U.S. Department of Labor to Reconsider Proposed Regulation Impacting ESOP Appraisers discusses how the DOL Will Re-Propose DOL Regulation to Change the Definition of Fiduciary and notes that the reference to "routine appraisals" seems to imply that the re-proposed DOL fiduciary regulation would provide that an ESOP appraiser would be a fiduciary for purposes of an ESOP transaction:
The DOL press release focuses largely on the aspects of the proposed regulations that impact 401(k) plans and defined benefit pension plans and does not specifically reference ESOPs. However, the press release mentions areas in which the EBSA anticipates revising the rule. Within this comment, EBSA mentions "routine appraisals." The comment may be an indication that the EBSA is considering exempting from the definition of "fiduciary" an appraiser's preparation of an annual stock valuation for an ESOP, which may be considered routine. The wording of the press release could be read to leave open the possibility that an ESOP appraiser would be considered a fiduciary when rendering fairness or other transaction opinions (those that are not "routine"), as is the case in the original proposal.