Opinion No. ( 1992 )

Mr. Michael T. Pyron Chairman, Arkansas Appraiser Licensing Certification Board 324 Spring Street, Suite 215 Little Rock, AR 72201

Dear Mr. Pyron:

This is in response to your request for an opinion concerning the authority of the Appraiser Licensing Certification Board to implement the provisions of Acts 416 and 541 of 1991, codified at Arkansas Code Annotated §§ 17-51-101—306 (Cum. Supp. 1991). I have paraphrased your question as follows:

May the Board proceed now to implement the mandatory licensure of appraisers as required in Section 10 of Act 416 of 1991 and in Section 10 of Act 541 of 1991, or must it wait until after December 31, 1992?

It is my opinion that the Board may proceed now to implement the provisions of the act.

Acts 416 and 541 of 1991 created the Arkansas Appraiser Licensing and Certification Act in response to Title XI of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (FIRREA). A.C.A. § 17-51-102(a). In general, FIRREA mandates that only individuals who are certified or licensed may perform appraisals. See 12 U.S.C. §§ 3301-3351. As you have noted, Acts 416 and 541 are identical, and section 10(a) of both acts states:

After July 1, 1991, or such later date as established by the Appraisal Subcommittee, it shall be unlawful for any person who is not licensed or certified pursuant to this act to perform appraisal services as defined herein in connection with a federally related transaction.

Arkansas Code Annotated § 17-51-103(6) defines the "Appraisal Subcommittee" as follows:

[T]he subcommittee of the Federal Financial Institutions Examination Council established under Title XI, the Real Estate Appraisal Reform Amendments of the federal Financial Institutions Reform, Recovery, and Enforcement Act of 1989 [FIRREA], section 1102, by amendment to the Federal Financial Institutions Examiation Council Act of 1978, 12 U.S.C. § 3301 et seq., through the addition of new section 1011, "Establishment of Appraisal Sub-committee".

Section 10(a) of Acts 416 and 541 was codified at A.C.A. § 17-51-303, and now states:

It shall be unlawful for any person who is not licensed or certified pursuant to this chapter to perform appraisal services as defined herein in connection with a federally related transaction.

The FIRREA originally set the deadline for compliance with its terms at July 1, 1991. 12 U.S.C. § 3348(a)(1). The section was, however, amended by striking the July 1st date and inserting "December 31, 1992." The effect of this amendment was set forth and discussed in Advisory No. 91-4 issued by the Appraisal Subcommittee of the Federal Financial Institutions Examination Council on December 20, 1991. The Advisory states in pertinent part:

The amended Section now states that: ``Not later than December 31, 1992, all appraisals performed in connection with federally related transactions shall be performed only by individuals certified or licensed in accordance with the requirements of this Title. . . .' Each state that implements its appraiser regulatory system prior to December 31, 1992, should advise the ASC of the date its system is effective. Certain requirements of Title XI must be put into effect by that date. Those requirements . . . include . . . the submission to the ASC of a roster of State certified and licensed appraisers. . . . The ASC is prepared to receive those items after January 1, 1992. . . . The ASC requests written notification from each State, as soon as possible, of the date when its Title XI system is operative. . . . States should proceed in their efforts to implement Title XI as soon as reasonably possible. All States must fully implement Title XI by the December 31, 1992 deadline. [Emphasis added.]

The language emphasized above indicates, in my opinion, an intention by Congress that states may implement the provisions of FIRREA at any time prior to the December 31, 1992 deadline. The language of the Advisory indicating that states should inform the Advisory Subcommittee of the effective date of the states' systems would indicate, in my opinion, that December 31, 1992 is the deadline for implementation, rather than the date before which states may begin implementing their programs. This conclusion is further supported by the fact that the Appraisal Subcommittee is prepared to receive data from the states at any time after January 1, 1992. It has encouraged the states to "proceed in their efforts to implement Title XI as soon as reasonably possible," and it issues the reminder that all states must fully implement Title XI by "the December 31, 1992 deadline." See Advisory 91-4. In my opinion this appears to indicate that states may implement the provisions of FIRREA at any time before December 31, 1992.

In sum, the state act has incorporated the terms of FIRREA, which merely establishes a deadline of December 31, 1992, for mandatory licensing or certification of appraisers. The federal act grants no authority to the Appraiser Licensing and Certification Board to establish any different date than that set out in the federal act. In my opinion, there appears to be no restriction on the Board's decision to proceed before that date to implement the provisions of the Appraiser Licensing and Certification Act.

The foregoing opinion, which I hereby approve, was prepared by Deputy Attorney General Elisabeth A. Walker.

Sincerely,

WINSTON BRYANT Attorney General

WB:cyh