; (B) any local government within a State and any agency or instrumentality thereof; and (C) any other governmental instrumentality of a State or locality. 3. Safe harbor for changes of investment policies by asset managers Section 13(c)(1) of the Investment Company Act of 1940 ( 15 U.S.C. 80a–13(c)(1) ) is amended— (1) in subparagraph (A), by striking ; or and inserting a semicolon; (2) in subparagraph (B), by striking the period at the end and inserting ; or ; and (3) by adding at the end the following: (C) knowingly engage in any activity described in section 2(b) of the Combating BDS Act of 2023 . . 4. Sense of Congress regarding certain ERISA plan investments It is the sense of Congress that— (1) a fiduciary of an employee benefit plan, as defined in section 3(3) of the Employee Retirement Income Security Act of 1974 ( 29 U.S.C. 1002(3) ), may divest plan assets from, or avoid investing plan assets in, any person the fiduciary determines knowingly engages in any activity described in section 2(b), if— (A) the fiduciary makes that determination using credible information that is available to the public; and (B) the fiduciary prudently determines that the result of that divestment or avoidance of investment would not be expected to provide the employee benefit plan with— (i) a lower rate of return than alternative investments with commensurate degrees of risk; or (ii) a higher degree of risk than alternative investments with commensurate rates of return; and (2) by divesting assets or avoiding the investment of assets as described in paragraph (1), the fiduciary is not breaching the responsibilities, obligations, or duties imposed upon the fiduciary by subparagraph (A) or (B) of section 404(a)(1) of the Employee Retirement Income Security Act of 1974 ( 29 U.S.C. 1104(a)(1) ). 5. Rule of construction Nothing in this Act shall be construed to infringe upon any right protected under the First Amendment to the Constitution of the United States.