Maximize Americans' Retirement Security Act

“(3)

“(A) The duties under paragraph (1) shall include the duty to select and maintain investments based, except as provided in subparagraph (B), solely on pecuniary factors.

“(B) Notwithstanding subparagraph (A), when choosing between or among investment alternatives that a fiduciary is unable to distinguish on the basis of pecuniary factors alone, the fiduciary may use non-pecuniary factors as the deciding factor in the selection or maintenance of an investment if the fiduciary furnishes to participants documentation on the following:

“(i) Why pecuniary factors were not sufficient to select or maintain the investment.

“(ii) How the investment compares to the alternative investments with regard to—

“(I) the composition of the investments of the plan with regard to diversification;

“(II) the liquidity and current return of the investments of the plan relative to the anticipated cash flow requirements of the plan; and

“(III) the projected return of the investments of the plan relative to the funding objectives of the plan.

“(iii) How the chosen non-pecuniary factor is consistent with the interests of participants and beneficiaries in their retirement income or financial benefits under the plan.

“(C) For purposes of this paragraph, the term pecuniary factor means a factor that a fiduciary prudently determines is expected to have a material effect on the risk or return of an investment based on appropriate investment horizons consistent with the plan's investment objectives and the plan's funding policy established pursuant to section 402(b)(1).”