[Federal Register Volume 85, Number 126 (Tuesday, June 30, 2020)]
[Proposed Rules]
[Pages 39113-39128]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-13705]


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DEPARTMENT OF LABOR

Employee Benefits Security Administration

29 CFR Part 2550

RIN 1210-AB95


Financial Factors in Selecting Plan Investments

AGENCY: Employee Benefits Security Administration, Department of Labor

ACTION: Proposed rule.

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SUMMARY: The Department of Labor (Department) in this document proposes 
amendments to the ``Investment duties'' regulation under Title I of the 
Employee Retirement Income Security Act of 1974, as amended (ERISA), to 
confirm that ERISA requires plan fiduciaries to select investments and 
investment courses of action based solely on financial considerations 
relevant to the risk-adjusted economic value of a particular investment 
or investment course of action.

DATES: Comments on the proposal must be submitted on or before July 30, 
2020.

ADDRESSES: You may submit written comments, identified by RIN 1210-AB95 
to either of the following addresses:
    [ssquf] Federal eRulemaking Portal: www.regulations.gov. Follow the 
instructions for submitting comments.
    [ssquf] Mail: Office of Regulations and Interpretations, Employee 
Benefits Security Administration, Room N-5655, U.S. Department of 
Labor, 200 Constitution Avenue NW, Washington, DC 20210, Attention: 
Financial Factors in Selecting Plan Investments Proposed Regulation.
    Instructions: All submissions received must include the agency name 
and Regulatory Identifier Number (RIN) for this rulemaking. Persons 
submitting comments electronically are encouraged not to submit paper 
copies. Comments will be available to the public, without charge, 
online at www.regulations.gov and www.dol.gov/agencies/ebsa and at the 
Public Disclosure Room, Employee Benefits Security Administration, 
Suite N-1513, 200 Constitution Avenue NW, Washington, DC 20210.
    Warning: Do not include any personally identifiable or confidential 
business information that you do not want publicly disclosed. Comments 
are public records posted on the internet as received and can be 
retrieved by most internet search engines.

FOR FURTHER INFORMATION CONTACT: Jason A. DeWitt, Office of Regulations 
and Interpretations, Employee Benefits

[[Page 39114]]

Security Administration, (202) 693-8500. This is not a toll-free 
number.
    Customer Service Information: Individuals interested in obtaining 
information from the Department of Labor concerning ERISA and employee 
benefit plans may call the Employee Benefits Security Administration 
(EBSA) Toll-Free Hotline, at 1-866-444-EBSA (3272) or visit the 
Department of Labor's website (www.dol.gov/ebsa).

SUPPLEMENTARY INFORMATION:

A. Background and Purpose of Regulatory Action

    Title I of the Employee Retirement Income Security Act of 1974 
(ERISA) establishes minimum standards that govern the operation of 
private-sector employee benefit plans, including fiduciary 
responsibility rules. Section 404 of ERISA, in part, requires that plan 
fiduciaries act prudently and diversify plan investments so as to 
minimize the risk of large losses, unless under the circumstances it is 
clearly prudent not to do so. Sections 403(c) and 404(a) also require 
fiduciaries to act solely in the interest of the plan's participants 
and beneficiaries, and for the exclusive purpose of providing benefits 
to their participants and beneficiaries and defraying reasonable 
expenses of administering the plan.
    Courts have interpreted the exclusive purpose rule of ERISA section 
404(a)(1)(A) to require fiduciaries to act with ``complete and 
undivided loyalty to the beneficiaries,'' \1\ observing that their 
decisions must ``be made with an eye single to the interests of the 
participants and beneficiaries.'' \2\ The Supreme Court as recently as 
2014 unanimously held in the context of ERISA retirement plans that 
such interests must be understood to refer to ``financial'' rather than 
``nonpecuniary'' benefits,\3\ and federal appellate courts have 
described ERISA's fiduciary duties as ``the highest known to the law.'' 
\4\ The Department's longstanding and consistent position, reiterated 
in multiple forms of sub-regulatory guidance, is that plan fiduciaries 
when making decisions on investments and investment courses of action 
must be focused solely on the plan's financial returns and the 
interests of plan participants and beneficiaries in their plan benefits 
must be paramount.
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    \1\ Donovan v. Mazzola, 716 F.2d 1226, 1238 (9th Cir. 1983) 
(quoting Freund v. Marshall & Ilsley Bank, 485 F. Supp. 629, 639 
(W.D. Wis. 1979)).
    \2\ Donovan v. Bierwirth, 680 F.2d 263,271 (2d. Cir. 1982).
    \3\ Fifth Third Bancorp v. Dudenhoeffer, 573 U.S. 409, 421 
(2014) (the ``benefits'' to be pursued by ERISA fiduciaries as their 
``exclusive purpose'' does not include ``nonpecuniary benefits'') 
(emphasis in original).
    \4\ See, e.g., Tibble v. Edison Int'l, 843 F.3d 1187, 1197 (9th 
Cir. 2016).
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    The Department has been asked periodically over the last 30 years 
to consider the application of these principles to pension plan 
investments selected because of the non-pecuniary benefits they may 
further, such as those relating to environmental, social, and corporate 
governance considerations. Various terms have been used to describe 
this and related investment behaviors, such as socially responsible 
investing, sustainable and responsible investing, environmental, 
social, and corporate governance (ESG) investing, impact investing, and 
economically targeted investing. The terms do not have a uniform 
meaning and the terminology is evolving.\5\
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    \5\ For a concise history of the current ESG movement and the 
evolving terminology, see Max Schanzenbach & Robert Sitkoff, 
Reconciling Fiduciary Duty and Social Conscience: The Law and 
Economics of ESG Investing by a Trustee, 72 Stan. L. Rev. 381, 392-
97 (2020).
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    The Department's first comprehensive guidance addressing ESG 
investment issues was in Interpretive Bulletin 94-1 (IB 94-1).\6\ 
There, the term used was ``economically targeted investments'' (ETIs). 
The Department's stated objective in issuing IB 94-1 was to state that 
ETI investments \7\ are not inherently incompatible with ERISA's 
fiduciary obligations. The preamble to IB 94-1 explained that the 
requirements of sections 403 and 404 of ERISA do not prevent plan 
fiduciaries from investing plan assets in ETI investments if the 
investment has an expected rate of return commensurate to rates of 
return of available alternative investments with similar risk 
characteristics, and if the investment vehicle is otherwise an 
appropriate investment for the plan in terms of such factors as 
diversification and the investment policy of the plan. Some 
commentators have referred to this as the ``all things being equal'' 
test or the ``tie-breaker'' standard. The Department stated in the 
preamble to IB 94-1 that when competing investments serve the plan's 
economic interests equally well, plan fiduciaries can use such non-
pecuniary considerations as the deciding factor for an investment 
decision.
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    \6\ 59 FR 32606 (June 23, 1994) (appeared in Code of Federal 
Regulations as 29 CFR 2509.94-1). Interpretive Bulletins are a form 
of sub-regulatory guidance that are published in the Federal 
Register and included in the Code of Federal Regulations. Prior to 
issuing IB 94-1, the Department had issued a number of letters 
concerning a fiduciary's ability to consider the non-pecuniary 
effects of an investment and granted a variety of prohibited 
transaction exemptions to both individual plans and pooled 
investment vehicles involving investments that produce non-pecuniary 
benefits. See Advisory Opinions 80-33A, 85-36A and 88-16A; 
Information Letters to Mr. George Cox, dated Jan. 16, 1981; to Mr. 
Theodore Groom, dated Jan. 16, 1981; to The Trustees of the Twin 
City Carpenters and Joiners Pension Plan, dated May 19, 1981; to Mr. 
William Chadwick, dated July 21, 1982; to Mr. Daniel O'Sullivan, 
dated Aug. 2, 1982; to Mr. Ralph Katz, dated Mar. 15, 1982; to Mr. 
William Ecklund, dated Dec. 18, 1985, and Jan. 16, 1986; to Mr. Reed 
Larson, dated July 14, 1986; to Mr. James Ray, dated July 8, 1988; 
to the Honorable Jack Kemp, dated Nov. 23, 1990; and to Mr. Stuart 
Cohen, dated May 14, 1993; PTE 76-1, part B, concerning construction 
loans by multiemployer plans; PTE 84-25, issued to the Pacific Coast 
Roofers Pension Plan; PTE 85-58, issued to the Northwestern Ohio 
Building Trades and Employer Construction Industry Investment Plan; 
PTE 87-20, issued to the Racine Construction Industry Pension Fund; 
PTE 87-70, issued to the Dayton Area Building and Construction 
Industry Investment Plan; PTE 88-96, issued to the Real Estate for 
American Labor A Balcor Group Trust; PTE 89-37, issued to the Union 
Bank; and PTE 93-16, issued to the Toledo Roofers Local No. 134 
Pension Plan and Trust, et al. In addition, one of the first 
directors of the Department's benefits office authored an 
influential article on this topic in 1980. See Ian D. Lanoff, The 
Social Investment of Private Pension Plan Assets: May It Be Done 
Lawfully Under ERISA?, 31 Labor L.J. 387, 391-92 (1980) (stating 
that ``[t]he Labor Department has concluded that economic 
considerations are the only ones which can be taken into account in 
determining which investments are consistent with ERISA standards,'' 
and warning that fiduciaries who exclude investment options for non-
economic reasons would be ``acting at their peril'').
    \7\ IB 94-1 used the terms ETI and economically targeted 
investments to broadly refer to any investment or investment course 
of action that is selected, in part, for its expected non-pecuniary 
benefits, apart from the investment return to the employee benefit 
plan investor.
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    The Department's sub-regulatory guidance then went through an 
iterative process. In 2008, the Department replaced IB 94-1 with 
Interpretive Bulletin 2008-01 (IB 2008-01).\8\ In 2015, the Department 
replaced IB 2008-01 with Interpretive Bulletin 2015-01 (IB 2015-01),\9\ 
which is codified at 29 CFR 2509.2015-01. Each Interpretive Bulletin 
has consistently stated that the paramount focus of plan fiduciaries 
must be the plan's financial returns and risk to participants and 
beneficiaries. The Department has construed the requirements that a 
fiduciary act solely in the interest of, and for the exclusive purpose 
of providing benefits to, participants and beneficiaries as prohibiting 
a fiduciary from subordinating the interests of participants and 
beneficiaries in their retirement income to unrelated objectives. Thus, 
each Interpretive Bulletin, while restating the ``all things being 
equal'' test, also cautioned that fiduciaries violate ERISA if they 
accept reduced expected returns or greater risks to secure social, 
environmental, or other policy goals.
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    \8\ 73 FR 61734 (Oct. 17, 2008).
    \9\ 80 FR 65135 (Oct. 26, 2015).

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[[Page 39115]]

    The preamble to IB 2015-01 explained that if a fiduciary prudently 
determines that an investment is appropriate based solely on economic 
considerations, including those that may derive from ESG factors, the 
fiduciary may make the investment without regard to any collateral 
benefits the investment may also promote. In 2018, the Department 
clarified in Field Assistance Bulletin 2018-01 (FAB 2018-01) that, in 
making its observation in IB 2015-01, the Department merely recognized 
that there could be instances when ESG issues present material business 
risk or opportunities to companies that company officers and directors 
need to manage as part of the company's business plan and that 
qualified investment professionals would treat as economic 
considerations under generally accepted investment theories. In such 
situations, the issues are themselves appropriate economic 
considerations, and thus should be considered by a prudent fiduciary 
along with other relevant economic factors to evaluate the risk and 
return profiles of alternative investments. In other words, in these 
instances the factors are not ``tie-breakers,'' but pecuniary (or 
``risk-return'') factors affecting the economic merits of the 
investment. The Department cautioned, however, that ``[t]o the extent 
ESG factors, in fact, involve business risks or opportunities that are 
properly treated as economic considerations themselves in evaluating 
alternative investments, the weight given to those factors should also 
be appropriate to the relative level of risk and return involved 
compared to other relevant economic factors.'' \10\ The Department 
further emphasized in FAB 2018-01 that fiduciaries ``must not too 
readily treat ESG factors as economically relevant to the particular 
investment choices at issue when making a decision,'' as ``[i]t does 
not ineluctably follow from the fact that an investment promotes ESG 
factors, or that it arguably promotes positive general market trends or 
industry growth, that the investment is a prudent choice for retirement 
or other investors.'' Rather, ERISA fiduciaries must always put first 
the economic interests of the plan in providing retirement benefits and 
``[a] fiduciary's evaluation of the economics of an investment should 
be focused on financial factors that have a material effect on the 
return and risk of an investment based on appropriate investment 
horizons consistent with the plan's articulated funding and investment 
objectives.'' \11\
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    \10\ Field Assistance Bulletin No. 2018-01 (Apr. 23, 2018).
    \11\ Id.
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    Available research and data show a steady upward trend in use of 
the term ESG among institutional asset managers, an increase in the 
array of ESG-focused investment vehicles available, a proliferation of 
ESG metrics, services, and ratings offered by third-party service 
providers, and an increase in asset flows into ESG funds. This trend 
has been underway for many years, but recent studies indicate the 
trajectory is accelerating. For example, according to Morningstar, the 
amount of assets invested in so-called sustainable funds in 2019 was 
nearly four times larger than in 2018.\12\
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    \12\ See Jon Hale, The ESG Fund Universe Is Rapidly Expanding 
(March 19, 2020), www.morningstar.com/articles/972860/the-esg-fund-universe-is-rapidly-expanding. This trend is most pronounced in 
Europe, where authorities are actively promoting consideration of 
ESG factors in investing. See, e.g., Principles for Responsible 
Investment (PRI), Fiduciary Duty in the 21st Century (Oct. 2019), 
www.unpri.org/download?ac=9792, at 34-35 (quoting official from EU 
securities regulator that ``ESG is part of [their] core mandate.''); 
Emre Peker, What Qualifies as a Green Investment? EU Sets Rules, 
Wall Street Journal (Dec. 17, 2019), www.wsj.com/articles/eu-seals-deal-to-create-regulatory-benchmark-for-green-finance-11576595600 
(``European officials have been racing to set the global benchmark 
for green finance''); Principles for Responsible Investment, 
Investor priorities for the EU Green Deal (April 30, 2020), 
www.unpri.org/sustainable-markets/investor-priorities-for-the-eu-green-deal/5710.article (discussing proposal to require ESG data to 
be disclosed alongside traditional elements of corporate and 
financial reporting, including a core set of mandatory ESG key 
performance indicators).
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    As ESG investing has increased, it has engendered important and 
substantial questions and inconsistencies, with numerous observers 
identifying a lack of precision and rigor in the ESG investment 
marketplace.\13\ There is no consensus about what constitutes a genuine 
ESG investment, and ESG rating systems are often vague and 
inconsistent, despite featuring prominently in marketing efforts.\14\ 
Moreover, ESG funds often come with higher fees, because additional 
investigation and monitoring are necessary to assess an investment from 
an ESG perspective.\15\ Currently the examination priorities of the 
Securities and Exchange Commission (SEC) for 2020 include a particular 
interest in the accuracy and adequacy of disclosures provided by 
registered investment advisers offering clients new types or emerging 
investment strategies, such as strategies focused on sustainable and 
responsible investing, which incorporate ESG criteria.\16\ The SEC also 
is soliciting public comment on the appropriate treatment for funds 
that use terms such as ``ESG'' in their name and whether these terms 
are likely to mislead investors.\17\
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    \13\ See, e.g., Ogechukwu Ezeokoli et al., Environmental, 
Social, and Governance (ESG) Investment Tools: A Review of the 
Current Field (Dec. 2017), www.dol.gov/sites/dolgov/files/OASP/legacy/files/ESG-Investment-Tools-Review-of-the-Current-Field.pdf, 
at 11-13; Scarlet Letters: Remarks of SEC Commissioner Hester M. 
Peirce before the American Enterprise Institute (June 18, 2019), 
www.sec.gov/news/speech/speech-peirce-061819; Paul Brest, Ronald J. 
Gilson, & Mark A. Wolfson, How Investors Can (and Can't) Create 
Social Value, European Corporate Governance Institute, Law Working 
Paper No. 394 (Mar. 29, 2018), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3150347, at 5.
    \14\ See, e.g., Feifei Li & Ari Polychronopoulos, What a 
Difference an ESG Ratings Provider Makes! (Jan. 2020), 
www.researchaffiliates.com/documents/770-what-a-difference-an-esg-ratings-provider-makes.pdf; Florian Berg, Julian K[ouml]lbel, & 
Roberto Rigobon, Aggregate Confusion: The Divergence of ESG Ratings 
(Aug. 2019), MIT Sloan Research Paper No. 5822-19, https://ssrn.com/abstract=3438533; Schroders, 2018 Annual Sustainable Investment 
Report (March 2019), www.schroders.com/en/insights/economics/annual-sustainable-investment-report-2018, at 22-23 (majority of passive 
ESG funds rely on a single third party ESG rating provider that 
``typically emphasize tick-the-box policies and disclosure levels, 
data points unrelated to investment performance and/or backward-
looking negative events with little predictive power'').
    \15\ See, e.g., Principles for Responsible Investment, How Can a 
Passive Investor Be a Responsible Investor? (Aug. 2019), 
www.unpri.org/download?ac=6729, at 15 (ESG passive investing 
strategies likely result in higher fees compared to standard passive 
funds); Wayne Winegarden, ESG Investing: An Evaluation of the 
Evidence, Pacific Research Institute (May 2019), 
www.pacificresearch.org/wp-content/uploads/2019/05/ESG_Funds_F_web.pdf, at 11-12 (finding average expense ratio of 69 
basis points for ESG funds compared to 9 basis points for broad-
based S&P 500 index fund). In recent years, the asset-weighted 
expense ratio for ESG funds has decreased as ESG funds with lower 
expense ratios have attracted more fund flows than ESG funds with 
higher expense ratios. See Elisabeth Kashner, ETF Fee War Hits ESG 
and Active Management (Jan. 22, 2020), https://insight.factset.com/etf-fee-war-hits-esg-and-active-management.
    \16\ See Office of Compliance Inspections and Examinations, U.S. 
Securities and Exchange Commission, 2020 Examination Priorities, at 
15, www.sec.gov/about/offices/ocie/national-examination-program-priorities-2020.pdf.
    \17\ See Request for Comment on Fund Names, Release No. IC-33809 
(Mar. 2, 2020) [85 FR 13221 (Mar. 6, 2020)].
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    ESG investing raises heightened concerns under ERISA. Public 
companies and their investors may legitimately and properly pursue a 
broad range of objectives, subject to the disclosure requirements and 
other requirements of the securities laws. Pension plans covered by 
ERISA are statutorily-bound to a narrower objective: management with an 
``eye single'' to maximizing the funds available to pay retirement 
benefits.\18\ Providing a secure retirement for American workers is the 
paramount,

[[Page 39116]]

and eminently-worthy, ``social'' goal of ERISA plans; plan assets may 
not be enlisted in pursuit of other social or environmental objectives.
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    \18\ Donovan v. Bierwirth, supra, 680 F.2d at 271.
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    The Department is concerned, however, that the growing emphasis on 
ESG investing may be prompting ERISA plan fiduciaries to make 
investment decisions for purposes distinct from providing benefits to 
participants and beneficiaries and defraying reasonable expenses of 
administering the plan. The Department is also concerned that some 
investment products may be marketed to ERISA fiduciaries on the basis 
of purported benefits and goals unrelated to financial performance. 
\19\ For example, the Department understands that in the case of some 
ESG investment funds being offered to ERISA defined contribution plans, 
fund managers are representing that the fund is appropriate for ERISA 
plan investment platforms, while acknowledging in disclosure materials 
that the fund may perform differently or forgo certain opportunities, 
or accept different investment risks, in order to pursue the ESG 
objectives.
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    \19\ See, e.g., James MacKintosh, A User's Guide to the ESG 
Confusion, Wall Street Journal (Nov. 12, 2019), www.wsj.com/articles/a-users-guide-to-the-esg-confusion-11573563604 (``It's hard 
to move in the world of investment without being bombarded by sales 
pitches for running money based on `ESG' ''); Mark Miller, Bit by 
Bit, Socially Conscious Investors Are Influencing 401(k)'s, New York 
Times (Sept. 27, 2019), www.nytimes.com/2019/09/27/business/esg-401k-investing-retirement.html.
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    This proposed regulation is designed in part to make clear that 
ERISA plan fiduciaries may not invest in ESG vehicles when they 
understand an underlying investment strategy of the vehicle is to 
subordinate return or increase risk for the purpose of non-pecuniary 
objectives. The duty of loyalty--a bedrock principle of ERISA, with 
deep roots in the common law of trusts--requires those serving as 
fiduciaries to act with a single-minded focus on the interests of 
beneficiaries.\20\ And the duty of prudence prevents a fiduciary from 
choosing an investment alternative that is financially less beneficial 
than an available alternative. These fiduciary standards are the same 
no matter the investment vehicle or category.
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    \20\ See Unif. Prudent Inv. Act Sec.  5 cmt. (1995) (``The duty 
of loyalty is perhaps the most characteristic rule of trust law.''); 
see also Susan N. Gary, George G. Bogert, & George T. Bogert, The 
Law of Trusts and Trustees: A Treatise Covering the Law Relating to 
Trusts and Allied Subjects Affecting Trust Creation and 
Administration Sec.  543 (3d ed. 2019) (quoting Justice Cardozo's 
classic statement in Meinhard v. Salmon, 249 N.Y. 458, 464 (1928) 
that ``[a] trustee is held to something stricter than morals of the 
market place. . . . Uncompromising rigidity has been the attitude of 
the courts of equity when petitioned to undermine the rule of 
undivided loyalty.'').
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    The Department believes that confusion with respect to these 
investment requirements persists, perhaps due in part to varied 
statements the Department has made on the subject over the years in 
sub-regulatory guidance. Accordingly, the Department intends, by this 
proposal, to reiterate and codify long-established principles of 
fiduciary standards for selecting and monitoring investments, and thus 
to provide clarity and certainty regarding the scope of fiduciary 
duties surrounding non-pecuniary issues. The Department's longstanding 
and consistent position, reiterated in multiple forms of guidance and 
based on the explicit language of ERISA itself, is that plan 
fiduciaries when making decisions on investments and investment courses 
of action must be focused solely on the plan's financial risks and 
returns, and the interests of plan participants and beneficiaries in 
their plan benefits must be paramount. The fundamental principle is 
that an ERISA fiduciary's evaluation of plan investments must be 
focused solely on economic considerations that have a material effect 
on the risk and return of an investment based on appropriate investment 
horizons, consistent with the plan's funding policy and investment 
policy objectives. The corollary principle is that ERISA fiduciaries 
must never sacrifice investment returns, take on additional investment 
risk, or pay higher fees to promote non-pecuniary benefits or goals.
    As the Department has recognized in its prior guidance, there may 
be instances where factors that sometimes are considered without regard 
to their pecuniary import--such as environmental considerations--will 
present an economic business risk or opportunity that corporate 
officers, directors, and qualified investment professionals would 
appropriately treat as material economic considerations under generally 
accepted investment theories. For example, a company's improper 
disposal of hazardous waste would likely implicate business risks and 
opportunities, litigation exposure, and regulatory obligations. These 
would be appropriate economic considerations that qualified investment 
professionals would treat as material under generally accepted 
investment theories. Dysfunctional corporate governance can likewise 
present pecuniary risk that a qualified investment professional would 
appropriately consider on a fact-specific basis.
    The purpose of this action is to set forth a regulatory structure 
to assist ERISA fiduciaries in navigating these ESG investment trends 
and to separate the legitimate use of risk-return factors from 
inappropriate investments that sacrifice investment return, increase 
costs, or assume additional investment risk to promote non-pecuniary 
benefits or objectives. The Department believes that providing further 
clarity on these issues in the form of a notice and comment regulation 
will help safeguard the interests of participants and beneficiaries in 
the plan benefits. This proposed rule is considered to be an Executive 
Order (E.O.) 13771 regulatory action. Details on the estimated costs of 
this proposed rule can be found in the proposal's economic analysis.

B. Provisions of the Proposed Rule

    The proposed rule builds upon the core principles provided by the 
original ``Investment duties'' regulation on the issue of prudence 
under section 404(a)(1)(B) of ERISA, at 29 CFR 2550.404a-1, which the 
regulated community has been relying upon for more than 40 years.\21\ 
For example, it remains the Department's view that (1) generally the 
relative riskiness of a specific investment or investment course of 
action does not render such investment or investment course of action 
either per se prudent or per se imprudent, and (2) the prudence of an 
investment decision should not be judged without regard to the role 
that the proposed investment or investment course of action plays 
within the overall plan portfolio. It also remains the Department's 
view that an investment reasonably designed--as part of the portfolio--
to further the purposes of the plan, and that is made with appropriate 
consideration of the relevant facts and circumstances, should not be 
deemed to be imprudent merely because the investment, standing alone, 
would have a relatively high degree of risk. The Department also 
believes that appropriate consideration of an investment to further the 
purposes of the plan must include consideration of the characteristics 
of the investment itself and how it relates to the plan portfolio.
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    \21\ 44 FR 37255 (June 26, 1979).
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    Thus, the proposed rule does not revise the requirements that the 
fiduciary give appropriate consideration to a number of factors 
concerning the composition of the plan portfolio with respect to 
diversification, the liquidity and current return of the portfolio 
relative to the anticipated cash flow needs of the plan, and the 
projected

[[Page 39117]]

return of the portfolio relative to the funding objectives of the plan.
    Rather, the proposed rule elaborates upon the core principles 
provided in the ``Investment duties'' regulation by making clear that 
fiduciaries may never subordinate the interests of plan participants 
and beneficiaries in their retirement income to non-pecuniary goals. 
Application of this corollary principle and the nature of the 
fiduciary's duties will, of course, depend on the facts and 
circumstances, which take into account the scope of investment duties 
the fiduciary knows or should know are relevant to the particular 
investment decision that a prudent person having similar duties and 
familiar with such matters would consider relevant.
    Paragraph (a) of the proposed rule includes a restatement of the 
statutory language of the exclusive purpose requirements of ERISA 
section 404(a)(1)(A), in addition to the restatement in the existing 
regulation of the prudence duty of ERISA section 404(a)(1)(B). As 
stated above, the application of these requirements is context-
specific.
    Paragraph (b)(1) provides that the loyalty and prudence 
requirements of ERISA section 404(a)(1)(A) and 404(a)(1)(B) are 
satisfied in connection with an investment decision if, in addition to 
the requirements in the existing paragraph (b)(1), the fiduciary has 
selected investments and/or investment courses of action based solely 
on their pecuniary factors and not on the basis of any non-pecuniary 
factor. To round out the requirements of the duty of loyalty, the 
proposed rule includes in paragraph (b)(1) a requirement that 
fiduciaries not act to subordinate the interests of participants or 
beneficiaries to the fiduciary's or another's interests, and has 
otherwise complied with the duty of loyalty.
    Paragraph (b)(2) of the proposal adds to the original regulation a 
requirement that appropriate consideration of an investment or 
investment course of action includes a requirement to compare 
investments or investment courses of action to other available 
investments or investment courses of action with regard to the factors 
listed in paragraphs (b)(2)(ii)(A) through (C). Facts and circumstances 
relevant to a comparison of investments or investment courses of action 
would include consideration of the level of diversification, degree of 
liquidity, and potential risk and return in comparison to available 
alternative investments. Clarifying that an investment or investment 
course of action must be compared to available alternatives is an 
important reminder that fiduciaries must not let non-pecuniary 
considerations draw them away from an alternative option that would 
provide better financial results. The paragraph also clarifies that the 
listed factors are not necessarily the only factors that need to be 
considered in order to emphasize that the paragraph is intended to 
specify the central obligations associated with the ``appropriate 
consideration'' requirement for proper management of an investment 
portfolio but should not be read to more broadly address the 
requirements in paragraph (b)(1)(ii) or paragraph (b)(1)(iii), or to 
otherwise modify the statutory standards set forth in section 
404(a)(1)(A) or 404(a)(1)(B) of ERISA.
    Paragraph (c) is entirely new and is intended to expound upon the 
consideration of pecuniary versus non-pecuniary factors in practice in 
both defined benefit and defined contribution plans.
    Paragraph (c)(1) directly provides that a fiduciary's evaluation of 
an investment must be focused only on pecuniary factors. The paragraph 
explains that it is unlawful for a fiduciary to sacrifice return or 
accept additional risk to promote a public policy, political, or any 
other non-pecuniary goal. Paragraph (c)(1) is careful to acknowledge, 
however, that ESG factors and other similar considerations may be 
economic considerations, but only if they present economic risks or 
opportunities that qualified investment professionals would treat as 
material economic considerations under generally accepted investment 
theories. The proposed rule emphasizes that such factors, if determined 
to be pecuniary, must be considered alongside other relevant economic 
factors to evaluate the risk and return profiles of alternative 
investments. The weight given to pecuniary ESG factors should reflect a 
prudent assessment of their impact on risk and return--that is, they 
cannot be disproportionately weighted. The paragraph further emphasizes 
that fiduciaries' consideration of ESG factors must be focused on their 
potential pecuniary elements by requiring fiduciaries to examine the 
level of diversification, degree of liquidity, and the potential risk-
return profile of the investment in comparison with available 
alternative investments that would play a similar role in their plans' 
portfolios.
    The Department's current guidance provides that if, after such an 
evaluation, alternative investments appear economically 
indistinguishable, a fiduciary may then, in effect, ``break the tie'' 
by relying on a non-pecuniary factor. The Department expects that true 
ties rarely, if ever, occur. To be sure, there are highly correlated 
investments and otherwise very similar ones. Seldom, however, will an 
ERISA fiduciary consider two investment funds, looking only at 
objective measures, and find the same target risk-return profile or 
benchmark, the same fee structure, the same performance history, same 
investment strategy, but a different underlying asset composition. Even 
then, moreover, those two alternatives would remain two different 
investments that may function differently in the overall context of the 
fund portfolio, and which going forward may perform differently based 
on external economic trends and developments.\22\ The Department also 
recognizes that the ``all things being equal'' test could invite 
fiduciaries to find ties without a proper analysis, in order to justify 
the use of non-pecuniary factors in making an investment decision. 
Nonetheless, because ties may theoretically occur and the Department 
does not presently have sufficient evidence to say they do not, the 
Department proposes to retain the current guidance's ``all things being 
equal'' test. As explained below, the Department specifically requests 
comment on this test, including whether true ties exist and how 
fiduciaries may appropriately break ties.
---------------------------------------------------------------------------

    \22\ See Schanzenbach & Sitkoff, supra note 5, at 410 
(describing a hypothetical pair of truly identical investments as a 
``unicorn'').
---------------------------------------------------------------------------

    Paragraph (c)(2) guides application of the ``all things being 
equal'' test by requiring fiduciaries to adequately document any such 
occurrences. If, after completing an appropriate evaluation, 
alternative investments appear economically indistinguishable, and one 
of the investments is selected on the basis of a non-pecuniary factor 
or factors such as environmental, social, and corporate governance 
considerations (notwithstanding the requirements of paragraph (b) and 
paragraph (c)(1)), the fiduciary must document the basis for concluding 
that a distinguishing factor could not be found and why the selected 
investment was chosen based on the purposes of the plan, 
diversification of investments, and the financial interests of plan 
participants and beneficiaries in receiving benefits from the plan. The 
Department believes this documentation requirement provides a safeguard 
against the risk that fiduciaries will improperly find economic 
equivalence and make decisions based on non-pecuniary

[[Page 39118]]

factors without a proper analysis and evaluation. As discussed in the 
Regulatory Impact Analysis below, the proposal may result in costs on 
fiduciaries whose current documentation and recordkeeping are 
insufficient to meet the new requirement, but, because the Department 
believes that truly economically indistinguishable alternatives are 
rare, the Department estimates that this requirement would not result 
in a substantial cost burden.
    Paragraph (c)(3) describes the requirements for the prudent 
consideration of designated investment alternatives for defined 
contribution individual account plans that include one or more 
environmental, social, and corporate governance-oriented assessments or 
judgments in their investment mandates (e.g., ``ESG investment 
mandates'') or that include these parameters in the fund name 
(hereinafter ``ESG-themed funds''). As the Department has previously 
explained, the standards set forth in sections 403 and 404 of ERISA 
apply to a fiduciary's selection of an investment fund as a plan 
investment or, in the case of an ERISA section 404(c) plan or other 
individual account plan, a designated investment alternative under the 
plan.
    Paragraph (c)(3) does not, however, supersede paragraph (c)(1). 
Rather, paragraph (c)(3) includes provisions that are intended to apply 
those principles in the context of the selection of designated 
investment alternatives for participant-directed individual account 
plans. Thus, paragraph (c)(3) provides in general that, in such a case, 
a prudently selected, well managed, and properly diversified fund with 
ESG investment mandates could be added to the available investment 
options on a 401(k) plan platform without requiring the plan to forgo 
adding other non-ESG-themed investment options to the platform, 
consistent with the standards in ERISA sections 403 and 404. Adding 
such a fund is permissible only if: (i) The fiduciary uses only 
objective risk-return criteria, such as benchmarks, expense ratios, 
fund size, long-term investment returns, volatility measures, 
investment manager tenure, and mix of asset types (e.g., equity, fixed 
income, money market funds, diversification of investment alternatives, 
which might include target date funds, value and growth styles, indexed 
and actively managed funds, balanced and equity segment funds, non-US 
equity and fixed income funds) in selecting and monitoring all 
investment alternatives for the plan, including any ESG investment 
alternatives; (ii) the fiduciary documents compliance with (i) above; 
and (iii) the environmental, social, corporate governance, or similarly 
oriented alternative is not added as, or as a component of, a qualified 
default investment alternative (QDIA as described in 29 CFR 2550.404c-
5) that participants are automatically defaulted into as opposed to a 
fund added to the menu from which they are free to choose. Under 
paragraph (c)(3), a fiduciary could, for example, adopt an investment 
policy statement with prudent criteria for selection and retention of 
designated investment alternatives for an individual account plan that 
were based solely on pecuniary factors, and apply the criteria to all 
investment options in similar asset classes or funds in the same 
category, including potential ESG-themed funds.\23\ While the proposal 
would allow a plan fiduciary to include a prudently selected ESG-themed 
investment alternative on a 401(k) plan investment platform if the 
fiduciary uses objective risk-return criteria in selecting and 
monitoring all investment alternatives for the plan, including any ESG 
investment alternatives, the Department has consistently expressed the 
view that fiduciaries who are willing to accept expected reduced 
returns or greater risks to secure non-pecuniary benefits are in 
violation of ERISA. Thus, fiduciaries considering investment 
alternatives for individual account plans should carefully review the 
prospectus or other investment disclosures for statements regarding ESG 
investment policies and investment approaches.\24\
---------------------------------------------------------------------------

    \23\ See, e.g., ``The Morningstar Category Classifications (for 
portfolios available for sale in the United States),'' Morningstar 
Methodology Paper (April 29, 2016), https://morningstardirect.morningstar.com/clientcomm/Morningstar_Categories_US_April_2016.pdf.
    \24\ In that regard, fiduciaries should also be skeptical of 
``ESG rating systems''--or any other rating system that seeks to 
measure, in whole or in part, the potential of an investment to 
achieve non-pecuniary goals--as a tool to select designated 
investment alternatives, or investments more generally.
---------------------------------------------------------------------------

    The Department has not proposed to apply the provision in paragraph 
(c)(2) on ``economically indistinguishable alternative investments'' to 
the selection of investment options for individual account plans, but 
has rather included a distinct documentation requirement for such 
investment decisions in paragraph (c)(3)(ii). The Department believes 
that the concept of ``ties'' may have little relevance in the context 
of fiduciaries' selection of menu options for individual account plans, 
as such investment options are often chosen precisely for their varied 
characteristics and the range of choices they offer plan participants. 
As the Department explained in FAB 2018-01, in the case of an 
investment platform that allows participants and beneficiaries in an 
individual account plan an opportunity to choose from a broad range of 
investment alternatives, adding one or more funds to a platform, unlike 
fiduciary decisions to select individual investments for a plan, does 
not necessarily result in the plan forgoing the placement of one or 
more other non-ESG-themed investment alternatives on the platform. In 
this connection, however, the Department reiterates fiduciaries' 
obligation to comply with the objective standards set forth in 
paragraph (c)(3), and not to sacrifice returns or increase investment 
risk compared to other similar asset classes or funds in the same 
category in order to achieve non-pecuniary goals.
    With respect to the proposed paragraph (c)(3)(ii) documentation 
requirement, fiduciaries already commonly document and maintain records 
about their investment choices, since that is a prudent practice and a 
potential shield from litigation risk. The proposed paragraph 
(c)(3)(ii) is intended simply to confirm that general fiduciary 
practice applies to the selection and monitoring of ESG investment 
options for individual account plans and to provide a safeguard against 
the risk that fiduciaries will select investment options based on non-
pecuniary factors without a proper analysis and evaluation.
    The Department requests comments on whether the language in 
paragraph (c)(3)(i) adequately reflects the same principles articulated 
in paragraph (c)(1). The Department also requests comments on whether 
it would be appropriate to expressly incorporate the provisions in 
paragraph (c)(2) on choosing among indistinguishable investment 
alternatives into paragraph (c)(3).
    With respect to the QDIA provision in paragraph (c)(3)(iii) of the 
proposal, QDIAs are intended to help ensure that the retirement savings 
of plan participants who have not provided affirmative investment 
directions for their individual accounts, e.g., because they may not be 
comfortable making such investment decisions, are put in a single 
investment capable of meeting the participant's long-term retirement 
savings needs. The relevant provisions of ERISA and the Department's 
implementing regulations encourage plans to offer QDIAs by providing 
fiduciaries with relief from liability for investment outcomes by 
deeming a participant to have exercised control over assets in his or 
her account if, in the absence of investment direction

[[Page 39119]]

from the participant, the plan fiduciary invests the assets in a 
QDIA.\25\ Thus, selection of an investment fund as a QDIA is not 
analogous to merely offering participants an additional investment 
alternative as part of a prudently constructed lineup of investment 
alternatives from which participants may choose.
---------------------------------------------------------------------------

    \25\ Section 404(c)(5)(A) of ERISA provides that, for purposes 
of section 404(c)(1) of ERISA, a participant in an individual 
account plan shall be treated as exercising control over the assets 
in the account with respect to the amount of contributions and 
earnings which, in the absence of an investment election by the 
participant, are invested by the plan in accordance with regulations 
prescribed by the Secretary of Labor. On October 24, 2007, the 
Department published a final regulation implementing the provisions 
of section 404(c)(5) of ERISA. 29 CFR 2550.404c-5. A fiduciary of a 
plan that complies with the final regulation will not be liable for 
any loss, or by reason of any breach, that occurs as a result of 
investment in a qualified default investment alternative but the 
plan fiduciaries remain responsible for the prudent selection and 
monitoring of the QDIA. The regulation describes the types of 
investments that qualify as default investment alternatives under 
section 404(c)(5) of ERISA.
---------------------------------------------------------------------------

    The Department does not believe that investment funds whose 
objectives include non-pecuniary goals--even if selected by fiduciaries 
only on the basis of objective risk-return criteria consistent with 
paragraph (c)(3)--should be the default investment option in an ERISA 
plan. ERISA is a statute whose overriding concern relevant here has 
always been providing a secure retirement for American workers and 
retirees, and it is inappropriate for participants to be defaulted into 
a retirement savings fund with other objectives absent their 
affirmative decision. Furthermore, in the QDIA context a fiduciary's 
decision to favor a particular environmental, social, corporate 
governance, or similarly oriented investment preference--and especially 
a decision to favor the fiduciary's own personal policy preferences--
would raise questions about the fiduciary's compliance with ERISA's 
duty of loyalty. The QDIA regulation describes the attributes necessary 
for an investment fund, product, model portfolio, or managed account to 
be a QDIA. Each of the QDIA categories requires that the investment 
fund, product, model portfolio, or investment management service apply 
generally accepted investment theories, be diversified so as to 
minimize the risk of large losses, and be designed to provide varying 
degrees of long-term appreciation and capital preservation through a 
mix of equity and fixed income exposures. It is already the case that a 
QDIA may not invest participant contributions directly in employer 
securities. Thus, this requirement in the proposal is intended to help 
ensure that the financial interests of plan participants and 
beneficiaries in retirement benefits remain paramount by removing ESG 
considerations in cases in which participant's retirement savings in 
individual accounts designed for participant direction are being 
automatically invested by a plan fiduciary.
    Paragraph (d) repeats a paragraph in the current regulation which 
states that an investment manager appointed pursuant to the provisions 
of section 402(c)(3) of the Act to manage all or part of the assets of 
a plan may, for purposes of compliance with the provisions of 
paragraphs (b)(1) and (2) of the proposal, rely on, and act upon the 
basis of, information pertaining to the plan provided by or at the 
direction of the appointing fiduciary, if such information is provided 
for the stated purpose of assisting the manager in the performance of 
the manager's investment duties, and the manager does not know and has 
no reason to know that the information is incorrect.
    Paragraph (e) is reserved for possible further clarification of the 
requirements under section 403 and 404 of ERISA with respect to 
fiduciary investment duties.
    Paragraph (f) provides definitions. The term ``investment duties'' 
is unchanged from the current regulation and means any duties imposed 
upon, or assumed or undertaken by, a person in connection with the 
investment of plan assets which make or will make such person a 
fiduciary of an employee benefit plan or which are performed by such 
person as a fiduciary of an employee benefit plan as defined in section 
3(21)(A)(i) or (ii) of the Act. The term ``investment course of 
action'' is amended to mean any series or program of investments or 
actions related to a fiduciary's performance of the fiduciary's 
investment duties, and the proposed rule adds an additional provision 
to specify that the definition includes the selection of an investment 
fund as a plan investment, or in the case of an individual account 
plan, a designated alternative under the plan. The term ``pecuniary 
factor'' means a factor that has a material effect on the risk and/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(a)(1) of ERISA. Finally, the term 
``plan'' is unchanged from the current regulation and means an employee 
benefit plan to which Title I of ERISA applies.
    Paragraph (g) provides for the effective date for the proposed 
rule. Under paragraph (g), the proposed rule would be effective on a 
date sixty days after the date of the publication of the final rule. 
The Department requests comment on paragraph (g), including whether any 
transition or applicability date provisions should be added to for any 
of the provisions of the proposal.
    Paragraph (h) provides that should a court of competent 
jurisdiction hold any provision of the rule invalid, such action will 
not affect any other provision. Including a severability clause 
provides clear guidance that the Department's intent is that any legal 
infirmity found with part of the proposed rule should not affect any 
other part of the proposed rule.

C. Request for Public Comments

    The Department invites comments from interested persons on all 
facets of the proposed rule. Commenters are free to express their views 
not only on the specific provisions of the proposal as set forth in 
this document, but on any issues germane to the subject matter of the 
proposal. Comments should be submitted in accordance with the 
instructions at the beginning of this document. The Department believes 
that 30 days will afford interested persons an adequate amount of time 
to analyze the proposed rule and submit comments.

D. Regulatory Impact Analysis

    This section analyzes the regulatory impact of a proposed 
regulation concerning the legal standard imposed by sections 
404(a)(1)(A) and 404(a)(1)(B) of ERISA with respect to investment 
decisions involving plan assets. In particular, it addresses the 
selection of a plan investment or, in the case of an ERISA section 
404(c) plan or other individual account plan, a designated investment 
alternative under the plan. This proposed rule would address the 
limitations that sections 404(a)(1)(A) and 404(a)(1)(B) of ERISA impose 
on fiduciaries' consideration of non-pecuniary benefits and goals, 
including environmental, social, and corporate governance and other 
similarly situated factors, in making investment decisions. Thus, the 
rule would eliminate confusion that plan fiduciaries may currently face 
in the marketplace and reiterate long-established fiduciary standards 
of prudence and loyalty for selecting and monitoring investments. While 
this rule is expected to benefit plans and participants overall, it 
would also impose some costs. For example, some plans would incur small 
documentation costs. The research and analysis used to select 
investments may

[[Page 39120]]

change, but such a change is unlikely to increase the overall cost. The 
transfer impacts, benefits, and costs associated with the proposed rule 
depends on the number of plan fiduciaries that are currently not 
following or misinterpreting the Department's existing sub-regulatory 
guidance. While the Department does not have sufficient data to 
estimate the number of such fiduciaries, the Department believes it is 
small, because most fiduciaries are operating in compliance with the 
Department's sub-regulatory guidance. The Department expects that the 
benefits of the rule would be appreciable for participants and 
beneficiaries covered by plans with noncompliant investment 
fiduciaries. If the Department's assumption regarding the number of 
noncompliant fiduciaries is understated, the proposed rule's transfer 
impacts, benefits, and costs would be proportionately higher; however, 
even in this instance, the Department believes that the rule's benefits 
would exceed its costs.
    The Department has examined the effects of this rule as required by 
Executive Order 12866,\26\ Executive Order 13563,\27\ the Congressional 
Review Act,\28\ Executive Order 13771,\29\ the Paperwork Reduction Act 
of 1995,\30\ the Regulatory Flexibility Act,\31\ section 202 of the 
Unfunded Mandates Reform Act of 1995,\32\ and Executive Order 
13132.\33\
---------------------------------------------------------------------------

    \26\ Regulatory Planning and Review, 58 FR 51735 (Oct. 4, 1993).
    \27\ Improving Regulation and Regulatory Review, 76 FR 3821 
(Jan. 18, 2011).
    \28\ 5 U.S.C. 804(2) (1996).
    \29\ Reducing Regulation and Controlling Regulatory Costs, 82 FR 
9339 (Jan. 30, 2017).
    \30\ 44 U.S.C. 3506(c)(2)(A) (1995).
    \31\ 5 U.S.C. 601 et seq. (1980).
    \32\ 2 U.S.C. 1501 et seq. (1995).
    \33\ Federalism, 64 FR 153 (Aug. 4, 1999).
---------------------------------------------------------------------------

1. Executive Orders 12866 and 13563

    Executive Orders 12866 and 13563 direct agencies to assess all 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects; distributive impacts; and equity). Executive 
Order 13563 emphasizes the importance of quantifying costs and 
benefits, reducing costs, harmonizing rules, and promoting flexibility.
    Under Executive Order 12866, ``significant'' regulatory actions are 
subject to review by the Office of Management and Budget (OMB). Section 
3(f) of the Executive Order defines a ``significant regulatory action'' 
as an action that is likely to result in a rule (1) having an annual 
effect on the economy of $100 million or more, or adversely and 
materially affecting a sector of the economy, productivity, 
competition, jobs, the environment, public health or safety, or state, 
local, or tribal governments or communities (also referred to as 
``economically significant''); (2) creating a serious inconsistency or 
otherwise interfering with an action taken or planned by another 
agency; (3) materially altering the budgetary impacts of entitlement 
grants, user fees, or loan programs or the rights and obligations of 
recipients thereof; or (4) raising novel legal or policy issues arising 
out of legal mandates, the President's priorities, or the principles 
set forth in the Executive Order. It has been determined that this rule 
is economically significant within the meaning of section 3(f)(1) of 
the Executive Order. Therefore, the Department has provided an 
assessment of the proposed rule's potential costs, benefits, and 
transfers, and OMB has reviewed this proposed rule pursuant to the 
Executive Order. Pursuant to the Congressional Review Act, OMB has 
designated this proposed rule as a ``major rule,'' as defined by 5 
U.S.C. 804(2), because it would be likely to result in an annual effect 
on the economy of $100 million or more.
1.1. Introduction and Need for Regulation
    Recently, there has been an increased emphasis in the marketplace 
on investments and investment courses of action that further non-
pecuniary objectives, particularly what have been termed environmental, 
social, and corporate governance (ESG) investing.\34\ The Department is 
concerned that the growing emphasis on ESG investing, and other non-
pecuniary factors, may be prompting ERISA plan fiduciaries to make 
investment decisions for purposes distinct from their responsibility to 
provide benefits to participants and beneficiaries and defraying 
reasonable plan administration expenses. The Department is also 
concerned that some investment products may be marketed to ERISA 
fiduciaries on the basis of purported benefits and goals unrelated to 
financial performance.
---------------------------------------------------------------------------

    \34\ See Jon Hale, Sustainable Funds U.S. Landscape Report: 
Record Flows and Strong Fund Performance in 2019 (Feb. 14, 2020), 
www.morningstar.com/lp/sustainable-funds-landscape-report.
---------------------------------------------------------------------------

    The Department has periodically considered the application of 
ERISA's fiduciary rules to plan investment decisions that are based, in 
whole or part, on non-pecuniary factors, and not simply investment 
risks and expected returns. Confusion with respect to these factors 
persists, perhaps due in part to varied statements the Department has 
made on the subject over the years in sub-regulatory guidance. 
Accordingly, this proposed rule is necessary to interpret ERISA and 
provide clarity and certainty regarding the scope of fiduciary duties 
surrounding non-pecuniary issues. The Department believes that 
providing further clarity on these issues in the form of a notice and 
comment regulation will help safeguard the interests of participants 
and beneficiaries in their plan benefits.
1.2. Affected Entities
    The proposal would affect certain ERISA-covered plans whose 
fiduciaries consider non-pecuniary factors when selecting investments 
and the participants in those plans. For investments that are not 
participant directed, defined benefit (DB) plans and defined 
contribution (DC) plans would be required to maintain records when 
different investments are ``economically indistinguishable,'' 
documenting specifically why the investments were determined to be 
indistinguishable and the selected investment was chosen based on the 
purposes of the plan and the financial interests of plan participants 
and beneficiaries in receiving benefits from the plan. DC individual 
account plans would be affected by the proposed rule if they offer ESG 
options among their designated investment alternatives. As discussed 
below, the best data available on this topic comes from surveys of ESG 
investing by plans.
    ESG investing approaches may consider non-pecuniary matters.\35\ 
Riedl and Smeets' research on individual investors in the Netherlands 
shows that financial motives play less of a role than social 
preferences and social signaling in explaining decisions to invest in 
``socially responsible'' mutual funds.\36\ The same research also 
presents survey evidence that most individual investors expect socially 
responsible investing mutual funds to have lower returns and higher 
fees than conventional mutual funds. In selecting investments, some

[[Page 39121]]

plans may use non-pecuniary factors that are not ESG factors, or are 
not perceived to be ESG factors. If survey respondents do not view them 
as ESG factors, these plans would not be identified by surveys.
---------------------------------------------------------------------------

    \35\ See Schanzenbach & Sitkoff, supra note 5, at 389-90 
(distinguishing between ``collateral benefits ESG'' investing--
defined as ``ESG investing for moral or ethical reasons or to 
benefit a third party''--which is not permissible under ERISA, and 
``risk-return ESG'' investing, which is).
    \36\ Arno Riedl & Paul Smeets, Why Do Investors Hold Socially 
Responsible Mutual Funds? 72 Journal of Finance 6 (2017). (This 
study included administrative data on trading of mutual funds by 
individual investors. They bought and sold funds only without the 
involvement of an intermediary.)
---------------------------------------------------------------------------

    According to a 2018 survey by the NEPC, approximately 12 percent of 
private pension plans have adopted ESG investing.\37\ Another survey, 
conducted by the Callan Institute in 2019, found that about 19 percent 
of private sector pension plans consider ESG factors in investment 
decisions.\38\ Both of these estimates are calculated from samples that 
include both DB and DC plans. Some DB plans that consider ESG factors 
would not be affected by the proposed rule because they focus only on 
the financial aspects of ESG factors, rather than on non-pecuniary 
objectives. In order to generate an upper-bound estimate of the costs; 
however, the Department assumes that 19 percent of DB plans would be 
affected by the proposed rule. This represents approximately 8,870 
defined benefit plans.\39\ The Department also assumes that 19 percent 
of DC plans with investments that are not participant directed would be 
affected; this represents an additional 18,400 plans.\40\
---------------------------------------------------------------------------

    \37\ Brad Smith & Kelly Regan, NEPC ESG Survey: A Profile of 
Corporate & Healthcare Plan Decisionmakers' Perspectives, NEPC (Jul. 
11, 2018), https://cdn2.hubspot.net/hubfs/2529352/files/2018%2007%20NEPC%20ESG%20Survey%20Results%20.pdf?t=1532123276859.
    \38\ 2019 ESG Survey, Callan Institute (2019), www.callan.com/wp-content/uploads/2019/09/2019-ESG-Survey.pdf.
    \39\ DOL calculations are based on statistics from Private 
Pension Plan Bulletin: Abstract of 2017 Form 5500 Annual Reports, 
Employee Benefits Security Administration (Sep. 2019), (46,698 x 19% 
= 8,870 DB plans; 34,960,000 x 19% = 6,642,400, rounded to 6.6 
million participants; $3,208,820,000,000 x 19% = $609,675,800,000, 
rounded to $610 billion in assets).
    \40\ Id. (96,860 x 19% = 18,403, rounded to 18,400 plans).
---------------------------------------------------------------------------

    A small share of individual account plans offer at least one ESG-
themed option among their investment alternatives. According to the 
Plan Sponsor Council of America, about 3 percent of 401(k) and/or 
profit sharing plans offered at least one ESG-themed investment option 
in 2018.\41\ Vanguard's 2018 administrative data show that 
approximately nine percent of DC plans offered one or more ``socially 
responsible'' domestic equity fund options.\42\ Considering these 
sources together, the Department assumes that six percent of individual 
account plans have at least one ESG-themed investment alternative and 
would be affected by the proposed rule. This represents 33,960 
individual account plans with participant direction.\43\ In terms of 
the actual utilization of ESG options, one survey indicates that about 
0.1 percent of total DC plan assets are invested in ESG funds.\44\ The 
Department seeks comments regarding its assumptions and additional 
information describing the prevalence of ESG investing or ESG 
investment options among ERISA plans, including their use as qualified 
default investment alternatives.
---------------------------------------------------------------------------

    \41\ 62nd Annual Survey of Profit Sharing and 401(k) Plans, Plan 
Sponsor Council of America (2019).
    \42\ How America Saves 2019, Vanguard (June 2019), https://institutional.vanguard.com/iam/pdf/HAS2019.pdf.
    \43\ DOL calculations based on statistics from Private Pension 
Plan Bulletin: Abstract of 2017 Form 5500 Annual Reports, Employee 
Benefits Security Administration (Sept. 2019), ((565,969) * 6% = 
33,958, rounded to 33,960 individual account plans).
    \44\ 62nd Annual Survey of Profit Sharing and 401(k) Plans, Plan 
Sponsor Council of America (2019).
---------------------------------------------------------------------------

1.3. Benefits
    The proposed rule would replace existing guidance on the use of ESG 
and similar factors in the selection of investments, including that 
fiduciaries must not base investment decisions on non-pecuniary factors 
unless alternative investment options are ``economically 
indistinguishable'' and such a conclusion is properly documented. The 
Department anticipates that the resulting benefits will be appreciable.
    When fiduciaries weigh non-pecuniary considerations as required by 
this rule to select investments, some fiduciaries will select 
investments that are different from those they would have selected pre-
rule. These selected investments' returns will generally tend to be 
higher over the long run. Also, as plans invest less in actively 
managed ESG mutual funds, they may instead select mutual funds with 
lower fees or passive index funds.
    In this case, the societal resources freed for other uses due to 
lessened active management (minus potential upfront transition costs) 
would represent benefits of the rule. Furthermore, if some portion of 
the increased returns would be associated with ESG investments 
generating lower pre-fee returns than non-ESG investments (as regards 
economic impacts that can be internalized by parties conducting market 
transactions), then the new returns qualify as benefits of the rule; 
however, it would be important to track externalities, public goods, or 
other market failures that might lead to economic effects of the non-
ESG activities being potentially less fully internalized than ESG 
activities' effects would, and thus generating costs to society on an 
ongoing basis. Finally, if some portion of the increased returns would 
be associated with transactions in which the opposite party experiences 
decreased returns of equal magnitude, then this portion of the rule's 
impact would, from a society-wide perspective, be appropriately 
categorized as a transfer (though it should be noted that, if there is 
evidence of wealth differing across the transaction parties, it would 
have implications for marginal utility of the assets).
    To the extent that ESG investing sacrifices return to achieve non-
pecuniary goals, it reduces participant and beneficiaries' retirement 
investment returns, thereby compromising a central purpose of ERISA. 
Given the increase in ESG investing, the Department is concerned that, 
without rulemaking, ESG investing will present a growing threat to 
ERISA fiduciary standards and, ultimately, to investment returns for 
plan participants and beneficiaries. For the plans and participants 
that would be affected by a reduced use of non-pecuniary factors, the 
benefits they would experience from higher investment returns, 
compounded over many years, could be considerable. The Department seeks 
information that could be used to quantify the increase in investment 
returns.
    The Department also invites comments addressing the benefits that 
would be associated with the proposed rule.
1.4. Costs
    This proposed rule provides guidance on the investment duties of a 
plan fiduciary. Under this proposed rule, plans that consider ESG and 
similar factors when choosing investments would be reminded that they 
may evaluate only the investments' relevant economic pecuniary factors 
to determine the risk and return profiles of the alternatives. It is 
the Department's view that many plan fiduciaries already undertake such 
evaluations, though many that consider ESG and similar factors may not 
be treating those as pecuniary factors within the risk-return 
evaluation. This proposal would not impair fiduciaries' appropriate 
consideration of ESG factors in circumstances where such consideration 
is material to the risk-return analysis and advances participants' 
interests in their retirement benefits. The Department does not intend 
to increase fiduciaries' burden of care attendant to such 
consideration; therefore, and no additional costs are estimated for 
this requirement. While fiduciaries may modify the research approach 
they use

[[Page 39122]]

to select investments as a consequence of the proposed rule, the 
Department assumes this modification would not impose significant 
additional cost.
    Some fiduciaries will select investments that are different from 
what they would have selected pre-rule. This can happen in different 
ways. Fiduciaries may realize that a current investment does not 
conform to the rule and decide to choose a more appropriate investment, 
or as part of a routine evaluation of the plan's investments or 
investment alternatives, fiduciaries may replace an investment or 
investment alternative. This could lead to some disruption, 
particularly for DC plans with participant direction. If a plan 
fiduciary removes an ESG fund as a designated investment alternative 
and does not replace it with a more appropriate ESG fund as a result of 
this proposed rule, participants invested in the ESG fund would have to 
pick a new fund that may not be comparable from their perspective. This 
could be disruptive, but similar disruptions occur when plan 
fiduciaries routinely change designated investment alternatives.
    Furthermore, the proposed rule requires plan fiduciaries who select 
investments based on non-pecuniary factors to document why alternative 
investments are ``economically indistinguishable'' in terms of their 
expected risk and return characteristics. The Department believes that 
the likelihood that two investments will be ``economically 
indistinguishable'' is rare, and therefore the need to document such 
circumstances also will be rare.\45\ The Department seeks data and 
comments on the frequency with which plans find two investments to be 
``economically indistinguishable,'' and the process plan fiduciaries 
use in this situation. In those rare instances, the documentation 
requirement could be burdensome unless fiduciaries are already 
documenting such decisions.
---------------------------------------------------------------------------

    \45\ See Schanzenbach & Sitkoff, supra note 5, at 410 
(describing a hypothetical pair of truly identical investments as a 
``unicorn'').
---------------------------------------------------------------------------

    Paragraph (c)(1) of the proposal provides that a fiduciary's 
evaluation of an investment must be focused on pecuniary factors. The 
paragraph explains that it is unlawful for a fiduciary to sacrifice 
return or accept additional risk to promote a public policy, political, 
or any other non-pecuniary goal. Paragraph (c)(2) provides that, if 
after completing an appropriate evaluation, alternative investments 
appear ``economically indistinguishable,'' and one of the investments 
is selected on the basis of a non-pecuniary factor or factors such as 
ESG considerations, the fiduciary must document the basis for 
concluding that a distinguishing factor could not be found and why the 
selected investment was chosen based on the purposes of the plan, 
diversification of investments, and the financial interests of plan 
participants and beneficiaries in receiving benefits from the plan. 
Thus, the rule may impose costs on fiduciaries whose current 
documentation and recordkeeping are insufficient to meet the new 
requirement. Because the Department concludes that truly ``economically 
indistinguishable'' alternatives are rare, the Department estimates 
that this requirement would not result in a substantial cost burden.
    The Department has not proposed to apply the provision in 
paragraphs (c)(1) and (c)(2) of the proposal on ``economically 
indistinguishable'' alternative investments for the selection of 
investment options for individual account plans, but rather included a 
documentation requirement for such investment decisions in paragraph 
(c)(3)(ii). Therefore, individual account plan fiduciaries will need to 
document their selections of investment alternatives that include one 
or more ESG or similarly oriented assessments or judgments in their 
investment mandates or that include these parameters in the fund name.
    The Department assumes that the documentation requirement in 
paragraph (c)(3) would impose little, if any, additional cost on 
individual account plan fiduciaries, because they already commonly 
document and maintain records about their investment choices as a best 
practice and potential shield from litigation risk. The Department 
proposes to include this requirement to confirm the need to document 
actions taken and to provide a safeguard against the risk that 
fiduciaries will select investment options based on non-pecuniary 
factors without a proper analysis and evaluation.
    The PRA section below estimates the costs of the information 
collection. As required by the PRA, the PRA estimates encompass the 
entire burden of the proposed rule's information collection as opposed 
to the incremental costs discussed in the regulatory impact analysis. 
For this reason, the incremental costs of the proposed rule are 
estimated to be minimal, while the PRA cost estimates are larger.
    The Department invites comments addressing the costs that would be 
associated with the proposed rule.
1.5. Transfers
    There may be a transfer from mutual fund companies that offer ESG-
themed mutual funds to competing mutual fund companies that offer other 
types of mutual funds. Companies offering ESG-themed mutual funds would 
have fewer customers since ERISA plans that currently offer ESG-themed 
mutual funds in their DC plans would no longer be able to offer them 
under the proposed rule, except for any funds that would be selected 
based on financial considerations alone. Often the same company will 
offer both mutual funds with an ESG theme and mutual funds without; 
there may be a transfer within the company from ESG mutual funds to 
other mutual funds.
    Moreover, as noted previously, if some portion of rule-induced 
increases in returns would be associated with transactions in which the 
opposite party experiences decreased returns of equal magnitude, then 
this portion of the proposed rule's impact would, from a society-wide 
perspective, be appropriately categorized as a transfer.
1.6. Uncertainty
    It is unclear how many plans use ESG and similar factors when 
selecting investments. Similarly unclear is the total asset value of 
investments that were selected in this manner. This is particularly 
true for DB plans. While there is some survey evidence on how many DB 
plans factor in ESG considerations, the surveys were based on small 
samples and yielded varying results. It also is not clear whether 
survey information about ESG investing accurately represents the 
prevalence of investing that incorporates non-pecuniary factors. For 
instance, some non-pecuniary investing concentrates on issues that are 
not thought of as ESG issues. At the same time, some investing takes 
account of environmental factors and corporate governance in a manner 
that focuses exclusively on the financial aspects of those 
considerations.
    The proposed rule would replace the existing guidance on using non-
pecuniary factors while selecting investments. It is very difficult to 
estimate how many plans have fiduciaries that are currently using non-
pecuniary factors improperly while selecting investments. Such plans 
would experience significant effects from the proposed rule. It is also 
difficult to estimate the degree to which the use of non-pecuniary 
factors by ERISA fiduciaries, ESG or otherwise, would expand in the 
future absent this rulemaking, though trends in other countries suggest 
that pressure for such

[[Page 39123]]

expansion will only continue to increase.\46\ However, based on current 
trends the Department believes that the use of non-pecuniary factors by 
ERISA plans is likely to increase moderately in the future without this 
rulemaking, and thus on a forward basis the benefits of the proposed 
rule will be appreciable.
---------------------------------------------------------------------------

    \46\ See generally Government Accountability Office Report No. 
18-398, Retirement Plan Investing: Clearer Information on 
Consideration of Environmental, Social, and Governance Factors Would 
Be Helpful (May 2018), at 25-27; Principles for Responsible 
Investment, Fiduciary Duty in the 21st Century, supra note 12, at 
21-22, 50-51.
---------------------------------------------------------------------------

1.7. Alternatives
    The Department has considered alternatives to the proposed 
regulation. One alternative would prohibit plan fiduciaries from ever 
considering ESG or similar factors. This would address the Department's 
concerns that some plan fiduciaries may sacrifice return or increase 
investment risk to promote goals that are unrelated to the financial 
interests of the plan or its participants. However, that approach would 
prohibit the use of factors even when they have pecuniary consequences.
    The Department also has considered prohibiting plan fiduciaries 
from basing investment decisions on non-pecuniary factors and not 
permitting the use of non-pecuniary factors where the alternative 
investment options are indistinguishable. But if the alternative 
investment options truly are ``economically indistinguishable,'' it is 
not clear what would be available to a plan fiduciary to base the 
decision on other than a non-pecuniary factor. Regardless, the 
Department believes that truly indistinguishable alternative investment 
options occur very rarely in practice, if at all. Accordingly, this 
proposed rule retains the ``all things being equal'' test from the 
Department's previous guidance with a specific requirement to document 
applications of that test. However, the Department requests comment 
regarding whether any variation of an ``all things being equal'' 
approach should be retained, or should be abandoned as inconsistent 
with the fiduciary duties of ERISA section 404. The Department also 
requests comment on how, assuming ``ties'' do occur, they might be 
broken based on different considerations than set forth in the proposed 
rule.
    With respect to the requirements concerning individual account 
plans in paragraph (c)(3), the Department considered expressly 
incorporating paragraph (c)(1), which explains a fiduciary's obligation 
to only focus on pecuniary factors. The Department decided it was 
unnecessary to expressly incorporate paragraph (c)(1) into paragraph 
(c)(3), because the latter already requires fiduciaries to focus on 
only objective risk-return criteria. The Department requests comment on 
whether paragraph (c)(1) should be expressly incorporated in paragraph 
(c)(3).
    Similarly, the Department considered whether to apply the 
documentation requirement for indistinguishable investments contained 
in paragraph (c)(2) of the proposal to fiduciaries' selection of 
designated investment alternatives for individual account plans. For 
the reasons set forth earlier in the preamble, Department decided not 
to carry that requirement into paragraph (c)(3). Rather, as explained 
above, investment options for individual account plans are often chosen 
precisely for their varied characteristics. Still, the proposed rule 
would require fiduciaries to document the selection and monitoring of 
ESG-themed funds as designated investment alternatives. The Department 
requests comment on whether it should apply the requirements in 
paragraph (c)(2) to the selection of ESG-themed funds for individual 
account plans.
    The Department believes that the approach reflected in the proposal 
best reflects the statutory obligations of prudence and loyalty, 
appropriately ensures that fiduciaries' decisions will be guided by the 
financial interests of the plans and participants to whom they owe 
duties of prudence and loyalty, and is the easiest to apply and 
enforce. Nevertheless, the Department solicits comments on all 
alternatives, including any alternatives that the Department has not 
identified in this NPRM.
1.8. Conclusion
    The Department believes that the proposed rule would provide 
clarity to fiduciaries in fulfilling their responsibilities by 
describing when and how fiduciaries can factor in ESG and similar 
considerations as they select and monitor investments, and when they 
may not.
    While this proposed rule is expected to benefit plans and 
participants, some costs would be incurred as well. Some plans would 
have to modify their processes for selecting and monitoring 
investments. While some plans would need to document selections where 
the alternative investment options are indistinguishable, and 
individual account plans would need to document their decisions for 
selecting ESG-themed funds as designated investment alternatives, the 
Department does not expect these requirements to impose a significant 
increase in hourly burden or cost because the Department believes that 
truly indistinguishable alternative investment options should occur 
very rarely in practice, if at all and defined contribution plans are 
already documenting their decisions when selecting investment 
alternatives for their participant directed investment platforms.
    Although the proposed rule would replace previous guidance, the 
Department believes that there is significant overlap; thus, this would 
not result in substantial benefits or costs. Overall, the proposed rule 
would assist fiduciaries in carrying out their responsibilities, while 
promoting the financial interests of current and future retirees.

2. Paperwork Reduction Act

    As part of its continuing effort to reduce paperwork and respondent 
burden, the Department conducts a preclearance consultation program to 
allow the general public and federal agencies to comment on proposed 
and continuing collections of information in accordance with the 
Paperwork Reduction Act of 1995 (PRA).\47\ This helps to ensure that 
the public understands the Department's collection instructions, 
respondents can provide the requested data in the desired format, 
reporting burden (time and financial resources) is minimized, 
collection instruments are clearly understood, and the Department can 
properly assess the impact of collection requirements on respondents.
---------------------------------------------------------------------------

    \47\ 44 U.S.C. 3506(c)(2)(A) (1995).
---------------------------------------------------------------------------

    Currently, the Department is soliciting comments concerning the 
proposed information collection request (ICR) included in the Financial 
Factors in Selecting Plan Investments ICR. To obtain a copy of the ICR, 
contact the PRA addressee shown below or go to www.RegInfo.gov.
    The Department has submitted a copy of the proposed rule to the 
Office of Management and Budget (OMB) in accordance with 44 U.S.C. 
3507(d) for review of its information collections. The Department and 
OMB are particularly interested in comments that address the following:
     Evaluate whether the collection of information is 
necessary for the proper performance of the functions of the agency, 
including whether the information will have practical utility;
     Evaluate the accuracy of the agency's estimate of the 
burden of the collection of information, including the validity of the 
methodology and assumptions used;

[[Page 39124]]

     Enhance the quality, utility, and clarity of the 
information to be collected; and
     Minimize the burden of the collection of information on 
those who are to respond, including through the use of appropriate 
automated, electronic, mechanical, or other technological collection 
techniques or other forms of information technology (e.g., permitting 
electronic submission of responses).
    Comments should be sent by mail to the Office of Information and 
Regulatory Affairs, Office of Management and Budget, Room 10235, New 
Executive Office Building, Washington, DC 20503 and marked ``Attention: 
Desk Officer for the Employee Benefits Security Administration.'' 
Comments can also be submitted by fax at 202-395-5806 (this is not a 
toll-free number), or by email at [email protected]. OMB 
requests that comments be received within 30 days of publication of the 
proposed rule to ensure their consideration.
    PRA Addresses: Address requests for copies of the ICR to G. 
Christopher Cosby, Office of Policy and Research, U.S. Department of 
Labor, Employee Benefits Security Administration, 200 Constitution 
Avenue NW, Room N-5718, Washington, DC 20210. The PRA Addressee may be 
reached by telephone, (202) 693-8410, or by fax, (202) 219-5333. These 
are not toll-free numbers. ICRs also are available at www.RegInfo.gov 
(www.reginfo.gov/public/do/PRAMain).
    In prior guidance, the Department has encouraged plan fiduciaries 
to appropriately document their investment activities, and the 
Department believes it is common practice. The proposed rule expressly 
requires only that, where a plan fiduciary determines that alternative 
investments are ``economically indistinguishable,'' the fiduciary 
further document the basis for concluding that a distinguishing factor 
could not be found and the reason that the investment was selected 
based on non-pecuniary factors. Nevertheless, the Department believes 
that the likelihood that two investments options which are truly 
economically indistinguishable is very rare.
    While the incremental burden of the proposed regulations is small, 
the full burden of the requirements will be included below to allow for 
evaluation of the requirements in the required information collection.
    According to the most recent Form 5500 data, there are 8,870 DB 
plans and 18,400 DC plans with ESG investments that are not participant 
directed that could be affected by the proposed rule.\48\ While the 
Department does not have data regarding the frequency of the rare event 
of alternatives being indistinguishable and requiring documentation, 
the Department models the burden using one percent of plans with ESG 
investments as needing to provide the documentation.
---------------------------------------------------------------------------

    \48\ DOL calculations based on statistics from U.S. Department 
of Labor, Employee Benefits Security Administration, ``Private 
Pension Plan Bulletin: Abstract of 2017 Form 5500 Annual Reports,'' 
(Sep. 2019), (46,698 DB plans x 19% = 8,870 DB plans; 96,860 DC 
Plans x 19% = 18,400 DC plans).
---------------------------------------------------------------------------

    While DB plans may change investments at least annually, DC plans 
may do so less frequently. For this analysis, DC plans are assumed to 
review their service providers and investments about every three years. 
Therefore, the Department estimates that 89 DB plans and 61 DC plans 
with ESG investments that are not participant directed will encounter 
economically indistinguishable alternatives in a year.\49\
---------------------------------------------------------------------------

    \49\ 8,870 DB plans * 0.01 = 89 DB plans; 18,400 DC plans * 0.01 
* 0.33 = 61 DC plans.
---------------------------------------------------------------------------

2.1. Maintain Documentation
    The proposed rule requires ESG plan fiduciaries to maintain 
documentation if alternative investments appear to be ``economically 
indistinguishable.'' While much of the documentation needed to fulfill 
this requirement is generated in the normal course of business, plans 
may need additional time to ensure records are properly maintained and 
are up to the standard required by the Department. The Department 
estimates that plan fiduciaries and clerical staff will each expend, on 
average, 2 hours of labor to maintain the needed documentation. This 
results in an annual burden estimate of 600 hours, with an equivalent 
cost of $56,818 for DB plans and DC plans with ESG investments that are 
not participant directed.\50\
---------------------------------------------------------------------------

    \50\ The burden is estimated as follows: (8,870 DB plans * 0.01 
* 2 hours) + (18,400 DC plans * 0.01 * 2 hours * 0.33) = 300 hours 
for both a plan fiduciary and clerical staff. A labor rate of 
$134.21 is used for a plan fiduciary and a labor rate of $55.14 for 
clerical staff ((8,870 DB plans * 0.01 * 2 * $134.21) + (18,400 DC 
plans * 0.01 * 2 hours* 0.33 * $134.21) + (8,870 DB plans * 0.01 * 2 
* $55.14) + (18,400 DC plans * 0.01 * 2 hours* 0.33 * $55.14) = 
$56,818.)
---------------------------------------------------------------------------

    The proposal also would require individual account plan fiduciaries 
to document their selections of ESG-themed funds as designated 
investment alternatives for their participant-directed investment 
platforms. As explained above, fiduciaries selecting investment options 
for DC plans already commonly document and maintain records about their 
investment choices, since that is a best practice and a potential 
shield from litigation risk. Therefore, the Department assumes this 
documentation requirement will impose little, if any, additional cost. 
The requirement is included to confirm the need to document actions 
taken and to provide a safeguard against the risk that fiduciaries will 
select investment options based on non-pecuniary factors without a 
proper analysis and evaluation.
    These paperwork burden estimates are summarized as follows:
    Type of Review: New collection.
    Agency: Employee Benefits Security Administration, Department of 
Labor.
    Title: Financial Factors in Selecting Plan Investments.
    OMB Control Number: 1210-NEW.
    Affected Public: Businesses or other for-profits.
    Estimated Number of Respondents: 11,470.
    Estimated Number of Annual Responses: 11,470.
    Frequency of Response: Occasionally.
    Estimated Total Annual Burden Hours: 600.
    Estimated Total Annual Burden Cost: $0.

3. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) \51\ imposes certain 
requirements with respect to federal rules that are subject to the 
notice and comment requirements of section 553(b) of the Administrative 
Procedure Act \52\ and that are likely to have a significant economic 
impact on a substantial number of small entities. Unless an agency 
determines that a proposal is not likely to have a significant economic 
impact on a substantial number of small entities, section 603 of the 
RFA requires the agency to present an initial regulatory flexibility 
analysis of the proposed rule.
---------------------------------------------------------------------------

    \51\ 5 U.S.C. 601 et seq. (1980).
    \52\ 5 U.S.C. 551 et seq. (1946).
---------------------------------------------------------------------------

    For purposes of analysis under the RFA, the Employee Benefits 
Security Administration (EBSA) continues to consider a small entity to 
be an employee benefit plan with fewer than 100 participants.\53\ The 
basis of this definition is found in section 104(a)(2) of ERISA, which 
permits the Secretary of Labor to prescribe simplified annual reports 
for pension plans that cover fewer than 100 participants. Under section 
104(a)(3), the Secretary may also provide for exemptions or simplified 
annual reporting and disclosure for

[[Page 39125]]

welfare benefit plans. Pursuant to the authority of section 104(a)(3), 
the Department has previously issued--at 29 CFR 2520.104-20, 2520.104-
21, 2520.104-41, 2520.104-46, and 2520.104b-10--certain simplified 
reporting provisions and limited exemptions from reporting and 
disclosure requirements for small plans. Such plans include unfunded or 
insured welfare plans covering fewer than 100 participants and 
satisfying certain other requirements. Further, while some large 
employers may have small plans, in general small employers maintain 
small plans. Thus, EBSA believes that assessing the impact of this 
proposed rule on small plans is an appropriate substitute for 
evaluating the effect on small entities. The definition of small entity 
considered appropriate for this purpose differs, however, from a 
definition of small business that is based on size standards 
promulgated by the Small Business Administration (SBA) \54\ pursuant to 
the Small Business Act.\55\ Therefore, EBSA requests comments on the 
appropriateness of the size standard used in evaluating the impact of 
this proposed rule on small entities.
---------------------------------------------------------------------------

    \53\ The Department consulted with the Small Business 
Administration before making this determination, as required by 5 
U.S.C. 603(c) and 13 CFR 121.903(c).
    \54\ 13 CFR 121.201.
    \55\ 15 U.S.C. 631 et seq.
---------------------------------------------------------------------------

    The Department has determined that this proposed rule could have a 
significant impact on a substantial number of small entities. 
Therefore, the Department has prepared an Initial Regulatory 
Flexibility Analysis that is presented below.
3.1. Need for and Objectives of the Rule
    The proposed rule confirms that ERISA requires plan fiduciaries to 
select investments and investment courses of action based solely on 
financial considerations relevant to the risk-adjusted economic value 
of a particular investment or investment course of action. This would 
help ensure that fiduciaries are protecting the financial interests of 
participants and beneficiaries.
3.2. Affected Small Entities
    The proposed rule has documentation provisions that would affect 
small ERISA-covered plans, which have fewer than 100 participants. It 
also has some provisions about the improper use of non-pecuniary 
factors when plan fiduciaries select and monitor investments. These 
provisions would affect only plans and participants that are improperly 
incorporating non-pecuniary factors into their investment decisions. 
The proposed rule would affect small plans that have ESG-type 
investments that are not in compliance with the proposed regulation.
    As discussed in the affected entities section above, surveys 
suggest that 19 percent of DB plans and DC plans with investments that 
are not participant directed and 6 percent of DC plans with participant 
directed individual accounts have ESG or ESG-themed investments and 
could be affected by the proposed rule. The distribution across plan 
size is not available in the surveys. This represents approximately 
8,870 defined benefit plans and 52,360 DC plans. It should be noted 
that 83 percent of all DB plans and 88 percent of all DC are small 
plans.\56\ Particularly for DB plans, it is likely that most plans with 
ESG investments are large. In terms of the actual utilization of ESG 
options, about 0.1 percent of total DC plan assets are invested in ESG 
funds.\57\ One survey found that among 401(k) plans with fewer than 50 
participants, approximately 1.7 percent offered an ESG option.\58\
---------------------------------------------------------------------------

    \56\ DOL calculations based on statistics from U.S. Department 
of Labor, Employee Benefits Security Administration, ``Private 
Pension Plan Bulletin: Abstract of 2017 Form 5500 Annual Reports,'' 
(Sep. 2019).
    \57\ 62nd Annual Survey of Profit Sharing and 401(k) Plans, Plan 
Sponsor Council of America (2019).
    \58\ Id.
---------------------------------------------------------------------------

    A large majority of participants in small pension plans do not have 
an ESG fund in their portfolio. As previously mentioned, about 0.1 
percent of total assets held by DC plans are invested in ESG funds.\59\
---------------------------------------------------------------------------

    \59\ Id.
---------------------------------------------------------------------------

3.3. Impact of the Rule
    While the rule is expected to affect small pension plans, it is not 
likely that there would be a significant economic impact on many of 
these plans. The proposed regulation provides guidance on how 
fiduciaries can comply with sections 404(a)(1)(A) and 404(a)(1)(B) of 
ERISA when investing plan assets. The Department believes most plans 
are already fulfilling the requirements in the course of following 
prior guidance. Plans would need to document selections of investments 
based on non-pecuniary factors where the alternative investment options 
are ``economically indistinguishable.'' The Department believes that 
truly ``economically indistinguishable'' alternative investment options 
should occur very rarely in practice, if at all. The Department 
estimates a cost of less than $380 per affected plan for plan 
fiduciaries and clerical professionals to fulfill the documentation 
requirement, see Table 1.

                                       Table 1--Documentation Requirement
----------------------------------------------------------------------------------------------------------------
                      Affected entity                          Labor rate           Hours             Cost
----------------------------------------------------------------------------------------------------------------
Plans: Plan Fiduciary.....................................           $134.21                 2           $268.42
Plans: Clerical workers...................................             55.14                 2            110.28
                                                           -----------------------------------------------------
    Total.................................................  ................  ................            378.70
----------------------------------------------------------------------------------------------------------------
Source: DOL calculations based on statistics from U.S. Department of Labor, Employee Benefits Security
  Administration, Private Pension Plan Bulletin: Abstract of 2017 Form 5500 Annual Reports, (September 2019).

    Participant directed individual account plans will need to document 
their selections of ESG-themed funds as designated investment 
alternatives. As described above, fiduciaries in such plans already 
commonly document and maintain records about their choices of 
investment funds as designated investment alternatives, since that is 
the best practice and a potential shield from litigation risk. 
Therefore, the Department concludes that this documentation requirement 
would impose little, if any, additional cost. While the costs 
associated with the rule are small, its benefits could be significant 
for plans that are heavily invested in underperforming ESG funds and 
would be required to change their current ESG investments in response 
to the proposed rule. The Department does not have sufficient data to 
estimate the number of such plans and; therefore, welcomes comments and 
data that could help it make this determination.

[[Page 39126]]

3.4. Alternatives
    The Department considered the following alternatives to the 
proposed regulation: (1) Prohibiting plan fiduciaries from considering 
ESG or similar factors; (2) prohibiting plan fiduciaries from basing 
investment decisions on non-pecuniary factors and the use of non-
pecuniary factors when the alternative investment options are 
economically indistinguishable; (3) requiring fiduciaries of individual 
account plans to comply with paragraph (c)(1) of the proposal, which 
explains a fiduciary's obligation to only focus on pecuniary factors; 
and (4) applying the documentation requirement for indistinguishable 
investments contained in paragraph (c)(2) of the proposal to 
fiduciaries' selection of designated investment alternatives for 
individual account plans. For a discussion of the Department's 
rationale for not adopting these alternatives, please see Section 1.7, 
Alternatives, above.
    The Department believes that the approach taken in the proposal 
best reflects the statutory obligations of prudence and loyalty, 
appropriately ensures that fiduciaries' decisions would be guided by 
the financial interests of the plans and participants to whom they owe 
duties of prudence, and loyalty, and is the most efficient to apply and 
enforce. Nevertheless, the Department solicits comments on other 
alternatives, particularly those that would reduce the burden on small 
entities.
3.5. Duplicate, Overlapping, or Relevant Federal Rules
    The Department is issuing this proposal under sections 404(a)(1)(A) 
and 404(a)(1)(B) of Title I under ERISA. The Department is charged with 
interpreting the ERISA provisions regarding the consideration of non-
pecuniary factors in investment funds, and therefore, there are no 
duplicate, overlapping, or relevant Federal rules.

4. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-
4) requires each federal agency to prepare a written statement 
assessing the effects of any federal mandate in a proposed or final 
agency rule that may result in an expenditure of $100 million or more 
(adjusted annually for inflation with the base year 1995) in any 1 year 
by state, local, and tribal governments, in the aggregate, or by the 
private sector. For purposes of the Unfunded Mandates Reform Act, as 
well as Executive Order 12875, this proposal does not include any 
federal mandate that the Department expects would result in such 
expenditures by state, local, or tribal governments.

5. Federalism Statement

    Executive Order 13132 outlines fundamental principles of federalism 
and requires the adherence to specific criteria by federal agencies in 
the process of their formulation and implementation of policies that 
have ``substantial direct effects'' on the states, the relationship 
between the national government and the states, or on the distribution 
of power and responsibilities among the various levels of 
government.\60\ Federal agencies promulgating regulations that have 
federalism implications must consult with state and local officials, 
and describe the extent of their consultation and the nature of the 
concerns of state and local officials in the preamble to the final 
rule.
---------------------------------------------------------------------------

    \60\ Federalism, 64 FR 153 (Aug. 4, 1999).
---------------------------------------------------------------------------

    In the Department's view, these proposed regulations would not have 
federalism implications because they would not have direct effects on 
the states, the relationship between the national government and the 
states, or on the distribution of power and responsibilities among 
various levels of government. Section 514 of ERISA provides, with 
certain exceptions specifically enumerated, that the provisions of 
Titles I and IV of ERISA supersede any and all laws of the states as 
they relate to any employee benefit plan covered under ERISA. The 
requirements implemented in the proposed rule do not alter the 
fundamental reporting and disclosure requirements of the statute with 
respect to employee benefit plans, and as such have no implications for 
the states or the relationship or distribution of power between the 
national government and the states.
    The Department welcomes input from states regarding this 
assessment.

Statutory Authority

    This regulation is proposed pursuant to the authority in section 
505 of ERISA (Pub. L. 93-406, 88 Stat. 894; 29 U.S.C. 1135) and section 
102 of Reorganization Plan No. 4 of 1978 (43 FR 47713, October 17, 
1978), effective December 31, 1978 (44 FR 1065, January 3, 1979), 3 CFR 
1978 Comp. 332, and under Secretary of Labor's Order No. 1-2011, 77 FR 
1088 (Jan. 9, 2012).

List of Subjects in 29 CFR Parts 2509 and 2550

    Employee benefit plans, Employee Retirement Income Security Act, 
Exemptions, Fiduciaries, Investments, Pensions, Prohibited 
transactions, Reporting and Recordkeeping requirements, Securities.

    For the reasons set forth in the preamble, the Department is 
proposing to amend parts 2509 and 2550 of subchapters A and F of 
Chapter XXV 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

0
1. The authority citation for part 2509 continues to read as follows:

    Authority:  29 U.S.C. 1135. Secretary of Labor's Order 1-2003, 
68 FR 5374 (Feb. 3, 2003). Sections 2509.75-10 and 2509.75-2 issued 
under 29 U.S.C. 1052, 1053, 1054. Sec. 2509.75-5 also issued under 
29 U.S.C. 1002. Sec. 2509.95-1 also issued under sec. 625, Pub. L. 
109-280, 120 Stat. 780.

Sec.  2509.2015-01  [Removed]

0
2. Remove Sec.  2509.2015-01.

SUBCHAPTER F--FIDUCIARY RESPONSIBILITY UNDER THE EMPLOYEE RETIREMENT 
INCOME SECURITY ACT OF 1974

PART 2550--RULES AND REGULATIONS FOR FIDUCIARY RESPONSIBILITY

0
3. The authority citation for part 2550 continues to read as follows:

    Authority:  29 U.S.C. 1135 and Secretary of Labor's Order No. 1-
2011, 77 FR 1088 (January 9, 2012). Sec. 102, Reorganization Plan 
No. 4 of 1978, 5 U.S.C. App. at 727 (2012). Sec. 2550.401c-1 also 
issued under 29 U.S.C. 1101. Sec. 2550.404a-1 also issued under sec. 
657, Pub. L. 107-16, 115 Stat 38. Sec. 2550.404a-2 also issued under 
sec. 657 of Pub. L. 107-16, 115 Stat. 38. Sections 2550.404c-1 and 
2550. 404c-5 also issued under 29 U.S.C. 1104. Sec. 2550.408b-1 also 
issued under 29 U.S.C. 1108(b)(1). Sec. 2550.408b-19 also issued 
under sec. 611, Pub. L. 109-280, 120 Stat. 780, 972. Sec. 2550.412-1 
also issued under 29 U.S.C. 1112.

    4. Revise Sec.  2550.404a-1 to read as follows:


Sec.  2550.404a-1  Investment duties.

    (a) In general. Section 404(a)(1)(A) and 404(a)(1)(B) of the 
Employee Retirement Income Security Act of 1974, as amended (ERISA or 
the Act) provide, in part, that a fiduciary shall discharge that 
person's duties with respect to the plan solely in the interests of the 
participants and beneficiaries, for the exclusive purpose of providing 
benefits to participants and their beneficiaries and defraying 
reasonable expenses of

[[Page 39127]]

administering the plan, and with the care, skill, prudence, and 
diligence under the circumstances then prevailing that a prudent person 
acting in a like capacity and familiar with such matters would use in 
the conduct of an enterprise of a like character and with like aims.
    (b) Investment duties. (1) With regard to the consideration of an 
investment or investment course of action taken by a fiduciary of an 
employee benefit plan pursuant to the fiduciary's investment duties, 
the requirements of section 404(a)(1)(A) and 404(a)(1)(B) of the Act 
set forth in paragraph (a) of this section are satisfied if the 
fiduciary:
    (i) Has given appropriate consideration to those facts and 
circumstances that, given the scope of such fiduciary's investment 
duties, the fiduciary knows or should know are relevant to the 
particular investment or investment course of action involved, 
including the role the investment or investment course of action plays 
in that portion of the plan's investment portfolio with respect to 
which the fiduciary has investment duties;
    (ii) Has evaluated investments and investment courses of action 
based solely on pecuniary factors that have a material effect on the 
return and risk of an investment based on appropriate investment 
horizons and the plan's articulated funding and investment objectives 
insofar as such objectives are consistent with the provisions of Title 
I of ERISA;
    (iii) Has not subordinated the interests of the participants and 
beneficiaries in their retirement income or financial benefits under 
the plan to unrelated objectives, or sacrificed investment return or 
taken on additional investment risk to promote goals unrelated to those 
financial interests of the plan's participants and beneficiaries or the 
purposes of the plan;
    (iv) Has not otherwise acted to subordinate the interests of the 
participants and beneficiaries to the fiduciary's or another's 
interests and has otherwise complied with the duty of loyalty; and
    (v) Has acted accordingly.
    (2) For purposes of paragraph (b)(1) of this section, ``appropriate 
consideration'' shall include, but is not necessarily limited to,
    (i) A determination by the fiduciary that the particular investment 
or investment course of action is reasonably designed, as part of the 
portfolio (or, where applicable, that portion of the plan portfolio 
with respect to which the fiduciary has investment duties), to further 
the purposes of the plan, taking into consideration the risk of loss 
and the opportunity for gain (or other return) associated with the 
investment or investment course of action, and
    (ii) Consideration of the following factors as they relate to such 
portion of the portfolio:
    (A) The composition of the portfolio with regard to 
diversification;
    (B) The liquidity and current return of the portfolio relative to 
the anticipated cash flow requirements of the plan;
    (C) The projected return of the portfolio relative to the funding 
objectives of the plan; and
    (D) How the investment or investment course of action compares to 
available alternative investments or investment courses of action with 
regard to the factors listed in paragraphs (b)(2)(ii)(A) through (C) of 
this section.
    (c)(1) Consideration of Pecuniary vs. Non-Pecuniary Factors. A 
fiduciary's evaluation of an investment must be focused only on 
pecuniary factors. Plan fiduciaries are not permitted to sacrifice 
investment return or take on additional investment risk to promote non-
pecuniary benefits or any other non-pecuniary goals. Environmental, 
social, corporate governance, or other similarly oriented 
considerations are pecuniary factors only if they present economic 
risks or opportunities that qualified investment professionals would 
treat as material economic considerations under generally accepted 
investment theories. The weight given to those factors should 
appropriately reflect a prudent assessment of their impact on risk and 
return. Fiduciaries considering environmental, social, corporate 
governance, or other similarly oriented factors as pecuniary factors 
are also required to examine the level of diversification, degree of 
liquidity, and the potential risk-return in comparison with other 
available alternative investments that would play a similar role in 
their plans' portfolios.
    (2) Economically indistinguishable alternative investments. When 
alternative investments are determined to be economically 
indistinguishable even after conducting the evaluation described in 
paragraph (c)(1), and one of the investments is selected on the basis 
of a non-pecuniary factor or factors such as environmental, social, or 
corporate governance considerations (notwithstanding the requirements 
of paragraph (b) and paragraph (c)(1)), the fiduciary should document 
specifically why the investments were determined to be 
indistinguishable and document why the selected investment was chosen 
based on the purposes of the plan, diversification of investments, and 
the interests of plan participants and beneficiaries in receiving 
benefits from the plan.
    (3) Investment Alternatives for Individual Account Plans. The 
standards set forth in sections 403 and 404 of ERISA and paragraphs 
(b)(1) and (b)(2) of this regulation apply to a fiduciary's selection 
of an investment fund as a designated investment alternative in an 
individual account plan. In the case of investment platforms for 
defined contribution individual account plans, including platforms with 
bundled administrative and investment services, that allow plan 
participants and beneficiaries to choose from a broad range of 
investment alternatives as defined in 29 CFR 2550.404c-1(b)(3), a 
fiduciary's addition (for the platform) of one or more prudently 
selected, well managed, and properly diversified investment 
alternatives that include one or more environmental, social, corporate 
governance, or similarly oriented assessments or judgments in their 
investment mandates, or that include these parameters in the fund name, 
would not violate the standards in section 403 and 404 provided:
    (i) The fiduciary uses only objective risk-return criteria, such as 
benchmarks, expense ratios, fund size, long-term investment returns, 
volatility measures, investment manager investment philosophy and 
experience, and mix of asset types (e.g., equity, fixed income, money 
market funds, diversification of investment alternatives, which might 
include target date funds, value and growth styles, indexed and 
actively managed funds, balanced and equity segment funds, non-U.S. 
equity and fixed income funds), in selecting and monitoring all 
investment alternatives for the plan including any environmental, 
social, corporate governance, or similarly oriented investment 
alternatives;
    (ii) the fiduciary documents its selection and monitoring of the 
investment in accordance with paragraph (c)(3)(i) of this section; and
    (iii) the environmental, social, corporate governance, or similarly 
oriented investment mandate alternative is not added as, or as a 
component of, a qualified default investment alternative described in 
29 CFR 2550.404c-5.
    (d) An investment manager appointed, pursuant to the provisions of 
section 402(c)(3) of the Act, to manage all or part of the assets of a 
plan, may, for purposes of compliance with the provisions of paragraphs 
(b)(1) and (2) of this section, rely on, and act upon the basis of, 
information pertaining to the

[[Page 39128]]

plan provided by or at the direction of the appointing fiduciary, if -
    (1) Such information is provided for the stated purpose of 
assisting the manager in the performance of the manager's investment 
duties, and
    (2) The manager does not know and has no reason to know that the 
information is incorrect.
    (e) [Reserved]
    (f) Definitions. For purposes of this section:
    (1) The term ``investment duties'' means any duties imposed upon, 
or assumed or undertaken by, a person in connection with the investment 
of plan assets which make or will make such person a fiduciary of an 
employee benefit plan or which are performed by such person as a 
fiduciary of an employee benefit plan as defined in section 3(21)(A)(i) 
or (ii) of the Act.
    (2) 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 alternative under the plan.
    (3) The term ``pecuniary factor'' means a factor that has a 
material effect on the risk and/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(a)(1) of ERISA.
    (4) The term ``plan'' means an employee benefit plan to which Title 
I of the Act applies.
    (g) Effective date. This section shall be effective on [60 days 
after date of publication of final rule].
    (h) Severability. Should a court of competent jurisdiction hold any 
provision(s) of this subpart to be invalid, such action will not affect 
any other provision of this subpart.

    Signed at Washington, DC, June 22, 2020.
Jeanne Wilson,
Acting Assistant Secretary, Employee Benefits Security Administration, 
Department of Labor.
[FR Doc. 2020-13705 Filed 6-26-20; 4:15 pm]
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