February 25, 2011

Office of Regulations and Interpretations 

Employee Benefits Security Administration 

Room N–5655 

U.S. Department of Labor 

200 Constitution Avenue, NW. 

Washington, DC 20210

Attn: Definition of Fiduciary Proposed Rule 

The American Institute of Certified Public Accountants (AICPA) Employee Benefit Plan Audit Quality 

Center (EBPAQC) Executive Committee is pleased to comment on the U.S. Department of Labor’s (DOL) 

proposed rule on Definition of the Term “Fiduciary” (RIN 1210‐AB32) which was published in the 

October 22, 2010 Federal Register. The proposal aims to more broadly define the circumstances under 

which a person is considered to be a fiduciary by reason of giving investment advice to an employee 

benefit plan or a plan's participants.

Under paragraph (c)(1)(i)(A) of the proposal, the types of advice and recommendations that may result 

in fiduciary status under ERISA section 3(21)(A)(ii) are: 

 advice, appraisals or fairness opinions concerning the value of securities or other property; 

 recommendations as to the advisability of investing in, purchasing, holding, or selling securities 

or other property; or

 advice or recommendations as to the management of securities or other property.

The proposed rule encompasses the same types of investment-related advice and recommendations as 

covered by paragraph (c)(1)(i) of the current regulation, except for the certain modifications, including , 

among other things, specific reference to advice and recommendations as to the management of 

securities or other property.

While we do not believe the intent of the proposed changes are to include communications by 

independent qualified public accountants (IQPAs) as defined in ERISA § 103(a)(3)(A), we are concerned 

that the proposed rule could be construed to include communications by IQPAs. ERISA § 103(a)(3)(A) 

requires a plan administrator to engage, on behalf of all plan participants, an independent qualified 

public accountant (“IQPA”) to conduct an examination of the plan’s financial statements in accordance 

with generally accepted auditing standards (GAAS). Further, IQPAs must adhere to independence 

standards in DOL Interpretive Bulletin 75-9 (29 CFR 2509.75-9) and the AICPA’s Code of Professional 

Conduct Rule 101, Independence.

GAAS requires IQPAs to communicate to management and those charged with governance in the plan 

organization significant deficiencies and material weaknesses in internal controls noted in the audit. 

These communications may relate to plan investments, their management and valuation including, for 
example, the concentration of risk in certain asset types, liquidity concerns for funding distributions, 

internal control weaknesses at asset managers, and the absence of timely updates of values. In addition 

IQPA engagement letters may specifically refer to the requirement to inform plan management about 

potential ERISA issues to the extent that come to the IQPA’s attention.

Recommendation

We request that the final rule explicitly state that communications by IQPAs pursuant to GAAS and to 

satisfy the financial statement audit requirements of ERISA § 103(a)(3)(A) are not considered advice or 

recommendations that result in fiduciary status under ERISA section 3(21)(A)(ii) and paragraph 

(c)(1)(i)(A). 

Thank you for the opportunity to comment. We would be happy to discuss our comments with DOL 

representatives. 

Sincerely, 

Robert A. Lavenberg, CPA

Chair

Executive Committee

AICPA Employee Benefit Plan Audit Quality Center

Cc: Michael Davis, Deputy Assistant Secretary, EBSA

 Ian Dingwall, Chief Accountant, EBSA