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:
- The Rules would allow any affidavit required by the Rules to be obtained and retained in an electronic form.
- The Rules would clarify that the affidavit needs to be a "written statement under penalty of perjury," but need not be notarized.
- The Rules would be amended to facilitate the use of electronic agreements and electronic storage of records in conformance with the Electronic Signatures in Global and National Commerce Act (E-Sign Act). This rule would allow any agreement, authorization, affidavit or other record required by the Rules to be executed in an electronic form. The term records includes notices, disclosures, and other forms that must be provided under the Rules.
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
- Does your organization support or oppose the proposal? Please explain.
- Does you organization agree with the recommended implementation date for this rule change of March 15, 2002? If not, when would be better?
- 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.
- Does your organization agree with the recommendation to permit the electronic retention of records? Why?
- 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?
- Does your organization have any other suggestions regarding this proposal?
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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 |
