I 

116TH CONGRESS 

1ST SESSION H. R. 1439 

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

a fiduciary safe harbor for the selection of a lifetime income provider, 

and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

FEBRUARY 28, 2019 

Mr. WALBERG (for himself, Ms. BLUNT ROCHESTER, Mr. DAVID P. ROE of 

Tennessee, Ms. SEWELL of Alabama, Mr. LOEBSACK, and Mr. MITCHELL) introduced the following bill; which was referred to the Committee 

on Education and Labor 

A BILL 

To amend the Employee Retirement Income Security Act 

of 1974 to provide a fiduciary safe harbor for the selection of a lifetime income provider, 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 ‘‘Increasing Access to 

5 a Secure Retirement Act of 2019’’. 


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1 SEC. 2. FIDUCIARY SAFE HARBOR FOR SELECTION OF LIFE2 TIME INCOME PROVIDER. 

3 Section 404 of the Employee Retirement Income Se4 curity Act of 1974 (29 U.S.C. 1104) is amended by adding 

5 at the end the following: 

6 ‘‘(e) SAFE HARBOR FOR ANNUITY SELECTION.— 

7 ‘‘(1) IN GENERAL.—With respect to the selec8 tion of an insurer for a guaranteed retirement in9 come contract, the requirements of subsection 

10 (a)(1)(B) will be deemed to be satisfied if a fidu11 ciary— 

12 ‘‘(A) engages in an objective, thorough, 

13 and analytical search for the purpose of identi14 fying insurers from which to purchase such con15 tracts; 

16 ‘‘(B) with respect to each insurer identified 

17 under subparagraph (A)— 

18 ‘‘(i) considers the financial capability 

19 of such insurer to satisfy its obligations 

20 under the guaranteed retirement income 

21 contract; and 

22 ‘‘(ii) considers the cost (including fees 

23 and commissions) of the guaranteed retire24 ment income contract offered by the in25 surer in relation to the benefits and prod26 uct features of the contract and adminisVerDate Sep 11 2014 02:04 Mar 13, 2019 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H1439.IH H1439

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1 trative services to be provided under such 

2 contract; and 

3 ‘‘(C) on the basis of such consideration, 

4 concludes that— 

5 ‘‘(i) at the time of the selection, the 

6 insurer is financially capable of satisfying 

7 its obligations under the guaranteed retire8 ment income contract; and 

9 ‘‘(ii) the relative cost of the selected 

10 guaranteed retirement income contract as 

11 described in subparagraph (B)(ii) is rea12 sonable. 

13 ‘‘(2) FINANCIAL CAPABILITY OF THE IN14 SURER.—A fiduciary will be deemed to satisfy the 

15 requirements of paragraphs (1)(B)(i) and (1)(C)(i) 

16 if— 

17 ‘‘(A) the fiduciary obtains written rep18 resentations from the insurer that— 

19 ‘‘(i) the insurer is licensed to offer 

20 guaranteed retirement income contracts; 

21 ‘‘(ii) the insurer, at the time of selec22 tion and for each of the immediately pre23 ceding 7 plan years— 

24 ‘‘(I) operates under a certificate 

25 of authority from the insurance comVerDate Sep 11 2014 02:04 Mar 13, 2019 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H1439.IH H1439

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1 missioner of its domiciliary State 

2 which has not been revoked or sus3 pended; 

4 ‘‘(II) has filed audited financial 

5 statements in accordance with the 

6 laws of its domiciliary State under ap7 plicable statutory accounting prin8 ciples; 

9 ‘‘(III) maintains (and has main10 tained) reserves which satisfies all the 

11 statutory requirements of all States 

12 where the insurer does business; and 

13 ‘‘(IV) is not operating under an 

14 order of supervision, rehabilitation, or 

15 liquidation; 

16 ‘‘(iii) the insurer undergoes, at least 

17 every 5 years, a financial examination 

18 (within the meaning of the law of its domi19 ciliary State) by the insurance commis20 sioner of the domiciliary State (or rep21 resentative, designee, or other party ap22 proved by such commissioner); and 

23 ‘‘(iv) the insurer will notify the fidu24 ciary of any change in circumstances oc25 curring after the provision of the represenVerDate Sep 11 2014 02:04 Mar 13, 2019 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H1439.IH H1439

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1 tations in clauses (i), (ii), and (iii) which 

2 would preclude the insurer from making 

3 such representations at the time of 

4 issuance of the guaranteed retirement in5 come contract; and 

6 ‘‘(B) after receiving such representations 

7 and as of the time of selection, the fiduciary 

8 has not received any notice described in sub9 paragraph (A)(iv) and is in possession of no 

10 other information which would cause the fidu11 ciary to question the representations provided. 

12 ‘‘(3) NO REQUIREMENT TO SELECT LOWEST

13 COST.—Nothing in this subsection shall be construed 

14 to require a fiduciary to select the lowest cost con15 tract. A fiduciary may consider the value of a con16 tract, including features and benefits of the contract 

17 and attributes of the insurer (including, without lim18 itation, the insurer’s financial strength) in conjunc19 tion with the cost of the contract. 

20 ‘‘(4) TIME OF SELECTION.— 

21 ‘‘(A) IN GENERAL.—For purposes of this 

22 subsection, the time of selection is— 

23 ‘‘(i) the time that the insurer and the 

24 contract are selected for distribution of 


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1 benefits to a specific participant or bene2 ficiary; or 

3 ‘‘(ii) if the fiduciary periodically re4 views the continuing appropriateness of the 

5 conclusion described in paragraph (1)(C) 

6 with respect to a selected insurer, taking 

7 into account the considerations described 

8 in such paragraph, the time that the in9 surer and the contract are selected to pro10 vide benefits at future dates to participants 

11 or beneficiaries under the plan. 

12 Nothing in the preceding sentence shall be con13 strued to require the fiduciary to review the ap14 propriateness of a selection after the purchase 

15 of a contract for a participant or beneficiary. 

16 ‘‘(B) PERIODIC REVIEW.—A fiduciary will 

17 be deemed to have conducted the periodic re18 view described in subparagraph (A)(ii) if the fi19 duciary obtains the written representations de20 scribed in clauses (i), (ii), and (iii) of paragraph 

21 (2)(A) from the insurer on an annual basis, un22 less the fiduciary receives any notice described 

23 in paragraph (2)(A)(iv) or otherwise becomes 

24 aware of facts that would cause the fiduciary to 

25 question such representations. 


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1 ‘‘(5) LIMITED LIABILITY.—A fiduciary which 

2 satisfies the requirements of this subsection shall not 

3 be liable following the distribution of any benefit, or 

4 the investment by or on behalf of a participant or 

5 beneficiary pursuant to the selected guaranteed re6 tirement income contract, for any losses that may 

7 result to the participant or beneficiary due to an in8 surer’s inability to satisfy its financial obligations 

9 under the terms of such contract. 

10 ‘‘(6) DEFINITIONS.—For purposes of this sub11 section— 

12 ‘‘(A) INSURER.—The term ‘insurer’ means 

13 an insurance company, insurance service, or in14 surance organization, including affiliates of 

15 such companies. 

16 ‘‘(B) GUARANTEED RETIREMENT INCOME

17 CONTRACT.—The term ‘guaranteed retirement 

18 income contract’ means an annuity contract for 

19 a fixed term or a contract (or provision or fea20 ture thereof) which provides guaranteed bene21 fits annually (or more frequently) for at least 

22 the remainder of the life of the participant or 

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1 pant’s designated beneficiary as part of an indi2 vidual account plan.’’. 

Æ 


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