Ron Phipps 

ABR, CRS, GRI, GREEN, e-PRO 

2011 President 

Dale A. Stinton 

Chief Executive Officer 

GOVERNMENT AFFAIRS 

Jerry Giovaniello, Senior Vice President 

Gary Weaver, Vice President 

Joe Ventrone, Vice President 

Jamie Gregory, Deputy Chief Lobbyist 

500 New Jersey Ave., NW 

Washington, DC 20001-2020

Ph. 202-383-1194 Fax 202-3837580 

www.REALTOR.org 

REALTOR® is a registered collective 

membership mark which may be used only by 

real estate professionals who are members of the 

NATIONAL ASSOCIATION OF REALTORS® 

and subscribe to its strict Code of Ethics. 

January 20, 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 

 Re: Definition of Fiduciary Proposed Rule, RIN 1210-AB32 

Dear Sir or Madame: 

I am writing on behalf of the 1.1 million members of the National Association of REALTORS®

(NAR) to provide written comments on the U.S. Department of Labor’s (DOL) proposed RIN 

1210-AB32, Definition of the term “Fiduciary”. NAR has concerns about the proposed rule’s 

expansion of the definition of the term “fiduciary” under the Employee Retirement Income 

Security Act (ERISA) to include real estate appraisers. NAR believes that fiduciary status should 

not extend to appraisers because appraisers do not provide investment advice. 

The National Association of REALTORS®is America’s largest trade association, including 

NAR’s five commercial real estate institutes and its societies and councils. REALTORS® are 

involved in all aspects of the residential and commercial real estate industries and belong to one or 

more of some 1,400 local associations or boards, and 54 state and territory associations of 

REALTORS®. NAR has approximately 30,000 appraiser members from across the country and 

approximately 750 have earned our Residential Accredited Appraiser (RAA) and General 

Accredited Appraiser (GAA) designations. 

In the proposed rule, DOL broadly defines the circumstances under which a person is considered a 

fiduciary by reason of giving investment advice to an employee benefit plan or a plan’s 

participants. A number of duties are imposed on a fiduciary through ERISA, “including a duty of 

undivided loyalty, a duty to act for the exclusive purposes of providing plan benefits and defraying 

reasonable expenses of administering the plan, and a stringent duty of care.”1

 The proposed rule 

states that appraisers may significantly impact plan investments and, without being a fiduciary, 

may operate with conflicts of interest to plan fiduciaries who expect impartiality. 

Offering investment advice is different than providing objective opinions of value. Real estate 

appraisers act as objective, third party analysts who provide opinions of value. According to the 

Uniform Standards of Professional Appraisal Practice (USPAP), an appraiser is “expected to 

perform valuation services competently and in a manner that is independent, impartial, and 

objective.”2

 Further, under the USPAP Ethics Rule, an appraiser is prohibited from advocating the 

cause or interest of any party. It would be difficult for an appraiser to provide services to any 

benefit plan as a fiduciary under the proposed rule without violating USPAP standards. Any such 

violation could ultimately result in the appraiser losing their state-issued license or certification. 

Thank you for your time and consideration of this matter. If you have any questions or concerns, 

or if we may be of service to you, please do not hesitate to contact NAR’s Senior Regulatory 

Policy Representative, Jerry Nagy, at 202.383.1233 or jnagy@realtors.org. 

Sincerely, 

Ron Phipps, ABR, CRS, GRI, GREEN, e-PRO 

2011 President, National Association of REALTORS®

 

1

Definition of the Term “Fiduciary”. Department of Labor Proposed Rule RIN 1210-AB32. P. 65263 

2

Uniform Standards of Professional Appraisal Practice. 2008-2009 Edition. P.U-1