 lowing: 

20 ‘‘(i) Why pecuniary factors were not sufficient 

21 to select or maintain the investment. 

22 ‘‘(ii) How the chosen non-pecuniary factor is 

23 consistent with the interests of participants and 

24 beneficiaries in their retirement income or financial 

25 benefits under the plan. 


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1 ‘‘(C) Notwithstanding subparagraph (A), when se2 lecting or maintaining designated investment alternatives 

3 for purposes of a defined contribution plan that permits 

4 a participant or beneficiary to choose from a broad range 

5 of designated investment alternatives, a fiduciary may se6 lect or maintain an investment in an investment fund, 

7 product, or model portfolio that considers, or indicates the 

8 use of, non-pecuniary factors, if— 

9 ‘‘(i) in selecting or maintaining such invest10 ment, the fiduciary otherwise satisfies the duties 

11 under paragraph (1) (including, as applicable, sub12 paragraph (B) of this paragraph); and 

13 ‘‘(ii) the investment is not added or retained as, 

14 or as a component of, a qualified default investment 

15 alternative of the defined contribution plan. 

16 ‘‘(D) For purposes of this paragraph: 

17 ‘‘(i) The term ‘broad range’ has the meaning 

18 given such term in section 2550.404c–1(b)(3) of title 

19 29, Code of Federal Regulations (or successor regu20 lations). 

21 ‘‘(ii) The term ‘pecuniary factor’ means a factor 

22 that a fiduciary prudently determines is expected to 

23 have a material effect on the risk or return of an in24 vestment based on appropriate investment horizons 

25 consistent with the plan’s investment objectives and 


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1 the plan’s funding policy established pursuant to 

2 section 402(b)(1). 

3 ‘‘(iii) The term ‘qualified default investment al4 ternative’ has the meaning given such term in sec5 tion 2550.404c–5(e)(4) of title 29, Code of Federal 

6 Regulations (or successor regulations).’’. 

7 (b) EFFECTIVE DATE.—The amendment made by 

8 this section shall apply to investments made after the date 

9 of enactment of this Act. 

Æ 


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