II 

117TH CONGRESS 

2D SESSION S. 4613 

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 

JULY 26, 2022 

Mr. BRAUN (for himself, Mr. BURR, Mr. TUBERVILLE, Mr. MARSHALL, Ms. 

LUMMIS, Mr. WICKER, Mr. DAINES, and Mr. INHOFE) 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 ‘‘Maximize Americans’ 

5 Retirement Security 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 based, except 

10 as provided in subparagraph (B), solely on pecuniary fac11 tors. 

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

13 choosing between or among investment alternatives that 

14 a fiduciary is unable to distinguish on the basis of pecu15 niary factors alone, the fiduciary may use non-pecuniary 

16 factors as the deciding factor in the selection or mainte17 nance of an investment if the fiduciary furnishes to par18 ticipants documentation on the following: 

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

20 to select or maintain the investment. 

21 ‘‘(ii) How the investment compares to the alter22 native investments with regard to— 

23 ‘‘(I) the composition of the investments of 

24 the plan with regard to diversification; 

25 ‘‘(II) the liquidity and current return of 

26 the investments of the plan relative to the anVerDate Sep 11 2014 00:57 Jul 30, 2022 Jkt 029200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S4613.IS S4613

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1 ticipated cash flow requirements of the plan; 

2 and 

3 ‘‘(III) the projected return of the invest4 ments of the plan relative to the funding objec5 tives of the plan. 

6 ‘‘(iii) How the chosen non-pecuniary factor is 

7 consistent with the interests of participants and 

8 beneficiaries in their retirement income or financial 

9 benefits under the plan. 

10 ‘‘(C) For purposes of this paragraph, the term ‘pecu11 niary factor’ means a factor that a fiduciary prudently de12 termines is expected to have a material effect on the risk 

13 or return of an investment based on appropriate invest14 ment horizons consistent with the plan’s investment objec15 tives and the plan’s funding policy established pursuant 

16 to section 402(b)(1).’’. 

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

18 this section shall apply to investments made after the date 

19 that is 60 days after the date of enactment of this Act. 

Æ 


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