I 

118TH CONGRESS 

1ST SESSION H. R. 5339 

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 

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. 

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 

5 Increase Retirement Earnings Act’’ or the ‘‘RETIRE 

6 Act’’. 


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1 SEC. 2. EMPLOYEE RETIREMENT INCOME SECURITY ACT 

2 OF 1974 AMENDMENT. 

3 (a) IN GENERAL.—Section 404(a) of the Employee 

4 Retirement Income Security Act of 1974 (29 U.S.C. 

5 1104(a)) is amended by adding at the end the following: 

6 ‘‘(3) INTEREST BASED ON PECUNIARY FAC7 TORS.— 

8 ‘‘(A) IN GENERAL.—For purposes of para9 graph (1), a fiduciary of a plan shall be consid10 ered to act solely in the interest of the partici11 pants and beneficiaries of the plan with respect 

12 to an investment or investment course of action 

13 only if the fiduciary’s action with respect to 

14 such investment or investment course of action 

15 is based only on pecuniary factors (except as 

16 provided in subparagraph (B)). The fiduciary 

17 may not subordinate the interests of the partici18 pants and beneficiaries in their retirement in19 come or financial benefits under the plan to 

20 other objectives and may not sacrifice invest21 ment return or take on additional investment 

22 risk to promote non-pecuniary benefits or goals. 

23 The weight given to any pecuniary factor by a 

24 fiduciary shall reflect a prudent assessment of 

25 the impact of such factor on risk and return. 


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1 ‘‘(B) USE OF NON-PECUNIARY FACTORS

2 FOR INVESTMENT ALTERNATIVES.—Notwith3 standing paragraph (A), if a fiduciary is unable 

4 to distinguish between or among investment al5 ternatives or investment courses of action on 

6 the basis of pecuniary factors alone, the fidu7 ciary may use non-pecuniary factors as the de8 ciding factor if the fiduciary documents— 

9 ‘‘(i) why pecuniary factors were not 

10 sufficient to select a plan investment or in11 vestment course of action; 

12 ‘‘(ii) how the selected investment com13 pares to the alternative investments with 

14 regard to the composition of the portfolio 

15 with regard to diversification, the liquidity 

16 and current return of the portfolio relative 

17 to the anticipated cash flow requirements 

18 of the plan, and the projected return of the 

19 portfolio relative to the funding objectives 

20 of the plan; and 

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

22 factor or factors are consistent with the in23 terests of the participants and beneficiaries 

24 in their retirement income or financial ben25 efits under the plan. 


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1 ‘‘(C) INVESTMENT ALTERNATIVES FOR

2 PARTICIPANT-DIRECTED INDIVIDUAL ACCOUNT

3 PLANS.—In selecting or retaining investment 

4 options for a pension plan described in sub5 section (c)(1)(A), a fiduciary is not prohibited 

6 from considering, selecting, or retaining an in7 vestment option on the basis that such invest8 ment option promotes, seeks, or supports one or 

9 more non-pecuniary benefits or goals, if— 

10 ‘‘(i) the fiduciary satisfies the require11 ments of paragraph (1) and subparagraphs 

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

13 or retaining any such investment option; 

14 and 

15 ‘‘(ii) such investment option is not 

16 added or retained as, or included as a com17 ponent of, a default investment under sub18 section (c)(5) (or any other default invest19 ment alternative) if its investment objec20 tives or goals or its principal investment 

21 strategies include, consider, or indicate the 

22 use of one or more non-pecuniary factors. 

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

24 this paragraph: 


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1 ‘‘(i) The term ‘pecuniary factor’ 

2 means a factor that a fiduciary prudently 

3 determines is expected to have a material 

4 effect on the risk or return of an invest5 ment based on appropriate investment ho6 rizons consistent with the plan’s invest7 ment objectives and the funding policy es8 tablished pursuant to section 402(b)(1). 

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

10 action’ means any series or program of in11 vestments or actions related to a fidu12 ciary’s performance of the fiduciary’s in13 vestment duties, and includes the selection 

14 of an investment fund as a plan invest15 ment, or in the case of an individual ac16 count plan, a designated investment alter17 native under the plan.’’. 

18 (b) EFFECTIVE DATE.—The amendments made by 

19 this section shall apply to actions taken by a fiduciary on 

20 or after the date that is 12 months after the date of enact21 ment of this Act. 

Æ 


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