2020 Notary Law Updates
| 2020 Adopted/Enacted Notary Legislation Page Last Updated: February 7, 2022 |
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ARIZONA - SB 1030 Provides for certain commissioning issues; establishes remote online notarization. Notaries interested in performing remote online notarizations must register with the Secretary of State and meet registration requirements.
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COLORADO – SB 20-096 Enacts remote online notarization in Colorado. Defines key terms: “appear personally,” “audio-video communication,” “credential,” “credential analysis,” “dynamic knowledge-based authentication assessment,” “outside the United States,” “public key certificate,” “real-time or in real time,” “remotely located individual,” “remote notarization,” “remote notarization system,” “remote presentation,” and “tamper-evident.”
Authorizes a Colorado Notary Public to perform a remote notarization only with respect to electronic records and in compliance with state law and administrative rules, for a remotely located individual located in Colorado; outside of Colorado but within the United States; or outside the United States if the Notary Public has no actual knowledge that the notarial act is prohibited in the jurisdiction in which the remotely located individual is physically located at the time of the act and the individual confirms to the Notary that the requested notarial act and the record relate to a matter to be filed with or that is currently before a court, governmental entity or other entity in the United States; property located in the United States; or a transaction substantially connected to the United States. Requires a Notary Public, before performing his or her/their initial notarization using a remote notarization system, to notify the Secretary of State that the Notary will be performing remote notarizations and to identify each remote notarization system that the Notary Public intends to use. Requires any such system to conform to provisions of Colorado’s Revised Uniform Law on Notarial Acts (RULONA) and any administrative rules. Requires a Notary Public submitting such notification to the Secretary to use any notification format required by the Secretary, include an affirmation that the Notary has read and will comply with RULONA and any administrative rules, and provide proof of completing any training and examination required by the Secretary. Establishes that a Notary Public performing a notarial act for a remotely located individual by means of audio-video communication must be located in Colorado at the time the notarial act is performed and execute specified steps of the notarization in compliance with provisions specified in Colorado law. Clarifies that the venue for the notarial act is the jurisdiction within the State of Colorado where the Notary Public is physically located while performing the notarial act. Requires a Notary Public to determine, from personal knowledge or satisfactory evidence of identity as specified, that a remotely located individual appearing before the Notary by means of audio-video communication is the individual that he or she purports to be. Establishes that a Notary Public has satisfactory evidence of identity of a remotely located individual if the Notary can identify the individual by means of audio-video communication, using at least one of the following methods: (1) oath or affirmation of a credible witness personally known to the Notary Public and who is physically present with either the Notary or the remotely located individual at the time of remote notarization; (2) remote presentation and credential analysis of a government-issued identification credential and least one of three other specified identification verification methods; or (3) any other method. Any/all methods used must comply with rules adopted by the Secretary of State. Allows a Notary Public to refuse to perform a notarial act for a remotely located individual if the Notary is not satisfied that statutory requirements are being met. Requires the certificate of a notarial act to indicate that the notarial act was performed using audio-video communication technology. Makes conforming amendments to provisions of Colorado law dealing with the sufficiency of a notarial certificate. Requires a Notary Public to maintain a record of each remote notarization performed in an electronic journal. Requires a Notary Public to create an audio-video recording of each remote notarization performed, but only if: the Notary first discloses certain facts to the remotely individual including the fact that the recording is being made and details of its intended storage; the remotely located individual explicitly consents to both the recording and the storage of the recording; and the recording is stored and secured in compliance with administrative rules of the Secretary of State. Clarifies that the audio-video recording must be in addition to the required journal entry for each remote notarization performed. Requires the recording to include certain statutorily specified actions, recitations, statements and explanations. Establishes that statutory provisions relating to the security, inspection, copying and retention/disposition of a Notary Public’s journal apply equally to the audio-video recordings that may be created. Establishes that the failure of a Notary Public to perform a duty or meet a requirement specified in certain statutory provisions relating to the audio-video recording does not invalidate a remote notarization performed. Further establishes that a Notary is not liable to any person for damages claimed to arise from a failure to perform a duty or meet a requirement specified in certain statutory provisions relating to the audio-video recording. Establishes that regardless of the physical location of the remotely located individual at the time of the notarial act, the validity of a remote notarization performed by a Colorado Notary is governed by the laws of Colorado, including any rules adopted by the Secretary of State. Provides requirements to be met by providers of a remote notarization system or storage system wishing to be approved by the Secretary of State for use by Colorado Notaries Public. Specifies certain performance requirements for remote notarization systems. Provides that certain records classified as privileged under Colorado Law remain privileged in their electronic form, when secured and stored by a remote notarization system. Prohibits a Notary Public from using a remote notarization system to notarize a record relating to the electoral process; or a will, codicil, or any acknowledgment required under cited Colorado law pertaining to wills. Expands and clarifies the scope of the Secretary of State’s rule making authority. Clarifies that until the December 31, 2020 effective date of SB 20-096, the “remote ink-signed notarization” provisions of the Governor’s Executive Order prescribing COVID-19 notarization procedures remain in effect. Requires Colorado title insurance agents or title insurance companies who must provide a certain customer disclosure under CRS 10-11-122 to also provide a statement substantially as: “Colorado Notaries may remotely notarize real estate deeds and other documents using real-time audio-video communication technology. You may choose not to use remote notarization for any document.” ---------------------------
The Colorado Secretary of State has adopted permanent rules to implement remote online notarization.
Provides that the rule’s purpose is to “ensure the uniform and proper administration, implementation, and enforcement of the Colorado Revised Uniform Law on Notarial Acts (RULONA) and to answer questions arising under the Act.” Defines and clarifies certain terms used in Colorado’s Revised Uniform Law on Notarial Acts as well as terms used in the new rule: “personal information,” “provider,” “remote notarization system provider,” “remote notarization storage provider.” Clarifies that a Notary commission applicant must provide their legal name on applications and renewals. The applicant’s first and last name must match the name on the applicant’s government-issued identification. If the last name on the identification contains more than one name, the applicant must include all those names in the last name field of the application, not abbreviating any part. Clarifies that an individual must already be commissioned as a Colorado Notary Public, with “active” status, in order to be approved as a Remote Notary. Establishes that a Notary Public must submit a notice of intent on the approved application form and receive approval from the Secretary of State before the Notary may remotely notarize a document. Allows an individual to file the notice of intent when initially applying to become a Colorado Notary Public, but clarifies that the individual may perform remote notarizations only after being commissioned as a Notary and approved as a Remote Notary. Prescribes the application information that an applicant to become a Remote Notary must provide, including proof of successful completion of remote notarization training and examination and the required fee. . Clarifies that the applicant must select at least one approved remote notarization system provider and may select multiple providers. Establishes that the Secretary of State will provide the required remote notarization training course and examination. Provides that the Secretary may designate a third-party training course or appoint certified Notary Public instructors to administer the remote training course and testing for applicants, if such need is determined by the Secretary. Establishes that a certificate of successful completion of an approved course of instruction shall expire 90 days from the date of its issuance. Specifies information to appear on every certificate of completion. Requires a Remote Notary Public to renew every four years until his or her/their regular Notary Public commission requires renewal, whichever date occurs first. Requires a Remote Notary Public, no more than 90 days before renewing his or her/their Remote Notary status, to successfully complete renewal training, pass the required exam, and pay the required fee. Requires a renewing Remote Notary to select at least one approved remote notarization system provider and clarifies that the Remote Notary may select multiple approved system providers. Establishes the circumstances under which the Secretary of State’s approval for a Notary Public to perform remote notarizations automatically expires. Requires execution of certain procedures regarding the expired Remote Notary’s electronic seal, electronic signature, journal and audio-video recordings, unless the Secretary of State reapproves the Notary within 30 days of the expiration. Prescribes requirements for the Remote Notary’s electronic signature and seal used for remote notarizations. Requires both the electronic signature and electronic seal used by a Remote Notary for remote notarizations to match in appearance (and content, relative to the seal) the image of the Notary’s manually applied official stamp; and the manual “official signature” of the Notary on file with the Secretary of State for the Notary’s most recent underlying commission. Clarifies that neither the remote notarization application nor any update form may be used to change the Notary’s manual signature on file with the Secretary of State. Specifies retention and use requirements for a Remote Notary’s seal and electronic signature, including that both must be retained under the Remote Notary Public’s sole control and access. Prohibits a Remote Notary’s employer, including the employer’s employees and agents, from using or permitting the use of a Remote Notary’s seal or electronic signature by anyone except the Remote Notary Public. Requires that on resignation or revocation of the Notary Public’s commission, or on the Notary’s death or adjudication of incompetency, the Notary or the Notary’s personal representative or guardian must delete the Notary’s electronic seal and electronic signature from the remote notary system provider’s system. Charges a Remote Notary Public with the ongoing duty to verify that each remote notary provider used has “Active” status with the Secretary of State’s office, before using that provider’s remote notarization system to perform a remote notarization. Clarifies that this duty extends to each remote notarization to be performed. Provides the specific circumstances under which a Remote Notary must stop and restart a remote notarization process from the beginning. |
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FLORIDA – HB 409 Divides Chapter 117, Florida Notary statutes, into Part I – General Provisions and Part II – Online Notarizations. Clarifies the effect of specified HB 409 provisions on the application of current law, and specifies circumstances not precluded by certain provisions.
Includes: amending existing Notary Public statutes; authorizing remote online notarization and providing minimum technology standards; providing for a Florida Notary Public to be registered as an Online Notary Public and establishing related statutory requirements; establishing the witnessing of an electronic signature on a record by a physically present or remotely present witness and allowing a registered Online Notary Public to supervise such witnessing using audio-video communication technology; providing for electronic signing and self-proving of an electronic will with the principal and witness(es) being present with one another by means of audio-video communication technology and supervised by a registered Florida Online Notary Public; providing for authority and scope of rule-making by Florida’s Department of State; and technical/conforming amendments. Makes conforming amendments in multiple chapters of Florida statutes. Creates definitions, including “appear before,” “before,” or “in the presence of”; “audio-video communication technology”; “credential analysis”; “errors and omissions insurance”; “identity proofing”; “knowledge-based authentication”; “online notarization”; “Online Notary Public”; “physical presence”; “principal”; “record”; “remote online notarization service provider”; “remote presentation.” Includes the following provisions. Personal Appearance Establishes that signer presence before a notary public may be either by means of physical presence or by means of audio-video communication technology as authorized under Chapter 117, Part II. Authorized Duties Expands the notarial act of certified/attested photocopy, by authorizing the notary to supervise the making of a copy (no longer refers to “photocopy”) of a tangible or electronic record or the printing of an electronic record, and certify/attest to trueness of the copy or of the printout. Retains existing statute’s prohibited document types. Provides a certificate format for certifying/attesting a copy of a tangible or electronic or printout of an electronic record. Adds such Notary-certified tangible copies (“paper printout”) of an electronic record to the statutory list of instrument types that the clerk of the circuit court shall record upon presentment and payment of the service charge prescribed by law. General Notarization Procedures Establishes that when a person is physically unable to sign or make a mark and directs the Notary to sign in his or her presence, the person’s direction must be given by verbal, written, or other means. Requires the Notary to add in writing, below the signature, a specified statement and the means by which the person directed the Notary to sign. Requires the Notary to maintain the proof of direction and authorization to sign on behalf of the person with a disability for 10 years from the date of the notarial act. Modifies related certificate short forms. Clarifies that the statute prohibiting a Notary from signing a notarial certificate using a facsimile signature stamp unless certain conditions apply does not apply-to or prohibit the use of an electronic signature and seal by a registered Online Notary Public performing an electronic or online notarization in accordance with Chapter 117. Amends the statutory prohibition against a Notary notarizing a signature on a document when the person whose signature being notarized is not in the Notary’s presence, through amendatory language clarifying that appearance before the Notary is either by means of physical presence or by means of audio-video communication technology authorized by Part II of Chapter 117. Notarial Certificates Clarifies that the venue of a notarial certificate states the location of the Notary at the time of notarization. Requires a notarial certificate to specify whether the signer personally appeared before the Notary at the time of the notarization by physical presence or by means of audio-video communication technology. Modifies the statutory notarial certificate forms in F.S. 117.05 and F.S. 695.25 with such notation. Provides new short form certificates for a Notary to certify a copy of a tangible or electronic record (Chapter 117); and for acknowledgment for a limited liability company (Chapter 695). Notary Fees Amends the statute establishing the maximum $10 fee that a Notary may charge for any one notarial act, by clarifying that exceptions are provided in F.S. 117.045 (marriages) and 117.275 (online notarizations). Establishes that a Florida Online Notary Public or the Notary’s employer may charge a fee not exceeding $25 for performing an online notarization. Clarifies that fees for services other than notarial acts are not governed by this section (F.S. §117.275). Electronic Notarization Requires a Notary’s electronic signature to be retained under the Notary’s sole control and to include access protection with passwords or codes under the Notary’s control. Prohibits a person from requiring a Notary to perform a notarial act with respect to an electronic record using a form of technology that the Notary has not chosen to use.
Online Notarization Authorizes an Online Notary Public to perform, as an online notarization, any of the notarial functions authorized under Chapter 117 Part I and in compliance with all statutory and rule requirements. Excludes performing marriages from being performed as an online notarization. Establishes that a principal may appear in the presence of an Online Notary Public by means of audio-video communication technology that meets statutory and rule requirements. Establishes that an Online Notary Public must be physically located in Florida for performance of an online notarization; the principal or witnesses may be physically located in Florida or elsewhere. Allows a Florida commissioner of deeds to perform an online notarization while physically located in Florida or elsewhere within the commissioner’s territorial jurisdiction. Establishes that the validity of an online notarization by a Florida online notary shall be determined by applicable Florida law, regardless of the physical location of the principal or any witnesses at the time of the notarial act. Addresses potential conflict with other law by establishing that an online notarization performed by a Florida online notary in compliance with law and administrative rules satisfies any other requirement of Florida law that a notarization be performed. Further establishes that if a provision of law requires a signature or an act to be witnessed, compliance with the online electronic witnessing standards prescribed in Chapter 117 and any related administrative rules satisfies that requirement. Allows a Florida notary public, civil-law notary or commissioner of deeds to register as an online notary with the Department of State, provided the person: 1. Holds a current Florida notary public commission, or an appointment as a Florida civil-law notary, or appointment as a Florida commissioner of deeds and can submit such proof with the online notary application. 2. Can certify to completion of Online Notary Public training (live or online). 3. Pays the registration fee, submits the signed/sworn registration. 4. Identifies the remote online notarization service provider the applicant intends to use, and confirms that the chosen technology satisfies Florida’s statutory and administrative rule requirements. 5. Provides evidence of having obtained a bond in the amount of $25,000 obtained from an authorized surety company and specifically covering online notarial acts. This (single) bond satisfies the bond requirement under §117.01(7). 6. Provides evidence of having obtained a minimum $25,000 errors and omissions policy from an authorized insurer, covering performance of online notarial acts. Bond must meet terms specified by rule of the Department of State. Establishes that an Online Notary Public is subject to Chapter 117 Part I to the same extent as a notary public commissioned only under that part and including §117.021 relating to electronic notarizations. Establishes that an Online Notary Public may perform notarial acts under Part I (paper and in-presence electronic notarial acts) in addition to performing online notarial acts. Requires an Online Notary Public to attach or logically associate his/her electronic signature and seal to an electronic record’s electronic notarial certificate in a manner that is capable of independent verification using tamper-evident technology. Requires an Online Notary Public to attach or logically associate his/her electronic signature and seal to an electronic record’s electronic notarial certificate in a manner that is capable of independent verification using tamper-evident technology. Prescribes the online notarization procedures to be performed by an Online Notary Public, including identification of a principal and any witness appearing online as specified; confirming verbally or through the principal’s written consent that the principal desires the notarial act to be performed by a Florida notary public and under the general law of Florida; conditions that prohibit the Online Notary Public from performing the online notarization. Requires an Online Notary Public or his or her RON service provider to take reasonable steps to ensure that the audio-video communication technology used in an online notarization is secure from unauthorized interception. Requires the electronic notarial certificate for an online notarization to include a notation that the notarization is an online notarization. Provides that, except where expressly provided otherwise in Part II of Chapter 117, the provisions of Part I of Chapter 117 apply to an online notarization and an Online Notary Public. Provides that failure to comply with required online notarization procedures does not impair the validity of the notarial act or the electronic record that was notarized, but may be introduced as evidence to establish violations of Chapter 117 or as an indication of possible fraud, forgery, impersonation, duress, incapacity, undue influence, minority, illegality, unconscionability, or for other evidentiary purposes. (This provision may not be construed to alter the duty of an Online Notary Public to comply with Chapter 117 and any administrative rules. Online Notary Records Requires an Online Notary Public to keep one or more secure electronic journals of online notarizations performed. Provides required information to be included in the electronic journal record. Requires an Online Notary Public to keep an uninterrupted and unedited copy of the recording of the online notarization’s audio-video session. Requires the Online Notary Public to make a recitation identifying the notarial act to be performed. Provides other audio-video session events that must be captured in the recording. Requires an Online Notary Public to take reasonable steps to ensure the integrity, security and authenticity of online notarizations; maintain a backup record of the electronic journal; protect the journal, backup record and any other records received by the Online Notary Public from unauthorized access or use. Establishes a minimum 10-year retention period for the electronic journal of online notarial acts. Establishes other requirements relating to disposition of the journal, access to the journal by the Department of State, and use of a secure repository for the journal. Provides for an Online Notary Public to make electronic copies of electronic journal records, and provide access to the “related” audio-video communication recordings, to specified parties. Supervising the Witnessing of Electronic Records Creates the new notarial function of an Online Notary Public supervising the witnessing of electronic records. Authorizes a Florida Online Notary Public to supervise the witnessing of electronic records by the same audio-video communication technology used for online notarization. Establishes that the witness may be in the physical presence of the principal or remote from the principal, provided the witness and principal are using audio-video communication technology. Requires a witness who is remote form the principal and appearing through audio-video communication technology to verbally confirm that he or she is a resident of and physically located within the United States or a territory of the United States at the time of witnessing. Prescribes the requirements for identifying a witness to an electronic signature. Clarifies that the act of witnessing an electronic signature means the witness is either in the physical presence of the principal or present through audio-video communication technology at the time the principal affixes his/her electronic signature and the witness hears the principal make a statement to the effect that the principal has signed the electronic record. Specifies additional requirements and procedures to be performed if an electronic record to be signed is a will under Florida Statutes Chapter 732, a trust with testamentary aspects under Chapter 736, a health care advance directive, a waiver of spousal rights under F.S. §732.701 or §732.702, or a power of attorney authorizing any of the transactions enumerated in §709.2208. Requires the electronic record containing an instrument signed by witnesses who were present with the principal by means of audio-video communication technology to contain a perceptible indication of their presence by such means. Charges a RON service provider, prior to facilitating witnessing of an instrument by means of audio-video communication technology, to require the principal to answer three specified questions. Establishes that if any of the three questions are answered in the affirmative, the principal’s signature on the instrument may only be validly witnessed by witnesses in the physical presence of the principal at the time of signing. Requires the RON service provider to follow the principal’s submission of answers with a written notice to the principal (disclosing that if the principal is a vulnerable adult as defined in F.S. §415.102, the principal’s documents will not be valid if witnessed by means of audio-video communication technology). Establishes that a witness’ presence with a principal by means of audio-video communication technology is not effective for witnessing the signature of a principal who is a vulnerable adult under Florida law (F.S. §415.102). Assigns the burden of proving that the principal was a vulnerable adult at the time of executing the electronic record on the contestant of an electronic record. Establishes that the validity of a witnessing of an electronic signature when the witness is present by audio-video communication technology is valid only if, during the audio-video communication, the principal provider verbal answers to specified questions. Charges an Online Notary Public with considering the responses to the questions in carrying out the statutory mandate to refuse to notarize if it appears the person (principal) is mentally incapable of understanding the nature and effect of the document at the time of notarization. Provides that a principal’s responses to the questions may be offered as evidence regarding the validity of the instrument, but that an incorrect answer may not serve as the sole basis to invalidate an instrument. Specifies the information related to a completed witnessing of an electronic record that a RON service provider or Online Notary Public must provide pursuant to subpoena, court order, an authorized law enforcement inquiry, or other lawful request. Clarifies that except as set forth in F. S. §709.2202, an act of witnessing performed pursuant to F.S. §117.285 satisfies requirement that the witness must be a subscribing or attesting witness or must be in the presence of the principal at the time of signing. Establishes that the law of Florida governs the validity of witnessing supervised by an Online Notary Public pursuant to F.S §117.285, regardless of the physical location of the witness at the time of witnessing. Provides that Florida’s state and federal courts have subject matter jurisdiction over any dispute arising out of an act of witnessing occurring under F.S. §117.285, and may issue subpoenas for records or to require the appearance of witnesses in relation thereto in accordance with applicable law. Amends F.S. §689.01 regarding how real estate is conveyed. Establishes that any requirement that an instrument be signed in the presence of two subscribing witnesses may be satisfied by witnesses being present and electronically signing by means of audio-video communication technology as defined in F.S. §117.201. Clarifies that the act of witnessing an electronic signature is satisfied if a witness in in the physical presence of the principal or present through audio-video communication technology at the time the principal affixes his or her electronic signature, and the witness hears the principal make a statement acknowledging that the principal has signed the electronic record. Establishes the validity of all such acts of witnessing and that upon recording, they may not be denied to have provided constructive notice based on any alleged failure to have strictly complied with governing law. Clarifies that challenges to the validity or enforceability of an instrument or electronic record, based on stated bases or any other basis not related to the act of witnessing, are not precluded. Electronic Wills Provides that an electronic will may be signed with an electronic signature. Establishes that an electronic will may be self-proved and admitted to probate. Clarifies that any requirement that individuals sign an instrument in the presence of one another may be satisfied by witnesses being present and electronically signing by means of audio-video communication technology that meets the requirements of Part II of F.S. Chapter 117 and any rules adopted under it, if: (a) the individuals are supervised by a notary public in accordance with F.S. §117.285; (b) the individuals are authenticated and signing as part of an online notarization session in accordance with F.S. §117.265; (c) the witness hears the signer make a statement acknowledging that the signer has signed the electronic record; and (c) the signing and witnessing of the instrument complies with the requirements of F.S. §117.285. Administrative Rules Establishes that the Florida Department of State may adopt rules necessary to implement the requirements of Chapter 117 and to set standards for online notarization. Provides the scope of rulemaking. Requires the Department of state to adopt forms, processes and interim or emergency rules necessary to accept application from and register online Notaries Public pursuant to F.S. §117.225. Provides minimum standards applicable to any online notarization performed by a Florida Online Notary Public or his/her RON service provider, until such time as the Department of State adopts rules setting standards that are equally or more protective. Matters addressed in the minimum standards provided in F.S. §117.295 include identity proofing by means of knowledge-based authentication; use of credential analysis; use of audio-video communication technology in completing online notarizations; a RON service provider’s satisfaction of tamper-evident technology requirements; training requirements for online Notaries Public; and errors and omissions insurance to be obtained by a RON service provider. Exempts such rulemaking from F.S. §120.541(3) pertaining to circumstances requiring submission of a rule to the Senate President and House Speaker for ratification by the Legislature. Requires the Department of State in collaboration with Agency for State Technology to adopt rules establishing standards for tamper-evident technologies to be used in performance of electronic notarial acts. All electronic notarizations performed on or after Jan. 1, 2020 must comply with the adopted standards. Additional Provisions Establishes that third persons, regarding their acceptance of and reliance on a power of attorney under Florida law, may in good faith request and rely upon without further investigation the electronic journal or record made by the Notary Public pursuant to the laws of his or her commissioning state, if the power of attorney is witnessed or notarized remotely through the use of online witnesses or notarization. Provides that an electronic journal or record so requested must be provided at the principal’s expense unless the request is made after the time specified in F.S. §709.2120(1) for acceptance or rejection of the power of attorney. Makes conforming amendments to F. S. §709.2120 regarding rejecting a power of attorney, to contemplate powers of attorney witnessed or notarized remotely through use of online witnesses or notarization, and electronic journals and records. |
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IDAHO – SB 1111 Enacts the remote online notarization provisions of the Revised Uniform Law on Notarial Acts. Establishes the circumstances under which an Idaho Online Notary may notarize for a remotely located individual using communication technology. Requires Notaries wishing to act as an Online Notary to first notify the Secretary of State, and identify the technologies to be used. Requires that communication technology and identity proofing technologies must satisfy any standards established by the Secretary of State. Provides rulemaking authority to the Secretary of State; establishes standards for the rules. Provides for short-form certificates, making and retention of an audio-visual recording of every remote online notarization performed; and other matters.
------------------------- IDAHO - SB 1111 Amends Idaho’s Revised Uniform Law on Notarial Acts by authorizing a notarial officer to certify that a tangible copy of an electronic record is an accurate copy of the electronic record; and creating a new section authorizing remote online notarization of electronic and tangible records. Requires the Secretary of State (“the Secretary”) to adopt administrative rules and provides the requirements and scope of rule-making authority.
1. Creates new Section 51-114A, Idaho Code, authorizing an Idaho Notary Public’s performance of remote online notarizations involving electronic and tangible records, subject to the provisions of the RULONA and any applicable administrative rules. Requires an Idaho Notary Public, before performing an initial remote online notarization, to notify the Secretary of State of this intent and to identify the technology to be used. Provides that if the Secretary has established standards for approval of communication technology or identity proofing as authorized, the communication technology and identity proofing must conform to the standards. 2. Defines key terms: a. “Communication technology” – an electronic device or process that: (i) allows a Notary Public and a remotely located individual to communicate with each other simultaneously by sight and sound; and (ii) when necessary and consistent with other applicable law, facilitates communication with a remotely located individual who has a vision, hearing or speech impairment. b. “Foreign state” – a jurisdiction other than the United States, a state, or a federally recognized Indian tribe. c. “Identity proofing” – a process or service by which a third person provides a Notary Public with a means to verify the identity of a remotely located individual by a review of personal information from public or private data sources. d. “Outside the United States – a location outside the geographic boundaries of the United States, Puerto Rico, the United States Virgin Islands, and any territory, insular possession, or other location subject to the jurisdiction of the United States. e. “Remotely located individual” – an individual who is not in the physical presence of the Notary Public who performs a notarial act under I.C. §51.114A(3) (Idaho’s RULONA). 3. Establishes that a remotely located individual may comply with Idaho RULONA’s requirement for personal appearance before a Notary Public, by appearing by means of communication technology. 4. Provides that an Idaho Notary Public physically located in Idaho may perform a notarial act using communication technology for a remotely located individual, subject to governing Idaho law (and applicable rules), if: a. The Notary Public: (i) has personal knowledge of the individual’s identity; (ii) has satisfactory evidence of the remotely located individual’s identity by oath or affirmation of a credible witness; or (iii) has obtained satisfactory evidence of the remotely located individual’s identity by using at least two different types of identity proofing. b. The Notary Public is reasonably able to confirm the record presented for notarization is the same record in which the individual made a statement or on which the individual executed a signature; c. The Notary Public, or a person acting on the Notary Public’s behalf, creates an audio-visual recording of the performance of the notarial act; and d. For a remotely located individual who is outside the United States: i. the record presented for notarization is to be filed with or relates to a matter before a court, governmental entity, public official or other entity subject to the jurisdiction of the United States; or involves property located in the territorial jurisdiction of the United States or a transaction substantially connected with the United States; and ii. the act of making the statement or signing the record is not prohibited by the foreign state in which the remotely located individual is located. 5. Requires an Idaho Notary Public’s certificate of a notarial act for a remotely located individual to indicate that the act was performed using communication technology. Establishes the sufficiency of such a notarial certificate if it complies with applicable administrative rules, or if it is in a form provided by I.C. §51.116 and contains a statement substantially like, “This notarial act involved the use of communication technology.” 6. Requires a Notary Public; a guardian, a conservator or agent of a Notary Public; or a personal representative of a deceased Notary Public to retain the audio-visual recording required to be created of every notarial act involving a remotely located individual and the use of communication technology. Allows for the recording to be retained by a repository designated by or on behalf of the person required to retain the recording. Requires the recording to be retained for at least 10 years after the recording is made or as otherwise required by any administrative rule adopted by the Secretary of State. 7. Establishes that a notarial officer may certify that a tangible copy of an electronic record is an accurate copy of the electronic record. Requires recorders to accept for recording a tangible copy of an electronic record containing a notarial certificate. Establishes that such an electronic record satisfies any requirement that a record accepted for recording be an original, if the notarial officer executing the notarial certificate certifies that the tangible copy is an accurate copy of the electronic record. 8. Expands the Secretary of State’s rulemaking authority regarding provisions of Idaho’s RULONA. a. Requires the Secretary to adopt rules to: i. prescribe the means of performing notarial acts involving a remotely located individual using communication technology; and ii. establish standards for communication technology and identity proofing; b. Allows (does not require) the Secretary to adopt rules to: i. establish requirements or procedures to approve providers of communication technology and the process of identity proofing; and ii. establish standards and a period for the retention of the audio-visual recording that must be created by a Notary Public or person acting on the Notary’s behalf, concerning a notarial act using communication technology for a remotely located individual. 9. Requires the Secretary—before adopting, amending or repealing a rule governing notarial acts involving a remotely located individual—to consider: a. The most recent standards promulgated by national standards-setting organizations and the National Association of Secretaries of State; b. Standards, practices and customs of other jurisdictions that have laws substantially similar to Idaho’s applicable RULONA provisions; c. The views of governmental officials and entities and other interested persons. |
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ILLINOIS – HB 2176 Amends existing statutes governing advertising of notarial services. Pertains to Notaries who are not attorneys or accredited immigration representatives who advertise notarial services in a language other than English. Amends the specified wording of a required notice/disclosure. Increases the fine for violation of related requirements from $1000 to $1500, and establishes that a second violation will result in permanent revocation of the Notary’s commission. Further requires Notaries subject to these advertising provisions to obtain a signed acknowledgment from customers (wording made available by the Secretary of State), provide the customer a copy, and retain copies of such notices throughout the current commission term and for two years thereafter. Exempts documents prepared or produced in accordance with the Illinois Election from the customer-signed acknowledgment requirement.
------------------------- ILLINOIS - SB 2037 1. Establishes that every company, corporation, association, organization or person that remits Notary Public applications to the Illinois Secretary of State on behalf of applicants, for compensation or otherwise, must qualify for licensure as a “Notary Public Remittance Agent.”
2. Establishes that such entities or persons shall comply with standards to qualify for licensure as a Notary Public Remittance Agent. Provides that standards shall include, but not be limited to, the following: a. The applicant has not been the subject of any administrative citation, criminal complaint, or civil action arising from his or her duties as a Notary Public Remittance Agent; b. The agent holds a surety bond in the amount of $20,000 for the purposes of acting as a remittance agent; and c. The agent complies with all requirements set forth by the Secretary of State for the submission of Notary Public applications. 3. Clarifies that the provisions of SB 2037 do not apply to units of local government. |
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| INDIANA - Administrative Rule 75 IAC 7, Notary Public Governance (Includes "Remote Notaries Public") Effective March 31, 2020 View this rule Adds new Article 7, Notary Public Governance, to Title 75 of Indiana Administrative Code. Implements Indiana’s statutory provisions on electronic and remote online notarization. Addresses Notary Public application and commission renewal requirements, commission information changes, continuing education, application and authorization as a Remote Notary Public, complaint procedures, remote notarial act procedures, standards for journaling of electronic notarial acts, electronic Notary seal, responsibilities related to using remote notarization technology, remote notarization technology vendor requirements, remote notarization standards, and more.
Definitions Defines the following terms: “applicant”; “designated alternative signer”; “disqualifying offense”; “real time”; “remote technology vendor.” Notaries Public – Commission Application and Responsibilities ▪ Application Specifies that a Notary Public applicant must use the application prescribed by the Secretary of State. The application must be electronically submitted and include the following: 1. The applicant's name to be used in acting as a notary public. 2. The applicant's mailing address. 3. The applicant's county of residence. 4. The applicant's date of birth. 5. The applicant's driver's license number or state-issued identification number. 6. The applicant's Social Security number. 7. An image of the applicant's signature sample. 8. An image of the applicant's twenty-five thousand-dollar ($25,000) surety bond. 9. A passing score on the notary examination. 10. Payment of the nonrefundable application fee to the secretary of state. 11. A criminal background check that is not more than six (6) months old that may be required by the secretary of state. 12. A disclosure of any and all disciplinary actions or commission revocations taken against the applicant. Requires an applicant who is a non-Indiana resident and primarily employed in Indiana to also submit: 1. The mailing address of the applicant's place of employment. 2. The county where the applicant is employed. 3. A written statement documenting employment on company letterhead. Provides that once the application requirements are satisfied, the Secretary of State shall issue a Notary commission with a unique commission number and expiration date, and indicate such on the public database of Notaries Public. Provides conditions for denial or rejection of an application. Once an application is rejected three times within 30 days, the applicant must wait 30 days before submitted another application. If an application is denied, the applicant is entitled to timely notice and a hearing, as described in Indiana statutes (IC 4-21.5). ▪ Commission Amendments (Changes) Requires a Notary Public to notify the Secretary of State no later than 30 days after any change to the following information: 1. Name 2. Mailing address 3. Personal electronic mail address 4. Personal telephone number 5. Employer's: a) address; b) name; and c) telephone number Requires a Notary Public to file, after any change to the Notary’s name on file with the Secretary of State, a rider or other record issued by the Notary’s surety reflecting the name change, and a sample of the Notary’s new signature. Requires a Notary Public to notify the Secretary of State within 14 days after the Notary Public is: 1. Convicted of a felony offense involving deceit, dishonesty, or fraud. 2. Found to have acted deceitfully, dishonestly, or fraudulently in any disciplinary action or legal proceeding. 3. Has a commission as a Notary Public denied, restricted, or revoked in a state other than Indiana. Requires a Notary Public to notify the Secretary of State after the Notary is no longer an Indiana resident, or primarily employed in Indiana. (Such notice is treated as a resignation.) ▪ Continuing Education Provides the minimum course curriculum requirements for Notary Public continuing education (CE), administered by the Secretary of State. Clarifies that a Notary Public’s required continuing education for the duration of a commission term shall consist of three (total) CE courses, with one course taken at two, four and six years after issuance of the current commission and due by the end of the anniversary of the month in which the Notary was commissioned. Provides that failure to complete a CE course requirement will cause the Notary’s commission to expire. ▪ Commission Renewal Provides that a Notary Public may apply for commission renewal beginning 90 days prior to the current commission’s expiration date. The renewal application is the same as the application for initial commission, and shall be electronically submitted. Upon the applicant’s compliance with all eligibility and renewal application requirements, the Secretary of State shall renew the applicant’s commission for another term (eight years from expiration of the current commission). If a Notary’s commission expires before it is officially renewed, the commission is non-renewed and the person may apply for a new commission instead. A renewal commission may be rejected or denied for the same reasons applicable to an initial commission. An applicant whose renewal application is rejected three times within 30 days must wait 30 days before submitting another application. If an application is denied, the applicant is entitled to timely notice and a hearing, as described in Indiana statutes (IC 4-21.5). Notary Public Sanctions, Complaints Provides the requirements for submitting a complaint about a Notary Public to the Secretary of State, including the information to be provided in the complaint and complaint procedures. Further provides that the Secretary of State may initiate a complaint against a Notary Public. Establishes that the liability, sanctions and remedies for the improper performance of remote notarial acts are the same as the disciplinary action prescribed under IC 33-42-13-1. Electronic Notary Signature, Seal—Electronic and Remote Online Notarizations ▪ Electronic Notary Signature Requires that the technology used to attach an electronic signature to a document must allow a Notary Public’s (including a Remote Notary Public’s) electronic signature to be: 1. Attributed or uniquely linked to the Notary Public; 2. Capable of independent verification; 3. Retained under the Notary Public's exclusive control implemented by use of passphrase protection; and 4. Linked to the electronic document to which it relates in such a manner that any subsequent change of the electronic document is detectable. ▪ Electronic Notary Seal The following provisions apply to electronic seals used by any Notary Public including those authorized as a Remote Notary Public. Requires the name on an electronic seal to match the name, as stated on the application, under which the Notary Public is commissioned. Requires the electronic seal of a Notary Public to include the requirements listed in IC 33-42-0.5-13, which states that “electronic seal” means information that: 1. Is specific to an individual Notary Public; 2. Is attached to or associated with a notarized electronic record; and 3. Contains: a) the words, "Notary Public"; b) the words, "State of Indiana"; c) the word, "Seal"; d) the Notary Public's name as it appears on the Notary Public's commission certificate; e) the words, "commission number", followed by the commission number of the Notary Public; and f) the words, "my commission expires", followed by the expiration date of the Notary Public's commission. ▪ Digital Certificate Requires a Notary Public (including a Remote Notary Public) performing electronic notarial acts to, at all times, maintain a digital certificate* and electronic seal that includes the Notary Public’s electronic signature. The digital certificate must comply with IC 33-41-17-7 and the electronic seal must comply with 75 IAC 7-6-2. *The digital certificate is attached with the Notary’s electronic signature in order to render the notarized document tamper-evident, meaning that any subsequent change of the electronic document is detectable. A Notary Public must replace a digital certificate under any of these circumstances: 1. The electronic seal or digital certificate has expired. 2. The electronic seal or digital certificate is for any reason no longer valid or capable of authentication. 3. The Notary Public has changed any of the following: a) Name b) County of commission or county of primary employment c) Notary Public commission number ▪ Electronic Journal Establishes prohibitions relating to the electronic journal (used by a Remote Notary as required by IC 33-42-17-8 or used voluntarily by any other Indiana Notary Public). Prohibits entry of the following types of personal information into an electronic journal (unless the notarial officer is a court clerk notarizing instruments for the court): 1. An identification number that was assigned by a governmental agency or by the United States to the principal and that is set forth on the identification card or passport presented as identification; 2. Any other number that could be used to identify the principal of the document; or 3. A biometric identifier, including a fingerprint, voice print, and retina or iris image. Excludes the audio visual recording required by a Remote Notary Public from the above prohibited information. Clarifies that a number related to the principal’s mailing address is not prohibited from entry. Requires a Notary Public who inadvertently records prohibited information in a journal to redact such information prior to providing public access to or copies of the journal. Requires a Remote Notary Public to notify the Secretary of State within 15 days of learning than an electronic journal is lost, stolen or compromised. Remote Notaries Public ▪ Initial Authorization Application Indiana Notaries Public who still meet the statutory eligibility requirements [IC 33-42-12-1(b)] for their Notary Public commission, and who have at least 90 days remaining on their current commission term, are eligible to apply for a Remote Notary Public authorization on an application prescribed by the Secretary of State. The Remote Notary initial authorization application includes: 1. The name on the applicant's notary public commission. 2. The applicant's notary public commission number. 3. The name of the remote technology vendor that the applicant intends to use to perform remote notarial acts. 4. A disclosure of any and all disciplinary actions or commission revocations taken against the applicant. 5. A passing score on the remote notary examination. 6. Payment of the nonrefundable application fee to the secretary of state. Once an applicant successfully complies with all qualifications and application requirements, the Secretary of State shall issue a Remote Notary Public authorization to the applicant. The Secretary may reject or deny applications. Applicants rejected two times within 30 days must wait an additional 30 days before submitting another application. Applicants who are denied are entitled to timely notice and a hearing as described in IC 4-21.5. ▪ “Consecutive” (Subsequent) Authorization Application Establishes that a Remote Notary Public authorization is valid from initial authorization until expiration of the Notary Public commission. A Notary Public cannot apply for a consecutive Remote Notary Public authorization until the Secretary of State has renewed the applicant’s Notary Public commission. The application for consecutive authorization is the same as the application for the initial authorization. Remote Notarial Acts NOTE: Indiana law authorizes performance of remote notarial acts involving electronic documents (records). An authorized Indiana Remote Notary may not perform remote notarial acts involving tangible documents. Establishes that a commissioned Notary Public does not have authority to perform remote notarial acts unless authorized by the Secretary of State as a Remote Notary Public. Requires the Remote Notary Public, at a minimum, to: 1. Confirm that the principal has successfully completed identity proofing and credential analysis; 2. Confirm the identity of the principal through visual inspection of the credential used during credential analysis; and 3. Ensure that an audio visual recording captures the notarial act performed. ▪ Location of Remote Notary and Principal A Remote Notary Public must be physically located within the boundaries of Indiana at the time the notarial act is performed. The principal signer is not required to be located in Indiana, but must appear before the Remote Notary Public in real-time* by use of audio visual communication, or the Remote Notary is prohibited from performing the notarial act. (Additional statutory requirements apply for principals located outside of the United States.) *Defined as the actual span of uninterrupted, simultaneous communication during which all parts of an online notarial act using audio visual communication occur excluding issues or buffering that do not materially affect the substantive communication between the Notary Public and the principal signer. ▪ Identifying Remotely Located Principals Establishes that a Remote Notary Public identifies a principal by any of the following methods: 1. Remote Notary Public personally knows the principal. (If the principal is personally known to the Remote Notary Public, the audio visual conference must include a statement disclosing the personal relationship.) 2. Principal is introduced by oath of a credible witness who personally knows the principal and either is personally known to the Remote Notary Public or provides qualifying identification in accordance with subdivision 3 (immediately below). 3. Principal or credible witness is identified using the identity proofing and credential analysis standard in accordance with Indiana Administrative Code (75 IAC 7-8-1), as follows. a) Identity proofing and credential analysis, which must be facilitated by an approved remote technology vendor. b) Identity proofing must be performed through dynamic knowledge-based authentication or through another process or service approved by the Secretary of State. c) Dynamic knowledge-based authentication must, at a minimum: i. contain five (5) questions, drawn from public or private data sources; ii. generate a minimum of five (5) possible answer choices per question; iii. maintain a passing score of at least eighty percent (80%); and iv. require that all five (5) questions answered within two (2) minutes. d) Credential analysis must, at a minimum: i. verify the identity of a principal or any credible witness; ii. utilize appropriate technologies to confirm that the credential is not fraudulent or inappropriately modified; and iii. enable the Remote Notary Public to visually compare for consistency the information and photo presented on the credential itself and the principal as viewed by the Remote Notary Public in real time through audio visual communication. e) If the principal exits the authentication workflow or the communication is materially interrupted, the principal must meet the criteria outlined in this section and restart the identity proofing and credential analysis. ▪ Notarial Certificate, Remote Notarial Act Mandates that for all notarial acts requiring a notarial certificate, a Remote Notary Public shall complete an electronic notarial certificate that meets all the requirements of Indiana Code (IC 33-42-17-7).* The certificate must be signed by affixing the Remote Notary Public’s electronic signature and electronic seal, which includes attachment of the digital certificate that renders the document tamper evident. *Indiana Code 33-41-17-7(b) provides the following forms of notarial certificate.
▪ Remote Notary Public’s Electronic Signature, Seal Requires the name on an electronic notary public seal to match the name, as stated on the application, under which the Notary Public is commissioned and performs all remote notarial acts. Requires a Remote Notary Public to attach his or her electronic signature and seal to the electronic notarial certificate of an electronic document in a manner that is capable of independent verification* and renders any subsequent change or modification to the electronic document tamper-evident.** *Generally means that any interested person may review the information associated with the Notary’s electronic signature and reasonably determine the Notary’s identity, authority to notarize on the date the notarization was performed, and that the electronic signature was the act of that Notary. **The act of electronically signing includes a process that makes any subsequent change or modification to the electronic record readily evident. Additionally, the technology used must allow a Notary Public’s electronic signature to be attributed or uniquely linked to the Notary Public, and retained under the Notary Public’s exclusive control, implemented by use of passphrase protection. Prohibits a Remote Notary Public from disclosing any access information used to affix the Notary’s electronic signature and seal except when requested by the Secretary of State, law enforcement, the courts, and with reasonable precautions, electronic document preparation and remote technology vendors. ▪ Audio Visual Recording of Remote Notarization Requires a Remote Notary Public to ensure that an audio visual recording captures the notarial act performed. If the principal is personally known to the Remote Notary Public, the audio visual conference recording must include a statement disclosing the personal relationship. ▪ Grounds to Refuse to Perform a Remote Notarial Act Expands on the grounds provided in Indiana Notary law (IC 33-42-42-9-5), by mandating that a Remote Notary Public must refuse to perform a remote notarial act if: 1. The Remote Notary Public is unable to verify the identity of the principal using an acceptable means of identification; 2. The Remote Notary Public is unable to verify the security of the audio visual communication; 3. The signature of the principal cannot be attached to the electronic document; or 4. The digital certificate or electronic seal of the Remote Notary Public cannot be attached to the electronic document to render the document tamper evident. Remote Notary Technology ▪ Remote Notarial Act System Establishes the following requirements for a Remote Notary system used to perform remote notarial acts by means of audio visual communication: 1. Provide for real time audio visual feeds; 2. Provide sufficient video resolution and audio clarity to enable the remote notary public and the principal to see and speak to each other simultaneously through real time transmission; 3. Provide sufficient captured image resolution for credential analysis to be performed; 4. Include a means of authentication that reasonably ensures only the proper parties have access to the audio visual communication; 5. Provide some manner of ensuring that the electronic record that is subject to the remote notarial act is the same record electronically signed by the principal; 6. Securely create, store, and transmit an electronic recording of the audio visual communication, maintaining the confidentiality of any identity proofing responses or analysis; and 7. Provide reasonable security measures to prevent unauthorized access to: a) the real time transmission of the audio visual communication; b) a recording of the audio visual communication; c) the verification methods and credentials used to verify the identity of the principal; and d) the electronic documents presented for electronic notarization. ▪ Remote Technology Vendor Defines “remote technology vendor” as a person [or entity] that provides audio visual communication technology and related processes, services, software, data storage, or other services to Remote Notaries Public for the purpose of directly facilitating their performance of remote notarial acts. Establishes that a remote technology vendor must apply with and be approved by the Secretary of State, and that the vendor’s application expires two years after the date the application is approved. The Secretary of State must provide the names and contact information of approved remote technology vendors on its official web site. Remote technology vendors must notify the Secretary of State within 15 days if the vendor’s contact information changes. A remote technology vendor must also provide notice to Notaries using their services, and to the Secretary of State’s office, 15 days prior to the date that the vendor will no longer provide remote technology services. Requires remote technology vendors to provide notice to the Secretary of State at least 10 days prior to making material modifications that affect the vendor’s compliance with Indiana law or administrative rules. Implementation of modifications shall occur only upon receiving approval from the Secretary of State. Requires a remote technology vendor to electronic monthly report listing of Notaries that have on-boarded and off-boarded with the vendor. ▪ Changes to Selected Remote Technology Vendor Requires a Remote Notary Public to notify the Secretary of State within 30 days after the Remote Notary has changed his or her selected remote technology vendor, or contracts with an additional remote technology vendor. Affirms that a Remote Notary Public may use more than one remote technology vendor. Establishes that the Secretary of State may suspend or revoke the Notary Public’s commission and Remote Notary authorization for failure to meet these standards. |
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IOWA - Administrative Rule, Amending 721—Chapter 43 Notarial Acts This rule-making action implements, in whole or in part, Iowa Code Chapter 9B; proposes procedures for electronic and remote notarial acts; amends multiple existing rules governing Notaries Public; and renumbers and edits rules as necessary.
Establishes that an individual wishing to perform notarial acts for remotely located individuals must complete and file an application to do so, in addition to any application for appointment as a Notary Public. Requires (new) applicants submitting an application for an Iowa Notary Public appointment after July 1, 2020 to complete, within the six-month period immediately preceding application submission, an initial training course approved by the Secretary of State. Additionally requires individuals submitting an initial application for approval to perform remote notarizations to complete—within the six-month period immediately preceding the first performance of a remote notarial act—a Secretary of State-approved training course concerning requirements and methods for performing notarial acts for remotely located individuals. In both cases, satisfactory proof of course completion must be provided to the Secretary of State. Also establishes an “update course” training requirement for actively commissioned Notaries seeking reappointment as an Iowa Notary Public, and requires satisfactory proof of update course completion to be submitted to the Secretary of State. Provides that a Notary Public’s approval to perform notarial acts for remotely located individuals expires on the same date as the individual’s Notary Public commission. Establishes that two months preceding the expiration of Remote Notary approval, the Secretary of State will notify the Notary Public of the approval expiration date and furnish an application for reapproval. Allows the Secretary to combine the Notary Public reappointment and Remote Notary approval forms. Clarifies that the location (venue) of a Notary Public at the time a notarial act is performed determines the jurisdiction in which the notarial act is performed. Mirrors and emphasizes enacted law by requiring that an Iowa Notary’s certificate of a notarial act performed for a remotely located individual using communication technology must indicate that the notarial act was performed using communication technology per Iowa Code section 9B.14A(4); and that the short form notarial certificates for notarial acts performed for remotely located individuals must meet the requirements of Iowa Code section 9B.14A(5). Establishes that a notarized document is deemed to be in compliance with statutory requirements for a notarial act on an electronic record when either the Notary Public attaches an electronic notarial certificate that meets the requirements of Iowa Code section 9B.15(3); or the document is submitted and accepted on the electronic document management system (EDMS) administered by the Iowa judicial branch. Mandates that a Notary Public shall protect against unauthorized access to the recording of a notarial act performed for a remotely located individual; and to any “personally identifiable information” (defined in Iowa Code section 9B.14C(1)) disclosed during the performance of an electronic notarial act using audio-visual communications. Clarifies exceptions to this mandate. Establishes comprehensive standards for communication technology and identity proofing for notarial acts performed for remotely located individuals. Establishes extensive requirements for providers of communication technology, and requires that a Notary Public authorized to perform notarial acts for remotely located individuals may use a provider only if the provider has registered with and been approved by the Secretary of State; allows the remote Notary Public sole control of the recording of the electronic notarial act using audio-visual communication (subject to the authorized access granted by the Notary); and provides the Notary with access to the recording of the electronic notarial act using audio-visual communication. Mandates that a provider of communication technology shall protect against unauthorized access to the recording of a notarial act performed for a remotely located individual; and to any “personally identifiable information” disclosed during performance of an electronic notarial act using audio-visual communication. Prescribes procedures and requirements for providers of communication technology to register for approval by the Secretary of State. Establishes that the Secretary may rescind provider approval for any ground listed in the rule or any other grounds that materially affect the ability of Notaries Public to meet the requirements of Iowa law. Provides for the procedure for rescinding provider approval and clarifies that the Secretary may dismiss the matter. Makes other necessary amendatory revisions. _______________________ IOWA – SB 475 Authorizes remote online notarizations (Revised Uniform Law on Notarial Acts section regarding notarial acts for remotely located individuals). Provides definitions. Requires a Notary Public to notify the Secretary of State of the intent to perform notarial acts for remotely located individuals and identify the technology to be used. Establishes that remote notarization technologies must satisfy any standards for communication technology or identity proofing published by the Secretary of State. Provides rulemaking authority to the Secretary of State.
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KENTUCKY –ADMINISTRATIVE RULE, 30 KAR 8:005
Effective August 20, 2020 View these rules Permanent rules to implement the new law created by Senate Bill 114, as follows. Defines terms (“digital certificate,” “electronic record,” “Notary technology,” “Online Notary Public,” “tangible record”). Clarifies certain requirements related to commission application procedures. Addresses approval or denial/disapproval of application for commission. Prescribes notification requirements related to commission resignation (“voluntary termination”) and changes to the Notary’s commission information. Provides qualifications, procedures and requirements for registering to notarize electronic records for physically present principals; and to notarize records for remotely located individuals (“electronic”—i.e. remote—notarization). Provides that an individual shall indicate whether he or she is registering to perform notarial acts with respect to electronic records or electronic (online) notarizations, or both. Requires the registration form to be submitted electronically to the Secretary of State. Addresses approval or disapproval of registration by the Secretary of State. Specifies how a Notary Public may terminate an electronic registration and clarifies that such termination will not terminate the individual’s Notary Public commission. Provides that commission renewal of a Notary Public who has previously registered to perform notarial acts with regard to electronic records or online notarizations constitutes renewal of his or her registration. Provides for the Notary’s ability to receive, install or use a hardware or software update to his or her chosen technologies if such update does not result in technologies that are materially different from the technologies the Notary Public identified in his or her registration. Establishes standards for notarization of electronic records, including tamper-evident technology requirements. Prescribes the Notary’s use of a digital certificate complying with the X.509 standard adopted by the International Telecommunication Union or similar industry-standard technology. Requires a Notary Public to use his or her digital certificate to attach or logically associate the Notary’s electronic signature and official stamp, if any, to an electronic record that is the subject of a notarial act. Prohibits a Notary Public from performing an electronic notarization if the digital certificate has expired, has been revoked or terminated by the issuing or registering authority; is invalid; or is incapable of authentication. Provides requirements of an official stamp. Requires a Notary Public who uses an official stamp to use the same unique official stamp for all notarial acts performed with respect to electronic records and for all notarial acts that are performed for a physically present individual. Provides that an official stamp under this rule is an official seal of office of the Notary Public for all purposes. Specifies required information, format and size for the official stamp. Addresses protection of a Notary Public’s official stamp and disposition of the official stamp upon the Notary’s resignation, commission revocation or expiration. Clarifies that a Notary Public shall not be required to use an official stamp when performing notarial acts with respect to electronic records. Requires that if a Notary Public elects not to use an official stamp when performing notarial acts with respect to electronic records, the electronic record’s certificate of notarial act must contain the name of the Notary Public as it appears on his or her commission; indicate the title “Notary Public” for any notarial act with respect to electronic records; and indicate the Notary’s commission number and commission expiration date. Requires a Notary Public to promptly notify the Secretary of State upon actual knowledge of theft or vandalism of the of the Notary’s technology or electronic stamping device, as well as actual knowledge of unauthorized use by another person of the Notary’s electronic signature, Notary technology or electronic stamping device. Establishes that a Notary Public may certify that a tangible copy of an electronic is an accurate copy of the electronic if the Notary has taken reasonable steps to confirm the accuracy of that certification. Establishes extensive standards for electronic (remote) notarizations addressing matters including the Notary’s required physical location in the Commonwealth of Kentucky at the time of performing the electronic notarization; identity proofing requirements and procedures; requirements for communication technology in the performance of online notarizations; reasonable security measures that communication technology must provide; and the required recording of all notarial acts performed using communication technology. Requires a provider of electronic or online notarization technology to register with the Secretary of State as prescribed by the Secretary, and to provide specified information. Addresses complaints against, and investigation by the Secretary of, a Notary technology provider. Prescribes certain duties to be fulfilled by a Notary technology provider. Requires a Notary Public registered to perform notarial acts with respect to electronic records or electronic notarizations to maintain one or more journals in a permanent, tamper-evident electronic format to chronicle those notarizations. Specifies the information to be recorded in a journal entry, and that a journal entry shall be made contemporaneously with performance of the notarial act. Prohibits a journal entry from including identification numbers assigned to an individual by a governmental agency or any biometric identifier. For notarial acts involving remotely located individuals using communication technology, requires the journal entry to include an audio-visual recording (or a link thereto) of the performance of the notarial act in compliance with KRS Chapter 423 and this administrative regulation. Prohibits an audio-visual recording from including images of any record in which a remotely located individual made a statement or on which the individual executed a signature. Addresses secure storage of the electronic journal against unauthorized access. Specifies the retention period of electronic journals and audio-visual recordings. Authorizes a Notary Public registered to perform notarial acts with respect to electronic records or electronic notarizations to engage a third person to act as a repository to provide the required journal and recording storage. Allows a Notary Public’s guardian, conservator, agent or a deceased Notary’s personal representative to likewise engage a third-person repository. Specifics contract provisions for such engagement. Specifies actions to be taken relative to a Notary’s journal and stored audio-visual recordings, upon the death or adjudication of incompetency of the current or former Notary Public. Addresses Notary Public responsibilities relative to a lost, stolen or improperly accessed journal. Prohibits a Notary Public from allowing access to this or her journal except under specified circumstances. Requires a Notary Public to promptly notify the Secretary of State of a lost or stolen journal, upon the Notary’s discovery of such circumstance. Requires a Notary Public to notify the Secretary of State of the Notary’s intent to use communication technology in the performance of notarial acts with respect to tangible records. Requires such notification to occur prior to the initial use of communication technology for this purpose. Specifies how a Notary Public, using communication technology in the performance of notarial acts with respect to tangible records, shall have satisfactory evidence of identity of the remotely located individual. Requires the Notary Public to create and maintain for at least 10 years an audio-visual recording of the performance of such a notarial act. Requires the notarial certificate for such a notarial act to contain the statement, “This notarial act involved the use of communication technology.” Addresses matters regarding Notary Public discipline and Notary complaints. Provides that any condition, restriction, suspension or revocation of a Notary commission shall have the same effect on the individual’s electronic or online registration if the Notary holds such registration. ------------------------- KENTUCKY – SB 114 A comprehensive rewrite of Kentucky’s Notary laws. Enacts many provisions of the Revised Uniform Law on Notarial Acts, including authorization for notarization of electronic documents involving physically present principals or those appearing before the Notary using communication technology. Defines numerous terms. Expands and/or clarifies authorized notarial duties. Authorizes a notarial officer to perform any notarial act listed in KRS 423.310 with respect to a tangible or electronic record. Defines “record.” Authorizes remote online notarization, defining it as “electronic notarization.” Requires registration with the Secretary of State prior to performing notarizations involving electronic records for physically present individuals; and prior to performing electronic (remote) notarizations for remotely located individuals. Establishes requirements related to such registration.
Establishes a journal requirement for electronic and online Notaries Public. Requires recording and retention of the audio-video communication session related to every electronic (remote) notarization.
Establishes requirements for certificates of a notarial act. Provides that a Notary Public’s use of an official stamp is elective, but if used an official stamp must meet specified requirements. Addresses many additional matters including commissioning and commission responsibilities; prohibited acts; recognition and recording of notarial acts; and more. ------------------------- KENTUCKY – EMERGECNY ADMINISTRATIVE RULE, 30 KAR 9:005E Emergency rules to implement new law created by Senate Bill 114. Establishes additional defined terms (“digital certificate,” “member of the Notary Public’s immediate family,” “online notarial act,” and “Notary technology”). Clarifies certain requirements related to commission application procedures. Prescribes notification requirements related to commission resignation and changes to the Notary’s commission information. Provides qualifications, procedures and requirements for registering to notarize electronic records for physically present principals; and to notarize records for remotely located individuals (“electronic”—i.e. remote—notarization). Clarifies that an individual authorized to perform online notarial acts (for remotely located individuals) is also authorized to perform electronic notarial acts (for physically present individuals). Establishes that Notaries registered and approved to notarize electronically for physically present and/or remotely present individuals are in effect re-registering for these permissions when they renew their Notary Public commission. Establishes standards for notarization of electronic records, including tamper-evident technology requirements. Also establishes requirements for use of an official stamp on electronic records (physically present or remotely located individuals), if the Notary elects to use one. Specifies certain information to be included in the notarial certificate on a notarized electronic record, if the Notary has not used an official stamp. Addresses security-related, use, maintenance and notification responsibilities regarding a Notary’s electronic signature and electronic stamp (if used).
Additionally, establishes standards and/or procedures related to: • Online notarial acts regarding the Notary’s location (physically in the State of Kentucky), chosen technology, and methods of identifying remotely located individuals; • Creating and retaining records of notarial acts performed regarding electronic records or notarizations for remotely located individuals, including audio-visual recordings of notarial acts performed for a remotely located individual; • Various provisions related to complaints against a Notary and sanctioning by the Secretary of State. |
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| LOUISIANA—HB 54 Signed October 10, 2020 Effective December 22, 2020 View this bill Under existing law, Louisiana residents are authorized to have a digitized driver’s license or identification card provided by the Department of Public Safety and Corrections, Office of Motor Vehicles, as an alternative to a physical driver’s license or identification card. House Bill 65 retains existing law and creates new law—Chapter 61, Title 51, Louisiana Revised statutes of 1950—establishing acceptance of digitized identification cards in The Pelican State. Defines “consumer, “digitized identification card,” “person,” and “trade” or “commerce.” Requires a person* requesting a consumer to produce valid identification for the purpose of furnishing proof of the consumer’s identification or age to accept a state-issued digitized identification card as a valid form of identification. _______________ *”Person” is defined in law as any individual, firm, partnership, corporation, association, union, public or private education institution, or other organization, including but not limited to a bar or restaurant that is engaged in trade or commerce within Louisiana’s geographic boundaries. Clarifies that a digital copy, photograph or image of a digitized identification card which is not downloaded through a state-approved application on a mobile device shall not be considered a valid digitized identification card under Louisiana law. Establishes that the display of a digitized identification card does not serve as consent or authorization for a person to search, view or access any other data or application on the consumer’s mobile device. Requires a person, to whom a consumer has presented the consumer’s mobile device for purpose of displaying a digitized identification card, to promptly return the mobile device to the consumer after verifying the identity or age of the consumer and the current status of the license or identification card. Exempts the State of Louisiana or any of its agencies, as well as a private business, legal entity or person, from liability in any manner legally or otherwise as a result of the use or misuse of a digitized identification card. Establishes the authority of certain named state entities to take actions, not inconsistent with law, as deemed necessary to ensure a respective licensee’s compliance with new law provisions. Provides that new law provisions do not apply to a Louisiana location of business where a physical copy of an individual’s current driver’s license, valid passport, or visa issued by the federal government or another country or nation, or another card of identity, is held in compliance with state or federal law. Clarifies that, notwithstanding any other provision of law to the contrary, the provisions of Chapter 61 do not apply to: • A federally insured depository institution that is organized under Louisiana law, another state or the United States; • An entity licensed pursuant to Title 27 of the Louisiana Revised Statutes of 1950, including but not limited to a casino, official gaming establishment, or other establishment providing gaming operations; or • An entity licensed pursuant to Chapter 4 of Title 4 of the Louisiana Revised Statues of 1950; • A person validating identification for notarial acts involving immovable property, authentic acts, testaments or codicils thereto, trust instruments or acknowledgments thereof, donations inter vivos, matrimonial agreements or acknowledgments thereof, and acts modifying, ...except that these specified institutions and entities may, at their option, accept a digitized identification card as a valid form of identification.* _______________ *NOTE: ASN is seeking clarification on whether a Louisiana Notary employed by any above-named institutions or entities, and performing a notarial act related to the employer’s business, must refuse acceptance of a valid digitized ID card as satisfactory evidence of identification if the institution or entity has chosen not to accept such ID for their business purposes. |
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MARYLAND ADMINISTRATIVE RULES – COMAR 01.02.08 Notary Public: General Regulations
Effective October 5, 2020 View these rules (adopted as proposed in Maryland Register, Vol. 47, Issue 16, Friday-July 31, 2020. Scroll to page 739/pdf page 11) View announcement of adoption and effective date (Scroll to page 874/pdf page 14) Implementing the Maryland Revised Uniform Law on Notarial Acts (RULONA) and provisions for remote online notarization that take effect on October 1, 2020, and amending Regulation 01; repealing existing Regulation 02; amending and recodifying existing Regulation 03 to be Regulation 02; recodifying existing Regulation .04 to be Regulation .03; and adopting new Regulations .04 through .12 under COMAR 01.02.08 Notary Public: General Regulations. Rules are adopted as proposed in the Maryland Register Vol. 47, Issue 16, Friday-July 31, 2020. Amends existing defined terms “acknowledgment,” “notarial act,” “notarize,” and “original notarial act.” • Changes “document” and “instrument” to “record”; “register of official acts” to “journal”; and “execute” and “executed an instrument” to “sign” and “signed a record” to align terminology with the RULONA. Aligns the notarial acts listed in the rule with those authorized in the RULONA (taking an acknowledgment; administering an oath or affirmation; taking a verification on oath or affirmation; witnessing or attesting a signature; certifying or attesting a copy; and noting a protest of a negotiable instrument). Creates new defined terms “communication technology,” “remote notarial act,” “remote online notary vendor,” “remotely located individual,” and “verification on oath or affirmation.” Clarifies that a Notary Public may demand and receive a fee of no more than $4 for an original notarial act and establishes that the same fee limit applies to performance of a remote notarial act. Establishes qualifications for Remote Online Notary vendors to be approved by the Secretary of State. A Remote Online Notary vendor must receive written authorization from the Secretary of State before allowing its technology to be used by Maryland Notaries Public. Requires a Remote Online Notary vendor to: provide training to Maryland Notaries Public on how to use the vendor’s technology; and check with the Secretary of State or the Office’s website to confirm that a Notary Public is in good standing at the time the Notary subscribes to its service and annually thereafter for the duration of the Notary’s subscription to its service. Addresses a Remote Online Notary vendor’s compliance with Maryland’s Personal Information Protection Act and requirement to notify the Secretary of State, at the same time as giving notice under said Act, of a security system breach. Establishes that the Secretary of State may revoke authorization of a Remote Online Notary vendor, and why. Provides for informal discussion between the Secretary of State or a designee regarding whether the vendor meets the qualifications for authorization and vendor responsibilities set forth in the administrative rules. Establishes the obligations of Notaries public who perform remote notarial acts, including that the individual shall be a currently commissioned Maryland Notary Public in good standing. Specifies the Notary’s obligations related to: notification to the Secretary of intent to perform remote notarial acts; the chosen authorized remote online notary vendor; the technology used; specified remote notarization procedures; fee charging; creation and retention of an audio-visual recording of each remote notarial act performed; and notification to the Secretary in writing after changing remote online notary vendor, if applicable. The Notary must also promptly notify the Secretary of State if the Notary reasonably believes a remote online notary vendor previously selected does not allow the Notary Public to meet requirements of Maryland’s statutes and administrative rules. Requires a Notary Public, upon renewal of the Notary’s commission, to submit a new remote Notary notification form with the Secretary of State. Provides that a Notary Public’s authority to perform remote notarial acts expires with the expiration of the Notary’s commission. Clarifies that a Notary Public may cancel his or her authorization to perform remote online notarizations by submitting written notice to the Secretary of State. Establishes the unlawfulness of any individual to represent themselves to be authorized to perform remote notarial acts if the individual has not provided the required information to the Secretary of State. Provides that the Secretary of State may not authorize a Notary Public to perform remote notarial acts if the person submits a Notary application containing a substantial and material misstatement or omission of fact. Specifies additional responsibilities of Notaries Public, including that a Notary is responsible for reading and understanding his or her governing laws of Maryland as well as regulations, handbooks and other public guidance issued by the Secretary of State. Clarifies that as public officers, Notaries Public are legally responsible for performing notarial acts in compliance with law and regulations. Requires that a Notary Public, when identifying a physically present or remotely located individual for the performance of a notarial act, shall document in his or her journal the identification number associated with the identification credential as confirmation that the individual signing was correctly identified. Specifies the changes in information that require a Notary Public to notify the Secretary of State within 30 days of such change. Establishes that effective January 1, 2021, and except for correspondence relating to enforcement actions, the Office of the Secretary of State will send all communications to Notaries Public using electronic mail only. Charges each Notary Public with responsibility of ensuring that the Office of Secretary of State has a current and active email address. States the authority of the Secretary of State and Assistant Secretary of State to take an enforcement action under Maryland law to deny, refuse to renew, revoke, suspend or impose conditions on a commission as Notary public for any act or omission that demonstrates the individual lacks the honesty, integrity, competence or reliability to act as a Notary Public. Provides that acts or omissions found in State Government article, §18-104(a)(1)(i)-(vii), Annotated Code of Maryland, govern when the Secretary or Assistant Secretary may take an enforcement action against a Notary Public. States the acts or omissions that constitute a failure to discharge any duty required of a Notary Public, whether they are imposed by any federal or state law or regulations adopted by the Secretary of State. Requires a Notary Public convicted of a felony or crime involving fraud, dishonesty or deceit to report the conviction to the Secretary of State within 10 days of the conviction or within 10 days after they are released from incarceration, whichever is later. Provides that failure of the Notary to properly report such conviction may result in an enforcement action against the Notary Public. Allows the Secretary of State to choose to publish information relating to the commission status of a Notary Public or former Notary Public. ------------------------ MARYLAND – SB 678 and SB 636 NOTES:
• The effective date of SB 678’s provisions dealing with Notary education and exam requirements was subsequently amended by SB 636 to October 1, 2021. Provisions modified by SB 636 will appear in italics.
• SB 678 deletes/renumbers and revises numerous sections of the Annotated Code of Maryland related to Notaries Public. (Deleted are Md. Code Ann. 18-105 through 18-108, 18-111, and 18-113; also 19-101 through 19-301, Title 19. Acknowledgments. Amended are Md. Code Ann. 18-102, 18-103(d)(4), 18-104, 18-109, 18-110, 18-112, and 18-114.) • Newly created statutory provisions are Md. Code Ann. 18-201 to 18-227. Establishes that a Notary Public taking an acknowledgment of a power of attorney may serve as one of the two or more adult witnesses unless the Notary is notarizing by use of communication technology for a remotely located principal. Amends requirements for appointment as a Notary Public by deleting the requirement to be a citizen or permanent legal resident of the United States. Retains the requirement of a live/work nexus with Maryland, by requiring that an applicant “be a resident” of Maryland or “have a place of employment or practice” in Maryland. Deletes the requirement that an applicant be able to read and write English. Effective 10-1-21 (italicized text only): Establishes that effective 10-1-21, new Notary applicants must complete a course of study and pass an examination; and renewing Notaries must complete a course. On or before October 1, 2021, requires the Secretary of State to regularly offer a course of study and exam; also allows the course and exam to be offered (on or before October 1, 2021) through an entity approved by the Secretary of State. Establishes revised procedures relating to a Notary’s potential removal from office or suspension by the Governor. Establishes reasons that the Governor may deny, refuse to renew, suspend, or impose conditions on a Notary commission. Clarifies the Governor’s authority to delegate, to the Secretary of State or the Assistant Secretary of State, the taking of an action against a Notary Public commission. Clarifies that an applicant denied an initial Notary Public commission does not have the notice and opportunity for hearing that a commissioned Notary would have. Sets a $4 statutory maximum on the fee a Notary Public or person acting on behalf of a Notary may charge for performance of a remote online notarization. Changes the method of determining an allowable travel fee from 19 cents per mile plus an additional $5 (maximum), to the prevailing business travel mileage rate established by the Internal Revenue Service plus a maximum $5. Allows the Secretary of State to set, by administrative rule, a different amount a Notary Public may charge for a remote online notarization than that prescribed in statute. Authorizes the Secretary of State to publish information relating to the commission status of current or former Notaries Public, including dates related to suspensions, nonrenewal or commission revocation. Establishes definitions (“acknowledgment,” “communication technology,” “credential analysis,” “electronic,” “electronic signature,” “foreign state,” “identity proofing,” “in a representative capacity,” “notarial act,” “notarial officer,” “Notary Public,” “official stamp,” “record,” “remote presentation,” “remotely located individual,” “sign,” “signature,” “stamping device,” and “verification on oath or affirmation”). Prohibits a notarial officer from performing a notarial act when the notarial officer or his/her spouse is a party to the record, or in which the notarial officer or his/her spouse has a direct beneficial interest. Establishes that notarizations performed in violation of these prohibitions are voidable. Authorizes Notaries Public and other notarial officers to certify, by completion of an appropriate notarial certificate, that a tangible copy of an electronic record is an accurate copy of the electronic record. Prohibits all notarial officers (including Notaries Public) from certifying that a tangible copy of an electronic record is an accurate copy, if the notarial officer has detected a change or error in an electronic signature or other information in the electronic record. Provides the requirements for performing this notarial duty. Requires clerks of the circuit court to accept for recording a tangible copy of an electronic record that is certified by a Notary Public to be an accurate copy of the electronic record. Establishes the required determinations by the Notary Public and other notarial officers when taking an acknowledgment; taking a verification on oath or affirmation; witnessing or attesting a signature; certifying or attesting a copy of a record or item; certifying a tangible copy of an electronic record; and making or noting a protest. Establishes that if a notarial act related to a statement made in or a signature executed on a record, a remotely located individual (principal) may comply with the personal appearance requirement through use of communication technology. Establishes when a notarial officer has personal knowledge of an individual’s identity or has satisfactory evidence of the individual’s identity. Authorizes a notarial officer to require an individual to provide additional information or identification credentials necessary to assure the notarial officer of the individual’s identity. Provides that a notarial officer may refuse to perform a notarial act if the officer is not: satisfied that the individual executing the record is competent or has the capacity to execute the record; or satisfied that the individual’s signature is knowingly and voluntarily made. Allows an individual who is physically unable to sign a record to appear before a notarial officer and direct another individual other than the notarial officer to sign the individual’s name on the record; the other individual must appear with the physically unable individual before the notarial officer. The notarial officer must add a specified notation to the signed record. Establishes provisions regarding which individuals are authorized to perform notarial acts in Maryland; that the signature and title of an individual authorized to notarize in Maryland are prima facie evidence that the signature is genuine, the individual holds the designated title and the individual acted with appropriate authority. Establishes Maryland’s recognition of notarial acts performed by persons authorized to notarize elsewhere, including in another state; under authority and in the jurisdiction of a federally recognized Indian tribe; under federal law; under authority and in the jurisdiction of a foreign state or constituent unit of the foreign state; or under the authority of a multinational or international governmental organization. Provides for authentication of the signature and title/office of a notarial officer (apostilles, consular authentications). Establishes that except when a notarial act pertains to a will or trust document as defined in Maryland law, a Maryland Notary Public located in Maryland may perform a notarial act using communication technology for a remotely located individual, subject to various requirements. Requires the notarial certificate of a notarial act performed using communication technology to contain a statement substantially like: “This notarial act involved a remotely located individual and the use of communication technology.” Establishes requirements for making and retaining an audio-visual recording of every remote online notarization performed. Requires a Notary Public, prior to performing his/her initial notarial act using communication technology for a remotely located principal, to notify the Secretary of State of the intent to perform remote online notarizations and of the technologies the Notary intends to use. Mandates that the communication technology, credential analysis and identity proofing used by a Notary Public must comply with any standards established by the Secretary of State. Establishes that participation in a transaction involving use of communication technology for a remotely located individual is voluntary for all parties (including the Notary Public), and that an individual who participates in a remote online notarization may refuse to do so in any other transaction. Requires every notarial act to be evidenced by a notarial certificate and specifies requirements for completing the certificate and ensuring the certificate is part of or securely attached to a tangible record; or affixed to or logically associated with an electronic record. Provides the information that must be included in every notarial certificate. Specifies when a Notary Public and other notarial officers are required to, or may, include an official stamp on the notarial certificate of tangible and electronic records. Provides what constitutes a “sufficient” notarial certificate. Establishes that by executing (completing) a notarial certificate, a notarial officer certifies that he/she has complied with certain specified statutes. Prohibits a notarial officer from affixing his/her signature to, or logically associating it with, a certificate until the notarial act has been performed. Requires conformance with any regulations adopted by the Secretary of State that provide standards for attaching, affixing, or logically associating the certificate with to record to which it pertains. Provides short-form certificates (acknowledgment by an individual and in a representative capacity; verification on oath or affirmation; witnessing or attesting a signature; certifying a copy of a record; certifying a tangible copy of an electronic record). Establishes that the short forms are sufficient if the certificate is completed with all information required by law; and includes the official stamp if the notarial officer is required to use one. Provides the information required to be included in a Notary Public’s official stamp, and requires the official stamp to be capacity of being copied together with the record to which it is affixed or attached, or with which it is logically associated. Requires a Notary Public to render unusable any stamping device no longer in use due to the Notary’s resignation, commission revocation or expiration, or expiration of the date printed on the stamp. Establishes requirements for rendering a stamping device unusable upon a Notary’s death or adjudication of incompetency. Requires a Notary Public or a Notary’s personal representative or guardian to promptly notify the Secretary of State upon discovering that a stamping device is lost or stolen. Requires every Notary Public to maintain a journal in which the Notary chronicles all notarial acts performed. Allows a journal to be in a tangible medium or electronic format. Establishes a journal retention period of 10 years after performance of the last notarial act chronicled in the journal. Requires a Notary Public to maintain only journal at a time in which to chronicle all notarial acts regarding tangible records; and one or more journals in which to chronicle all notarial acts regarding electronic records. Provides that a tangible journal must be a permanent, bound register with numbered pages; and that an electronic journal must be in a permanent, tamper-evident format that complies with any regulations adopted by the Secretary of State. Sets forth the information required to be recorded in a journal entry, including whether the individual was physically present or appeared by means of communication technology. Requires journal entries to be made contemporaneously with performance of a notarial act. Establishes administrative procedures relative to journals and requirements for journal retention. Requires Notaries Public wishing to notarize with respect to electronic records to first notify the Secretary of State and identify the technology the Notary intends to use. The technology must conform to any standards adopted by regulations of the Secretary of State and the Secretary must approve the use of conforming technologies. Provides that—except when a notarial officer has notarized in violation of the prohibition against notarizing when one’s spouse is a party to the record or when the notarial officer of the spouse has a direct beneficial interest—the failure of a notarial officer to perform a duty or meet a requirement specified by Maryland’s notary law does not invalidate a notarial act performed by the notarial officer. Further provides that an aggrieved person is not prevented from seeking: to invalidate under another law a record or transaction that is the subject of the notarial act; or other remedies allowed under federal or state law. Establishes that this provision does not validate a purported notarial act performed by an individual lacking authority to perform notarial acts. Authorizes the Secretary of State to adopt regulations to implement the provisions of Maryland’s Notary Public law. Requires a Notary Public to comply with the provisions of Section 18-233, Maryland Code Annotated, when performing a notarial act with respect to an electronic record or remotely located individual, unless the Secretary of State adopts an applicable and superseding regulation. Establishes that a regulation adopted by the Secretary of State may supersede a requirement of Md. Code Ann. Section 18-233 if the regulation references the section and specifies the requirement to be superseded. Establishes minimum requirements for the identity proofing and credential analysis functions performed during a remote online notarization. Also establishes security measures applicable to communication technology. Provides that if a remotely located individual must exit a remote online notarization workflow, the remotely located individual must meet the criteria of Md. Code Ann. Section 18-233, and restart credential analysis and identity proofing from the beginning. Requires a Notary Public to attach or logically associate his or her electronic signature and official stamp to an electronic record by use of a digital certificate complying with the X.509 standard adopted by the International Telecommunication Union or a similar industry-standard technology. Prohibits a Notary’s performance of a notarial act with respect to an electronic record if the digital certificate has expired; has been revoked or terminated by the issuing or registering authority; is invalid; or is incapable of authentication. Establishes that a Notary Public’s journal required under Md. Code Ann. Section 18-219 and any audio-visual recordings required under Section 18-214 must be retained in a computer or other electronic storage device that protects the journal or audio-visual recordings against unauthorized access by password or cryptographic process. Allows a Notary Public to engage, by written contact, a third party to act as a repository to provide the required journal storage. Specifies requirements of such contractual agreement. Clarifies that which a commission as a Notary Public does not authorize an individual to do and prohibits a Notary Public from receiving compensation for performing any such (unauthorized) activities. Prohibits a Notary Public’s use of the terms “notario” or “notario publico” unless the Notary Public is an attorney licensed to practice in Maryland. Establishes requirements and restrictions relative to advertising or representations by the Notary about his or her services. Requires non-attorney Notaries to include a statement in any manner of advertising or representation of services that: “I am not an attorney licensed to practice law in this State. I am not allowed to draft legal records, give advice on legal matters, including immigration, or charge a fee for those activities.” Specifies that the statement shall be included “prominently,” and in each language used in the advertisement or representation. Provides for prominent display or provision of the statement if the form of advertisement or representation does not allow for inclusion of the required statement. Prohibits a Notary Public from withholding access to or possession of an original record provided by a person that seeks performance of a notarial act by the Notary Public. Provides for: the continuity of a Notary Public commission already in effect on the effective date of SB 678; the unaltered validity or effect of a notarial act performed before SB 678’s effective date; and SB 678’s effective date of October 1, 2020. |
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MISSOURI EMERGENCY RULES, Varied Subjects – 15 CSR 30-100.005, .010, .015; 15 CSR 30-110.030, .040, .050, .060, .070, .080 As published in the Missouri Register dated October 1, 2020:
15 CSR 30-100.005 Notary Complaint Process New emergency rule added to Chapter 100 of Administrative Rules, prescribing the Notary complaint process. 15 CSR 30-100.010 Approval, Revocation and or Suspension of Notary Commission. Revises existing rule in Chapter 100 by removing the duplicative term “Secretary of State,” adding “Approval” to the title, and adding a new section – see text below. New emergency section of this rule reads: (3) An individual who has been convicted of a felony involving dishonesty or moral turpitude, committed in the last five (5) years, will be denied approval to be a commission. [To be a Notary Public.] 15 CSR 30-100.015 Request for Hearing on Suspension or an Appeal on a Denial of an Application
Revises existing rule in Chapter 100 to add denial of an application to the reasons one can request an appeal but not a hearing. New emergency section of this rule reads: (5) An applicant who has been denied a notary commission may appeal the denial to the Director of Business Services or his or her designee. This appeal does not include a right to a hearing. 15 CSR 30-110.030 Remote Online Notarization (RON) Approval New rule in Chapter 110, providing the process for vendors to have their software approved for use by Missouri electronic Notaries. Of note: a list of all approved software vendors will be published on the Missouri Secretary of State’s website. 15 CSR 30-110.040 Remote Online Notarization (RON) Criteria
New rule in Chapter 110, providing general RON technology performance requirements for identifying remotely located signers, audio-video communication and electronic document processing, information capture for purposes of Notary recordkeeping, and creation of a session audit trail. 15 CSR 30-110.050 Remote Online Notarization (RON) Credentials
-----------------------New rule in Chapter 110, establishing more detailed requirements for the technology regarding the Notary’s identification of remotely located principals. 15 CSR 30-110.060 Audio and Video Quality New rule in Chapter 110, establishing certain performance standards for the audio/video technology and recording feature. 15 CSR 30-110.070 Storage and Retention of Notarial Records New rule in Chapter 110, establishing standards for the storage and retention of a Notary’s records of remote online electronic notarizations performed. 15 CSR 30-110.080 Audit Trail Requires RON systems to create an “audit trail” of the actions performed in a remote online notarization. Specifies capture of information such as date/time of the RON notarization, the party’s name and the IP address of the party performing a captured action. MISSOURI – HB 1655 A massive and comprehensive rewrite of Missouri’s Notary Public law (Chapter 486) dealing with notarial acts for a physically present principal signer (tangible and electronic documents) and implementing remote online notarization. (See list of repealed and newly created sections of law at the end of this summary.)
DEFINITIONS Defines the following terms: “appears in person before the Notary”; “acknowledgment”; “affirmation”; “capable of independent verification”; “certificate”; “commission”; “communication technology”’; “copy certification”; “county clerk”; “county”; “credential analysis”; “credible witness”; “electronic document”; “electronic journal of notarial acts”; “electronic journal”; “electronic notarial act”; “electronic notarial certificate”; “electronic notarization”; “electronic Notary Public”; “electronic Notary seal”; “electronic Notary seal”; “electronic seal”; “electronic signature”; “electronic signature”; “electronic”; “electronic”; “identity proofing”; “in the presence of the Notary”; “journal of notarial acts”; “journal”; “jurat”; “notarial act”; “notarial certificate”; “notarization”; “Notary Public”; “Notary”; “oath”; “official misconduct”; “official seal”; “official signature”; “outside the United States”; “personal knowledge of identity”; “personally appear before the Notary”; “personally knows”; “principal”; “registered electronic Notary seal”; “registered electronic signature”; “regular place of work or business”; “remote online notarization”; “remote online Notary Public”; “remote presentation”; “remotely located individual”; “requester of fact”; “satisfactory evidence”; “Secretary”; “security procedure”; “signature witnessing.” NOTARY COMMISSION, eNOTARY REGISTRATION MATTERS Notary Commission Application Eliminates the requirement that an applicant for a Notary commission be a registered voter in the county of commission and not to have had a commission revoked in the past 10 years. Provides that non-resident applicants may qualify for a Notary commission if the applicant works in Missouri and if they meet all other qualifications. Requires the application for a Notary commission to be in a paper or electronic format established by the Secretary of State and including information required by §486.630, RSMo and any other information the Secretary deems appropriate. Requires a current or former Notary applying for a new commission to qualify for and submit a new application, and “comply anew” with all statutory requirements. Requires every applicant to attest to having read the Missouri Notary Public Handbook or having received training in a manner prescribed by the Secretary of State. Every applicant must also receive a score of 80% or better on an examination administered by the Secretary prior to being issued a commission. Provides that the content of the training and of the written examination shall be based on notarial laws, procedures, and ethics. Provides the grounds on which the Secretary of State may deny an application for a Notary commission. Authorizes an applicant to appeal denial of an application by filing, within 30 days after denial, the form required by the Secretary of State. Further provides that an applicant for a Notary commission whose commission has been denied may not appeal if the Secretary, within 5 years prior to the application, has (a) denied or revoked for disciplinary reasons any previous application, commission, or license of the applicant; or (b) made a finding pursuant to RSMo 486.810 that grounds for revocation of the applicant's commission existed. Provides that the new laws do not invalidate, modify or terminate the existing bond, seal, length of commission and liability of Notaries commissioned before August 28, 2020. Clarifies that all Notaries must comply with the new laws from August 28, 2020, in performing notarizations and applying for new commissions. Requires the surety for a Notary’s $10,000 bond to report all claims against the bond to the Secretary. Requires the Secretary of State to suspend the commission of a Notary whose bond has been exhausted by claims paid out by the surety, until a new bond is obtained by the Notary, and the Notary’s fitness to serve the remainder of the commission term is determined by the Secretary. Provides that a Notary shall file the Notary’s bond and oath of office with the county clerk or their designee within 60 days of the commission issue date (formerly 90 days). Requires the Notary (formerly the county clerk) to mail the Notary’s bond, oath of office and signature example to the Secretary of State, with a postmark date not exceeding seven days from the date of the oath. Provides that once the oath and bond have been received, examined and approved, the Secretary shall update the Notary’s commissioned status. Provides that the issued commission of a Notary who fails to qualify within 60 days (formerly 90 days) shall be marked as not qualified by the county clerk and the county clerk must return the commission to the Secretary of State within 15 days (formerly 30 days). Provides that any Notary who fails to qualify within 60 days may be required to reapply for the commission. Establishes provisions concerning Notary Public commission application information. Provides for use of the information by the Secretary of State and his or her designated employees. Allows use of the information only for the purpose of performing official duties prescribed in Chapter 486, and prohibits disclosure of the information to any person other than those specified in the law. Establishes that such records shall be a closed record as defined in chapter 610 and subject to redaction as required in Chapter 610. Provides that the Secretary may revoke a Notary commission for any ground on which an application for a commission may be denied as provided in Chapter 486. Requires the Secretary to revoke the commission of a Notary who fails to maintain a residence or a regular place of work or business in Missouri; and status as a legal resident of the U.S. Clarifies that before revoking a Notary commission, the Secretary must inform the Notary of the basis for the revocation and that the revocation takes effect on a particular date unless a proper appeal is filed with the Secretary before that date. Clarifies that resignation or expiration of a Notary commission does not terminate or preclude an investigation into the Notary's conduct by the Secretary. Provides that the Secretary may pursue such investigation to a conclusion, and that the investigation shall be made a matter of public record regardless of whether the finding would have been grounds for revocation. Authorizes the Secretary of State to immediately suspend a Notary commission upon written notice sent by certified mail if the situation is deemed to have a serious unlawful effect on the public, provided that the Notary shall be entitled to hearing and adjudication as soon thereafter as is practicable. Authorizes the Secretary of State to regularly publish a list of persons whose Notary commissions have been suspended or revoked, including electronic and remote online Notaries. Applies the provisions on revocation of a commission (§486.810, RSMo) and suspension of a commission (§486.815, RSMo) to electronic Notaries and remote online Notaries. Clarifies that the sanctions of Chapter 486 do not preclude any other sanctions or remedies provided by law. Notary Commission Information and Status Changes Requires a Notary to notify the Secretary—by signed notice using any means providing a tangible receipt including certified mail and electronic transmission—of a change in the Notary’s residence, business or mailing address. The notice must provide the notary’s old and new addresses, and include a $5 fee. Requires a Notary who changes the address of his or her regular place of work or business to suspend performing notarial acts until the Notary has notified the Secretary of State as required in §486.780, RSMo; received confirmation of the name or address change from the Secretary; and notified his or her surety provider of the change, in writing. Requires a Notary whose name changes by court order or marriage to notify the Secretary—within 10 days of such change—by signed notice using by any means providing a tangible receipt, including certified mail and electronic transmission. The notice must provide the Notary’s old and new name and a copy of any official authorization for the name change, and include a $5 fee. Requires a Notary with a new name to continue using their former name in performing notarial acts until (1) the required notification has been given to the Secretary (see above); (2) the Notary has received confirmation of the name or address change from the Secretary; (3) the Notary has obtained a seal with the new name; and (4) the Notary has notified his or her surety provider of the change in writing. Requires a Notary who ceases to reside in or to maintain a regular place of work or business in Missouri, or who becomes permanently unable to perform their notarial duties, to resign their commission. Provides that a Notary who resigns his or her commission must send the Secretary of State—by any means providing a tangible receipt, including certified mail and electronic transmission—a signed notice of the resignation indicating the effective date of the resignation. Requires that a Notary whose commission expires without renewal, is resigned, or is revoked must, as soon as reasonably practicable, destroy or deface all of the Notary’s officials seals; and within 30 days after the effective date of resignation, revocation, or expiration of the commission, dispose of the journal and notarial records in accordance with §486.715, subsection 4, RSMo. Further provides that a Notary whose commission has expired is not required to dispose of the Notary’s journal in accordance with §485.715, subsection 4, RSMo if the Notary is recommissioned within 3 months of the expiration of the Notary’s current commission. Requires a Notary whose commission has been revoked to forward their seal to the Secretary of State for disposal. Provides that failure to forward the seal to the Secretary following revocation may be punishable by a fine of $500, at the discretion of the Secretary. Establishes the responsibilities of a Notary’s personal representative in the event of the Notary’s death during the term of commission or before fulfilling the requirements of §486.800, RSMo. The personal representative must notify the Secretary of State, in writing, of the notary’s death; as soon as reasonably practicable, forward all Notary seals to the Secretary; and within 30 days after death, forward the journal and notarial records in accordance with §486.715, subsection 4, RSMo. Requires that a Notary’s journal and notarial records must be delivered to the Secretary pursuant to §486.795 to §486.800, RSMo, upon the Notary’s resignation, revocation or expiration of commission, or upon death of the electronic Notary. Delivery shall be by any means providing a tangible receipt, including certified mail and electronic transmission, that allows an electronic journal to be delivered on disk, printed on paper, or transmitted electronically, in accordance with the requirements of the Secretary. In the case of an electronic journal and backup copy where disks or other physical storage media are not required to be surrendered, no further entries shall be made in the journal and backup and the journal and backup shall be safeguarded until both are erased or expunged after 10 years from the date of the last entry by the Notary or the Notary's personal representative. Electronic Notary Registration Requires a person to be a commissioned Missouri Notary prior to performing electronic notarial acts. Requires a Notary to register with the Secretary of State to perform electronic notarial acts before performing electronic notarizations. Requires a Notary to re-register when renewing the Notary commission. Authorizes a person to apply or reapply for a Notary commission and register or reregister to perform electronic notarizations at the same time. Provides the information and declarations required to be in the application form for registering to perform electronic notarial acts, as specified. Authorizes a Notary to register at the same or different times one or more respective means for producing electronic signatures and electronic Notary seals. Requires the Secretary of State to deny registration to any applicant submitting an electronic registration form that contains a material misstatement or omission of fact. Requires a Notary wishing to register as an electronic notary to complete a course on laws, procedures, and ethics pertaining to electronic notarization approved by the Secretary of State and pass an exam. Provides that the content of the electronic notarization course shall be notarial laws, procedures, and ethics pertaining to electronic notarization. Provides that the term of registration of an electronic Notary begins on the registration starting date set by the Secretary of State, and continues until the Notary’s commission remains in effect, unless terminated. Provides that records pertaining to a Notary’s application for registration as an electronic Notary may only to be used by the Secretary of State or Secretary’s designated employees for the purpose of the commission, and shall not be disclosed to anyone other than a government agency authorized to obtain such information, a person authorized by court order, or the applicant or applicant’s authorized agent. Requires the Secretary of State to terminate an electronic Notary's registration for any of the following reasons: submission of an electronic registration form containing a material misstatement or omission of fact; failure to maintain the capability to perform electronic notarial acts, except as allowed in §486.985, subsection 1, subdivision (3), RSMo; or the electronic Notary's performance of official misconduct. Provides that prior to terminating an electronic Notary's registration, the Secretary of State must inform the Notary of the basis for the termination and that the termination shall take place on a particular date unless a proper appeal is filed with the Secretary before that date. Provides that neither resignation nor expiration of a Notary commission or of an electronic Notary registration precludes or terminates an investigation by the Secretary of State into the electronic Notary's conduct, and further provides that the investigation may be pursued to a conclusion, whereupon it shall be made a matter of public record regardless of whether the finding would have been grounds for termination of the commission or registration of the electronic Notary. Electronic Notary Status Changes Requires an electronic Notary within 5 business days after the change of an electronic Notary's e-mail address, to electronically transmit to the Secretary of State a notice of the change secured by a registered electronic signature of the Notary. Provides that any change or addition to the data that the Notary reported on the electronic registration form described in §486.920, RSMo, including any change to an electronic journal's access instructions, must be reported within 10 days to the Secretary of State. Provides that upon becoming aware that the status, functionality, or validity of the means for producing a registered electronic signature, Notary seal, or single element combining the signature and seal, has changed, expired, terminated, or become compromised, the Notary must immediately notify the Secretary of State; cease producing seals or signatures in electronic notarizations using that means; perform electronic notarizations only with a currently registered means or another means that has been registered within thirty days; and dispose of any software, coding, disk, certificate, card, token, or program that has been rendered defunct, in the manner described in §486.995, subsection 1, RSMo. Provides that the Secretary of State shall immediately suspend the electronic status of a Notary who has no other currently registered means for producing electronic signatures or Notary seals, and, if such means is not registered within 30 days, electronic status shall be terminated. Provides that any revocation, resignation, expiration, or other termination of the commission of a Notary immediately terminates any existing registration as an electronic Notary, but clarifies that a Notary's decision to terminate registration as an electronic Notary does not automatically terminate the underlying commission of the Notary. Provides that a Notary who terminates registration as an electronic Notary shall notify the Secretary of State in writing and dispose of any pertinent software, coding, disk, certificate, card, token, or program as described in §486.995; subsection 1, RSMo. Provides that if the commission of an electronic Notary expires or is resigned or revoked, if registration as an electronic Notary terminates, or if an electronic Notary dies, the Notary or the Notary's duly authorized representative shall, within 30 business days, permanently erase or expunge the software, coding, disk, certificate, card, token, or program that is intended exclusively to produce registered electronic Notary seals, registered single elements combining the required features of an electronic signature and Notary seal, or registered electronic signatures that indicate status as a Notary. Provides that a former electronic Notary whose previous commission expired is not subject to the requirements of §486.995, subsection 1, RSMo, if the electronic Notary is, within 3 months after expiration, recommissioned and reregistered as an electronic Notary using the same registered means for producing electronic Notary seals and signatures. AUTHORIZED NOTARIAL ACTS Authorizes a Missouri Notary Public (or a registered electronic notary notarizing for a physically present principal signer) to perform acknowledgments, jurats, signature witnessings, and copy certifications. Authorizes a registered Missouri remote online notary to perform only acknowledgments and jurats as a remote notarial act. Provides that a notary may certify a paper (tangible) copy of an electronic document, but the notary must (1) confirm that the electronic document contains an electronic signature that is capable of independent verification and renders any subsequent changes or modifications to the electronic document evident; (2) personally print or supervise the printing of the electronic document onto paper; and (3) not make any changes or modifications to the electronic document. Establishes requirements and limitations for a notary’s certification of a paper copy of an electronic record when the electronic record is a plat, map, or survey of real property. Clarifies that a notary’s certification of a paper copy of an electronic document under §59.569, RSMo only applies to documents presented to a recorder of deeds for recordings pursuant to Chapters 442 or 443, RSMo (Titles and Conveyance of Real Estate; ad Mortgages, Deeds of Trust and Mortgage Brokers). Allows a Notary to perform a notarial act only if the principal is: 1. in the presence of the Notary at the time of the notarization; 2. personally known or identified through satisfactory evidence; 3. appears to understand the nature of the transaction and be acting on his or her own free will; 4. signs using letters or characters of a language understood by the Notary; and 5. communicates directly with the Notary in a language that both understand. Defines satisfactory evidence as evidence of identification of an individual based on: 1. at least one current document issued by a federal, state, or tribal government in a language understood by the Notary and bearing the photographic image of the individual's face and signature and a physical description of the individual, or a properly stamped passport without a physical description; or 2. the oath or affirmation of one credible witness disinterested in the document or transaction who is personally known to the Notary and who personally knows the individual, or of two credible witnesses disinterested in the document or transaction who each personally knows the individual and shows to the Notary documentary identification [a satisfactory evidence credential described immediately above]. Authorizes a Notary to officiate for a signature by mark and prescribes the requirements for doing so. General Notarial Act Requirements Requires a Notary to perform any notarial act described in §486.640, RSMo for any person requesting such a notarial act who tenders the appropriate fee specified in §486.685, RSMo unless (1) the Notary knows or has a reasonable belief that the notarial act or the associated transaction is unlawful; (2) the notarial act is prohibited in RSMo 486.645 or subsection 1 of RSMo 486.650; (3) the number or timing of the requested notarial act or acts practicably precludes completion at the time of the request, in which case the Notary shall arrange for later completion of the requested act or acts without unreasonable delay; or (4) in the case of a request to perform an electronic notarial act, the Notary is not registered to notarize electronically in accordance with §§ 486.900 to 486.1010, RSMo. Provides that a Notary commission does not authorize a Notary to investigate, ascertain, or attest to the lawfulness, propriety, accuracy, or truthfulness of a document or transaction involving a notarial act. Requires a non-attorney Notary who advertises in a foreign language to include―in the advertisement, notice, letterhead or sign―the statement, “I am not an attorney and have no authority to give advice on immigration or other legal matters: and the fees for notarial acts that the Notary may charge. Prohibits a Notary from using the term “notario publico” or any equivalent non-English term in any business card, advertisement, notice or sign. Provides that the liability, sanctions, and remedies for the improper performance of electronic notarial acts by an electronic Notary are the same as described and provided in §486.806, RSMo for the improper performance of nonelectronic notarial acts. General Notarial Act Prohibitions, Disqualification of Notary Disqualifies or prohibits a Notary from: • Performing a notarial act if the Notary (1) is a party to or named in the document; (2) will receive directly or indirectly any commission, fee, advantage, right, title, interest, cash, property or other consideration exceeding the allowable fees for notarial acts; or (3) is a spouse, domestic partner, ancestor, descendant or sibling of the principal, including in-law, step and half relatives. • Refusing to perform a notarization based on characteristics protected from employment discrimination under §213.055, RSMo. • Influencing a person to enter into or avoid a transaction involving a notarial act by the Notary. • Executing a notarial certificate containing information known or believed by the Notary to be false; affixing an official seal or signature on a notarial certificate other than at the time of the notarization and in the presence of the principal; providing or sending an incomplete, but signed or sealed notarial certificate to be completed later outside the Notary’s presence; notarizing a signature if the document is blank or incomplete; notarizing a signature on a document that does not have notarial certificate wording; certifying or authenticating a photograph; performing any notarial act with the intent to deceive or defraud; and using the official Notary title or seal to endorse, promote, denounce, or oppose any product, service, contest, candidate for political office, ballot measure for any election, or other offering. • Claiming to have powers, qualifications, rights, or privileges that are not provided in RSMo 486, including the power to counsel on immigration issues. • Discrimination in the charging of fees (but a notary is authorized to waive or reduce fees for humanitarian or charitable reasons). Prohibits non-attorney Notaries from assisting others in drafting, completing, selecting or understanding a document or transaction requiring a notarial act, but further provides that a Notary who is duly qualified, trained, licensed, or experienced in a particular industry or professional field is not precluded from selecting, drafting, completing, or advising on a document or certificate related to a matter within that industry or field. NOTARY FEES Authorizes a Notary to charge $5 per signature for performing an acknowledgment, jurat, or signature witnessing. Further authorizes a Notary to charge $1 per page for certified copies, with a minimum total charge of $3. Provides that a Notary may charge the maximum allowable fees, a lower fee or waive the fee. Authorizes a Notary to charge a travel fee if the notary and the person requesting the notarial act agree upon the travel fee in advance of the travel; and the notary explains to the person requesting the notarial act that the travel fee is both separate from the notarial fee prescribed in law and neither specified nor mandated by law. Authorizes a Notary to waive or reduce fees for humanitarian or charitable reasons, but prohibits discrimination in the charging of fees. Establishes that a Notary may collect a non-notarial fee for services as a signing agent if payment of the fee is not contingent upon the signing, initialing or notarization of any document. Requires a Notary who charges fees to conspicuously display in their regular place of work or business, or present to each principal outside their regular place of work or business, an English-language fee schedule in at least 12-point type. Authorizes a Notary to require payment of fees prior to performing the notarial act. Provides that such prepaid fees are nonrefundable if the notarial act is completed, or in the case of travel fees, if the notarial act was not completed after the Notary traveled to the principal because it was prohibited for any of the grounds in § 486.645, RSMo or because the Notary knew or had a reasonable belief that the notarial act or associated transaction was unlawful. Authorizes an employer to prohibit a Notary-employee from charging for notarial acts performed on company time, but prohibits an employer from discrimination in charging of fees based on characteristics of the principal. Prohibits a private employer from requiring a Notary-employee to surrender or share fees charged for any notarial acts. Requires a governmental employer who has paid for the Notary’s commission and supplies to waive the charging of notarial act fees, or require the employee notary’ s surrender of notarial fees as revenue of the employing government agency. NOTARIAL CERTIFICATE REQUIREMENTS Requires that for every notarial act involving a document (for physically present principal signers or those appearing remotely), a Notary shall properly complete a notarial certificate that contains or states: • the Notary’s the official signature and impression of their official seal, in accordance with §486.725, RSMo; • the venue of the notarial act where the Notary is located (i.e, “State of Missouri” and the name of the county where the notarial act was performed); • the date of the notarial act; and • the facts and particulars attested by the Notary in performing the respective notarial act. Provides that a notarial certificate is sufficient for a particular notarial act only if it meets the requirements of subsection 1 of §486.740, RSMo and is in a form that (1) is set forth for that act in RSMo 486; (2) is otherwise prescribed for that act by the laws of Missouri; (3) is prescribed for that act by a law, regulation, or custom of another jurisdiction, provided it does not require actions by the Notary that are unauthorized by the laws of Missouri; or (4) describes the actions of the Notary in such a manner as to meet the requirements of the particular notarial act. Requires a notarial certificate to be worded and completed using only letters, characters, and a language that are read, written, and understood by the Notary. Provides statutory notarial certificate forms for an acknowledgment on an individual’s own behalf or in any representative capacity; a signature or mark on an affidavit or other sworn or affirmed written declaration; a signature or mark without the administration of an oath or affirmation; and a certified copy. Authorizes a Notary to correct an error or omission made by that Notary in a notarial certificate if: 1. the original certificate and document are returned to the Notary; 2. the Notary verifies the error by reference to the pertinent journal entry, the document itself, or to other determinative written evidence; 3. the Notary legibly corrects the certificate and initials and dates the correction in ink, or replaces the original certificate with a correct certificate; and 4. the Notary appends to the pertinent journal entry a notation regarding the nature and date of the correction. Performing Notarial Acts for Physically Present Principal Signers Requires that when notarizing a paper document, a Notary must affix an official signature and an official seal on the notarial certificate at the time the notarial act is performed. Requires a paper notarial certificate form that is attached to a paper document during notarization of the principal’s signature to: 1. be attached by staple or other method that leaves evidence of any subsequent detachment; 2. be attached, signed, and sealed only by the Notary and only at the time of notarization and in the presence of the principal; 3. be attached immediately following the signature page if the certificate is the same size as that page, or to the front of the signature page if the certificate is smaller; and 4. contain all of the elements described in §486.740, RSMo on the same sheet of paper. Requires a clerk or recorder to record a paper copy of an electronic document if the paper copy has been certified to be a true and correct copy of the electronic original by a Notary as evidenced by a certificate that (a) is signed and dated by the Notary in the same manner as on file with the Secretary of State; (b) identifies the jurisdiction in which the copy certification is performed; (c) contains the title of the Notary; (d) indicates the date of expiration, if any, of the Notary’s commission; and (e) includes an official seal or stamp of the Notary affixed to or embossed on the certificate. Provides a statutory form for a paper-based copy certification of an electronic record bearing the electronic signature of the notarial officer who perform the electronic notarial act. Official Signature, Seal (Notary Public) Requires that on each completed paper notarial certificate and near the notary’s official signature, a notary must affix a sharp, legible, permanent, and photographically reproducible image of their official seal that shall include the following elements: 1. The notary’s name exactly as stated on the commission; 2. The identification number of the notary’s commission; 3. The words “Notary Public”, “Notary Seal”, and “State of Missouri” and “My commission 4. expires (commission expiration date)”; and 5. A border in a rectangular or circular shape no larger than one sixteenth of an inch, 6. surrounding the required words. Provides that illegible information within a seal impression may be typed or printed legibly by the notary, adjacent to but not within the impression, or another impression may be legibly affixed nearby. Allows an embossed seal impression that is not photographically reproducible to be used in addition to, but not in place of, the official seal. Prohibits a seal from being affixed over printed or written matter. Prohibits the official seal from being used for any purpose other than performing notarial acts. Clarifies that the official seal is the exclusive property of the Notary, is not to be used by any other person, must be kept secure and accessible only to the Notary, and not surrendered to an employer upon termination of employment. Requires a Notary within 10 days after the Notary’s seal is discovered to be stolen, lost, damaged or otherwise rendered incapable of affixing a legible image to notify law enforcement in the case of theft or vandalism. Notification must be made by any means providing tangible receipt, and must include a copy or number of any pertinent police report. Requires the Secretary of State upon receiving notice of a stolen, lost or damaged Notary seal to issue the Notary a new commission for presentation to a seal vendor for making of a new seal. Provides that any person who knowingly obtains, conceals, defaces, or destroys the seal, journal, or official records of a Notary is guilty of a misdemeanor, punishable upon conviction by a fine not exceeding $500. Provides required steps and actions to be taken by approved notary seal manufacturers before providing an official seal, including steps for manufacturers to verify the valid commission standing of an individual prior to producing a seal. Prohibits a manufacturer from making or selling more than one seal to a Notary, and if requested, only one embossing seal. Requires a manufacturer to affix an image of all seals on a form prescribed by the Secretary of State and send the completed form to the Secretary of State within 7 business days, and retain a copy of the form and the commission for 5 years. Authorizes the Secretary of State to revoke a vendor’s permission to manufacture seals for repeat violations. Clarifies that the violations of a seal vendor or manufacturer do not preclude the civil liability of the vendor to parties injured by the vendor’s failure to comply with §486.735, RSMo. Notary Journal (Permanent/Bound and Electronic)* *NOTE: The new law’s journal requirements (permanently bound and electronic journals) are extensive; please fully review applicable provisions of Chapter 486, RSMo. Requires all Notaries—those performing notarial acts involving paper documents as well as those performing electronic notarial acts—to record every notarial act performed (paper-based or electronic) in a single, permanently bound journal. Only one active, permanently bound journal may be maintained at the same time for recording all paper and electronic notarial acts performed. Requires Notaries performing electronic notarial acts to also record their electronic notarial acts in an electronic journal. Requires Notaries to keep every permanently bound journal, and if applicable every electronic journal, for not less than 10 years from the date of the last entry in the permanently bound journal and at least 10 years after the date of the transaction or proceeding entered into the electronic journal. Prescribes the information a notary must record in a permanently bound journal and electronic journal: 1. The date and time of day of the notarial act; 2. The type of notarial act performed; 3. The type, title, or a description of the document or proceeding; 4. The signature, printed name, and address of each principal; 5. The printed name and address of each requester of fact; 6. The evidence of identity of each principal in the form of a statement that the person is personally known to the notary; or a notation of the type of identification document, its issuing agency, its serial or identification number, and its date of issuance or expiration; or the handwritten signature and the name and address of each credible witness swearing or affirming to the principal’s identity, and for credible witnesses who are not personally known to the notary, a description of the identification documents relied on by the notary; 7. The fee, if any, charged for the notarial act; and 8. The address where the notarial act was performed, if not the address of the notary’s regular place of work or business. Additionally, a notary performing an electronic notarial act must record in the electronic journal a recognized biometric identifier in accordance with §486.950, subdivision (4) of subsection 1, RSMo; and the name of the software or program any authority issuing or registering the means used to create the electronic signature that was notarized, the source of this authority’s license if any, and the expiration of the electronic process. Provides additional restrictions, requirements and permissions for permanently bound and electronic journals: 1. Prohibits a Notary from recording a Social Security or credit card number in the journal; 2. Authorizes a Notary to record in the journal the circumstances for not performing or completing any requested notarial act. 3. Requires a Notary to append to the pertinent entry in the journal a notation of the nature and date of the Notary's correction of a completed notarial certificate corresponding to the entry. Establishes additional requirements for an electronic journal. 1. An electronic journal of electronic notarial acts shall: • Allow journal entries to be made, viewed, printed, and copied only after access is obtained by a procedure that uses two factors of authentication; • Not allow a journal entry to be deleted or altered in content or sequence by the electronic notary or any other person after a record of the electronic notarization is entered and stored, except that an entry may be deleted if the retention period set forth in subsection 4 of §485.950 has passed; • Have a backup system in place to provide a duplicate record of electronic notarial acts as a precaution in the event of loss of the original record; • Be capable of capturing and storing the image of a handwritten or electronic signature and the data related to one other type of recognized biometric identifier; and • Be capable of printing and providing electronic copies of any entry, including images of handwritten signatures and the data related to the other selected type of recognized biometric identifier. 2. In maintaining an electronic journal of electronic notarial acts, an electronic Notary Public shall comply with the applicable prescriptions and prohibitions regarding the copying, security, surrender, and disposition of a journal as set forth in §§486.710 to 486.715 and §§486.795 to 486.800, RSMo. 3. Every electronic Notary Public maintaining an electronic journal of electronic notarial acts pursuant to §486.945, RSMo must: • Provide to the secretary authorization on the registration form described in section 486.920 and the access instructions that allow journal entries to be viewed, printed, and copied in read-only access; and • Notify the secretary of any subsequent change to the access instructions. 4. Clarifies that an electronic Notary Public maintaining an electronic journal of electronic notarial acts shall keep the entry for a period of no less than ten years from the date of the entry (as must be done with permanently bound journal record) and shall also keep a record of electronic notarial acts in a permanently bound journal as set forth in §§486.700 and 486.705, RSMo. Establishes additional requirements and authorizations regarding permanently bound AND electronic journals: 1. Provides that the journal may be examined and copied without restriction by a law enforcement officer in the course of an official investigation, subpoenaed by court order, pursuant to subpoena power as authorized by law, or surrendered at the direction of the Secretary of State. 2. Authorizes a Notary to seek appropriate judicial protective orders when the journal is requested for examination by law enforcement, subpoenaed by court order, or directed by the Secretary of State to be surrendered. 3. Provides that a Notary shall charge not more than $1 per copy for copies provided to law enforcement or a court, but the Notary shall not charge the Secretary of State for copies the Secretary requests. 4. Requires a Notary to safeguard the journal and all other notarial records and surrender or destroy them only by court order or at the direction of the Secretary of State. 5. Requires the Notary to keep the journal in a secure area under the exclusive control of the Notary when not in use and not allow it to be used by any other Notary, nor surrendered to an employer upon termination of employment. 6. Provides that within 10 days after a Notary's journal is discovered to be stolen, lost, destroyed, damaged, or otherwise rendered unusable or unreadable, the Notary, after informing the appropriate law enforcement agency in the case of theft or vandalism, must notify the Secretary of State by any means providing a tangible receipt, including certified mail and electronic transmission, and also provide a copy or identification number of any pertinent police report. 7. Requires that upon resignation, revocation, or expiration of a Notary commission the Notary’s journal and notarial records must be delivered to the Secretary of State in accordance with §486.795 or §486.800, RSMo, by any means providing a tangible receipt, including certified mail and electronic transmission. Liability, Misconduct by Notary and Others Establishes a Notary’s liability for all damages proximately caused to any person by the Notary’s negligence and intentional violation of law, or for official misconduct in relation to a notarization. Establishes a surety company’s liability for damages caused by a bonded Notary’s negligence and intentional violation of law, or for official misconduct in relation to a notarization during the bond term. Limits the surety company’s liability to the dollar amount of the bond or of remaining bond funds not disbursed to other claimants. Establishes that the surety’s aggregate liability to all claimants against the bond, regardless the number of notarial acts cited in the claim(s), shall not exceed the dollar amount of the bond. Establishes that a Notary’s employer is liable for damages caused by the Notary’s negligence and intentional violation of law, or for official misconduct, in performing a notarization during the course of employment if the employer directed, expected, encouraged, approved, or tolerated the negligence, violation of law or official misconduct, either in the particular transaction or as implied by the employer’s previous action in at least one similar transaction involving any Notary employed by the employer. Holds a Notary’s employer liable to the Notary for all damages recovered from the Notary as a result of any violation of law by the Notary that was coerced by threat of the employer, if the threat, such as that of demotion or dismissal, was made regarding the particular notarization, or as implied by the employer’s previous action in at least one similar transaction involving any Notary employed by the employer. Holds the Notary’s employer liable to the Notary for damages caused by demotion, dismissal, or other action resulting from the Notary’s refusal to engage in a violation of law or misconduct. Provides that any person who knowingly solicits, coerces, or in any way influences a Notary to commit official misconduct is guilty of a misdemeanor, punishable upon conviction by a fine not exceeding $500. Clarifies that “negligence” with regard to liability does not include any good-faith determination made by the Notary pursuant to the obligations imposed by Chapter 486 (that the principal appears to understand the nature of the transaction requiring a notarial act; and the principal appears to be acting of their own free will). Requires that to recover damages against a Notary, surety or employer, the Notary’s negligence, violation of law, or official misconduct must be the proximate cause of damages but not the sole cause. Establishes that the law’s liability provisions also apply to electronic Notaries performing electronic notarial acts, and remote Notaries performing remote online notarial acts. Provides that a Notary is guilty of a misdemeanor, punishable upon conviction by a fine not exceeding $500 or imprisonment for not more than 6 months, or both, for knowingly: (a) failing to require the presence of a principal at the time of a notarial act; (b) failing to identify a principal through personal knowledge or satisfactory evidence; or (c) executing a false notarial certificate under subsection 1 of RSMo 486.660. Provides that a Notary who knowingly performs any other act prohibited by RSMo 486 or fails to perform any other act required by RSMo 486 is guilty of a misdemeanor, punishable upon conviction by a fine not exceeding $500 or imprisonment for not more than 6 months, or both. Provides that a person who is not a Notary and who knowingly acts as or otherwise impersonates a Notary is guilty of a misdemeanor, punishable upon conviction by a fine not exceeding $500 or imprisonment for not more than 6 months, or both. Provides that a person who knowingly obtains, conceals, damages, or destroys the coding, disk, certificate, card, token, program, software, or hardware that is intended exclusively to enable an electronic Notary to produce a registered electronic signature, Notary seal, or single element combining the required features of an electronic signature and Notary seal, is guilty of a misdemeanor, punishable upon conviction by a fine not exceeding $500 or imprisonment for not more than 6 months, or both. Other Provisions (General) The new law also addresses: • Matters concerning authentication of the seal and signature of a Notary in the form of a certificate of authority, or an Apostille in conformance with the Hague Convention Abolishing the Requirement of Legalization for Foreign Public Documents of October 5, 1961. • The authority of certain individuals other than a Notary Public of Missouri to perform notarial acts in Missouri. • Missouri’s recognition of notarial acts performed outside of Missouri, by Notaries Public or notarial officers of other U.S. jurisdictions; under U.S. law; and under foreign law. Administrative Rules Authorizes the Secretary of State to promulgate rules that are reasonable and necessary to accomplish the duties specifically delegated to the Secretary in Chapter 486, RSMo. Requires the Secretary of State to promulgate rules providing for appeals from denials of applications; for appeals regarding commission revocation; and for hearings and appeals on commission suspension. ELECTRONIC NOTARY PUBLIC, ELECTRONIC NOTARIAL ACTS Electronic Notarial Acts Authorizes the following notarial acts to be performed electronically: acknowledgments; jurats; signature witnessings; and copy certifications. Requires a Notary to perform an electronic notarial act only if the principal is in the presence of the Notary at the time of the notarization; is personally known or identified through satisfactory evidence; appears to understand the nature of the transaction; is acting on his or her own free will; communicates directly in a language understood by the Notary; and reasonably establishes the electronic signature as his or her own. Requires that in performing electronic notarial acts, an electronic Notary must adhere to all applicable laws governing notarial acts provided in Chapter 486, RSMo. Electronic Notary Fees Provides that the statutory maximum fees, travel fee provisions, prohibition against discrimination in charging fees, provisions related to employee Notaries, requirements for displaying or presenting a schedule of fees, authorization for advance payment of fees and nonrefundable fees are the same for electronic notarial acts as they are for notarial acts. Electronic Notarial Certificate, Signature and Seal Establishes that in performing an electronic notarial act, the electronic Notary must properly complete an electronic notarial certificate, including the electronic notary’s registered electronic signature and registered electronic seal. (See §486.935, RSMo.) Provides requirements for an electronic notarial certificate. Establishes that the wording of an electronic notarial certificate must be in a form set forth in Missouri law §486.740 to §486.750, RSMo; is otherwise prescribed by Missouri law; is prescribed by a law, regulation, or custom of another jurisdiction provided it does not require actions by the electronic Notary that are unauthorized by Missouri; or describes the actions of the electronic Notary in such a manner as to meet the requirements of the particular notarial act, as defined in §486.600 or §486.900, RSMo. Requires an electronic notarial certificate to be worded and completed using only letters, characters, and a language that are read, written, and understood by the electronic Notary. Establishes that in completing the notarial certificate for a notarized electronic document, an electronic Notary shall attach-to or logically associate with the electronic notarial certificate a registered electronic signature and a registered electronic Notary seal. Attachment or logical association of the electronic signature and seal to/with the electronic document shall be in a manner that attributes them to the electronic Notary named on the commission. Allows an electronic notary to use a registered single element containing both a registered electronic signature and a registered electronic Notary seal. Requires an electronic Notary Public’s registered electronic signature to be: unique to the electronic Notary; capable of independent verification; attached to or logically associated with an electronic notarial certificate in such a manner that any subsequent alteration of the certificate or underlying electronic document prominently displays evidence of the alteration; and attached or logically associated by a means under the electronic Notary's sole control. Clarifies that a registered electronic signature may be used by the electronic Notary for lawful purposes other than performing electronic notarizations, provided that neither the title "Notary" nor any other indication of status as a notarial officer is part of the signature. Specifies the required information elements for a registered electronic Notary seal: the name of the electronic Notary fully and exactly as it is spelled on the Notary's commissioning document; the jurisdiction that commissioned and registered the electronic Notary; the title "Electronic Notary Public"; the commission or registration number of the electronic Notary; and the electronic Notary’s commission expiration date. Prohibits a registered electronic Notary seal or a combined single element containing the seal from being used by the electronic Notary for any purpose other than performing lawful electronic notarizations. Provides that the means for producing registered electronic Notary seals, or registered single elements, must at all times be kept under the sole control of the electronic Notary. Electronic Notary – Employer Issues Prohibits an employer of an electronic Notary from using or controlling the means for producing registered electronic signatures and Notary seals, or registered single elements combining the required features of both. Further prohibits an employer of an electronic Notary from retaining any software, coding, disk, certificate, card, token, or program that is intended exclusively to produce a registered electronic signature, Notary seal, or combined single element, regardless of whether the employer financially supported the employee's activities as a Notary upon termination of a Notary's employment. Journal Requirements, Electronic Notarizations Mandates an electronic Notary to keep, maintain, protect, and provide for lawful inspection a chronological journal of notarial acts that is permanently bound with numbered pages and an electronic journal of electronic notarial acts. (See this report’s previous section on journal requirements.) Other Provisions (Electronic Notarization) Addresses authentication of the seal and registered electronic signature of an electronic Notary in conformance with any current and pertinent international treaties, agreements, and conventions subscribed to by the government of the United States. Authorizes the Secretary of State to charge a maximum fee of $10 for an electronic Apostille or certificate of authority. Clarifies that the criminal penalties for impersonating an electronic Notary and for soliciting, coercing, or improperly influencing an electronic Notary to commit official misconduct in performing notarial acts are the same penalties described in subsection 6 of RSMo 578.700 in regard to performing nonelectronic notarial acts. Provides that for documents presented to a recorder of deeds for recording, a physical or electronic image of a stamp, impression, or seal is not required if the Notary has attached an electronic notarial certificate that meets the requirements of RSMo 59. Remote Notarization; Remote Online Notary Public Establishes that a Missouri remote online Notary Public may perform a remote online notarization for a remotely located individual who is (1) physically located in Missouri; (2) outside of Missouri but within the United States; or (3) outside the United States if the electronic notarization is not prohibited in the non-U.S. jurisdiction in which the principal is physically located at the time of the remote online notarial act. Mandates that a remote online Notary Public shall perform a remote online notarization as authorized in §486.1100 to §486.1205, RSMo, only while the remote online notary is physically located within Missouri. Remote Online Notarization Registration NOTE: Please see content above regarding registration of an electronic notary’s electronic signature and electronic seal. Provides that prior to performing remote online notarial acts, a person [who is not already a Missouri Notary Public] shall apply to be a commissioned Missouri Notary. Requires a notary to register the capability to perform remote online notarial acts with the Secretary of State before performing remote online notarial acts. Requires that upon recommissioning, a Notary shall again register with the Secretary of State before performing remote online notarizations. Clarifies that that a person may apply or reapply for a Notary commission and register or reregister to perform remote online notarial acts at the same time. Provides that before initially registering the capability to perform remote online notarial acts, a Notary shall complete a course of instruction as approved by the Secretary of State, in addition to the course required for commissioning as a Notary, and pass an examination based on the course. Provides that the content of the remote online notarization course shall be notarial laws, procedures, and ethics pertaining to remote online notarization. Requires a Notary who registers to perform remote online notarizations to electronically sign and submit to the Secretary of State an electronic form prescribed by the Secretary that includes: the information required in §486.920; subsection 1, RSMo; the technology that the remote online Notary will use; and any other information, evidence, or declaration required by the Secretary. Requires the Secretary of State to deny registration to any applicant submitting an electronic registration form that contains a material misstatement or omission of fact. Provides that the term of registration of an electronic/remote online Notary shall begin on the registration starting date set by the Secretary of State and continues as long as the Notary's commission remains in effect or until registration is terminated. Requires a remote online notary’s registered electronic Notary seal to include: the name of the remote online Notary fully and exactly as it is spelled on the Notary's commissioning document; the jurisdiction that commissioned and registered the remote online Notary (“State of Missouri”); the title "Electronic Notary Public"; the commission or registration number of the remote online Notary; and the commission expiration date of the remote online Notary. Establishes requirements for the safeguarding of electronic documents, electronic signature and electronic seal by a remote online notary. Prohibits a remote online Notary from allowing another person to use the remote online Notary's electronic document, electronic signature, or electronic seal. Remote Online Notary – Journal Requirements *NOTE: The new law’s journal requirements (permanently bound and electronic journals) are extensive; please fully review applicable provisions of Chapter 486, RSMo. Requires a notary registered as a remote online notary to keep an electronic journal of remote online notarial acts as described in §486.1190, RSMo; and in addition, to enter into his or her permanently bound journal a record of every remote online notarial act performed. Allows a remote online notary to maintain only one active permanently bound journal at the same time, except that a backup of each active and inactive electronic journal shall be retained by the notary in accordance with §486.1190, subsection 1.(3), RSMo. In addition to retaining their permanently bound journal(s) as prescribed by law, a remote online notary shall retain every entry in an electronic journal of remote online notarial acts for no less than ten years from the date of the entry. Requires that for every remote online notarial act performed a remote online notary must record in the electronic journal at the time of notarization: 1. The date and time of day of the remote online notarial act; 2. The type of remote online notarial act; 3. The type, title, or a description of the document or proceeding; 4. The electronic signature, printed name, and address of each principal; 5. The printed name and address of each requester of fact; 6. The evidence of identity of each principal in the form of either: • A statement that the person is personally known to the notary; • A notation of the type of identification document, its issuing agency, its serial or identification number, and its date of issuance or expiration; • The electronic signature, printed name, and address of each credible witness swearing or affirming to the principal’s identity, and for credible witnesses who are not personally known to the notary, a description of the identification documents relied on by the notary; or • In the case of an electronic journal, a recognized biometric identifier, in accordance with subdivision (4) of subsection 1 of section 486.1190; 7. The fee, if any, charged for the remote online notarial act; 8. The address where the remote online notarial act was performed, if not the address of the notary’s regular place of work or business; and 9. The name of the program or software any authority issuing or registering the means used to create the electronic signature that was notarized and the source of this authority’s license, if any. Prohibits a remote online notary from recording a Social Security number or credit card number in the journal. Allows a remote online notary to record in the journal the circumstances for not performing or completing any requested remote online notarial act. Provides numerous other detailed requirements for journal entries and electronic journal capabilities. Establishes that in maintaining an electronic journal of remote online notarial acts, a remote online Notary Public shall comply with the statutory provisions regarding the copying, security, surrender, and disposition of a journal as set forth in §§ 486.710 to 486.715, and §§486.795 to 486.800, RSMo. Requires every remote online Notary Public maintaining an electronic journal of electronic notarial acts under §486.1180 to provide to the Secretary of State, on the registration form for acting as a remote online notary, authorization and the access instructions necessary to allow journal entries to be viewed, printed, and copied in read-only access; and notify the secretary of any subsequent change to the access instructions. Requires a remote online Notary Public to create an audio and video recording of the performance of every remote online notarization. Requires the recording of every remote online notarization performed to be maintained for at least ten years after the date of the transaction or proceeding. Requires the secretary of state to promulgate rules establishing standards for the retention of these recordings; subjects such rules subject to the limitations in §486.830, RSMo. Allows a remote online Notary Public to designate certain parties as custodian of the recording and the electronic journal: the employer of the remote online Notary Public if evidenced by a record signed by the remote online Notary Public and the employer; or a repository meeting the standards established by the secretary of state. Mandates that an employer or other repository acting as the custodian of a recording of a remote online notarial act or an electronic journal to comply with all statutory requirements regarding retention and disclosure of recordings and electronic journals applicable to Notaries. Requires an electronic journal of electronic notarial acts to allow journal entries to be made, viewed, printed, and copied only after access is obtained by a procedure that uses two factors of authentication. Requires an electronic journal of electronic notarial acts to not allow a journal entry to be deleted or altered in content or sequence by the electronic Notary or any other person after a record of the electronic notarization is entered and stored, except that an entry may be deleted if the retention period set forth in §485.1190, subsection 4, RSMo has passed. Also requires an electronic journal of electronic notarial acts to have a backup system in place to provide a duplicate record of electronic notarial acts as a precaution in the event of loss of the original record; to be capable of capturing and storing the image of a handwritten or electronic signature and the data related to one other type of recognized biometric identifier; and to be capable of printing and providing electronic copies of any entry, including images of handwritten signatures and the data related to the other selected type of recognized biometric identifier. Journal Disposition Upon Remote Online Notary Resignation, Revocation, Commission Expiration or Death Requires that upon resignation, revocation, or expiration of a Notary commission, or death of the remote online Notary, the Notary’s journal and notarial records shall be delivered to the Secretary of State in accordance with §486.795 or §486.800, RSMo, by any means providing a tangible receipt, including certified mail and electronic transmission, allowing that an electronic journal may be delivered on disk, printed on paper, or transmitted electronically, in accordance with the requirements of the Secretary. Further requires that in the case of an electronic journal and its backup copy whose disks or other physical storage media are not required to be surrendered, no further entries shall be made in the journal and its backup, both of which shall be safeguarded until both shall be erased or expunged after ten years from the date of the last entry by the Notary or the Notary's personal representative. Recording of Remote Online Notarization Requires a remote online Notary to create an audio and video recording of the performance of the notarial act. Requires the recording of a remote online notarization to be maintained for at least 10 years after the date of the transaction or proceeding. Authorizes a remote online Notary to designate as custodian of the recording and the electronic journal the employer of the remote online Notary if evidenced by a record signed by the remote online Notary and the employer; or a repository meeting the standards established by the Secretary of State. Requires an employer or other repository acting as the custodian of a recording or an electronic journal to comply with all statutory requirements regarding retention and disclosure of recordings and electronic journals applicable to Notaries. Remote Online Notarization Software Requires the Secretary of State to approve the software to be used in remote online notarial acts. Requires the Secretary of State to test and certify remote online notarization software before being used by a remote online Notary. Clarifies that the expenses of any such testing must be paid by the vendor of the software. Provides that the Secretary of State may only approve remote online notarization software that, at a minimum: records and archives the remote online session; provides sufficient audio clarity and video resolution to enable the remote online Notary and the principal to see and communicate to each other simultaneously through live, real time transmission; provides reasonable security measures to prevent unauthorized access to the live transmission of the audio-video communication, a recording of the audio-video communication, the verification methods and credentials used to verify the identity of the principal, the electronic documents presented for electronic notarization; utilizes video technology to be used in a remote electronic notarization session that provides sufficient high-definition for the Notary to reasonably assess the principal's comprehension and volition; permits the remote online Notary to identify the principal to the remote online Notary's satisfaction through a form of authentication that complies with §486.1145, RSMo; permits the principal to identify the remote online Notary to his or her satisfaction; and presents the document being notarized as an electronic document. Remote Online Notarial Acts Establishes that only acknowledgments and jurats may be performed as remote online notarizations. Provides that a remote online Notary has satisfactory evidence of identity of an individual requesting a remote online notarization if the remote online Notary confirms the identity of the person by: (1) personal knowledge of the identity; (2) each of the following, if approved by rules adopted by the Secretary of State: remote presentation by the person of an identification credential, including a passport or driver's license, that contains a photograph and the signature of the person; credential analysis; and identity proofing of the person (pursuant to Missouri law); (3) any other method that complies with any rules adopted by the Secretary of State; or (4) a valid certificate that complies with any rules adopted by the Secretary of State. Provides that a remote online Notary shall perform a remote online notarization only if the principal is in the presence of the Notary utilizing live audio-video conferencing technology at the time of notarization; is personally known to the Notary or identified by the Notary through satisfactory evidence as set forth in §486.1145, RSMo; appears to understand the nature of the transaction; appears to be acting of his or her own free will; communicates directly with the Notary in a language both understand; and reasonably establishes the electronic signature as his or her own. Allows a remote online Notary to perform a remote online notarization authorized in §486.1100 to §486.1205, RSMo, only when physically located within Missouri. Provides that a remote online Notary may perform a remote online notarization for a remotely located individual who is physically located in Missouri; outside Missouri but within the United States; or outside the United States if the electronic notarization is not prohibited in the jurisdiction in which the principal is physically located at the time of the remote online notarial act. Provides that the validity of a remote online notarization performed by a remote online Notary in accordance with §486.1100 to §486.1205, RSMo, shall be governed by the laws of Missouri. Remote Online Notarial Certificate Requires that in performing a remote online notarial act, the remote online Notary must properly complete a remote online notarial certificate. Establishes the information elements that a “proper” remote online notarial certificate must contain (§486.1165, RSMo). Establishes that the wording of a remote online notarial certificate shall be in a form set forth in §486.1175, RSMo or that is otherwise prescribed by Missouri law; or prescribed by a law, regulation or custom of another jurisdiction provided it does not require unauthorized actions by the Missouri remote online notary; or describes the actions of the remote online notary in such a manner as to meet the requirements of the particular notarial act as defined in Missouri law. Further requires that a remote online notarial certificate shall be worded and completed using only letters, characters and a language that are read, written and understood by the remote online notary. Requires that when taking an acknowledgment, a remote online notary shall use certificate forms for performing acknowledgments (individual and representative capacity) and jurats indicating that the principal appearing for the notarial act “personally appeared by remote online means.” Provides statutory acknowledgment and jurat certificate forms for notarization of a remotely located individual’s signature or mark. Requires a remote online notary to use certificate forms that substantially comply with the forms provided in §486.1175(1) and (2). Provides that in notarizing an electronic document, the remote Notary shall attach to, or logically associate with, the electronic notarial certificate a registered electronic signature and a registered electronic Notary seal, or a registered single element containing both a registered electronic signature and a registered electronic Notary seal in such a manner that the signature and the seal, or the single element, are attributed to the electronic Notary named on the commission. Requires a registered electronic signature to be: (1) unique to the electronic Notary; (2) capable of independent verification; (3) attached to or logically associated with an electronic notarial certificate in such a manner that any subsequent alteration of the certificate or underlying electronic document prominently displays evidence of the alteration; and (4) attached or logically associated by a means under the electronic Notary's sole control. Requires a remote online Notary to attach the remote online Notary's electronic signature and seal to the electronic notarial certificate of an electronic document in a manner that is capable of independent verification and renders any subsequent change or modification to the electronic document evident. Remote Online Notarization Fees Provides that in addition to the other fees allowed by §486.960, RSMo, a remote online Notary may charge a remote online Notary transaction fee if the Notary and the principal agree upon the fee in advance of the notarial act being performed and the Notary explains to the person requesting the notarial act that the remote online transaction fee is separate from the notarial fee prescribed in §486.960, subsection 2, RSMo and is not mandated by law. Remote Online Notary – Employer Issues Establishes that an employer of an electronic notary shall neither use nor control the means for producing registered electronic signatures and notary seals, or registered single elements combining an electronic notary’s electronic signature and electronic seal. Prohibits employers, upon termination of a notary’s employment, from retaining any software, coding, disk, certificate, card, token or program that is exclusively intended to produce an electronic notary’s registered electronic signature, notary seal or combined single element, regardless whether the employer paid for the costs of the employee’s notary commission, tools and activities. Other Provisions; Rulemaking Clarifies that RSMo 486.900 to 486.1010 supplement the provisions of RSMo 486.600 to 486.825 for in person electronic notarial acts, and further clarifies that to the extent RSMo 486.600 to 486.825 are inconsistent with RSMo 486.900 to 486.1010, the provisions of RSMo 486.900 to 486.1010 control regarding the performance of electronic notarial acts (for physically present individuals). Provides that §§486.1100 to 486.1205, RSMo supplement the provisions of §§486.600 to 486.820, RSMo and §§486.900 to 486.1010, RSMo for remote online notarial acts. Establishes that to the extent §§486.600 to 486.820, RSMo and §§486.900 to 486.1010, RSMo are inconsistent with §§486.1100 to 486.1205, RSMo, the provisions of §§486.1100 to 486.1205 control regarding remote online notarial acts. Authorizes the Secretary of State to adopt rules necessary to implement §§486.1100 to 486.1205, RSMo, including rules to facilitate remote online notarizations, subject to the limitations in §486.830, RSMo. Requires the Secretary of State, by rule, to develop and maintain standards for remote online notarization in accordance with §§486.1100 to 486.1205, RSMo, including but not limited to standards for credential analysis and identity proofing. Clarifies that such rules shall be subject to the limitations in §486.830, RSMo. Requires the Secretary of State to promulgate rules establishing standards for the retention of a video and audio recording of the performance of the notarial act that are subject to the limitations in §486.830, RSMo. |
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NEBRASKA – Administrative Rules Title 433 (Permanent): NEBRASKA - LB 186 Enacts the Online Notary Public Act (“the Act”), providing for Nebraska Notaries Public to register as an Online Notary Public and then perform remote online notarial acts by means of communication technology, subject to requirements of the Act and administrative rules of the Nebraska Secretary of State.
Definitions 1. “Communication technology” –an electronic device or process that allows an Online Notary Public and an individual not in the Online Notary Public ’s physical presence to communicate with each other simultaneously by sight and sound. 2. “Credential analysis” – a process or service operating according to criteria approved by the Secretary of State through which a third person affirms the validity of a government-issued identification credential through review of public and proprietary data sources. 3. “Electronic” – relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities. 4. “Electronic document” – information that is created, generated, sent, communicated, received, or stored by electronic means. 5. “Electronic signature” – an electronic sound, symbol, or process attached to or logically associated with an electronic document and executed or adopted by a person with the intent to sign the electronic document. 6. “Identity proofing” – a process or service operating according to criteria approved by the Secretary of State through which a third person affirms the identity of an individual through review of personal information from public or proprietary data sources. 7. “Online notarial act” – the performance by an Online Notary Public of a function authorized under section 8 of this act that is performed by means of communication technology that meets the standards developed under section 7 of this act. 8. “Online notarial certificate” – the portion of a notarized electronic document that is completed by an Online Notary Public and that contains the following: (a) the Online Notary Public 's electronic signature, Online Notary seal, title, and commission expiration date; (b) other required information concerning the date and place of the online notarial act; and (c) the completed wording of one of the following notarial certificates: (i) acknowledgment, (ii) jurat, (iii) verification of proof, or (iv) oath or affirmation. 9. “Online Notary Public” – a [commissioned Nebraska] Notary Public registered with the Secretary of State who has the authority to perform online notarial acts under the Online Notary Public Act. 10. “Online Notary seal” – information within a notarized electronic document that confirms the Online Notary Public 's name, jurisdiction, identifying number, and commission expiration date and generally corresponds to the data in notary seals used on paper documents. 11. “Online Notary solution provider” – a provider of any credential analysis, identity proofing, Online Notary seals, electronic signatures, or communication technology. 12. “Personal knowledge” or “personally known” – mean familiarity with an individual resulting from interactions with that individual over a period of time sufficient to dispel any reasonable uncertainty that the individual has the identity claimed. 13. “Principal” – an individual: (a) whose electronic signature is notarized in an online notarial act; or (b) taking an oath or affirmation from the Online Notary Public other than in the capacity of a witness for the online notarial act. 14. “Remote presentation” – transmission to the Online Notary Public through communication technology of an image of a government-issued identification credential that is of sufficient quality to enable the Online Notary Public to: (a) identify the individual seeking the Online Notary Public 's services; and (b) perform credential analysis. Administrative Rules, Secretary of State 1. Requires the Secretary of State to adopt and promulgate rules that: (a) Create standards for online notarial acts in accordance with the Online Notary Public Act; (b) Ensure the integrity, security and authenticity of online notarial acts in accordance with the Act; and (c) Include procedures for the Secretary of State to approve Online Notary Public solution providers. 2. Allows the Secretary of State to adopt and promulgate rules to facilitate utilization of online notarial acts. Registration, Nebraska Online Notary Public 1. Provides eligibility requirements for a Nebraska Notary Public wishing to register as an Online Notary Public. The Notary Public must: (a) Hold a valid commission as a Notary Public in the State of Nebraska. (b) Satisfy the education requirement of the Act’s Section 4 of the Act; the course must be taken before submitting the Online Notary Public registration. (c) Pay the registration fee required under the Act’s Section 5, in the amount specified by administrative rule of the Secretary of State; the specified fee shall not exceed $50 and is in addition to the statutory fee for commissioning (NRS 33-104). 2. Establishes that a Nebraska Notary Public must first (successfully) register with the Secretary of State before performing an online notarial act, and that registration procedures shall be those prescribed by the Secretary of State. 3. Sets forth the minimum information to be included in a registration, notably the technology the Notary intends to use to perform an online notarial act (the technology must be provided by a solution provider approved by the Secretary of State); a certification by the Notary that he or she will comply with standards established by rule of the Secretary of State; and the Notary’s email address. 4. Establishes that the term of an Online Notary Public registration shall coincide with the Notary Public’s commission term. 5. Allows a registered Online Notary Public to renew his or her registration at the same time that the Notary renews his or her Notary Public commission. 6. Requires in addition to a course of instruction that a registrant for Online Notary Public must pass an examination approved by the Secretary of State. Both the course of instruction and the examination shall be approved by the Secretary of State by July 31, 2020. 7. Establishes the required subject matter (content) for the course of instruction and examination, which shall include notarial laws, procedures, technology and the ethics of performing online notarial acts. 8. Establishes that nothing in the Online Notary Public Act requires a Notary Public to register as an Online Notary Public if he or she does not perform online notarial acts. Online Notary Public Recordkeeping Required 1. Requires an Online Notary Public to keep a secure electronic record of electronic records notarized. Requires each such electronic record to contain: (a) The date and time of the online notarial act; (b) The type of online notarial act; (c) The type, title, or description of the electronic document or proceeding; (d) The printed name and address of each principal involved in the transaction or proceeding; (e) Evidence of identity of each principal involved in the transaction or proceeding in the form of: (i) A statement that the principal is personally known to the online notary public; (ii) A notation of the type of identification document provided to the online notary public; (iii) A record of the identity verification made under Section 11 the Act; or (iv) The following: (A) The printed name and address of each credible witness swearing to or affirming the principal's identity; and (B) For each credible witness not personally known to the online notary public, a description of the type of identification documents provided to the online notary public; (f) A recording of any video and audio conference of the performance of the online notarial act, which shall not contain images of the documents that were notarized; and (g) The fee, if any, charged for the online notarial act. 2. Requires an Online Notary Public to take reasonable steps to ensure the integrity, security, and authenticity of online notarial acts; maintain a backup for the secure electronic record required by the Act; and protect the secure electronic record and backup record from unauthorized use. 3. Requires that the electronic record and backup record shall be maintained for at least ten years after the date of the transaction or proceeding. Prohibits the Online Notary Public from surrendering or destroying the record except as required by a court order or as allowed under any rules or regulations of the Secretary of State. Online Notary Public’s Electronic Signature 1. Establishes that an Online Notary Public’s electronic signature, in combination with his or her electronic seal, shall be used only for performing online notarial acts. 2. Requires an Online Notary Public to take reasonable steps to ensure that any registered device used to create an electronic signature is current and has not been revoked or terminated by the device's issuing or registering authority. Security Requirements 1. Requires an Online Notary Public to keep secure, and under his/her exclusive control, the Online Notary Public's electronic signature; Online Notary seal; and the electronic record and backup record. 2. Prohibits the Online Notary Public from allowing another person to use the Online Notary’s electronic signature, Online Notary seal, or electronic record or backup record. 3. Requires an Online Notary Public to immediately notify an appropriate law enforcement agency and the Secretary of State of the theft or vandalism of the Online Notary’s electronic signature, Online Notary seal, or the electronic record or backup record. Further requires an Online Notary Public to immediately notify the Secretary of State of the loss or use by another person of the Online Notary Public’s electronic signature, Online Notary seal, or the electronic record or backup record. 4. Specifies circumstances (registration expiration, resignation, cancellation, or revocation; or death of the Online Notary Public) under which the Online Notary or his/her authorized representative must erase, delete or destroy the coding, disk certificate, card, software, file, password or program that enables the electronic affixation of the Online Notary Public’s official electronic signature and Online Notary seal. Requires the Online Notary Public or his/her authorized representative to certify compliance with this requirement to the Secretary of State. Excuses a former Online Notary Public whose previous registration was not revoked, cancelled or denied by the Secretary of State from complying with this requirement if he or she is reregistered as an Online Notary Public using the same electronic signature within three months after the former registration expired. Performing Online Notarial Acts 1. Establishes that an online notarial act performed under Nebraska’s Online Notary Public Act satisfies any requirement of Nebraska law that that a principal appear before, appear personally before, or be in the physical presence of a Notary Public at the time of the online notarial act except for requirements under: (a) A law governing the creation and execution of wills, codicils, or testamentary trusts; or (b) The Uniform Commercial Code other than article 2 and article 2A. 2. Authorizes an Online Notary Public to perform these notarial acts – acknowledgments, jurats, verifications or proofs, and oaths or affirmations – as online notarial acts, in compliance with the Act and rules of the Secretary of State, regardless whether the principal is physically located in Nebraska at the time of the online notarial act. 3. Requires an Online Notary Public performing an online notarial act to verify the identity of the principal by: (a) personal knowledge; (b) all of the following: (i) Remote presentation by the individual creating the electronic signature of a government-issued identification credential that is current and that bears the photographic image of the individual's face and signature and a physical description of the individual, except that a properly stamped passport without a physical description is satisfactory evidence; (ii) Credential analysis of such credential; and (iii) Identity proofing of the individual creating the electronic signature; or (c) Oath or affirmation of a credible witness who is in the physical presence of either the Online Notary Public or the individual and who has personal knowledge of the individual if: (i) The credible witness is personally known to the Online Notary Public; or (ii) The Online Notary Public has verified the identity of the credible witness by remote presentation, credential analysis and identify proofing as prescribed in the Act. 4. Requires an Online Notary Public to take reasonable steps to ensure that the communication technology used in an online notarial act is secure from unauthorized interception. 5. Requires an Online Notary Public to attach his or her Online Notary electronic signature and Online Notary seal to the notarial certificate of an electronic document notarized online, to do so in a manner that is capable of independent verification, and that renders evident any subsequent change or modification to the electronic document. 6. Requires a notarial certificate for an online notarial act to include a notation that the notarial act is an online notarial act. Notary Fees 1. In addition to the fees a Notary Public may charge for notarial acts and travel as prescribed in Nebraska law (NRS 33-133), an Online Notary Public or his/her employer may charge a fee not to exceed twenty-five dollars for each online notarial act performed. Relationship to Other Laws and Conforming Amendments 1. Establishes that Sections 64-101 to 64-119, and 64-211 to 64-215 of Nebraska Revised Statutes Chapter 64, and the Uniform Recognition of Acknowledgments Act (Sections 64-201 to 64-210), govern an Online Notary Public unless the provisions of such sections and Act conflict with the Online Notary Public Act. In case of such conflict the Online Notary Public Act controls. 2. Establishes that Nebraska’s Electronic Notary Public Act (NRS 64-301 to 64-317) does not apply to online notarial acts or Online Notaries Public acting under the Online Notary Public Act. 3. Clarifies that NRS 64-105, dealing with a Nebraska Notary Public’s identification of principals, does not apply to online notarial acts under the Online Notary Public Act. 4. Amends Nebraska’s Uniform Recognition of Acknowledgments Act to establish that appearance before the person taking an acknowledgment includes an appearance outside the presence of a Notary Public if such acknowledgment was completed in accordance with the Online Notary Public Act. Other Provisions 1. Provides for issuance of electronic certificates of authority by the Secretary of State, to evidence the authenticity of the electronic signature and Online Notary seal of a Nebraska Online Notary Public on documents transmitted to another state or nation. Provides that such certificates of authority shall contain substantially the wording provided in the Act. Authorizes the Secretary of charge a fee of twenty-five dollars for issuing an electronic certificate of authority. 2. Establishes that a person who without authorization knowingly obtains, conceals, damages, or destroys the coding, disk, certificate, card, software, file, password, program or hardware enabling an Online Notary Public to affix an official electronic signature or Online Notary seal is guilty of a Class I misdemeanor. 3. Requires the register of deeds or county clerk of each county to provide one or more electronic recording services for the purpose of accepting electronically submitted real estate documents for recording. |
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OKLAHOMA – SB 915 Authorizes remote online notarization. Creates numerous definitions. Requires a commissioned Oklahoma Notary Public, prior to performing his or her initial remote online notarization, to register such intent with the Secretary of State and receive the Secretary’s written authorization. Clarifies that an individual may apply for a Notary Public commission and register to perform remote online notarizations at the same time. Addresses certain requirements of registration. Provides reasons that the Secretary of State may deny a registration to perform remote online notarizations. Requires a Notary Public to maintain a journal (permanent, tamper-evident electronic format) for recording all remote online notarial acts that the Notary performs. Specifies the information to be entered in the journal. Requires that a Notary Public, or person acting on behalf of the Notary, shall create an audio and visual recording of the performance of each remote online notarial act. Establishes requirements for retention of journal records including audio-visual recordings.
Establishes that a Notary Public’s use of an electronic signature and electronic seal satisfies the statutory requirement that a Notary Public shall authenticate an official act with an official signature and seal of office. Requires an electronic Notary seal to legibly reproduce the required elements of the notarial seal. Establishes requirements for a Notary’s use of an electronic signature and seal in the performance of a remote online notarial act. Establishes requirements related to security of a Notary’s electronic signature and seal and protection against unauthorized use. Specifies remote online notarization procedures to be performed by an authorized Notary Public. Establishes methods of identification by the Notary Public of remotely located individuals. Requires the notarial certificate of a remote online notarization to indicate that the notarial act was a remote online notarial act performed by means of communication technology, and provides for the sufficiency of such certificates. Establishes an allowable fee not to exceed $25 that a Notary Public, or person acting for or on behalf of a Notary Public, may charge for a remote online notarial act. Authorizes the recording of electronic documents in tangible form, by establishing that a tangible document copy that has been certified by a Notary to be a true and correct copy of an electronic record satisfies certain requirements, and specifying conditions for producing the copy. Provides for security-related actions to be taken by a Notary Public upon termination or revocation of his or her commission and requires the Notary to certify compliance to the Secretary of State. Requires a Notary Public’s personal representative or guardian to execute (comply with) these requirements in the event of the Notary’s death or adjudication of incompetency. Provides that the security-related actions are not required if the Notary’s commission terminated for a reason other than revocation, and if the Notary received a new commission within three months. Specifies circumstances requiring a Notary Public to destroy the Notary’s electronic signature and electronic seal. Clarifies that termination of a Notary commission does not relieve the individual of the duty to retain journal records of remote online notarizations and the related audio-visual recordings as specified. Provides for the legal recognition of remote online notarial acts, specifying that a remote online notarization under the new law satisfies any requirement of Oklahoma law that a principal appear personally before, or be in the physical presence of, a Notary Public at the time of the notarial act. Establishes that a Notary Public’s verification of a principal’s identity under the new law constitutes satisfactory evidence of identity of the principal and satisfies any requirement of Oklahoma law that the Notary obtain satisfactory evidence of the principal’s identity. Establishes that the validity of a remote online notarization performed under Oklahoma’s law is determined by applying the laws of Oklahoma, regardless of the physical location of the principal at the time of the remote online notarization. Provides that Oklahoma’s Remote Online Notary Act controls in the event of a conflict between the Act and another provision of Title 49 of Oklahoma Statutes or any other Oklahoma law. Establishes that the failure of a Notary Public to perform a duty or meet a requirement specified in the law does not invalidate a remote online notarial act performed by the Notary Public. Further provides that this “savings clause” does not prevent an aggrieved person from seeking to invalidate the electronic record or transaction that is the subject of the remote online notarial act, or from seeking other remedies under other Oklahoma law or federal law. Clarifies that this provision does not validate a purported remote online notarial act performed by an individual who does not have the authority to perform remote online notarizations. Requires the Secretary of State to promulgate rules to implement the law and ensure effective administration of its provisions. |
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| OREGON—HB 4212 Signed June 30, 2020 Effective June 30, 2020 (provisions in italics font to be repealed on June 20, 2021) View this bill (see Section 19, Notarial Acts) Creates temporary statutory provisions allowing Oregon Notaries to perform notarial acts for remotely located individuals using communication technology. Defines key terms: “communication technology,” “foreign state,” “identity proofing,” “outside the United States,” “remotely located individual.” Establishes that, by appearing by means of communication technology, a remotely located individual may satisfy Oregon’s statutory requirement to personally appear before a Notary for performance of a notarial act. Specifies requirements for an Oregon Notary public to perform a notarial act for a remotely located individual using communication technology: • The Oregon Notary Public must be located in Oregon at the time of the notarial act. • The Notary Public must have personal knowledge (pursuant to relevant Oregon law) of the identity of the individual; have satisfactory evidence of the identity of the remotely located individual by a verification on oath or affirmation from a (physically or remotely present) credible witness appearing before, and identified by, the Notary Public; or must obtain satisfactory evidence of identity by using at least two different types of identity proofing. • The Notary Public must be able to reasonably confirm that a record before the Notary Public is the same record in which the remotely located individual made the statement; or on which the remotely located individual executed a signature. • The Notary Public, or a person acting on behalf of the notary public, must create an audio-visual recording of the performance of the notarial act. Specifies that if the remotely located individual is located outside the United States (all of the following apply): • The record must be destined to be filed with or relates to a matter before a public official or court, governmental entity, or other entity subject to the jurisdiction of the United States; or the record involves property located in the territorial jurisdiction of the United States or involves a transaction substantially connected with the United States; and • The act of making the statement or signing the record must is not prohibited by the foreign state where the remotely located individual is located. Provides that for notarial acts performed for a remotely located individual, the notarial certificate must indicate that the notarial act was performed by means of communication technology. Establishes that a short-form notarial certificate provided in Oregon’s RULONA is sufficient for performance of a notarial act by means of communication technology, if either (1) the short form certificate is in the form provided in Section 194.285 of Oregon’s RULONA and contains a statement substantially like: “This notarial act involved the use of communication technology”; or (2) the certificate complies with rules adopted by the Secretary of State. Requires a Notary Public; a guardian, a conservator, trustee or agent of a Notary Public; or a personal representative of a deceased Notary Public; to retain the required audio-visual recording of a notarial act performed using communication technology, or cause the recording to be retained by a repository designated by or on behalf of the person required to retain the recording. Establishes that unless a different period is required by rule of the Department of State, the recording must be maintained for a period of at least 10 years after the recording is made. Requires that, prior to performing his or her/their initial notarial act using communication technology for a remotely located individual, a Notary Public must notify the Secretary of State that the Notary will be performing such acts and must identify the technology the Notary will use. Technology selected by the Notary must conform to any standards established by the Secretary of State. Expands the Secretary of State’s rulemaking authority by allowing adoption of rules that may: • Prescribe the means of performing a notarial act involving a remotely located individual using communication technology; • Establish standards for communication technology and identity proofing; • Establish requirements or procedures to approve providers of communication technology and the process of identity proofing; and • Establish standards and a period for the retention of the required audiovisual recording of each notarial act performed for a remotely located individual using communication technology. Requires the Secretary of State—before adopting, amending or repealing a rule governing performance of a notarial act regarding a remotely located individual—to consider: • The most recent standards regarding the performance of a notarial act with respect to a remotely located individual promulgated by national standard-setting organizations and the recommendations of the National Association of Secretaries of State; • Standards, practices and customs of other jurisdictions that have laws substantially similar to this section; and • The views of governmental officials and entities and other interested persons. Authorizes a Notary Public to charge a fee not to exceed $25 per notarial act performed by means of communication technology for a remotely located individual. Establishes that a notarial officer (not only a Notary Public) may certify that a tangible copy of an electronic record is an accurate copy of the electronic record. Provides that a county clerk may accept for recording a tangible copy of an electronic record containing a notarial certificate as satisfying any requirement that a record accepted for recording be an original, if the notarial officer executing the notarial certificate certifies that the tangible copy if an accurate copy of the electronic record. Provides that a tangible copy of an electronic record containing a notarial certificate, that is accepted for recording by a county clerk before the effective date of HB 4212, satisfies any requirement that the record be an original if the notarial officer executing the notarial certificate certifies that the tangible copy is an accurate copy of the electronic record. Clarifies that the official stamp of a Notary Public is an official notarial seal for all purposes under the laws of Oregon. |
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| PENNSYLVANIA – HB 2370 Signed October 29, 2020 Effective October 29, 2020 View the enacting bill Amends Section 304 of Title 57, Pennsylvania Consolidated Statutes, authorizing Pennsylvania Notaries immediately upon bill enactment to perform notarial acts for remotely located individuals using communication technology, and subject to all requirements of Pennsylvania law and rules, if any, promulgated by the Department of State. Defines key terms: “communication technology,” “foreign state,” “outside the United States,” “remotely located individual.” Establishes that a notarial officer (not only a Notary Public) may certify that a tangible copy of an electronic record is a true and correct copy of the electronic record. EstabliClarifies that a Notary Public may use any other technology within 30 days of giving notice of intent to perform notarial acts for remotely located individuals, unless use of the technology is for good cause prohibited by the Department of State. Establishes that these provisions (enumerated in Section 4 of HB 2370) shall expire upon the required adoption of regulations by the Department. -shes that, by appearing by means of communication technology, a remotely located individual may satisfy Pennsylvania’s statutory requirement to personally appear before a Notary for performance of a notarial act. Specifies requirements for use of communication technology by a Pennsylvania Notary Public located in the Commonwealth at the time of the notarial act. • The Notary Public must have personal knowledge (pursuant to relevant Pennsylvania law) of the identity of the individual; have satisfactory evidence of the identity of the remotely located individual by oath or affirmation from a credible witness appearing before the notary public in accordance with Pennsylvania law; or be able to reasonably identify the individual by at least two different types of identity proofing processes or services. • The Notary Public must be able to reasonably identify a record before the notary public as the same record in which the remotely located individual made the statement; or on which the remotely located individual executed the signature. • The Notary Public, or a person acting on behalf of the notary public, must create an audio-visual recording of the performance of the notarial act, including all interactions between the notary public and the remotely located individual. Specifies that if the remotely located individual is located outside the United States, all of the following apply: • The record must be destined to be filed with or relates to a matter before a court, governmental entity, public official or other entity under the jurisdiction of the United States; or the record involves property located in the territorial jurisdiction of the United States or a transaction substantially connected with the United States; and • The act of making the statement or signing the record must not be prohibited by the foreign state where the remotely located individual is located. Provides that for notarial acts performed for a remotely located individual, the notarial certificate must indicate that the notarial act was performed by means of communication technology. Establishes that a short-form notarial certificate provided in Pennsylvania’s RULONA is sufficient for performance of a notarial act by means of communication technology, if either (1) the short form certificate is in the form provided by Section 316 of Pennsylvania’s RULONA and contains a statement substantially like: “This notarial act involved the use of communication technology”; or (2) the certificate complies with regulations promulgated by the Department of State. Requires a Notary Public; a guardian, a conservator or an agent of a Notary Public; or a personal representative of a deceased Notary Public to retain the required audio-visual recording of a notarial act performed using communication technology, or cause the recording to be retained by a repository designated by or on behalf of the Notary Public, for at least 10 years after the recording is created or as otherwise required by the regulations promulgated by the Department of State. Requires that, prior to performing his or her/their initial notarial act using communication technology for a remotely located individual, a Notary Public must notify the Pennsylvania Department of State that the Notary will be performing such acts and must identify the technology the Notary will use. Technology selected by the Notary must conform to any standards established by the Department of State. Requires the Department of State to promulgate regulations regarding performance of notarial acts for remotely located individuals. Specifies that the regulations shall do all of the following: • Prescribe the means of performing a notarial act involving communication technology to communicate with a remotely located individual; • Establish standards for communication technology and identity proofing, including the use of credential analysis, dynamic knowledge-based authentication, biometrics and other means of identification; • Establish requirements or procedures to approve providers of communication technology and the process of identity proofing; • Establish standards and periods for retention of the required audio-visual recording of every notarial act performed for a remotely located individual. • To promote uniformity, requires the Department to consider—before promulgating, amending or repealing regulations about performance of a notarial act with respect to a remotely located individual—and if consistent with Pennsylvania’s RULONA, all of the following: • The most recent standards regarding the performance of a notarial act with respect to remotely located individuals promulgated by a national standard-setting organization, including the National Association of Secretaries of State. • Standards, practices and customs of other jurisdictions that enact a statutory provision substantially similar to this section. • The views of governmental officials and entities and other interested persons. Allows a recorder of deeds to accept for recording a tangible copy of an electronic record containing a notarial certificate as satisfying any requirement that the record be an original, if the notarial officer executing the notarial certificate certifies that the tangible copy is an accurate copy of the electronic record. Provides that upon the effective date of HB 2370 the Department of State shall immediately authorize a Notary Public to perform notarial acts for remotely located individuals as prescribed by Pennsylvania law (57 Pa.C.S. §306.1), if the Notary gives the statutorily required notice to the Department and uses a communication and identity proofing designated in the Department of State's March 25, 2020, notice of limited suspension of the requirements of 57 Pa.C.S. § 306, or that is designated in a list of additional acceptable technologies subsequently adopted by the Department of State. ----------------------------- PENNSYLVANIA - SB 841 A COVID-19 disaster emergency measure that temporarily implements remote online notarization in the Keystone State. Provides an expiration date for the bill’s Section 5731 dealing with remote online notarization. Establishes that a remotely located individual may comply with Pennsylvania’s personal appearance requirement by appearing before a Notary Public through use of communication technology. Requires the Pennsylvania Department of State to immediately authorize a Notary Public to perform a notarial act for a remotely located individual by use of communication technology and subject to the requirements summarized below. Defines the terms “communication technology,” “Department,” “foreign state,” “identity proofing,” “outside the United States” and “remotely located individual.” 1. A Notary Public, prior to performing his or her initial remote online notarization under the provisions of SB 841, must notify the Department of State that the Notary will be performing such notarial acts, and identify the communication technology that will be used. The Notary must use a communication and identity proofing technology that is designated in the Department’s March 25, 2020 notice of the limited suspension of the requirements of 57 PA. C. S. §306 (relating to personal appearance); or that is designated in a list of additional acceptable technologies subsequently adopted by the Department. 2. A Notary Public may use any other technology within 30 days of giving notice to the Department (described above), unless the Department has for good cause prohibited or delayed use of that technology. Any communication technology and identity proofing used by a Notary Public for remote online notarizations must conform to standards, if any, established by the Department of State. 3. To perform a notarial act facilitated by communication technology for a remotely located individual, a Notary Public must be able to accomplish all of the following: • Identify the remotely located individual by (i) personal knowledge, pursuant to 57 PA. C.S. §307(a); (ii) oath or affirmation of a credible witness pursuant to 57 PA. C.S. §307(b)(2), who appears in the Notary’s physical presence or appears by means of communication technology; or (iii) by at least two different types of identity proofing processes or services. • Reasonably identify a record before the Notary Public as the same record in which the remotely located individual made the statement; or on which the remotely located individual executed his or her signature. • Create (or have a person acting on the Notary’s behalf create) an audio-visual recording of the performance of the notarial act, including all interactions between the Notary Public and the remotely located individual. 4. A Notary Public may perform a remote online notarization for an individual located outside the United States, if all the following apply: • The record is to be filed with or relates to a matter before a court, governmental entity, public official or other entity under the jurisdiction of the United States; or the record involves property located in the territorial jurisdiction of the United States; or the record involves a transaction substantially connected with the United States. • The act of making the statement or signing the record is not prohibited by the foreign state where the remotely located individual is located. • The notarial certificate (required by 57 PA. C. S. §315, as well as the short form certificate under 57 PA. C. S. §316) executed by the Notary indicates that the notarial act was performed by means of communication technology. A short form certificate under 57 PA. C.S. §316 that is completed for a remote online notarization is sufficient if it is in the form provided by that statute and contains a statement substantially like: “This notarial act involved the use of communication technology.” 5. The required audio-visual recording of a remote online notarization must be retained, for at least 10 years after the recording is created, by the Notary Public; or the Notary’s guardian, conservator or agent; or the personal representative of a deceased Notary. Instead of retaining the recording themselves, these persons may cause the recording to be retained by a repository designated by, or on behalf of, the Notary Public. 6. Section 5731 of Senate Bill 841 also: • Authorizes a notarial officer to certify that a tangible copy of an electronic record is a true and correct copy of the electronic record. • Establishes that a recorder of deeds may accept for recording a tangible copy of an electronic record containing a notarial certificate as satisfying any requirements that the record be an original, if the notarial officer executing the notarial certificate certifies that the tangible copy is a true and correct copy of the electronic record. • Requires the Department of State to consider—before promulgating, amending or repealing regulations about the performance of a notarial act with respect to a remotely located individual—all of the following: the most recent standards promulgated by a national standard-setting organization including the National Association of Secretaries of State; standards, practices and customs of other jurisdictions that enact a statutory provision substantially similar to SB 841; and the views of governmental officials and entities and other interested persons. |
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VIRGINA – HB 1222 Amends Virginia’s statutory definition of satisfactory evidence of an individual appearing before a notary for performance of a notarial act. Provides that when the individual is one who resides in an assisted living facility as defined in Virginia law; or in a nursing home licensed by the State Department of Health pursuant to Virginia law; the Notary may accept as satisfactory evidence of identification: To be acceptable as satisfactory evidence of identity, the expiration of these documents must have occurred within five years of the date the individual presents the document to the Notary for identification purposes. |
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WASHINGTON – SB 5641 Enacted remote online notarization in the Evergreen State. Authorized Washington State electronic records Notaries Public to perform notarial acts for remotely located individuals.
Defined the following key terms: “communication technology,” “foreign state,” “identity proofing,” “outside the United States,” “remotely located individual.” Established that a remotely located individual satisfies Washington’s statutory requirement of personal appearance before a notarial officer by using communication technology to appear before an Electronic Records Notary Public. Authorized an Electronic Records Notary Public located in Washington to perform a notarial act using communication technology for a remotely located individual subject to specified conditions and requirements: • The Electronic Records Notary Public must have personal knowledge under RCW 42.45.050(1) of the remotely located individual’s identity; or satisfactory evidence of the identity of the remotely located individual by a verification on oath or affirmation of a credible witness appearing before and identified by the Electronic Records Notary Public under RCW 42.45.050(2); or satisfactory evidence of the identity of the remotely located individual by use of at least two different types of identity proofing; • The Electronic Records Notary Public must be reasonably able to confirm that a record before the Notary is the same record in which the remotely located individual made a statement or on which the individual executed a signature; • The Electronic Records Notary Public, or a person acting on behalf of the Notary, creates an audio-visual recording of the performance of the notarial act; and • If the remotely located individual is located outside the United States, the record must be destined to be filed with, or relate to, a matter before a public official or court, governmental entity, or other entity subject to the jurisdiction of the United States; or • the record involves property located in the territorial jurisdiction of the United States or involves a transaction substantially connected with the United States; and • the act of making the statement or signing the record is not prohibited by the foreign state in which the remotely located individual is located. Required the notarial certificate for a notarial act performed for a remotely located individual to indicate that the notarial act was performed using communication technology. Established that a short-form certificate provided in RCW 41.45.140 is sufficient for a notarial act performed under RCW 42.45.280 if it complies with applicable rules adopted by the Director of Licensing, or is in the form provided by RCW 42.45.140 and contains a statement substantially like: “This notarial act involved the use of communication technology.” Required that, prior to performing his or her/their initial notarial act involving a remotely located individual, the Electronic Records Notary Public must notify the Director of Licensing that the Notary will be performing notarial acts and identify the technologies the Electronic Records Notary Public intends to use. Any communication technology and identify proofing technology used by an Electronic Records Notary Public must conform to standards, if any, established by the Director for approval of such technology. Specified the scope of the Director’s rulemaking authority to establish standards for performance of notarial acts for a remotely located individual by means of communication technology. Requires the Director to consider, before adopting, amending or repealing a rule governing performance of a notarial act with respect to a remotely located individual: (1) the most recent standards adopted by national standard-setting organizations and the recommendations of the National Association of Secretaries of State; (2) standards, practices and customs of other jurisdictions that have laws substantially similar to Washington’s; and (3) the views of governmental officials and entities and other interested persons. Established that a notarial officer may certify that a tangible copy of an electronic record is an accurate copy of the electronic record. Established that a person is guilty of false certification if, being a notarial officer making a certification authorized by RCW 42.45.020(3), he or she [they] knowingly certifies falsely that a tangible copy of an electronic record is an accurate copy of the electronic record. Authorizes a recording officer defined in RCW 65.08.060(4) to accept for recording a tangible copy of an electronic record containing a notarial certificate as satisfying any requirement that a record accepted for recording be an original, if the notarial officer executing the notarial certificate certifies that the tangible copy is an accurate copy of the electronic record under RCW 42.45.020(3). Clarified that a tangible copy of an electronic record purporting to convey or encumber real estate or any interest therein, which has been recorded in the auditor’s office of the county in which the real estate is situated even though it may not have been certified as an accurate copy by a notarial officer, imparts the same notice to third persons from the date of recording as if the tangible copy had been so certified. Required that if a notarial act is performed for a remotely located individual under Washington law, the certificate of notarial act must indicate that the notarial act was performed using communication technology. Made various conforming amendments to existing law. ----------------------------------
NOTE: These Rules represent the latest version of administrative rules filed, withdrawn and updated throughout 2020. Provisions noted below will be designated as amendatory or new. Amendatory language is underlined for emphasis.
Establishes that words and terms in these rules have the same meaning as in the Revised Uniform Law on Notarial Act and provides the current statutory cite, RCW 42.45.010. (Amendatory) Amends the rule definition of “appear personally” to provide that for remote notarial acts, it means being in a different physical location from another individual but able to see, hear, and communication with that individual by means of communication technology. (Amendatory) Clarifies that “commission” is equivalent to the term “licensee” as defined in RCW 18.235.010(6). (Amendatory) Clarifies that “electronic notarial certificate” means the part of, or attachment to, and electronic record that is completed by the Notary Public, contains the information required under RCW 42.45.130. (Amendatory) Defines “remote notarial act” to mean a notarization that is performed using audio-video technology that meets the requirements in WAC 308-30-310 that allows for direct interaction between the Notary and the individuals that are remotely located. (Amendatory) Establishes that to apply for a Remote Notary Endorsement, an Electronic Records Notary Public shall submit a Remote Notary Endorsement application on forms provided by the department. Provides that an applicant may only apply for a Remote Notary Endorsement if: • They currently hold an active Notary Public commission with an Electronic Records Notary Public Endorsement; • They currently hold an active Notary Public commission and are applying for an Electronic Records Notary Public Endorsement and a Remote Notary Endorsement simultaneously; or • They are applying for a Notary Public commission, an Electronic Records Notary Public Endorsement and a Remote Notarial Acts Endorsement simultaneously. (Amendatory) Clarifies that a Notary Public may elect not to apply for an Electronic Records Notary Public Endorsement or a Remote Notary Endorsement. (Amendatory) Clarifies that upon an applicant’s fulfillment of the requirements for a Notary Public commission and/or an Electronic Records Notary Public Endorsement, and/or a Remote Notary Endorsement, the Department shall approve the application and issue the Notary Public commission and/or any appropriate endorsements. (Amendatory) Clarifies that an applicant may not perform any notarial acts on a tangible or electronic record before receiving a Notary Public commission and the appropriate endorsement from the Department. (Amendatory) Clarifies that unless terminated pursuant to WAC 308-30-270, an Electronic Records Notary Public Endorsement and the Remote Notary Endorsement are valid from the date the endorsement is issued by the Department, and continues as long as the Notary Public’s current commission remains valid. (Amendatory) Provides that the provisions of Rule WAC 308-30-150 regarding completion of a electronic notarial certificate apply to electronic notarial acts and remote notarial acts. Provides that such notarial certificates shall comply with the requirements of RCW 42.45.130 and 42.45.140. (Amendatory) Clarifies that a tangible journal must have the capacity to record, for each notarial act, the information required by RCW 42.45.180(4). Further provides that a tangible journal entry must also allow for recording of the principal’s signature, or the signature of an authorized party signing pursuant to RCW 42.45.070; or for a notation in the journal entry that the notarial act was performed via remote notarization. (Amendatory) Establishes that a Notary performing remote notarization must maintain a tangible Notary journal as required in RCW 42.45.180 and WAC 308-30-190, this section, and WAC 308-30-210. Clarifies that Notaries performing remote notarization are not required to collect and maintain the signatures of the signers when those notarizations were performed remotely. Requires Notaries to note in their tangible Notary log that a notarization was performed remotely. (Amendatory) Establishes that notwithstanding the maximum fees set forth in WAC 308-30-220(1), and the administrative rule prohibition against a Notary charging a fee for receiving or noting a protest of a negotiable instrument, a Notary Public may charge a maximum fee of $25 to perform a remote notarial act. (Amendatory) Amends WAC 308-30-270 to provide various statutory cites. Clarifies that the manner described in this rule for a Notary Public to terminate his or her/their Electronic Records Endorsement also applies to terminating a Remote Notary Endorsement, and that a Notary Public may terminate an Electronic Records Endorsement or a Remote Notary Endorsement and maintain the underlying Notary Public commission. (Amendatory) NEW: Creates WAC 308-30-290, Authorized Remote Notarial Acts. Establishes that a Notary Public who has received both an Electronic Records Notary Public Endorsement and a Remote Notarial Acts Endorsement from the Department may perform the following remote notarial acts: taking an acknowledgment; taking a verification on oath or affirmation; witnessing or attesting a signature; certifying or attesting a copy; certifying that an event has occurred or an act has been performed; and noting a protest of a negotiable instrument ONLY subject to conditions specified in the rule. Requires that in performing remote notarial acts, a Notary Public shall comply with all requirements for electronic notarial acts under this chapter. NEW: Creates WAC 308-30-300, Standards for Identity Proofing. Requires a Notary Public performing a remote notarial act, who does not have satisfactory evidence of identity of the remotely located individual pursuant to subsection (4) of this rule section, to reasonably verify the individual’s identity through two different types of identity proofing consisting of a credential analysis procedure and a dynamic knowledge-based authentication assessment as provided in subsections (2) and (3) of this rule section. Provides requirements for credential analysis. Provides requirements for dynamic knowledge-based authentication assessment. Establishes that a Notary Public has satisfactory evidence of the identity of a remotely located individual if the Notary has personal knowledge of the individual’s identity; or the individual is identified by oath or affirmation of a credible witness. Provides requirements for a credible witness, who must have personal knowledge of the remotely located individual; and be personally known by the Notary or identified by the Notary using two different types of identity proofing in accordance with sections (1), (2) and (3) of this rule section. Clarifies that a credible witness may be outside the physical presence of the Notary Public or remotely located individual if the Notary Public, credible witness and remotely located individual can communication using communication technology. NEW: Creates WAC 308-30-310; Standards for Communication Technology. Requires communication technology for remote notarial acts to provide for synchronous audio-visual feeds of sufficient audio clarity and video resolution to enable the Notary Public and remotely located individual to see and speak with each other. Further requires that the process provide a means for the Notary Public reasonably to confirm that an electronic record before the Notary Public is the same record in which the remotely located individual made a statement or on which the remotely located individual executed a signature. Requires communication technology to provide reasonable security measures to prevent unauthorized access to specified events and information. Requires a remotely located individual, should he or she/they need to exit the remote notarization workflow (i.e., an in-progress remote notarization), to restart from the beginning the identity verification process required under WAC 308-30-300. NEW: Creates WAC 308-30-320, Certificate of Notarial Act for Remote Notarial Acts. Establishes that a notarial certificate form for a remote notarial act satisfies certain requirements of Washington’s RULONA if the certificate is in a form provided by applicable law and contains a statement substantially like: “This notarial act involved the use of communication technology.” Provides certificate forms that satisfy requirements of the RULONA and administrative rules. NEW: Creates WAC 308-30-330; Retention of Audio-Visual Recordings and Repositories. Requires a Notary Public to retain any audio-visual recording created under RCW 42-45-280(3)(c) in a computer or other electronic storage device that protects the recording against unauthorized access by password or other secure means of authentication. Requires the recording to be created in an industry-standard audio-visual file format. Prohibits the recording from including images of any electronic record that was the subject of the remote notarial act. Requires an audio-visual recording to be retained for at least 10 years after the recording is made. Requires a Notary Public to take reasonable steps to ensure that a backup of the audio-visual recording exists and is secure from unauthorized use. Clarifies that the fact of a Notary Public’s employer, contractor or repository keeping or storing any audio-visual recordings shall not relieve the Notary of the duties required by these rules. Establishes the duties of a Notary Public’s personal representative or guardian relative to disposition of the Notary’s audio-visual recordings, upon the Notary’s death or adjudication of incompetency. Requires the Notary Public, or the Notary’s personal representative or guardian, to provide—upon commission resignation, revocation or expiration without renewal, or upon the Notary’s death or adjudication of incompetency-- access instructions to the Department for any audio-visual recordings maintained or stored by the Notary. Allows a Notary Public or the Notary’s personal representative or guardian to engage, by written contract, a third party to act as repository to provide for audio-video recording storage. Clarifies that such a third party under contract is deemed a repository under RCW 42.45.280(6). Establishes certain requirements for such storage contracts. Makes conforming amendments to update statutory cites appearing throughout affected administrative rules. |
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WISCONSIN - AB 293 Amends significant sections of Wisconsin’s Notary Public law. Enacts the Revised Uniform Law on Notarial Acts by creating new sections 140.01 through 140.34 of Chapter 140, Wisconsin Statutes, “Notaries Public; Notarial Acts.” Repeals Wisconsin’s prior uniform notarial act law. Establishes requirements for the performance of remote online notarizations by commissioned Online Notaries Public.
COMMISSIONING Clarifies that the Department of Financial Institutions shall appoint Wisconsin’s Notaries Public and perform other commissioning office duties relative to Notaries Public and attorneys who are Notaries Public. Further clarifies that Wisconsin attorneys shall make application for a Notary Public commission to, and be appointed by, the Department of Financial Institutions. Also clarifies that the Department may certify to the official qualifications of any Notary Public, and to the genuineness of the notary’s signature and seal or rubber stamp. NOTARY’S SIGNATURE, SEAL Clarifies that every Notary Public shall provide (use) an engraved official seal or official rubber stamp, except as authorized in §137.19 (Chapter 137, Electronic Transactions and Records) and except as provided in §140.17 (Chapter 140 Notaries Public; Notarial Acts). Clarifies that all certificates of acknowledgments of deeds and other conveyances, or any written instrument required or authorized by law to be acknowledged or sworn to before a Wisconsin Notary Public, shall be attested by a clear impression of the official seal or imprint of the rubber stamp of the notary (including the notary’s commission expiration date or indication of a permanent commission)*, except as authorized in §137.19 (Chapter 137, Electronic Transactions and Records) and except when a Notary Public properly uses an official stamp under §140.17 (Chapter 140 Notaries Public; Notarial Acts). __________ *NOTE: Sections 140.02(3)(a) and §140.17(1), Wisconsin Statutes, conflict on requiring the notary’s commission expiration date to appear on the official seal or rubber stamp (the former statute expressly omits it, while the latter requires it). As such, the Department will not require a notary’s seal or stamp to include the notary’s commission expiration date, but will allow the notary to choose including it or not. American Society of Notaries recommends that a notary’s seal or stamp should include their commission expiration date in order to satisfy the requirement that this date be included in every notarial certificate completed by the notary. Requires a Notary Public’s official stamp to include the Notary Public’s name, jurisdiction, commission expiration date if applicable, and other information required by the Department; and to be capable of being copied together with the record to which it is affixed or attached or with which it is logically associated. Makes a Notary Public responsible for security of the Notary Public’s stamping device, and prohibits the notary from allowing another individual to use the device to perform a notarial act. Requires a Notary Public to disable or destroy a stamping device in the event of a Notary Public’s resignation, revocation or commission expiration; or expiration of the commission expiration date appearing on the stamping device, if applicable. Requires these actions to be taken by a Notary Public’s personal representative or guardian, or any other person knowingly in possession of the stamping device, in the event of the Notary Public’s death or adjudication of incompetency. Requires a Notary Public or the Notary Public’s personal representative or guardian to promptly notify the Department upon discovering that the stamping device is lost or stolen. PERFORMING NOTARIAL ACTS Specifies the persons (notarial officers) of Wisconsin, including a Notary Public, with authority to perform a notarial act in Wisconsin. Establishes (1) that the signature and title of an individual performing a notarial act in Wisconsin are prima facie evidence that the signature is genuine and that the individual holds the designated title; and (2) the signature and title of a Wisconsin notarial officer conclusively establish the authority of the officer to perform the notarial act. Establishes that a Notary Public may charge the fees for notarial acts provided in §140.02(9), except when the department has established different fees by administrative rule(s). Defines “acknowledgment,” “department,” “domestic partner,” “electronic,” “electronic signature,” “in a representative capacity,” “notarial act,” “notarial officer,” “notary public,” “official stamp,” “person,” “record,” “sign,” “signature,” “stamping device,” “state,” “tamper-evident,” and “verification on oath or affirmation.” Clarifies that the term “communication technology” as used in §140.02(5m)(a) has the meaning given in §140.145(1)(a). Establishes that a notarial officer (defined as a Notary Public or other individual authorized to perform a notarial act) may perform a notarial act authorized by Chapter 140 or by other law of Wisconsin. Prohibits a notarial officer from performing a notarial act when the officer or the officer’s spouse or domestic partner is a party to the record, or when either the notarial officer or any of these parties has a direct beneficial interest. Establishes that a notarial act performed in violation of these prohibitions is voidable. Authorizes a notarial officer to certify that a tangible copy of an electronic record is an accurate copy of the electronic record. (Also allows a register of deeds to accept for recording a tangible copy of an electronic record containing a notarial certificate as satisfying any requirement that a record accepted for recording be an original, if the notarial officer executing the notarial certificate certifies or attests that the tangible copy is an accurate copy of the electronic record.) Establishes the requirements for a notarial officer’s performance of specified notarial acts (acknowledgment, verification, witnessing or attesting a signature, certifying or attesting a copy of a record or copied item, making or noting a protest of a negotiable instrument) and the determinations made by the notarial officer in the performance of each act. Requires the personal appearance before the notarial officer of the individual making a statement in or executing a signature on a record. Prescribes the methods of identifying individuals appearing before a notarial officer for performance of a notarial act: personal knowledge; or satisfactory evidence as follows: 1. A passport, vehicle operator's license, or government-issued identification card, which is current or expired not more than 3 years before performance of the notarial act. 2. Another form of government identification issued to an individual, which is current or expired not more than 3 years before performance of the notarial act, contains the signature or a photograph of the individual, and is satisfactory to the officer. 3. By a verification on oath or affirmation of a credible witness personally appearing before the officer and known to the officer or whom the officer can identify on the basis of a passport, vehicle operator's license, or government-issued identification card, which is current or expired not more than 3 years before performance of the notarial act. Allows a notarial officer to require an individual to provide additional information or identification credentials necessary to assure the officer of the individual’s identity. Authorizes a notarial officer to refuse to perform a notarial act if the officer is not satisfied that the individual executing the record is competent or has the capacity to do so; or the individual’s signature is knowingly and voluntarily made. The notarial officer may not refuse if doing so is prohibited by law other than Chapter 140, Wisconsin Statutes. Expressly authorizes an individual who is physically unable to sign a record to direct another individual who is not the notarial officer to sign the physically unable individual’s name on the record. Directs the notarial officer to insert specified wording indicating this circumstance occurred. Requires a notarial act to be evidenced by a certificate, which must be executed contemporaneously with performance of the notarial act. Provides the requirements for completing a notarial certificate and required information elements. Establishes requirements for the sufficiency of a notarial certificate. Prohibits a notarial officer from affixing the officer’s signature to, or logically associating it with, a certificate until the notarial act has been performed. Requires a certificate to be part of, or securely attached to, a notarized tangible record; and to be affixed-to or logically associated with a notarized electronic record. Provides certificate short forms for an acknowledgment in an individual capacity; acknowledgment in a representative capacity; verification on oath or affirmation; witnessing or attesting a signature; and certifying or attesting a copy. Establishes Wisconsin’s recognition of notarial acts performed under authority of and in another state; under authority of a federally recognized Indian tribe; and under federal authority; if the notarial act is performed by specified individuals including a Notary Public of the other state, federally recognized Indian tribe or federally granted authority. Also establishes Wisconsin’s recognition of a notarial act performed under authority of and in the jurisdiction of a foreign state. REMOTE NOTARIZATION Defines “communication technology,” “foreign state,” “identity proofing,” “outside the United States,” and “remotely located individual.” Authorizes a Wisconsin Notary Public’s performance of a notarial act for a remotely located individual appearing by means of (audio-visual) communication technology [NOTE – other notarial officers are not authorized to perform remote notarizations]. Requires a Notary Public, before performing his or her initial notarial act for a remotely located individual, to notify the department of the intent to remotely notarize and identify the technologies the Notary Public intends to use. If the Department has established standards for approval of communication technology or identity proofing, then the communication technology and identify proofing must conform to the standards. Establishes that a remotely located individual may satisfy the requirement of personal appearance before a Notary Public by using communication technology (subject to requirements of Wisconsin statutes and any administrative rules). Establishes that the jurisdiction in which a notarial act is performed for a remotely located individual is determined by the location of the Notary Public (who must be physically located in Wisconsin). Specifies that, except for administration of an oath before a witness at a deposition, a Notary Public (subject to requirements of Wisconsin statutes and any administrative rules) may perform a notarial act using communication technology for a remotely located individual if all of the following apply: • The Notary Public can identify the remotely individual by any of the means specified in §140.145(1m)(3)(a); • the Notary Public can reasonably confirm that a record before the notary is the same record in which the remotely located individual made a statement or on which the individual executed a signature; • the Notary Public, or a person acting on behalf of the Notary Public, creates an audio-visual recording of the performance of the notarial act. Provides additional requirements for performance of a notarial act using communication technology for an individual remotely located outside the United States. Requires the notary’s certificate of notarial act for a remotely located individual to indicate that the notarial act was performed using communication technology. Provides the criteria for sufficiency of a notarial certificate involving a notarial act for a remotely located individual. Requires a Notary Public performing a notarial act for a remotely located individual to make a recording of the audio-visual communication session for the remote notarization, by mandating retention of the audio-visual recording by a Notary Public, guardian, conservator, or agent of a Notary Public; or a personal representative of a deceased notary; or cause the recording to be retained by a designated repository. Requires a recording of a remote online notarization to be retained for at least seven years after the recording is made, unless a different period is established in any administrative rules of the Department. Allows a Notary Public to select one or more tamper-evident technologies to perform notarial acts regarding electronic records. Prohibits a person from requiring a Notary Public to perform a notarial act regarding an electronic record with a technology that the Notary Public has not selected. Requires the department to promulgate administrative rules to implement the provisions of Chapter 140. Prescribes the matters that must be addressed in rules, and establishes the scope of elective rulemaking authority. Requires the department to consider (evaluate) certain specified standards before promulgating, amending or repealing a rule governing performance of a notarial act with respect to a remotely located individual. Excludes certain types of transactions from performance of a notarial act for a remotely located individual. Establishes a remote notary council attached to the Department of Financial Institutions; prescribes the council’s composition of members. Requires the council to adopt standards to implement the newly-adopted remote notarization statutes. Requires the Department to promulgate by rule the standards that are adopted, amended, or repealed by the council. Specifies the standards, information and practices the council must consider in adopting, amending, and repealing standards. Requires the council to review Wisconsin’s remote notarization statutes and recommend to the legislature any statutory changes the council finds necessary or advisable. Sets the length of council members’ initial terms. OTHER PROVISIONS Establishes that, except as otherwise provided in §140.04(2), Wisconsin Statutes, the failure of a notarial officer to perform a duty or meet a requirement specified in Chapter 140 does not invalidate a notarial act performed by the notarial officer; that provision does not prevent an aggrieved person from seeking to invalidate the record or transaction that is the subject of the notarial act or seeking other remedies under Wisconsin or U.S. federal law. Requires the Department to maintain an electronic database of Notaries Public enabling persons to use it to verify the authority of a Notary Public to perform notarial acts, and indicating whether a Notary Public has notified the department that the notary intends to perform notarial acts for remotely located individuals under Wisconsin law. Amends existing law on confidentiality of documents and information. Requires a Notary Public or any provider of communication technology to keep confidential all documents and information provided to the Notary Public or provider of communication technology or contained in any documents reviewed by the notary or provider of communication technology while performing their duties. Provides requirements for releasing such documents or information to a third person. Clarifies that the prohibition(s) in this section do not apply when the Notary Public or provider of communication technology is complying with a request from a regulatory agency or supervisory agency or is responding to a lawful subpoena or court order. Expressly allows a Notary Public or provider of communication technology to release deposition transcripts to all parties of record in an action, except that release of deposition transcripts that have not been made part of the public record require the written consent of all parties to the action and the deponent unless release is required by a regulatory agency or supervisory agency or in response to a lawful subpoena or court order. Makes any Notary Public or provider of communication technology that violates these confidentiality provisions subject to the law’s penalties for misconduct or neglect of duty, and liable to the injured party for all damages sustained Makes numerous technical and conforming amendments to relevant sections of Wisconsin law; renumbers numerous statutory sections. |
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