CUNA Regulatory Comment Call


August 3, 2001

ACH Affidavit & Electronic Requirements

(NOT A MAJOR PROPOSAL)

EXECUTIVE SUMMARY

NACHA - The Electronic Payments Association requests comments on affidavit requirements that would become effective on March 15, 2002. NACHA proposes to alter the NACHA Operating Rules (Rules) so that they would have the following effects:

Credit unions may help CUNA prepare comments, which are due by August 13, 2001. Please submit your comments to CUNA by August 9. CUNA realizes this is a short turn around, but NACHA gave us little time to collect comments. Please feel free to fax your responses to CUNA at 202-371-8240; e-mail them to Associate General Counsel Mary Dunn at mdunn@cuna.com or to Assistant General Counsel Michelle Profit at mprofit@cuna.com or mail them to Mary Dunn or Michelle Profit in c/o CUNA’s Regulatory Advocacy Department, 805 15th Street, NW, Suite 300, Washington, DC 20005. Credit unions may also respond directly to NACHA by completing NACHA's comment form on the proposed rule as well. Click www.nacha.org for a copy of that request for comment. This survey and other credit union comments can be submitted directly to NACHA c/o William Colbert, Network Services Associate, NACHA, 13665 Dulles Technology Drive, Suite 300, Herndon, VA 20171, faxed to (703) 787-0996, or sent via e-mail to wcolbert@nacha.org. Please submit all of your comments to CUNA, so we can incorporate your views into our letter.

RULE

The current Rules allow a consumer to receive an expedited recredit for an ACH debit that was unauthorized. In order to receive this recredit, this consumer must execute an affidavit claiming that the ACH transaction was unauthorized. This affidavit proposal supersedes the previous requirement that the consumer notify the RDFI in writing about an unauthorized debit. The Rules never required that an affidavit be notarized, but some ACH participants thought that they were required by state laws to have any affidavit notarized. This proposal would clarify that some type of statement, but not necessarily an affidavit, is necessary. Therefore notarization would not be necessary.

The proposal would also add new definitions, taken from the E-Sign Act, including terms such as "electronic," electronic record," "electronic signature" and "record".

QUESTIONS REGARDING THE NOTICE

  1. Does your organization support or oppose the proposal? Please explain.










  2. Does you organization agree with the recommended implementation date for this rule change of March 15, 2002? If not, when would be better?










  3. Does your organization agree that the Rules should permit ACH participants the option to utilize electronic communication methods to provide and execute any agreement, authorization, affidavit or other record currently required by the Rules? Please explain.










  4. Does your organization agree with the recommendation to permit the electronic retention of records? Why?










  5. Does your organization agree with the recommendation to modify the Rules to replace the term "affidavit" with the term "written statement under penalty of perjury" in order to clarify that such a document need not be notarized?










  6. Does your organization have any other suggestions regarding this proposal?










Eric Richard • General Counsel • (202) 508-6742 • erichard@cuna.com
Mary Mitchell Dunn • SVP & Associate General Counsel • (202) 508-6736 • mdunn@cuna.com
Jeffrey Bloch • Assistant General Counsel • (202) 508-6732 • jbloch@cuna.com
Catherine Orr • Senior Regulatory Counsel • (202) 508-6743 • corr@cuna.com