IB 

Union Calendar No. 184 

118TH CONGRESS 

1ST SESSION H. R. 5339 

[Report No. 118–225] 

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

requirements concerning the consideration of pecuniary and non-pecuniary factors, and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

SEPTEMBER 5, 2023 

Mr. ALLEN introduced the following bill; which was referred to the Committee 

on Education and the Workforce 

SEPTEMBER 26, 2023 

Additional sponsor: Mrs. HOUCHIN

SEPTEMBER 26, 2023 

Reported with an amendment, committed to the Committee of the Whole 

House on the State of the Union, and ordered to be printed 

[Strike out all after the enacting clause and insert the part printed in italic] 

[For text of introduced bill, see copy of bill as introduced on September 5, 2023] 


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•HR 5339 RH

A BILL 

To amend the Employee Retirement Income Security Act 

of 1974 to specify requirements concerning the consideration of pecuniary and non-pecuniary factors, and for 

other purposes. 


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•HR 5339 RH

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 ‘‘Roll back ESG To In5 crease Retirement Earnings Act’’ or the ‘‘RETIRE Act’’. 

6 SEC. 2. EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 

7 1974 AMENDMENT. 

8 (a) IN GENERAL.—Section 404(a) of the Employee Re9 tirement Income Security Act of 1974 (29 U.S.C. 1104(a)) 

10 is amended by adding at the end the following: 

11 ‘‘(3) INTEREST BASED ON PECUNIARY FAC12 TORS.— 

13 ‘‘(A) IN GENERAL.—For purposes of para14 graph (1), a fiduciary shall be considered to act 

15 solely in the interest of the participants and 

16 beneficiaries of the plan with respect to an in17 vestment or investment course of action only if 

18 the fiduciary’s action with respect to such invest19 ment or investment course of action is based only 

20 on pecuniary factors (except as provided in sub21 paragraph (B)). The fiduciary may not subordi22 nate the interests of the participants and bene23 ficiaries in their retirement income or financial 

24 benefits under the plan to other objectives and 

25 may not sacrifice investment return or take on 


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•HR 5339 RH

1 additional investment risk to promote non-pecu2 niary benefits or goals. The weight given to any 

3 pecuniary factor by a fiduciary shall reflect a 

4 prudent assessment of the impact of such factor 

5 on risk and return. 

6 ‘‘(B) USE OF NON-PECUNIARY FACTORS FOR

7 INVESTMENT ALTERNATIVES.—Notwithstanding 

8 paragraph (A), if a fiduciary is unable to distin9 guish between or among investment alternatives 

10 or investment courses of action on the basis of 

11 pecuniary factors alone, the fiduciary may use 

12 non-pecuniary factors as the deciding factor if 

13 the fiduciary documents— 

14 ‘‘(i) why pecuniary factors were not 

15 sufficient to select a plan investment or in16 vestment course of action; 

17 ‘‘(ii) how the selected investment com18 pares to the alternative investments with re19 gard to the composition of the portfolio with 

20 regard to diversification, the liquidity and 

21 current return of the portfolio relative to the 

22 anticipated cash flow requirements of the 

23 plan, and the projected return of the port24 folio relative to the funding objectives of the 

25 plan; and 


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1 ‘‘(iii) how the selected non-pecuniary 

2 factor or factors are consistent with the in3 terests of the participants and beneficiaries 

4 in their retirement income or financial ben5 efits under the plan. 

6 ‘‘(C) INVESTMENT ALTERNATIVES FOR PAR7 TICIPANT-DIRECTED INDIVIDUAL ACCOUNT

8 PLANS.—In selecting or retaining investment op9 tions for a pension plan described in subsection 

10 (c)(1)(A), a fiduciary is not prohibited from con11 sidering, selecting, or retaining an investment 

12 option on the basis that such investment option 

13 promotes, seeks, or supports one or more non-pe14 cuniary benefits or goals, if— 

15 ‘‘(i) the fiduciary satisfies the require16 ments of paragraph (1) and subparagraphs 

17 (A) and (B) of this paragraph in selecting 

18 or retaining any such investment option; 

19 and 

20 ‘‘(ii) such investment option is not 

21 added or retained as, or included as a com22 ponent of, a default investment under sub23 section (c)(5) (or any other default invest24 ment alternative) if its investment objectives 

25 or goals or its principal investment strateVerDate Sep 11 2014 02:43 Sep 27, 2023 Jkt 039200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6203 E:\BILLS\H5339.RH H5339

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1 gies include, consider, or indicate the use of 

2 one or more non-pecuniary factors. 

3 ‘‘(D) DEFINITIONS.—For the purposes of 

4 this paragraph: 

5 ‘‘(i) The term ‘pecuniary factor’ means 

6 a factor that a fiduciary prudently deter7 mines is expected to have a material effect 

8 on the risk or return of an investment based 

9 on appropriate investment horizons con10 sistent with the plan’s investment objectives 

11 and the funding policy established pursuant 

12 to section 402(b)(1). 

13 ‘‘(ii) The term ‘investment course of 

14 action’ means any series or program of in15 vestments or actions related to a fiduciary’s 

16 performance of the fiduciary’s investment 

17 duties, and includes the selection of an in18 vestment fund as a plan investment, or in 

19 the case of an individual account plan, a 

20 designated investment alternative under the 

21 plan.’’. 

22 (b) EFFECTIVE DATE.—The amendments made by this 

23 section shall apply to actions taken by a fiduciary on or 

24 after the date that is 12 months after the date of enactment 

25 of this Act. 


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Union Calendar No. 184 

118TH CONGRESS 

1ST SESSION H. R. 5339 

[Report No. 118–225] 

A BILL 

To amend the Employee Retirement Income Secupecuniary factors, and for other purposes. cerning the consideration of pecuniary and non- rity Act of 1974 to specify requirements conSEPTEMBER 26, 2023 

Reported with an amendment, committed to the Comand ordered to be printed mittee of the Whole House on the State of the Union, 


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