Federal Register / Vol. 73, No. 202 / Friday, October 17, 2008 / Rules and Regulations 61731 

consecutive settlement day following 

the settlement date for the transaction, 

immediately close out the fail to deliver 

position by purchasing securities of like 

kind and quantity; or 

(3) If a participant of a registered 

clearing agency has a fail to deliver 

position at a registered clearing agency 

in any equity security that is attributable 

to bona fide market making activities by 

a registered market maker, options 

market maker, or other market maker 

obligated to quote in the over-thecounter market (individually a ‘‘Market 

Maker,’’ collectively ‘‘Market Makers’’), 

the participant shall by no later than the 

beginning of regular trading hours on 

the third consecutive settlement day 

following the settlement date, 

immediately close out the fail to deliver 

position by purchasing securities of like 

kind and quantity. 

(b) If a participant of a registered 

clearing agency has a fail to deliver 

position in any equity security at a 

registered clearing agency and does not 

close out such fail to deliver position in 

accordance with the requirements of 

paragraph (a) of this section, the 

participant and any broker or dealer 

from which it receives trades for 

clearance and settlement, including any 

market maker that would otherwise be 

entitled to rely on the exception 

provided in § 242.203(b)(2)(iii), may not 

accept a short sale order in the equity 

security from another person, or effect a 

short sale in the equity security for its 

own account, to the extent that the 

broker or dealer submits its short sales 

to that participant for clearance and 

settlement, without first borrowing the 

security, or entering into a bona fide 

arrangement to borrow the security, 

until the participant closes out the fail 

to deliver position by purchasing 

securities of like kind and quantity and 

that purchase has cleared and settled at 

a registered clearing agency; Provided, 

however: 

(1) A broker or dealer shall not be 

subject to the requirements of paragraph 

(b) of this section if the broker or dealer 

timely certifies to the participant of a 

registered clearing agency that it has not 

incurred a fail to deliver position on 

settlement date for a long or short sale 

in an equity security for which the 

participant has a fail to deliver position 

at a registered clearing agency or that 

the broker or dealer is in compliance 

with paragraph (e) of this section. 

(2) The requirements of paragraph (b) 

of this section shall not apply to Market 

Makers provided the Market Maker can 

demonstrate that it does not have an 

open short position in the equity 

security at the time of any additional 

short sales. 

(c) The participant must notify any 

broker or dealer from which it receives 

trades for clearance and settlement, 

including any market maker that would 

otherwise be entitled to rely on the 

exception provided in 

§ 242.203(b)(2)(iii): 

(1) That the participant has a fail to 

deliver position in an equity security at 

a registered clearing agency that has not 

been closed out in accordance with the 

requirements of paragraph (a) of this 

section; and 

(2) When the purchase that the 

participant has made to close out the 

fail to deliver position has cleared and 

settled at a registered clearing agency. 

(d) If a participant of a registered 

clearing agency reasonably allocates a 

portion of a fail to deliver position to 

another registered broker or dealer for 

which it clears trades or from which it 

receives trades for settlement, based on 

such broker’s or dealer’s short position, 

the provisions of paragraphs (a) and (b) 

of this section relating to such fail to 

deliver position shall apply to such 

registered broker or dealer that was 

allocated the fail to deliver position, and 

not to the participant. A broker or dealer 

that has been allocated a portion of a fail 

to deliver position that does not comply 

with the provisions of paragraph (a) of 

this section must immediately notify the 

participant that it has become subject to 

the requirements of paragraph (b) of this 

section. 

(e) Even if a participant of a registered 

clearing agency has not closed out a fail 

to deliver position at a registered 

clearing agency in accordance with 

paragraph (a) of this section, or has not 

allocated a fail to deliver position to a 

broker or dealer in accordance with 

paragraph (d) of this section, a broker or 

dealer shall not be subject to the 

requirements of paragraph (a) or (b) of 

this section if the broker or dealer 

purchases securities prior to the 

beginning of regular trading hours on 

the settlement day after the settlement 

date for a long or short sale to close out 

an open short position, and if: 

(1) The purchase is bona fide; 

(2) The purchase is executed on, or 

after, trade date but by no later than the 

end of regular trading hours on 

settlement date for the transaction; 

(3) The purchase is of a quantity of 

securities sufficient to cover the entire 

amount of the open short position; and 

(4) The broker or dealer can 

demonstrate that it has a net long 

position or net flat position on its books 

and records on the settlement day for 

which the broker or dealer is seeking to 

demonstrate that it has purchased 

shares to close out its open short 

position. 

(f) Definitions. (1) For purposes of this 

section, the term settlement date shall 

mean the business day on which 

delivery of a security and payment of 

money is to be made through the 

facilities of a registered clearing agency 

in connection with the sale of a security. 

(2) For purposes of this section, the 

term regular trading hours has the same 

meaning as in Rule 600(b)(64) of 

Regulation NMS (17 CFR 

242.600(b)(64)). 

(g) This temporary section will expire 

and no longer be effective on July 31, 

2009. 

By the Commission. 

Dated: October 14, 2008. 

Florence E. Harmon, 

Acting Secretary. 

[FR Doc. E8–24785 Filed 10–16–08; 8:45 am] 

BILLING CODE 8011–01–P 

DEPARTMENT OF LABOR 

Employee Benefits Security 

Administration 

29 CFR Part 2509 

RIN 1210–AB28 

Interpretive Bulletin Relating to 

Exercise of Shareholder Rights 

AGENCY: Employee Benefits Security 

Administration. 

ACTION: Interpretive bulletin. 

SUMMARY: This document sets forth the 

views of the Department of Labor 

concerning the legal standards imposed 

by sections 402, 403 and 404 of Title I 

of the Employee Retirement Income 

Security Act (ERISA) with respect to the 

exercise of shareholder rights and 

written statements of investment policy, 

including proxy voting policies or 

guidelines. These guidelines affect 

fiduciaries of employee benefit plans, 

including trustees, investment managers 

and others responsible for the 

management of employee benefit plan 

assets. 

DATES: This interpretive bulletin is 

effective on October 17, 2008. 

FOR FURTHER INFORMATION CONTACT: 

Office of Regulations and 

Interpretations, Employee Benefits 

Security Administration, (202) 693– 

8500. This is not a toll-free number. 

SUPPLEMENTARY INFORMATION: On July 

29, 1994, the Department of Labor (the 

Department) issued guidance with 

respect to the duties of employee benefit 

plan fiduciaries under sections 402, 403 

and 404 of Title I of the Employee 

Retirement Income Security Act (ERISA) 


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61732 Federal Register / Vol. 73, No. 202 / Friday, October 17, 2008 / Rules and Regulations 

1See letter from the Department of Labor to 

Helmut Fandl, Chairman of the Retirement Board of 

Avon Products, Inc., dated February 23, 1988. 

2See Advisory Opinion No. 2007–07A (December 

21, 2007). 

3See letter from the Department of Labor to 

Robert A.G. Monks, Institutional Shareholder 

Services, Inc., January 23, 1990. 

to vote proxies appurtenant to shares of 

corporate stock held by their plans (29 

CFR 2509.94–2). The guidance set forth 

in this document, Interpretive Bulletin 

08–2, includes clarifications of the 

earlier guidance, as well as interpretive 

positions issued by the Department 

since 1994 on shareholder activism and 

socially directed proxy voting 

initiatives. The guidance modifies and 

supersedes the guidance set forth in 

interpretive bulletin 94–2 (29 CFR 

2509.94–2). 

List of Subjects in 29 CFR Part 2509 

Employee benefit plans, Pensions. 

■ For the reasons set forth in the 

preamble, the Department is amending 

Subchapter A, Part 2509 of Title 29 of 

the Code of Federal Regulations as 

follows: 

Subchapter A—General 

PART 2509—INTERPRETIVE 

BULLETINS RELATING TO THE 

EMPLOYEE RETIREMENT INCOME 

SECURITY ACT OF 1974 

■ 1. The authority citation for part 2509 

continues to read as follows: 

Authority: 29 U.S.C. 1135. Secretary of 

Labor’s Order No. 1–2003, (68 FR 5374 Feb. 

3, 2003). Sections 2509.75–10 and 2509.75– 

2 are also issued under 29 U.S.C. 1052, 1053, 

1054. Section 2509.75–5 is also issued under 

29 U.S.C. 1002. 

§ 2509.94–2 [Removed] 

■ 2. Part 2509 is amended by removing 

§ 2509.94–2. 

■ 3. Part 2509 is further amended by 

adding new § 2509.08–2 to read as 

follows: 

§ 2509.08–2 Interpretive bulletin relating to 

the exercise of shareholder rights and 

written statements of investment policy, 

including proxy voting policies or 

guidelines. 

This interpretive bulletin sets forth 

the Department of Labor’s (the 

Department) interpretation of sections 

402, 403 and 404 of the Employee 

Retirement Income Security Act of 1974 

(ERISA) as those sections apply to 

voting of proxies on securities held in 

employee benefit plan investment 

portfolios and the maintenance of and 

compliance with statements of 

investment policy, including proxy 

voting policy. In addition, this 

interpretive bulletin provides guidance 

on the appropriateness under ERISA of 

active monitoring of corporate 

management by plan fiduciaries. The 

guidance set forth in this interpretive 

bulletin modifies and supersedes the 

guidance set forth in interpretive 

bulletin 94–2 (29 CFR 2509.94–2). 

(1) Proxy Voting 

The fiduciary act of managing plan 

assets that are shares of corporate stock 

includes the management of voting 

rights appurtenant to those shares of 

stock.1 As a result, the responsibility for 

voting or deciding not to vote proxies 

lies exclusively with the plan trustee 

except to the extent that either (1) the 

trustee is subject to the direction of a 

named fiduciary pursuant to ERISA Sec. 

403(a)(1); or (2) the power to manage, 

acquire or dispose of the relevant assets 

has been delegated by a named fiduciary 

to one or more investment managers 

pursuant to ERISA Sec. 403(a)(2). Where 

the authority to manage plan assets has 

been delegated to an investment 

manager pursuant to Sec. 403(a)(2), no 

person other than the investment 

manager has authority to make voting 

decisions for proxies appurtenant to 

such plan assets except to the extent 

that the named fiduciary has reserved to 

itself (or to another named fiduciary so 

authorized by the plan document) the 

right to direct a plan trustee regarding 

the voting of proxies. In this regard, a 

named fiduciary, in delegating 

investment management authority to an 

investment manager, could reserve to 

itself the right to direct a trustee with 

respect to the voting of all proxies or 

reserve to itself the right to direct a 

trustee as to the voting of only those 

proxies relating to specified assets or 

issues. 

If the plan document or investment 

management agreement provides that 

the investment manager is not required 

to vote proxies, but does not expressly 

preclude the investment manager from 

voting proxies, the investment manager 

would have exclusive responsibility for 

proxy voting decisions. Moreover, an 

investment manager would not be 

relieved of its own fiduciary 

responsibilities by following directions 

of some other person regarding the 

voting of proxies, or by delegating such 

responsibility to another person. If, 

however, the plan document or the 

investment management contract 

expressly precludes the investment 

manager from voting proxies, the 

responsibility for voting proxies would 

lie exclusively with the trustee. The 

trustee, however, consistent with the 

requirements of ERISA Sec. 403(a)(1), 

may be subject to the directions of a 

named fiduciary if the plan so provides. 

The fiduciary duties described at 

ERISA Sec. 404(a)(1)(A) and (B), require 

that, in voting proxies, regardless of 

whether the vote is made pursuant to a 

statement of investment policy, the 

responsible fiduciary shall consider 

only those factors that relate to the 

economic value of the plan’s investment 

and shall not subordinate the interests 

of the participants and beneficiaries in 

their retirement income to unrelated 

objectives. Votes shall only be cast in 

accordance with a plan’s economic 

interests. If the responsible fiduciary 

reasonably determines that the cost of 

voting (including the cost of research, if 

necessary, to determine how to vote) is 

likely to exceed the expected economic 

benefits of voting, or if the exercise of 

voting results in the imposition of 

unwarranted trading or other 

restrictions, the fiduciary has an 

obligation to refrain from voting.2 In 

making this determination, objectives, 

considerations, and economic effects 

unrelated to the plan’s economic 

interests cannot be considered. The 

fiduciary’s duties under ERISA Sec. 

404(a)(1)(A) and (B) also require that the 

named fiduciary appointing an 

investment manager periodically 

monitor the activities of the investment 

manager with respect to the 

management of plan assets, including 

decisions made and actions taken by the 

investment manager with regard to 

proxy voting decisions. The named 

fiduciary must carry out this 

responsibility solely in the participants’ 

and beneficiaries’ interest in the 

economic value of the plan assets and 

without regard to the fiduciary’s 

relationship to the plan sponsor. 

It is the view of the Department that 

compliance with the duty to monitor 

necessitates proper documentation of 

the activities that are subject to 

monitoring. Thus, the investment 

manager or other responsible fiduciary 

would be required to maintain accurate 

records as to proxy voting decisions, 

including, where appropriate, costbenefit analyses.3 Moreover, if the 

named fiduciary is to be able to carry 

out its responsibilities under ERISA Sec. 

404(a) in determining whether the 

investment manager is fulfilling its 

fiduciary obligations in investing plans 

assets in a manner that justifies the 

continuation of the management 

appointment, the proxy voting records 

must enable the named fiduciary to 

review not only the investment 

manager’s voting procedure with respect 

to plan-owned stock, but also to review 

the actions taken in individual proxy 

voting situations. 


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Federal Register / Vol. 73, No. 202 / Friday, October 17, 2008 / Rules and Regulations 61733 

The fiduciary obligations of prudence 

and loyalty to plan participants and 

beneficiaries require the responsible 

fiduciary to vote proxies on issues that 

may affect the economic value of the 

plan’s investment. However, fiduciaries 

also need to take into account costs 

when deciding whether and how to 

exercise their shareholder rights, 

including the voting of shares. Such 

costs include, but are not limited to, 

expenditures related to developing 

proxy resolutions, proxy voting services 

and the analysis of the likely net effect 

of a particular issue on the economic 

value of the plan’s investment. 

Fiduciaries must take all of these factors 

into account in determining whether the 

exercise of such rights (e.g., the voting 

of a proxy), independently or in 

conjunction with other shareholders, is 

expected to have an effect on the 

economic value of the plan’s investment 

that will outweigh the cost of exercising 

such rights. With respect to proxies 

appurtenant to shares of foreign 

corporations, a fiduciary, in deciding 

whether to purchase shares of a foreign 

corporation, should consider whether 

any additional difficulty and expense in 

voting such shares is reflected in their 

market price. 

(2) Statements of Investment Policy 

The maintenance by an employee 

benefit plan of a statement of 

investment policy designed to further 

the purposes of the plan and its funding 

policy is consistent with the fiduciary 

obligations set forth in ERISA section 

404(a)(1)(A) and (B). Because the 

fiduciary act of managing plan assets 

that are shares of corporate stock 

includes the voting, where appropriate, 

of proxies appurtenant to those shares of 

stock, a statement of proxy voting policy 

would be an important part of any 

comprehensive statement of investment 

policy. For purposes of this document, 

the term ‘‘statement of investment 

policy’’ means a written statement that 

provides the fiduciaries who are 

responsible for plan investments with 

guidelines or general instructions 

concerning various types or categories 

of investment management decisions, 

which may include proxy voting 

decisions. A statement of investment 

policy is distinguished from directions 

as to the purchase or sale of a specific 

investment at a specific time or as to 

voting specific plan proxies. 

In plans where investment 

management responsibility is delegated 

to one or more investment managers 

appointed by the named fiduciary 

pursuant to ERISA Sec. 402(c)(3), 

inherent in the authority to appoint an 

investment manager, the named 

fiduciary responsible for appointment of 

investment managers has the authority 

to condition the appointment on 

acceptance of a statement of investment 

policy. Thus, such a named fiduciary 

may expressly require, as a condition of 

the investment management agreement, 

that an investment manager comply 

with the terms of a statement of 

investment policy that sets forth 

guidelines concerning investments and 

investment courses of action that the 

investment manager is authorized or is 

not authorized to make. Such 

investment policy may include a policy 

or guidelines on the voting of proxies on 

shares of stock for which the investment 

manager is responsible. Such guidelines 

must be consistent with the fiduciary 

obligations set forth in ERISA Sec. 

404(a)(1)(A) and (B) and this 

Interpretive Bulletin, and may not 

subordinate the economic interests of 

the plan participants to unrelated 

objectives. In the absence of such an 

express requirement to comply with an 

investment policy, the authority to 

manage the plan assets placed under the 

control of the investment manager 

would lie exclusively with the 

investment manager. Although a trustee 

may be subject to the direction of a 

named fiduciary pursuant to ERISA Sec. 

403(a)(1), an investment manager who 

has authority to make investment 

decisions, including proxy voting 

decisions, would never be relieved of its 

fiduciary responsibility if it followed 

the direction as to specific investment 

decisions from the named fiduciary or 

any other person. 

Statements of investment policy 

issued by a named fiduciary authorized 

to appoint investment managers would 

be part of the ‘‘documents and 

instruments governing the plan’’ within 

the meaning of ERISA Sec. 404(a)(1)(D). 

An investment manager to whom such 

investment policy applies would be 

required to comply with such policy, 

pursuant to ERISA Sec. 404(a)(1)(D) 

insofar as the policy directives or 

guidelines are consistent with titles I 

and IV of ERISA. Therefore, if, for 

example, compliance with the 

guidelines in a given instance would be 

imprudent, then the investment 

manager’s failure to follow the 

guidelines would not violate ERISA Sec. 

404(a)(1)(D). Moreover, ERISA Sec. 

404(a)(1)(D) does not shield the 

investment manager from liability for 

imprudent actions taken in compliance 

with a statement of investment policy. 

The plan document or trust agreement 

may expressly provide a statement of 

investment policy to guide the trustee or 

may authorize a named fiduciary to 

issue a statement of investment policy 

applicable to a trustee. Where a plan 

trustee is subject to an investment 

policy, the trustee’s duty to comply with 

such investment policy would also be 

analyzed under ERISA Sec. 404(a)(1)(D). 

Thus, the trustee would be required to 

comply with the statement of 

investment policy unless, for example, 

it would be imprudent to do so in a 

given instance. 

Maintenance of a statement of 

investment policy by a named fiduciary 

does not relieve the named fiduciary of 

its obligations under ERISA Sec. 404(a) 

with respect to the appointment and 

monitoring of an investment manager or 

trustee. In this regard, the named 

fiduciary appointing an investment 

manager must periodically monitor the 

investment manager’s activities with 

respect to management of the plan 

assets. Moreover, compliance with 

ERISA Sec. 404(a)(1)(B) would require 

maintenance of proper documentation 

of the activities of the investment 

manager and of the named fiduciary of 

the plan in monitoring the activities of 

the investment manager. In addition, in 

the view of the Department, a named 

fiduciary’s determination of the terms of 

a statement of investment policy is an 

exercise of fiduciary responsibility and, 

as such, statements may need to take 

into account factors such as the plan’s 

funding policy and its liquidity needs as 

well as issues of prudence, 

diversification and other fiduciary 

requirements of ERISA. 

An investment manager of a pooled 

investment vehicle that holds assets of 

more than one employee benefit plan 

may be subject to a proxy voting policy 

of one plan that conflicts with the proxy 

voting policy of another plan. If the 

investment manager determines that 

compliance with one of the conflicting 

voting policies would violate ERISA 

Sec. 404(a)(1), for example, by being 

imprudent or not solely in the economic 

interest of plan participants, the 

investment manager would be required 

to ignore the policy and vote in 

accordance with ERISA’s obligations. If, 

however, the investment manager 

reasonably concludes that application of 

each plan’s voting policy is consistent 

with ERISA’s obligations, such as when 

the policies reflect different but 

reasonable judgments or when the plans 

have different economic interests, 

ERISA Sec. 404(a)(1)(D) would generally 

require the manager, to the extent 

permitted by applicable law, to vote the 

proxies in proportion to each plan’s 

interest in the pooled investment 

vehicle. An investment manager may 

also require participating investors to 

accept the investment manager’s own 

investment policy statement, including 


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61734 Federal Register / Vol. 73, No. 202 / Friday, October 17, 2008 / Rules and Regulations 

4See Advisory Opinion No. 2008–05A (June 27, 

2008) and letter from Department of Labor to 

Jonathan P. Hiatt, General Counsel, AFL–CIO (May 

3, 2005). 

5See Advisory Opinion No. 2007–07A (December 

21, 2007). 

any statement of proxy voting policy, 

before they are allowed to invest, which 

may help to avoid such potential 

conflicts. As with investment policies 

originating from named fiduciaries, a 

policy initiated by an investment 

manager and adopted by the 

participating plans would be regarded 

as an instrument governing the 

participating plans, and the investment 

manager’s compliance with such a 

policy would be governed by ERISA 

Sec. 404(a)(1)(D). 

(3) Shareholder Activism 

An investment policy that 

contemplates activities intended to 

monitor or influence the management of 

corporations in which the plan owns 

stock is consistent with a fiduciary’s 

obligations under ERISA where the 

responsible fiduciary concludes that 

there is a reasonable expectation that 

such monitoring or communication with 

management, by the plan alone or 

together with other shareholders, will 

enhance the economic value of the 

plan’s investment in the corporation, 

after taking into account the costs 

involved. Such a reasonable expectation 

may exist in various circumstances, for 

example, where plan investments in 

corporate stock are held as long-term 

investments or where a plan may not be 

able to easily dispose such an 

investment. Active monitoring and 

communication activities would 

generally concern such issues as the 

independence and expertise of 

candidates for the corporation’s board of 

directors and assuring that the board has 

sufficient information to carry out its 

responsibility to monitor management. 

Other issues may include such matters 

as consideration of the appropriateness 

of executive compensation, the 

corporation’s policy regarding mergers 

and acquisitions, the extent of debt 

financing and capitalization, the nature 

of long-term business plans, the 

corporation’s investment in training to 

develop its work force, other workplace 

practices and financial and nonfinancial measures of corporate 

performance that are reasonably likely 

to affect the economic value of the plan. 

Active monitoring and communication 

may be carried out through a variety of 

methods including by means of 

correspondence and meetings with 

corporate management as well as by 

exercising the legal rights of a 

shareholder. In creating an investment 

policy, a fiduciary shall consider only 

factors that relate to the economic 

interest of participants and their 

beneficiaries in plan assets, and shall 

not use an investment policy to promote 

myriad public policy preferences.4

(4) Socially-Directed Proxy Voting, 

Investment Policies and Shareholder 

Activism. 

Plan fiduciaries risk violating the 

exclusive purpose rule when they 

exercise their fiduciary authority in an 

attempt to further legislative, regulatory 

or public policy issues through the 

proxy process. In such cases, the 

Department would expect fiduciaries to 

be able to demonstrate in enforcement 

actions their compliance with the 

requirements of section 404(a)(1)(A) and 

(B). The mere fact that plans are 

shareholders in the corporations in 

which they invest does not itself 

provide a rationale for a fiduciary to 

spend plan assets to pursue, support, or 

oppose such proxy proposals. Because 

of the heightened potential for abuse in 

such cases, the fiduciaries must be 

prepared to articulate a clear basis for 

concluding that the proxy vote, the 

investment policy, or the activity 

intended to monitor or influence the 

management of the corporation is more 

likely than not to enhance the economic 

value of the plan’s investment before 

expending plan assets. 

The use of pension plan assets by 

plan fiduciaries to further policy or 

political issues through proxy 

resolutions that have no connection to 

enhancing the economic value of the 

plan’s investment in a corporation 

would, in the view of the Department, 

violate the prudence and exclusive 

purpose requirements of section 

404(a)(1)(A) and (B). For example, the 

likelihood that the adoption of a proxy 

resolution or proposal requiring 

corporate directors and officers to 

disclose their personal political 

contributions would enhance the 

economic value of a plan’s investment 

in the corporation appears sufficiently 

remote that the expenditure of plan 

assets to further such a resolution or 

proposal clearly raises compliance 

issues under section 404(a)(1)(A) and 

(B).5

Signed at Washington, DC, this 9th day of 

October, 2008. 

Bradford P. Campbell, 

Assistant Secretary, Employee Benefits 

Security Administration, Department of 

Labor. 

[FR Doc. E8–24552 Filed 10–16–08; 8:45 am] 

BILLING CODE 4510–29–P 

DEPARTMENT OF LABOR 

Employee Benefits Security 

Administration 

29 CFR Part 2509 

RIN 1210–AB29 

Interpretive Bulletin Relating to 

Investing in Economically Targeted 

Investments 

AGENCY: Employee Benefits Security 

Administration, Labor. 

ACTION: Interpretive bulletin. 

SUMMARY: This document sets forth the 

views of the Department of Labor 

concerning the legal standards imposed 

on fiduciaries of employee benefit plans 

by sections 403 and 404 of Title I of the 

Employee Retirement Income Security 

Act (ERISA) when considering 

investments in ‘‘economically targeted 

investments.’’ These guidelines affect 

fiduciaries of employee benefit plans, 

including trustees, investment managers 

and others responsible for the 

management of employee benefit plan 

assets. 

DATES: This interpretive bulletin is 

effective on October 17, 2008. 

FOR FURTHER INFORMATION CONTACT: 

Office of Regulations and 

Interpretations, Employee Benefits 

Security Administration, (202) 693– 

8500. This is not a toll free number. 

SUPPLEMENTARY INFORMATION: On June 

23, 1994, the Department of Labor (the 

Department) published Interpretive 

Bulletin § 2509.94–1 (29 CFR 2509.94– 

1) addressing the limited circumstances 

under which fiduciaries, consistent with 

the requirements of sections 404 and 

404 of Title I of the Employee 

Retirement Income Security Act 

(ERISA), may, in connection with 

investment decisions, take into account 

factors other than the economic interests 

of the plan. The guidance provided in 

this document, Interpretive Bulletin 

§ 2509.08–1, clarifies, through 

explanation and examples, that 

fiduciary consideration of noneconomic factors should be rare and, 

when considered, should be 

documented in a manner that 

demonstrates compliance with ERISA’s 

rigorous fiduciary standards. This 

guidance modifies and supersedes the 

guidance provided in interpretive 

bulletin 94–1. 

List of Subjects in 29 CFR Part 2509 

Employee benefit plans, Pensions. 

■ For the reasons set forth in the 

preamble, the Department is amending 

Subchapter A, Part 2509 of Title 29 of 


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