```

[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[H.R. 5339 Introduced in House (IH)]

<DOC>

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.

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

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Roll back ESG To Increase Retirement 
Earnings Act'' or the ``RETIRE Act''.

SEC. 2. EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974 AMENDMENT.

    (a) In General.--Section 404(a) of the Employee Retirement Income 
Security Act of 1974 (29 U.S.C. 1104(a)) is amended by adding at the 
end the following:
            ``(3) Interest based on pecuniary factors.--
                    ``(A) In general.--For purposes of paragraph (1), a 
                fiduciary of a plan shall be considered to act solely 
                in the interest of the participants and beneficiaries 
                of the plan with respect to an investment or investment 
                course of action only if the fiduciary's action with 
                respect to such investment or investment course of 
                action is based only on pecuniary factors (except as 
                provided in subparagraph (B)). The fiduciary may not 
                subordinate the interests of the participants and 
                beneficiaries in their retirement income or financial 
                benefits under the plan to other objectives and may not 
                sacrifice investment return or take on additional 
                investment risk to promote non-pecuniary benefits or 
                goals. The weight given to any pecuniary factor by a 
                fiduciary shall reflect a prudent assessment of the 
                impact of such factor on risk and return.
                    ``(B) Use of non-pecuniary factors for investment 
                alternatives.--Notwithstanding paragraph (A), if a 
                fiduciary is unable to distinguish between or among 
                investment alternatives or investment courses of action 
                on the basis of pecuniary factors alone, the fiduciary 
                may use non-pecuniary factors as the deciding factor if 
                the fiduciary documents--
                            ``(i) why pecuniary factors were not 
                        sufficient to select a plan investment or 
                        investment course of action;
                            ``(ii) how the selected investment compares 
                        to the alternative investments with regard to 
                        the composition of the portfolio with regard to 
                        diversification, the liquidity and current 
                        return of the portfolio relative to the 
                        anticipated cash flow requirements of the plan, 
                        and the projected return of the portfolio 
                        relative to the funding objectives of the plan; 
                        and
                            ``(iii) how the selected non-pecuniary 
                        factor or factors are consistent with the 
                        interests of the participants and beneficiaries 
                        in their retirement income or financial 
                        benefits under the plan.
                    ``(C) Investment alternatives for participant-
                directed individual account plans.--In selecting or 
                retaining investment options for a pension plan 
                described in subsection (c)(1)(A), a fiduciary is not 
                prohibited from considering, selecting, or retaining an 
                investment option on the basis that such investment 
                option promotes, seeks, or supports one or more non-
                pecuniary benefits or goals, if--
                            ``(i) the fiduciary satisfies the 
                        requirements of paragraph (1) and subparagraphs 
                        (A) and (B) of this paragraph in selecting or 
                        retaining any such investment option; and
                            ``(ii) such investment option is not added 
                        or retained as, or included as a component of, 
                        a default investment under subsection (c)(5) 
                        (or any other default investment alternative) 
                        if its investment objectives or goals or its 
                        principal investment strategies include, 
                        consider, or indicate the use of one or more 
                        non-pecuniary factors.
                    ``(D) Definitions.--For the purposes of this 
                paragraph:
                            ``(i) The term `pecuniary factor' means a 
                        factor that a fiduciary prudently determines is 
                        expected to have a material effect on the risk 
                        or return of an investment based on appropriate 
                        investment horizons consistent with the plan's 
                        investment objectives and the funding policy 
                        established pursuant to section 402(b)(1).
                            ``(ii) The term `investment course of 
                        action' means any series or program of 
                        investments or actions related to a fiduciary's 
                        performance of the fiduciary's investment 
                        duties, and includes the selection of an 
                        investment fund as a plan investment, or in the 
                        case of an individual account plan, a 
                        designated investment alternative under the 
                        plan.''.
    (b) Effective Date.--The amendments made by this section shall 
apply to actions taken by a fiduciary on or after the date that is 12 
months after the date of enactment of this Act.
                                 <all>
```