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Federal Register / Vol. 86, No. 35 / Wednesday, February 24, 2021 / Rules and Regulations
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B. Discussion of Specific Comments on the Proposed Rule 1. Examples of Evidence of Joint Account Ownership Several commenters asked the NCUA
to consider including additional examples of account information that may be used as evidence of coownership. One of the commenters suggested two additional possible examples: 1 Use of the account via a mobile banking application or online access platform; and 2 a co-owner having agreed to receive electronic statements via their email address.
Another of these commenters asked the NCUA to promptly provide additional examples because, while they appreciate the agency not limiting the scope, they felt it would be helpful to provide examples of what information can be used as new technologies are developed and utilized by credit unions.
In asking the NCUA to consider adding additional examples to the text of the regulation or its Official Staff Commentary, one commenter suggested that the examples need to more concretely describe the types of evidence that may be used. The commenter expressed concern that the evidence described in the rule itself is somewhat vague and that the examples in the proposed rules preamble may be confusing. The commenter said that, for example, the fact that an account holder has a debit card issued for another persons use e.g., a parent supplying a card for their child to use does not establish that the other person is actually a co-owner of the account. The commenter noted that the other party would simply be authorized to access the account, but would not own the funds nor qualify for joint share insurance coverage. Related to this example, the commenter acknowledged that 745.8c1 states that the signature requirement does not apply to . . . any accounts maintained by an agent, but felt that this may not be explicit enough to avoid confusion.
The Board disagrees that additional or more concrete examples would be beneficial or are necessary because, contrary to the commenters intentions, they could be viewed as limiting flexibility. The examples provided in the proposed rule, and adopted in the final rule, are neither intended to be allinclusive nor dispositive. Instead, they are merely intended to illustrate the types of evidence the NCUA may consider when determining whether an account is co-owned and the signature card requirement in place for coverage as a qualifying joint account satisfied.
The change is intended to provide the
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NCUA with the maximum flexibility possible to evaluate a FICUs account records and properly determine if an account is co-owned. When it is necessary for the NCUA to evaluate alternative evidence to determine if an account is co-owned, the NCUA will holistically evaluate all of the information in a FICUs account records that properly aid it in making this determination. In other words, the NCUA will not look at evidence, like the issuance of a debit card to a minor, as de facto evidence of co-ownership, but will use such evidence to help it accurately determine the actual account ownership.
Relatedly, one commenter suggested revising the text of proposed 745.8c2 to better reflect the proposed rules intention, as noted in the preamble, that the examples of evidence of co-ownership were not intended to define the only form of evidence 30 that would satisfy the signature requirement. The commenter suggested that, to minimize the opportunity for confusion in the future, the NCUA consider modifying proposed 745.8c2 by replacing such as with the phrase including, but not limited to, before the word evidence.
The commenter reasoned that this would make clear on the face of the regulation that other evidence in the account records may be sufficient to establish qualifying joint ownership of a share account. As discussed in section II of this preamble, the Board agrees that this language would help to eliminate ambiguity and reflects the intent of the proposed rule. Accordingly, the Board has adopted it in the final rule. Section 745.8c2 will now state that the signature card requirement may be satisfied by information contained in the account records of the federally insured credit union establishing coownership of the share account, including, but not limited to, evidence that the institution has issued a mechanism for accessing the account to each co-owner or evidence of usage of the share account by each co-owner.
2. Applicability of State Law One commenter provided a detailed comment asking the NCUA to add language to the regulation or its Official Staff Commentary clearly stating that the proposed change only addresses the evidence that the NCUA
may accept to treat an account as joint for share insurance coverage purposes, with no bearing on the legality or enforceability of an account that lacks joint account holders signatures on an 30 85

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FR 34454, 34546 June 5, 2020.

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account agreement. The Board addressed this issue in the preamble to the proposed rule 31 and again reiterates now that the alternative method for satisfying the signature card requirement adopted in this final rule is only relevant for purposes of determining share insurance coverage.
The final rule has no bearing on any other legal requirement that FICUs are subject to, including all applicable state laws. The final rule does not eliminate the need for FICUs to obtain signatures when opening an account, it merely allows the NCUA to use alternative evidence in a FICUs account records to find the signature card requirement for coverage as a qualifying joint account satisfied even if signed membership or account signature cards are absent from a liquidated FICUs records.
In addressing this issue, the commenter acknowledged that the preamble to the proposed rule speaks to this issue,32 but felt it critical that FICUs understand that the proposed rule: 1
Would only impact share insurance coverage; and 2 would not eliminate any requirement under state law or contracts common law related to the need for joint account holders to sign account agreements. The commenter correctly emphasized that the proposed change would not open the door for FICUs to establish accounts without proper, signed agreements in place among all account holders.
The commenter noted that signatures are statutorily required in their state to create a joint account and that, even absent a statutory requirement, the common law calls for contracts to be signed. The commenter stated that without the signatures of all joint account holders to a contract or account agreement, credit unions lack a legal basis for enforcing the accounts terms against those account holders. The commenter emphasized that the lack of a legally enforceable, signed joint account agreement could lead to credit unions being caught in the middle of potential disputes among parties and their heirs when one or more account holders die.
While the Board again reiterates the alternative method for satisfying the signature card requirement adopted in 31 The proposed rule only would affect a requirement in the NCUAs regulations that must be satisfied for a share account to be separately insured as a joint account; it would not affect any other legal requirements applicable to FICUs. FICUs may, for legal or other reasons, find it appropriate or necessary to continue collecting customers signatures. The changes made by the proposed rule would not modify or affect any state law requirements generally applicable to FICUs. 85 FR
34454, 3454647 June 5, 2020 emphasis added.
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