2022 Notary Law Updates
| 2022 Adopted/Enacted Notary Legislation Page Last Updated: March 7, 2023 |
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| ARIZONA – HB 2612 Effective July 23, 2022 View this bill Removes “honesty” and “integrity” from the list of personal attributes necessary to qualify for an Arizona Notary Public commission. --------------- ARIZONA- SB 1115 Effective June 30, 2022 View this bill Enacts the Revised Uniform Law on Notarial Acts, substantially revising Arizona’s Notary Public statutes. Definitions Defines “acknowledgment,” “commission,” “electronic,” “electronic signature,” “in a representative capacity,” “notarial act” or “notarization,” “notarial officer,” “Notary Public” or “Notary,” “official stamp,” “person,” “record,” “sign,” “signature,” “stamping device,” “state,” “verification on oath or affirmation.” (See Bill Section 9, 41-251.) Also defines “communication technology,” “foreign state,” “identity proofing,” “outside the United States,” and “remotely located individual.” (See Bill Section 10, 41-263.) _______________ Please note: Under Arizona’s RULONA, a notarial officer is a Notary Public or other individual who is authorized to perform a notarial act (under Arizona law); and a Notary Public or Notary is an individual commissioned by the Secretary of State to perform notarial acts. Notary Public Commission and Related Matters Provides the qualifications for an individual to obtain a commission as an Arizona Notary Public. Requires Notary Public commission applicants to comply with, and provide, the information established by rule of the Secretary of State and pay any application fee. Provides for the confidentiality of certain application information, and that the Secretary shall use the information provided on the application only for carrying out the purposes of Arizona’s RULONA. (Bill Section 10, 41-269.) Requires an Arizona Notary Public applicant to hold a surety bond (“assurance”) in the amount of $5000, issued by a surety or other entity licensed or authorized to do business in Arizona. Requires the surety company or issuing entity to give the Secretary of State thirty days’ notice before cancelling any Notary bond. Also requires the surety company or issuing entity to notify the Secretary of State not later than 30 days after making a payment to a claimant under the bond. Emphasizes that an Arizona Notary Public may perform notarial acts only during the period that a valid assurance is on file with the Secretary of State. Prohibits an employer from cancelling any employee Notary’s bond due to the individual’s end of employment. (Bill Section 10, 41-269.) Requires an Arizona Notary Public applicant to pass an examination IF such examination is required by the Secretary of State, and to keep as reference a manual approved by the Secretary of State. Such manual shall describe the duties, authority and ethical responsibilities of a Notary Public. (Bill Section 10, 4-269.) Provides that the Secretary of State or an entity approved by the Secretary shall administer the examination, and that the examination must be based on the course of study described in Arizona’s RULONA. (Bill Section 10, 41-270.) Further provides that if the Secretary of State requires an examination, the Secretary or an entity approved by the Secretary may offer a course of study to applicants who do not hold Arizona Notary Public commissions, as well as applicants seeking a renewed Arizona Notary commission and individuals whose Arizona Notary commission has been suspended. Specifies that the course of study must cover the laws, rules, procedures and ethics relevant to notarial acts. Authorizes the Secretary of State to prescribe and assess a fee for administering the course of study and examination. (Bill Section 10, 41-270.) Provides the reasons or conditions for which the Secretary of State may deny, refuse to renew, revoke, suspend or impose a condition on, a Notary Public commission. Further provides for the Secretary of State’s timely notice and a hearing, relative to these reasons or conditions. Prohibits an applicant that has appealed denial of his/her/their application from submitting a new commission application while the appeal is pending. Also prohibits an individual whose Arizona Notary commission is revoked from submitting a new application for commission for one year after the date of revocation. Clarifies that the Secretary’s authority to deny, refuse to renew, suspend, revoke or impose conditions on a Notary Public commission does not prevent a person from seeking and obtaining other criminal or civil remedies provided by law. (Bill Section 10, 41-271.) Establishes conditions that apply without regard to whether the Notary Public’s employer or any other person paid the fees and costs for commissioning of the Notary Public, including costs of a stamping device and journal (the Notary’s stamping device, commission and journal containing only public record entries remain the property of the Notary Public; the Notary may perform notarial acts outside of the workplace except during normal hours of duty for the Notary’s employer; all fees received by the Notary for notarial services provided while not on duty for the employer remain the property of the Notary Public). (Bill Section 10, 41-269.) Prohibits an employer of a Notary Public from limiting the Notary’s services to customers or other persons designated by the employer. (Bill Section 10, 41-269.) Requires a Notary Public with a change of mailing, business or residential address to deliver, within 30 days after such change, a signed notice of change to the Secretary of State. Specifies that such notice shall be sent by certified mail or other means providing a receipt, and shall provide both the old and new addresses. (Bill Section 17, 41-323.) Requires a Notary Public suffering the loss, theft or compromise of an official journal or stamping device to delivery to the Secretary of State a signed notice of the loss, theft or compromise. The Notary must send the notice by certified mail or other means providing a receipt, and also inform the appropriate law enforcement agency in the case of theft. Makes the Notary’s failure to comply in these matters a failure to fully and faithfully discharge his/her/their duties, and allows the Secretary of State to impose a civil penalty of $25 against the Notary, which must be paid prior to renewal of the Notary’s commission. (Bill Section 17, Section 41-323.) Notarial Acts Generally Establishes the authority of a notarial officer to perform a notarial act authorized by Arizona’s RULONA or by any other law of Arizona. Prohibits a notarial officer from performing a notarial act with respect to a record to which the officer or officer’s spouse is a party or in which either has a direct beneficial interest, and provides that a notarization in violation of these prohibitions is voidable. (Bill Section 10, 41-252.) Provides that certain individuals, including a Notary Public, are authorized to perform a notarial act in Arizona. Provides that the signature and title of an individual authorized to perform a notarial act in Arizona are prima facie evidence, that the signature is genuine and the individual holds the designated title, and that the signature and title of an Arizona notarial officer conclusively establish the authority of the notarial officer to perform the notarial act. (Bill Section 10, 41-258.) Provides for Arizona’s recognition of notarial acts performed in another state, under authority of federally recognized Indian tribes, under federal authority, and under authority and in the jurisdiction of named entities and governments outside of the United States. Provides that appropriately issued Apostilles and consular authentications conclusively establish that the signature of the notarial officer is genuine and that said officer holds the indicated office. Clarifies that for purposes of this section, “foreign state” means a government other than the United States, a state or a federally recognized Indian tribe. (Bill Section 10, 41-262.) Performing Notarial Acts Establishes the fundamental requirements for performance of an acknowledgment, verification on oath or affirmation, witnessing or attestation of a signature, certification or attestation of a copy of a record or copied item, and noting of a protest. (Bill Section 10, 41-253.) Requires a Notary Public to communicate with an individual for whom the Notary is performing a notarial act, either directly in a language that both the Notary and the individual understand; or indirectly through a translator who communicates directly with the Notary Public and the individual in languages that the translator understands. Requires such translator to personally appear before the Notary Public. (Bill Section 10, 41-253 and 41-254. Establishes that if a notarial act relates to a statement made in or a signature executed on a record, the individual making the statement or executing the signature shall appear personally before the notarial officer. (Bill Section 10, 41, 254.) Prescribes the means by which a notarial officer may identify an individual appearing before the officer (personal knowledge, or prescribed forms of satisfactory evidence. Provides additional authorized means for a notarial officer to identify an individual personally present for a notarial act when such appearance is for purposes of a real estate conveyance or financing. (Bill Section 10, 41-255.) Provides the circumstances under which a notarial officer may refuse to perform a notarial act, unless refusal is prohibited by other Arizona law. (Bill Section 10, 41-256) Enables an individual who is physically unable to sign to direct an individual other than the notarial officer to sign a record; requires such notarial officer to insert specified language indicating this occurrence. (Bill Section 10, 41-257) Notarial Certificates Requires a notarial act to be evidenced by a certificate and establishes requirements for such notarial certificate, including that it must be worded and completed using only letters, characters and a language that are read, written and understood by the Notary Public. Prohibits a notarial officer from affixing to or logically associating his/her/their official signature to a (tangible or electronic) notarial certificate until the notarial act has been performed. (Bill Section 10, 41-264.) Clarifies that if a notarial act is performed regarding a tangible record, a notarial certificate must be part of or securely attached to the record. Specifies requirements for notarial certificates that are attached to a record using a separate sheet of paper. Provides that if a notarial act is performed regarding an electronic record, the certificate must be affixed to or logically associated with the electronic record. Requires attaching, affixing or logically associating a certificate with a record to conform to standards, if any, established by administrative rule(s) of the Secretary of State. (Bill Section 10, 41-264.) Provides for the sufficiency of a notarial certificate completed by an Arizona notarial officer. Specifies that by executing a notarial certificate, a notarial officer certifies that he/she/they has complied with the requirements and made the determinations specified in Arizona’s RULONA. (Bill Section 10, 41-264.) Provides short-form certificates of notarial acts that are sufficient under the RULONA. (Bill Section 10, 41-265.) Official Stamp, Stamping Device Requires a Notary Public performing a notarial act regarding a tangible record to affix an official stamp to the record’s notarial certificate. Allows other notarial officers with regard to a tangible record to choose whether to affix an official stamp, but only if certain specified information is included in the notarial certificate. Provides that if a notarial act regarding an electronic record is performed by a Notary Public or other notarial officer, and the notarial certificate contains certain specified information, an official stamp “may” (not must) be attached to or logically associated with the notarial certificate. (Bill Section 10, 41-264) Clarifies that the official stamp of a Notary Public is an official seal of office for the purposes of Arizona law. (Bill Section 10, 41-266.) Prohibits a vendor of stamping devices to provide a stamping device to an individual unless the individual presents a copy of his/her/their commission. Requires stamping device vendors to retain copies of notary commissions for four years. Allows a Notary Public to possess only one physical stamping device for use regarding notarization of tangible records. Clarifies that a Notary Public may possess an embosser in addition to his/her/their physical stamping device, but may use such embosser only in conjunction with the physical stamping device. Further clarifies that an embosser or impression made by an embosser is not an official seal of office for the purposes of Arizona law. (Bill Section 10, 41-267.) Specifies certain information to be included on the official stamp of a Notary Public. Requires the official stamp to be capable of being copied together with the record to which it is affixed or attached, or with which it is logically associated. Provides that a Notary Public’s official stamp may be any shape, but a physical image of an official stamp created by a physical stamping device may not be more than one and one-half inches high and two and one-half inches wide. Further requires the official stamp to include an image of Arizona’s great seal. Requires the electronic image of an official stamp created by an electronic stamping device to be legible when reproduced together with the record with which it is logically associates. (Bill Section 10, 41-266.) Prohibits a Notary Public from affixing or attaching his/her/their official stamp over the Notary’s signature or any other signature on the record that is the subject of the notarial act. (Bill Section 10, 41-266.) Provides that a Notary Public is responsible for the security of his/her/their stamping device and may not allow another individual to use the device to perform a notarial act. Requires a Notary Public, or if applicable the Notary’s personal representative, guardian or other person knowingly in possession of the Notary electronic stamping device, to render it unusable upon the Notary’s resignation, commission revocation or commission expiration. (Bill Section 10, 41-267) Journal Requirements Requires a Notary Public to keep a paper journal in which to chronicle all notarial acts regarding tangible (paper) records. Requires a Notary Public to keep either a paper journal, or one of more electronic journals, in which to chronicle all notarial acts regarding electronic records. Requires a Notary to keep only one (paper) journal at a time unless the Notary has one or more entries in the journal that are not public records, in which case the Notary must keep one journal containing entries that are not public records and one journal containing entries that are public records. Clarifies that if a Notary keeps only one journal, it is presumed to be a public record. Further clarifies that a Notary Public’s journal that contains entries that are not public records is the property of the Notary’s employer and shall be retained by the employer if the Notary leaves employment. Also clarifies that a Notary Public’s journal that contains only public records is the property of the Notary Public without regard to whether the Notary’s employer purchased the journal or provided commission application fees. Provides that if the Notary Public has personal knowledge of the principal’s identity, the Notary shall either retain a paper or electronic copy of the notarized document(s) for each notarial act in lieu of making a journal entry; or make a journal entry as ordinarily required. (Bill Section 14, 41-319.) Specifies the minimum information to be recorded in each journal entry. Eliminates prior law’s requirement that the serial or ID number of the principal’s satisfactory evidence of identity, be recorded in the journal entry. Requires the principal’s signature to be recorded in a paper journal entry only. (Bill Section 14, 41-319.) Provides, that except for notarial acts performed for remotely located individuals, a Notary that performs more than one notarization for an individual within a six-month period shall have that individual provide satisfactory evidence of identity for the first notarization, but may neither require satisfactory evidence of identity from this person nor require him/her/them to sign the journal for subsequent notarizations performed during the six-month period. (Bill Section 14, 41-319.) Clarifies that if a Notary Public performs more than one notarization of the same type for a signer either on similar records or within the same record and at the same time, the Notary Public may group the records together and make one journal entry for the transaction. (Bill Section 14, 41-219.) Electronic, Remote Online Notarizations Amends existing law to provide that if a law requires a signature or record to be notarized, acknowledged, verified or made under oath, that requirement is satisfied if the electronic signature of the person authorized to perform those acts, together with all other information required to be included by other applicable law, is attached to or logically associated with the signature or record. (Bill Section 24, 44-7011.) Allows a Notary Public to select one or more tamper-evident technologies to performing notarial acts with respect to electronic records. Prohibits any person from requiring a Notary Public to notarize an electronic record using a technology that the Notary has not selected. (Bill Section 10, 41-268.) Requires a Notary Public, prior to performing the Notary’s initial notarial act regarding an electronic record, to notify* the Secretary of State that he/she/they will be performing notarial acts regarding electronic records and identify the technology the Notary intends to use. Requires such technology to conform to standards, if any, established by the Secretary of State. Provides that if the technology conforms to such standards, the Secretary of State shall approve use of the technology. (Bill Section 10, 41-268) _______________ NOTE: The Secretary of State will issue an authorization to perform electronic notarizations to qualified individuals who comply with all notification requirements. (See Bill Section 10, 41-276.) Establishes that a remotely located individual may comply with specified Arizona law by using communication technology to appear before a Notary Public. Authorizes a Notary Public to perform a notarial act using communication technology for a remotely located individual, including a remotely located individual who is outside of the United States, subject to requirements of Arizona law and administrative rules. Requires a Notary Public, prior to performing his/her/their initial notarial act for a remotely located individual, to notify the Secretary of State that he/she/they will perform notarial acts in this manner, and identify the technologies the Notary Public intends to use. Further requires the Notary’s chosen technology to conform to any standards established by the Secretary of State with regard to communication technology or identity proofing. _______________ NOTE: The Secretary of State will issue an authorization to perform remote online notarizations to qualified individuals who comply with all notification requirements. (See Bill Section 10, 41-276.) Requires the notarial certificate related to a notarial act performed for a remotely located individual to indicate that the notarial act was performing using communication technology. Provides that such a notarial certificate is sufficient if it complies with rules adopted by the Secretary of State, or it is in the form provided by Arizona’s RULONA and contains a statement substantially like, “This notarial act involved the use of communication technology.” (Bill Section 10, 41-263.) Requires a Notary Public or person acting on behalf of the Notary Pubic to create an audiovisual recording of the performance of a notarial act for a remotely located individual. Establishes requirements for retention of such recording(s). (Bill Section 10, 41-263.) Prohibited Acts Establishes certain activities that a Notary Public commission (alone) does not authorize a person to engage in (the practice of law, giving of legal advice, assisting in the drafting of legal records and related activities; acting as an immigration consultant or an expert on immigration matters; representing a person in a judicial or administrative proceeding relating to immigration to the United States, United States citizenship or related matters). Prohibits receiving of fees for performing any such unauthorized activities. (Bill Section 10, 41-273.) Specifies other prohibited acts including engaging in false or deceptive advertising; using the term “notario” or “notario publico” when not also a licensed Arizona attorney; advertising various legal services when not a licensed Arizona attorney; and withholding access to or possession of an original record provided by a person seeking a notarial act. (Bill Section 10, 41-273.) Addresses the validity of notarial acts; establishes that a notarial officer’s failure to perform a duty or meet a requirement specified in Arizona’s RULONA does not invalidate a notarial act performed by the notarial officer. Clarifies that aggrieved persons are not prevented from seeking to invalidate a record or transaction that is the subject of such notarial act, or from seeking other legal remedies. Further clarifies that these provisions do not validate a purported notarial act by an individual who did not have authority to perform a notarial act. (Bill Section 10, 41-274.) Administrative Rules Authorizes the Secretary of State to adopt administrative rules to implement the RULONA. Requires the Secretary to adopt administrative rules on or before July 1, 2022 regarding performance of notarial acts involving electronic records. Establishes the scope of the Secretary’s rulemaking authority. (Bill Section 10, 41-275.) Notary Commissions in Effect Provides that Arizona Notary commissions in effect on the effective date of the RULONA continue until their date of expiration. Provides that the Secretary of State’s issued authorizations to perform electronic or remote online notarizations that were in effect on the RULONA’s effective date also continue until their date of expiration. (Bill Section 10, 41-276.) Provides that Notaries Public, in performing notarial acts after the effective date of the RULONA, shall comply with the RULONA. Also provides that Notaries notifying the Secretary of State on or after the effective date of RULONA that they will be performing notarial acts with respect to electronic records, or with respect to remotely located individuals, are subject to and shall comply with the RULONA. (Bill Section 10, 41-276.) Bank and Corporate Notaries Provides that a notarial act performed by a Notary who acts as a stockholder, director, officer, or employee with a disqualifying interest is voidable. (Bill Section 15, 41-320.) Other Provisions RULEMAKING – Provides the Secretary of State authority to adopt rules to implement the Act, and establishes the scope of rulemaking authority. (Bill Section 10, 41-263 and 41-275.) Requires the Secretary of State to maintain an electronic database of Notaries Public through which a person may verify the authority of a Notary Public to perform notarial acts. Allows the Secretary of State to also indicate whether a Notary Public has notified the Secretary that the Notary will be performing notarial acts regarding electronic records or for remotely located individuals. (Bill Section 10, 41-272.) Requires Arizona county recorders 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. Provides that the notarial officer executing the notarial certificate of such tangible copy must certify that the tangible copy is an accurate copy of the electronic record. (Bill Section 10, 41-268.) Makes various minor and/or conforming amendments. ----------------- ARIZONA – HB 2645 Effective April 29, 2022 View this bill Amends Arizona’s law regarding a Notary Public’s notification to the Secretary of State concerning a change of address; and concerning loss, theft of compromise of an official journal or stamping device. Amends existing law that requires a Notary Public to notify the Secretary of State of a change of mailing, business or residential address within thirty days after the change and to do so in the manner prescribed by statute. Clarifies that the Secretary of State may impose a $25 civil penalty against a Notary Public who fails to comply with this notification requirement (underlined text is amendatory). Existing law requires a Notary Public to notify the Secretary of State within 10 days after the loss, theft or compromise of an official journal or stamping device, and to do so in the manner prescribed by statute. Existing law also requires the Notary to notify law enforcement in the case of theft of either of these items. Requires the Secretary of State to impose a civil penalty of $1000 against a Notary Public who fails to comply with the statutory notification requirements regarding loss, theft or compromise of an official journal or stamping device. Provides that a Notary’s failure to pay a penalty may be referred to Arizona’s Attorney General for collection. Provides that in a judicial proceeding where the identity of a party to a notarized instrument is in question… the Notary’s official journal is lost, stolen or compromised… and the Notary fully complied with the notification requirement, a presumption shall be given to the validity of the identify of the party who signed the instrument. Clarifies that if it is determined that a Notary’s journal never existed or that the Notary failed to comply with the statutory notification requirements regarding loss, theft or compromise of an official journal, no presumption as to the validity of the party who signed the notarized instrument shall apply. Further provides that in an action in which the validity of a notarized instrument is at issue and the Notary failed to comply with the notification requirements in this section of law, the court will notify the Secretary of State and the County Attorney (for the county in which the Notary’s violation occurred) of such finding. Provides that should a violation of Section 47-9527, Arizona Revised Statutes occur, the Attorney General or county attorney for the county in which an alleged violation of the Section occurred may prosecute such violation(s). ----------------- ARIZONA – ADMIN RULES—ELECTRONIC NOTARY, REMOTE ONLINE NOTARIZATION Title 2, Chapter 12, Arizona Administrative Code Effective March 24, 2022 View these rules Amends certain provisions of Arizona Administrative Code Title 2, Chapter 12, Article 12 (Electronic Notary), as follows: • Updates the statutory citations of rule definitions for these terms: “commission,” “electronic,” “electronic signature,” “notarial act,” “Notary Public” or “Notary,” and “person.” • Amends the definitions of “electronic record,” and “electronic seal” to conform to those provided in Arizona Revised Statutes. Amends certain provisions of Arizona Administrative Title 2, Chapter 12, Article 13 (Remote Online Notarization), as follows: • Updates the statutory citations of rule definitions for these terms: “commission,” “communication technology,” “electronic,” “identification credential,” “notarial act,” “person,” “personal knowledge,” and “remotely located individual.” • Amends the definitions of “credential analysis,” “electronic record,” “electronic seal,” “identity proofing,” “remote online notarization” or “remote online notarial act,” and “remote presentation” to conform to those provided in Arizona Revised Statutes. Creates new Rule 42-12-1309, establishing the detailed information about each remote online notarial act that a Notary Public shall record in one or more journals of a permanent, tamper-evident electronic format that complies with statutory and administrative rule requirements. Provides that an electronic journal kept by the Notary Public, and the audio-visual recording of a remote online notarization, are subject to Arizona Revised Statutes §41-319 relating to public records. Makes various other necessary statutory cite corrections. |
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| COLORADO – Notary Program Rules, 8 CCR 1505-11 Effective 10-15-22 View these rules… scroll to view Section 2.3 Communication Amends administrative rules regarding a Notary Public’s use of interpreters for deaf, hard of hearing, or deafblind individuals seeking a notarial act. Provides that a Notary Public may not use an interpreter, translator or related services to communicate with the individual for whom the Notary Public is performing a notarial act, unless the Notary is using an interpreter for deaf, hard of hearing or deafblind individuals who meets the requirements of Section 6-1-707(1)(e)(l), C.R.S. (Colorado’s Consumer Protection Act). Applies this prohibition to all methods of notarization, including electronic and remote notarization, authorized by Colorado’s Revised Uniform Law on Notarial Acts. Prohibits any interpreter from having a disqualifying interest in the record that is the subject of a notarial act. Establishes that an interpreter has such a disqualifying interest in a record if: • the interpreter or the interpreter’s spouse, partner in a civil union, ancestor, descendent, or sibling is a party to or is named in the record that is to be notarized; or • the interpreter or the interpreter’s spouse or partner in a civil union may receive directly, and as a proximate result of the notarization, any advantage, right, title, interest, cash, or property exceeding in value the sum of any fee for interpreter services. --------------- COLORADO – SB 21-199 Effective July 1, 2022 View this bill Provides that when verifying the lawful presence in the United States of every Notary Public commission applicant, the Secretary of State shall: Accept one of the following documents from the applicant: (a) a United States military card or a military dependent’s identification card; (b) a United States coast guard Merchant Mariner card; (c) a Native American tribal document; (d) a valid Colorado driver’s license or a Colorado identification card issued pursuant to Article 2 of Title 42, unless the applicant holds a license or card issued pursuant to Part 5 of Article 2 of Title 2; (e) a valid driver’s license or identification card issued by another state, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States that is compliant with the federal REAL ID Act, as amended; (f) a valid United States passport; (g) a valid United States permanent resident card; or (h) any other valid type of identification that requires proof of lawful presence in the United States to obtain; and Execute an affidavit stating that the applicant is: (a) a United States citizen or legal permanent resident; or (b) otherwise lawfully present in the United States pursuant to federal law. --------------- COLORADO – NOTARY PROGRAM RULES (Vendors, Course Providers) Effective March 17, 2022 View these rules Amends Notary Program Rules to give course providers and vendors the right to respond to and cure noncompliance; and the right to a hearing before being terminated, suspended, or having an accreditation or approval conditioned. Notary Education Course Providers/Vendors Establishes that, except in cases of deliberate and willful violation or substantial danger to the public health and safety, the Secretary of State will provide a vendor or course provider with written notice, opportunity to respond in writing, and a reasonable opportunity to comply with all requirements prior to the Secretary terminating, suspending or imposing conditions on an existing accreditation of a vendor or approval of a course provider. Further provides that (except when deliberate and willful violation endangers the public health, safety or welfare such that emergency action is imperative) the Secretary of State will not terminate, suspend or impose conditions on an existing vendor accreditation or course provider approval until after a hearing held in accordance with Colorado’s Administrative Procedure Act. Remote Notarization System and Storage Providers Provides and clarifies that the Secretary of State will notify remote notarization system and storage providers of any deficiencies in their application(s) for approval. Establishes that a rejected applicant may request a hearing in accordance with Colorado’s Administrative Procedure act. Provides approved remote notarization system and storage providers the right to respond to and cure noncompliance, and a right to a hearing, before the Secretary of State terminates, suspends or imposes conditions on approval. Establishes that, except in cases of deliberate and willful violation or substantial danger to the public health and safety, the Secretary of State will provide a remote notarization system or storage provider with written notice, opportunity to respond in writing, and a reasonable opportunity to comply with all requirements prior to the Secretary terminating, suspending or imposing conditions on an existing approval. Further provides that (except when deliberate and willful violation endangers the public health, safety or welfare such that emergency action is imperative) the Secretary of State will not terminate, suspend or impose conditions on an existing remote notarization system or storage provider approval until after a hearing held in accordance with Colorado’s Administrative Procedure Act. --------------- COLORADO – SB 21-271 Effective March 1, 2022 View this bill Amends current law to provide that any Notary Public or other authorized officer who administers any oath knowing it to be false, or who knowingly makes a false certificate with regard to a matter connected with any election provided by law, shall upon conviction be guilty of a Class 2 misdemeanor. Reclassifies certain violations of law committed by a Notary Public from a Class 2 or Class 3 misdemeanor to a petty offense. --------------- COLORADO—SB 22-020 Effective March 30, 2022 View this bill Adds court reporters who hold the registered professional reporter certification or higher to the statutory list of individuals authorized to administer oaths or affirmations for the purposes stated in Colorado law. |
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| DELAWARE - Senate Bill 262 • Effective 9/09/2022: Bill Section 12 extending the provisions of Paragraph B of the Eleventh Modification of the State of Emergency Declaration of April 15, 2020, until July 31, 2023 • Effective 8/01/2023: Bill Sections 1-11, and Section 13. View this bill Enacts the Revised Uniform Law on Notarial Acts (RULONA) in The First State, with comprehensive provisions for performance of notarial acts on tangible and electronic records, for physically-present and remotely present individuals. Definitions Defines key terms: “acknowledgment,” “electronic,” “electronic signature,” “in a representative capacity,” “notarial act,” “notarial officer,” “Notary Public,” “official stamp,” “person,” “record,” “sign,” “signature,” “stamping device,” “state,” “verification on oath or affirmation.” Additionally, defines terms with respect to notarial acts performed for remotely located individuals: “communication technology,” “foreign state,” “identity proofing,” “outside the United States,” “remotely located individual.” Commissioning Amends and clarifies the qualifications for obtaining a Delaware Notary Public commission. Repeals provisions relating to a separate commission for electronic Notaries Public and the electronic Notary oath of office. Provides that a qualified individual may apply to the Delaware Governor for a commission as a Notary Public. Retains in statute the ability of the Governor to delegate, to the Secretary of State, duties relative to appointment of Notaries. Retains current law’s provisions allowing the Secretary of State to promulgate regulations or establish additional standards and guidelines governing applications, registrations, appointments, and the conduct of Notaries Public. Establishes that an individual applying for a Delaware Notary Public commission shall be at least 18 years of age; be a citizen or permanent legal resident of the United States; be a resident of or have a place of employment or practice in Delaware; be able to read and write English; not be disqualified to receive a commission under §4334, Title 29, Delaware Code (providing the grounds for the Governor to deny, refuse to renew, revoke, suspend or impose a condition on a Notary Public commission for any act or omission demonstrating that the individual lacks the honesty, integrity, competence or reliability to act as a Notary Public); and comply with all other requirements established by the Secretary of State by regulations as necessary to ensure the competence, integrity, and qualifications of a Notary Public and the proper performance of notarial acts. Requires a Notary Public commission applicant who is not a Delaware resident to provide on his/her/their application a residential address and address of the individual’s place of employment or practice in Delaware. Clarifies provisions on service of process, subpoenas and other documents on a nonresident who is a Delaware Notary. Requires a Delaware Notary Public to notify the Secretary of State of a change of address within 30 days of the change, and clarifies that a Notary’s address of record must include a street address. Requires that an individual applying for a Notary Public commission shall execute an oath of office and submit it to the Secretary of State, prior to issuance of his/her/their Notary Public commission. Establishes that upon an individual applicant’s compliance with §4301, Title 29, Delaware Code, the Governor shall issue a Notary Public commission for a 2-year term if the individual is a first-time Delaware Notary; or for a 2-year or 4-year term as chosen by an individual who is renewing his/her/their Delaware Notary commission. Provides that the Secretary of State shall designate the commission appointing a Notary Public, and that such commission shall be executed by the Governor and Secretary of State. Establishes that these officials’ signatures on the commission may be electronic or a facsimile signature engraved, printed or stamped on the commission. Provides the grounds under which the Governor of Delaware may deny, refuse to renew, revoke, suspend or impose a condition on a commission as a Notary Public including: 1. any act or omission demonstrating that the individual lacks the honesty, integrity, competence or reliability to act as a Notary Public; 2. failure to comply with Delaware’s Notary laws; 3. a fraudulent, dishonest or deceitful misstatement or omission in the Notary Public application submitted to the Secretary of State; 4. conviction of the application or Notary Public of any felony or a crime involving fraud, dishonesty or deceit; 5. a finding against, or admission of liability by, the applicant or Notary Public in any legal proceeding or disciplinary action based on the individual’s fraud, dishonesty or deceit, 6. failure by a Notary Public to discharge any duty required of a Notary Public whether such duty is required by any state or federal law, or by regulations of the Secretary of State; 7. use of false or misleading advertising or representation by the Notary Public that the Notary has a duty, right or privilege that the Notary does not have; 8. violation by the Notary of a Notary Public regulation adopted by the Secretary of State; 9. a Notary’s commission denial, refusal to renew, revocation, suspension or conditioning in or by another state; 10. a violation under Delaware Code’s §4311(c), Title 29 (dealing with a Notary’s overcharging of fees for notarial acts). Clarifies that an applicant or Notary Public is entitled to timely notice and hearing, in accordance with Delaware law, if the Governor denies, refuses to renew, revokes, suspends, or imposes conditions on the individual’s Notary Public commission. Also clarifies that the Governor’s authority to deny, refuse to renew, revoke, suspend, or impose conditions on a Notary Public commission does not prevent the affected person from seeking and obtaining other criminal or civil remedies provided by law. Makes various conforming and clarifying amendments. Notary’s Official Stamp, Journal Notary’s Official Stamp. Replaces existing provisions relating to the Notary’s seal of office with updated RULONA language requiring a Notary Public to use an “official stamp,” which may be placed on a notarial certificate by means of “affixing” (stamping) or embossing. Provides that “official stamp” also means an electronic image attached to or logically associated with an electronic record. Defines “stamping device” as a physical capable of affixing or embossing, on a tangible record, an official stamp; or an electronic device or process capable of attaching or logically associating an official stamp to, or with, an electronic record. Requires that if a notarial act regarding a tangible record is performed by a Notary Public, an official stamp must be affixed to or embossed on the notarial certificate. Provides that if a notarial act regarding a tangible record is performed by any other notarial officer (not a Notary Public), and the notarial certificate is signed and dated by the notarial officer, identifies the jurisdiction (venue) where the notarial act is performed, and contains the notarial officer’s title of office, then an official stamp may be affixed to or embossed on the notarial certificate. Further provides that if a notarial act regarding an electronic record is performed by a notarial officer and the notarial certificate is signed and dated by the notarial officer; identifies the jurisdiction (venue) in which the notarial act is performed; and contains the notarial officer’s title of office, an official stamp may be attached to or logically associated with the notarial certificate. Requires a Notary Public’s official stamp to include the Notary’s name as on file with the Secretary of State; “State of Delaware,” “My commission expires on” and the commission expiration date; and any other information required by the Secretary of State. Requires a Notary’s official stamp to be capable of being copied together with the record to which it is affixed or attached, or with which it is logically associated. Specifies that a Notary Public is responsible for the security of the Notary’s stamping device and may not allow another individual to use the device to perform a notarial act. Requires a Notary Public, upon commission resignation, revocation or expiration, to disable the stamping device by destroying, defacing, damaging, erasing, or securing it against (any possible) use. Places this same requirement on a Notary’s personal representative or guardian or any other person knowingly in possession of the stamping device, upon the death or adjudication of incompetency of the Notary Public. Requires a Notary Public or the Notary’s personal representative or guardian, if applicable, to promptly notify the Secretary of State upon discovering that the Notary’s stamping device is lost or stolen. Notary’s Journal. Repeals prior law’s provisions requiring a electronic Notary to use an electronic journal of notarial acts. Requires a Delaware Notary Public to maintain a journal in which the Notary chronicles all notarial acts (tangible or electronic) that the Notary performs. Provides that a journal may be created on a tangible medium or in an electronic format. Allows a Notary Public to maintain only one journal at a time for chronicling all notarial acts, whether such acts are performed regarding tangible or electronic records. Specifies that if the journal is maintained on an tangible medium, it must be a permanent bound register with numbered pages; and if the journal is electronic, it must be in a permanent, tamper-evident electronic format complying with regulations adopted by the Secretary of State. Requires an entry in an journal to be made contemporaneously with performance of a notarial act, and specifies the information to be included in each journal entry (date and time of the notarial act; description of the record, if any, and type of notarial act; the full name and address of each individual for whom a notarial act is performed; a statement, as applicable, that the individual was identified by personal knowledge or satisfactory evidence which must be described; and any fee charged by the Notary Public). Requires a Notary Public to promptly notify the Secretary of State upon discovering that his/her/their journal is lost or stolen. Specifies that upon resignation, or revocation or suspension of commission, a Notary Public shall retain the Notary’s journal for 10 years after performance of the last notarial act chronicled in it, and inform the Secretary of State where the journal is located. Allows a current or former Notary Public to transmit the journal to the Secretary of State or a repository approved by the Secretary of State. Requires that upon death of adjudication of incompetency of a current or former Notary Public, the Notary’s personal representative or guardian or any other person knowingly in possession of the journal shall transmit it to the Secretary of State or a repository approved by the Secretary. Performing Notarial Acts Authorizes a notarial officer to perform a notarial act that is authorized under Delaware’s RULONA or by other Delaware law. Prohibits a notarial officer from performing a notarial act with respect to a record to which the officer or the officer’s spouse is a party, or in which either person has a direct beneficial interest. Provides that a notarial act performed in violation of this prohibition is voidable. Authorizes a notarial officer to certify that a tangible copy of an electronic record is an accurate copy of the electronic record. Establishes the fundamental requirements and prohibitions for performance of the authorized notarial acts (acknowledgment of a record, verification on oath or affirmation, witnessing or attesting a signature, certifying or attesting a copy of a record or an item that was copied, making or noting a protest of a negotiable instrument). Requires the personal appearance of an individual for performance of a notarial act relating to a statement made in or a signature executed on a record, unless the notarial act is performed for a remotely located individual and in compliance with §4320 of Title 29, Delaware Code. Establishes that a notarial officer has personal knowledge of the identity of an individual present before the officer if the individual is personally known to the officer through dealings sufficient to provide reasonable certainty that the individual has the identity claimed. Provides that a notarial officer has satisfactory evidence of the identity of an individual appearing before the officer if the officer can identify the individual by: • a passport, driver’s license or government issued non-driver identification card that is current and not expired before performance of the notarial act; • another form of government identification issued to an individual that is current and not expired before performance of the notarial act, that contains the individual’s signature or photograph, and is satisfactory to the officer; • verification on oath or affirmation of a credible witness personally appearing before the notarial officer and known to the officer or whom the officer can identify on the basis of a passport, driver license or government-issued nondriver identification card, any of which are current and not expired before performance of the notarial act. Authorizes a notarial officer to require an individual to provide additional information or identification credentials necessary to assure the officer of the individual’s identity. Allows a notarial officer to refuse to perform a notarial act if the officer is not satisfied that all of the following apply: • The individual executing the record is competent or has the capacity to execute the record; • The individual’s signature is knowingly and voluntarily made. Authorizes a notarial officer to refuse to perform a notarial act unless refusal is prohibited by other Delaware law. Establishes that an individual who is physically unable to sign a record may direct another individual who is not the (officiating) notarial officer to sign the individual’s name on the record. Requires the notarial officer to insert words indicating that the signature was affixed by the individual (name) at the direction of the physically unable signer of the record. Requires a notarial act to be evidenced by a certificate that meets all of the following requirements: 1. It was executed contemporaneously with (at the same time as) performance of the notarial act; 2. It is signed and dated by the officiating notarial officer, and if that person is a Notary Public, it is signed in the same manner as on file with the Secretary of State; 3. It identifies the jurisdiction (venue) where the notarial act was performed; 4. It contains the officiating notarial officer’s title of office; 5. If the officiating notarial officer is a Notary Public, it indicates the Notary’s commission expiration date (if any). Establishes the requirements for a certificate of a notarial act to be “sufficient” (contain all required information and the notarial officer’s signature). Provides that by executing a certificate of a notarial act, the notarial officer certifies that he/she/they have complied with the requirements and made the determinations specified in Delaware’s RULONA. Prohibits a notarial officer from affixing the officer’s signature to, or logically associating it with, a notarial certificate before the notarial act has been performed. Requires the notarial certificate for a tangible record to be part of, or securely attached to, the tangible record. Requires the notarial certificate for an electronic record to be affixed to, or logically associated with the electronic record. Requires the process of attaching, affixing or logically associating a notarial certificate to a record to conform to any standards established by the Secretary of State under §4338, Title 29, Delaware Code. Provides “short form” notarial certificate formats for Delaware’s authorized notarial acts. Establishes the legal sufficiency of such short form certificates if completed with the information required under Delaware law. Recognition of Notarial Acts Provides RULONA’s concise provisions assuring that the notarial acts performed by Notaries and other notarial officers outside of Delaware will be recognized in Delaware, and that the notarial acts performed by Delaware Notaries and other notarial officers will be recognized outside of Delaware (interstate recognition). Prohibited Acts Provides that a Delaware Notary Public commission (alone) does not authorize a Notary to: 1. assist persons in drafting legal records, give legal advice, or otherwise practice law; 2. act as an immigration consultant or an expert on immigration matters; 3. represent a person in a judicial or administrative proceeding relating to immigration to the United States, U.S. citizenship or related matters; 4. receive compensation for performing any of the activities listed above. Prohibits a Notary Public from: 1. engaging in false or deceptive advertising; 2. using the term “notario” or “notario publico” unless the Notary Public is also an attorney licensed to practice law in Delaware; 3. advertising or representing that the Notary may assist persons in drafting legal records, give legal advce or otherwise practice law, unless the Notary is also an attorney licensed to practice law in Delaware. Requires any manner of advertising or representation of notarial services (including broadcast media, print media and the Internet) by a Notary Public who is not also a licensed Delaware attorney to include a specified statement, prominently and in each language used in the advertisement or representation: “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.” Clarifies that if the form of advertisement or representation is not broadcast media, print media or the Internet and does not permit inclusion of the statement due to size, then the statement must be displayed prominently or provided at the place of performance of the notarial act, before the notarial act is performed. Prohibits a Notary Public from withholding access to or possession of an original record provided by a person seeking a notarial act from the Notary Public, except as otherwise allowed by law. Notary Fees Retains existing law’s maximum fees of $5 that a Notary may charge for performance of a notarial act with respect to a tangible record, and $25 for a notarial act with respect to an electronic record. Retains existing law’s penalty of commission revocation, if desired by the Secretary of State, for a Notary’s charging of fees in excess of the maximum allowed; and the waiting period following such commission revocation of two years before the Notary may apply for reappointment. Clarifies that a Notary may choose to waive any fee for any notarial act. Electronic Notarization Repeals existing statutory sections dealing with electronic notarization and separate appointment as a Delaware electronic Notary Public. Authorizes a Delaware notarial officer to select one or more tamper-evident technologies to perform notarial acts with respect to electronic records. Establishes that before performing his/her/their initial notarial act with respect to an electronic record, a Notary Public shall notify the Secretary of State that the notarial officer will be performing such electronic notarial acts. Requires such notification to the Secretary of State to identify the technology the notarial officer intends to use for notarizing electronic records. Requires that if the Secretary has established standards for approval of technology, the selected technology must conform to the standards. Prohibits any person from requiring a notarial officer to perform a notarial act with respect to an electronic record using a technology that the notarial officer has not selected. Notarial Acts for Remotely Located Individuals Allows a notarial officer to use communication technology to perform a notarial act for a remotely located individual. Requires a notarial officer, before performing his/her/their initial notarial act for a remotely located individual, to notify the Secretary of State that he/she/they will be performing such notarial acts, and identify the technologies the notarial officer intends to use. Requires selected communication technology to conform to standards, if any, established by the Secretary of State, and for the Secretary to approve use of technology that conforms to the Secretary’s standards. If all of the following apply in accordance with Delaware’s RULONA. 1. The notarial officer has one or more of the following: • personal knowledge of the identity of the remotely located individual; • satisfactory evidence of the identity of the remotely located individual by oath or affirmation from a credible witness appearing before the notarial officer; • satisfactory evidence of the remotely located individual by using at least 2 different types of identity proofing. 2. The notarial officer can reasonably confirm that a record before the notarial officer is the same record in which the remotely located individual made a statement or on which the individual executed a signature Establishes additional requirements for performance of a notarial act involving a remotely located individual, when the remotely located individual is located outside of the United States at the time of the notarial act. Provides that the act of making the statement (in the record) or signing the record cannot be prohibited by the foreign state in which the remotely located individual is located. Authorizes performance of a notarial act for a remotely located individual, using communication technology, and involving a tangible record. Prescribes detailed requirements for performance of the notarial act under these circumstances, including that: • The remotely located individual must display and identify the record during the audio-visual recording of the notarial act; sign the record and a declaration* during the audio-visual recording of the notarial act; and send the record and signed declaration to the notarial officer no later than three days after the notarial act was performed; and • The notarial officer must record the individual signing the record and declaration; execute a certificate of notarial act on the signed record received from the remotely located individual; include in the notarial certificate a statement substantially as: “I (name of notarial officer) witnessed, by means of communication technology, (name of remotely located individual) sign the attached record and declaration on (date).” __________ *The remotely located individual’s declaration must be part of or securely attached to the electronic record, and worded substantially as follows: “I declare under penalty of perjury that the record of which this declaration is a part or to which it is attached is the same record on which (name of notarial officer), a notarial officer, performed a notarial act and before whom I appeared by means of communication technology on (date).” Provides that a notarial act performed as specified, for a remotely located individual executing a tangible record, complies with §4328(a)(1), Title 29, Code of Delaware, and is effective on the date the remotely located individual signed the required declaration. Clarifies that the law does not preclude use of other procedures used to satisfy the requirements of law for performance of a notarial act for a remotely located individual executing a tangible record. Authorizes a Delaware notarial officer to use communication technology to administer an oath to a remotely located individual if, except as otherwise provided by other Delaware law, the notarial officer: identifies the individual in the same way that the law requires identifying a remotely located individual executing a record; creates or causes creation of an audio-visual recording of the individual taking the oath; and retains or causes retention of the recording of the individual taking the oath. Requires the notarial certificate for a notarial act involving a remotely located individual to indicate that the notarial act was performed using communication technology. Provides that a short-form notarial certificate under §4329, Title 29, Code of Delaware, is sufficient if it does any of the following: complies with any regulations adopted by the Secretary of State; is in the form prescribed under §4329 and contains a statement substantially like “This notarial act involved the use of communication technology.” Notarial Records Requires a notarial officer, guardian, conservator or agent of a notarial officer, or personal representative of a deceased notarial officer to retain the audio-visual recording of a notarization performed for a remotely located individual or cause such recording to be retained by a repository designated by or on behalf of the person required to retain the recording. Requires retention of a recording for at least 10 years, unless a different period is required by administrative rules of the Secretary of State. Requires that, prior to performing his/her/their initial notarial act for a remotely located individual, a notarial officer shall: • notify the Secretary of State that the notarial officer will be performing notarial acts with respect to remotely located individuals; • identify for the Secretary of State the technologies the notarial officer intends to use. Validity of Notarial Acts; Applicability of Law; Relation to Other Law Establishes that the newly enacted provisions of Delaware’s RULONA apply to notarial acts performed on or after the effective date of the Act. Clarifies that the provisions of Delaware’s RULONA do not affect the validity or effect of a notarial act performed before the Act’s effective date. Provides that the failure of a notarial officer to perform a duty or meet a requirement specified in Delaware’s RULONA does not invalidate a notarial act performed by the notarial officer, but clarifies that the validity of a notarial act performed under the RULONA does not prevent an aggrieved person from seeking to invalidate the record or transaction that is the subject of the notarial act, or from seeking other remedies based on other Delaware law or U.S. law. Further clarifies that this section of the Act does not validate a purported notarial act performed by an individual who lacked authority to perform the notarial act. Requires that in applying and construing the RULONA, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among (other) states enacting the RULONA. Secretary of State Provides the Secretary of State with broad rulemaking authority to specify the manner in which notarial acts—for physically present or remotely present individuals, with respect to tangible and electronic records—shall be performed in Delaware. Allows rules to include provisions ensuring that any change to or tampering with a recording bearing a notarial certificate shall be self-evident; ensuring integrity in the creation, transmittal, storage or authentication of electronic records or signatures; prescribing the process of granting, renewing, conditioning, denying, suspending or revoking a Notary Public commission and assuring the trustworthiness of an individual holding a commission as Notary Public; and preventing fraud or mistake in the performance of notarial acts. Specifies that the Secretary—in adopting, amending or repealing rules about notarial acts with respect to electronic records—shall consider so far as is consistent with Delaware’s RULONA, all of the following: the most recent standards regarding electronic records promulgated by national bodies; standards, practices and customs of other jurisdictions that substantially enact the RULONA; the views of governmental officials and entities and other interested persons. Requires the Secretary—before adopting, amending or repealing a regulation governing performance of a notarial act with respect to a remotely located individual— to consider the most recent standards promulgated by national standard-setting organizations and the recommendations of the National Association of Secretaries of State; the standards, practices and customs of other jurisdictions with laws substantially similar to Delaware’s; and the views of governmental officials and entities and other interested persons. Prohibits regulations regarding performance of notarial acts with respect to electronic record from requiring or according greater legal status of effect to the implementation or application of a specific technology or technical specification. Retains current law’s provisions allowing the Secretary of State to promulgate regulations or establish additional standards and guidelines governing applications, registrations, appointments, and the conduct of Notaries Public. Requires that if that the Secretary of State has established standards, as allowed by law, for approval of communication technology or identity proofing, the communication technology and identity proofing must conform to the standards. Specifies that by allowing its communication technology to facilitate a notarization for a remotely located individual, the provider of the technology appoints the Secretary of State as agent for service of process in any civil action in Delaware related to the notarial act. Requires the Secretary of State to maintain an electronic database of Notaries Public, which must permit a person to verify the authority of a Notary Public to perform notarial acts; and indicate whether a Notary Public has notified the Secretary of State that the Notary will be performing electronic notarial acts, or notarial acts for remotely located individuals. Other Provisions Special Notary Commissions. Amends laws dealing with special Notary commissions. Establishes that upon request of the administrative head of a qualified police agency, the Governor shall appoint a sufficient number of limited governmental Notaries Public. Clarifies that “qualified police agency” means a state, county, municipal, or local governmental agency or unit of Delaware whose personnel includes full-time police officers who are statutorily responsible for prevention or investigation of crime involving injury to persons or property, and who are authorized to execute search warrants and make arrests. Provides that such limited governmental Notaries Public shall be appointed for a term of 2 years, at no charge to the appointee, administrative head, or police agency. Provides the qualifications for an individual to be appointed as a limited governmental Notary Public. Provides that appointment as a limited governmental Notary Public expires on the end of the individual’s employment with a state governmental agency or unit or qualified police agency. Clarifies that individuals appointed as a limited governmental Notary Public may not perform a notarial act other than a notarial act authorized by the individual’s state governmental agency or unit or qualified police agency; or charge for a service rendered. Requires a limited governmental Notary’s official stamp to comply with §4330, Title 29, Code of Delaware except for the statement of commission expiration date, which shall be “My commission expires upon office.” Requires an individual appointed as a limited governmental Notary to notify the Secretary of State, within 30 days, following transfer of employment to another state governmental agency or unit or qualified police agency. Clarifies that the individual may retain his/her/their limited governmental Notary appointment only if the individual provides the Secretary of State an employer request and approval form from the agency or unit or qualified police agency to which the individual transferred. Recording of a Tangible Copy of an Electronic Record. Authorizes a Recorder 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 that the tangible copy is an accurate copy of the electronic record. Notary Public Commission in Effect. Provides that a Notary Public commission in effect on the effective date of Delaware’s RULONA continues until the date of commission expiration. Further provides that a Notary Public applying to renew a commission on or after the effective date of Delaware’s RULONA is subject to and shall comply with the RULONA; and that a Notary Public performing notarial acts after the effective date of the RULONA shall comply with it. State of Emergency Declaration Provisions, Continuance Provides that the provisions of Paragraph B of the Eleventh Modification of the State of Emergency Declaration of April 15, 2020, continues in full force and effect until July 31, 2023. Makes various statutory text amendments that do not change the substance or effect of the prior text. |
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| DISTRICT OF COLUMBIA – Notary Public, Electronic Notarization Administrative Rules Effective October 21, 2022 View the regulations (Note: only individuals with a current District of Columbia Notary Public commission may obtain an endorsement to act as a District of Columbia electronic Notary, subject to meeting all requirements. As such, all administrative rule provisions applicable to a Notary Public also apply when the Notary is acting as an electronic Notary Public.) Definitions Defines key terms: “acknowledgment,” “act,” “District of Columbia Government Notary,” “electronic,” “electronic Notary,” “electronic signature,” “in a representative capacity,” “notarial act,” “notarial sealer,” “Notary Public,” “official seal,” “ONCA,” “person,” “record,” “Secretary,” “sign,” “signature,” “state,” “tamper-evident technology,” and “verification on oath or affirmation.” Notary Application Requirements, Process • Qualifications, Application. Requires a Notary Public applicant to be at least 18 years of age; a citizen or permanent legal resident of the United States; a resident of, or with a primary place of employment or practice in, the District of Columbia; and not disqualified to receive a commission under the relevant sections of DC law and administrative rules. Explicitly allows ONCA to deny a Notary Public commission or electronic Notary endorsement to an applicant who fails to comply with the requirements of DC’s RULONA or who fails to meet application requirements. Requires an applicant for a Notary Public commission to provide the applicant’s name as the applicant wishes it to appear on the Notary commission. Requires this name to be used each time the individual’s Notary signature is used for a notarial act. Requires a first-time Notary applicant to complete a training class provided by the DC Secretary or Office of Notary Commissions and Authentications (ONCA); take the civil-officer oath provided in D.C. Official Code §1-501 (2016 Repl.); file with ONCA the applicant’s signature and impression of his/her/their official seal; indicate (on a form provided by ONCA) the language(s) in which the applicant intends to perform notarial acts. The applicant is required to read and write in the language of any record on which the applicant performs a notarial act; and pay the notary commission application fee. • Assurance (Bond). Requires an applicant, before being issued a Notary Public commission, to submit to ONCA an assurance in the form of a surety bond or its functional equivalent in the amount of $2000. Such assurance must be issued by a surety or other entity licensed or authorized to do business in the District; cover acts performed during the term of the Notary Public’s commission; and be in the form prescribed by ONCA. Requires the surety or issuing entity to notify ONCA not later than thirty (30) days after making a payment to a claimant under the assurance. Requires a DC Notary Public to maintain his/her/their assurance throughout the term of the Notary’s commission, and clarifies that a Notary may perform notarial acts in the District only during the period that a valid assurance is on file with ONCA. Exempts Notaries Public commissioned only on behalf of the government of the District of Columbia from the requirement of a surety bond or functional equivalent. Clarifies that a District of Columbia government Notary may perform notarial acts only in that capacity, on behalf of the DC government. • Commission. Provides that on satisfaction of Subsections 2400.1, 2400.2 and 2400.6(a) of these administrative rules, ONCA shall issue an applicant a commission as a Notary Public for a term of five (5) years. Requires the certificate granting a DC Notary commission to be signed by the Secretary of the District or the Secretary’s designee. Provides that a Notary commission from ONCA authorizes the Notary Public to perform notarial acts only within the District of Columbia. Clarifies that a Notary commission does not provide the commissioned Notary Public any immunity or benefit conferred, by law of the District, on public officials or employees. Specifies that Notaries Public not otherwise authorized to perform notarial acts under DC’s RULONA, or under state or federal law, must reapply with ONCA for each commission term. Provides that ONCA shall approve and issue a Notary Public commission or electronic Notary endorsement to an applicant who fulfills the requirements. Prohibits an applicant for a new or renewing Notary commission from performing any notarial acts before taking the oath of office for a new or renewed commission. Provides that the term of a DC Notary Public commission expires five (5) years after the Notary’s commission date. Provides that each Notary’s commission term shall either: begin on the first day of a month and end on the last day of the prior month, except that a commission starting at the beginning of January will start on a January 2nd and end on a January 1st; or begin on the fifteenth (15th) day of a month and end on the fourteenth (14th) day of that month. Notary Commission or eNotary Endorsement Denial, Refusal to Renewal, Revocation, Suspension, or Condition Imposed Provides that notwithstanding Administrative Rule Subsection 2400.8, ONCA may deny, refuse to renew, revoke, suspend or impose a condition on a Notary Public commission or electronic Notary endorsement for any act or omission that demonstrates the individual lacks the honesty, integrity, competence or reliability to act as a Notary Public as set forth under DC’s RULONA (D.C. Official Code §1-1231.22). Establishes that any restriction, suspension or revocation of a Notary Public’s commission will automatically have the same effect on any electronic Notary endorsement the Notary Public holds. Entitles an affected applicant or Notary Public to timely notice and hearing before the Office of Administrative Hearings pursuant to DC’s Office of Administrative Hearings Establishment Act of 2001 and applicable administrative rules, and specifies where a petition for review shall be sent. Clarifies that ONCA’s authority to deny, refuse to renew, suspend, revoke or impose conditions on a Notary Public commission shall not prevent a person from seeking and obtaining other criminal or civil remedies provided by law. Notary Commission Maintenance, Responsibilities Requires a DC Notary Public with a name or address change to notify ONCA within thirty (30) days* of the change. Requires such notification to be made using the forms prescribed by ONCA. Specifies that a Notary Public’s name change notification must be accompanied by a bond rider from the Notary’s bonding company, amending the Notary bond and including a duplicate Notary certificate showing the individual’s new name. Provides that ONCA will not impose a fee for a name or address change, nor issue a new certificate. Requires a Notary that submits a name change notification to continue using their original Notary seal and original name as commissioned until that commission is renewed. Provides that upon commission renewal, the Notary will receive a new commission certificate and seal with the individual’s new information. Requires a DC Notary Public to report to ONCA, in writing or by email to notary@dc.gov, any change in the information submitted on the individual’s Notary Public commission application and to do so within fifteen (15) business days.* _______________ *American Society of Notaries recommends that, in light of two different reporting periods for changes in the same or similar information, Notaries with information changes notify the ONCA in writing within fifteen (15) business days of the change, as this is the sooner of the two reporting period deadlines. Electronic Notary Public; Endorsement An applicant may apply for an electronic Notary endorsement by meeting the requirements of DC law and administrative rules, submitting an electronic Notary application on forms provided by ONCA, and paying the $30 application fee. An applicant for an electronic Notary endorsement must current hold an active, District of Columbia Notary commission. An applicant for an electronic Notary endorsement must, within 30 days of receiving the endorsement, complete a training course provided by ONCA; take the oath prescribed for civil officers in the District (D.C. Official Code §1-501 (2016 Repl.)); notify ONCA of the tamper-evident technology provider that the electronic Notary intends to use; and file an exemplar of the electronic Notary’s electronic signature and official seal. The individual may not perform his/her/their initial electronic notarial act before fully complying with these requirements. Establishes that an electronic Notary endorsement is valid from the date ONCA issues it and remains valid as long as the Notary’s current Notary commission term remains valid, unless ONCA terminates the endorsement pursuant to DC’s RULONA (D.C. Official Code §1-1231.22); or the electronic Notary resigns the endorsement. Commission, Endorsement Fees Provides the following fees: $75 - application for a Notary Public commission; $30 - application for an electronic records Notary Public endorsement; $75 – renewing a Notary Public commission; $30 – renewing.an electronic records Notary Public endorsement. Exempts a Notary Public in service to the U.S. government or the District of Columbia from paying an application fee for an ONCA-issued Notary Public commission, or for an endorsement as an electronic Notary Public. Clarifies that such applicant’s notarial duties must be confined to official federal or District of Columbia government business. Notary’s Termination of Commission or Electronic Notary Endorsement Allows a Notary Public to terminate their Notary Public commission or electronic Notary endorsement by notifying ONCA of this intent in writing, or via email to notary@dc.gov. Requires an electronic Notary to notify ONCA of this intent in writing, or by email to notary@dc.gov, and to dispose of all or any part of a tamper-evident technology in the Notary’s control whose purpose was to perform electronic notarizations. Clarifies that a Notary Public may terminate an electronic Notary endorsement but still maintain the Notary Public commission. Requires a Notary Public whose commission is terminated or expired, either by the Notary or ONCA, to disable his/her/their official seal by destroying, defacing, damaging, or securing the device against further use. Notary’s Official Seal Specifies that a DC Notary Public’s official seal shall include: (a) the Notary Public’s name at the top, exactly as indicated on the individual’s commission; (b) the words “Notary Public”; (c) the words “District of Columbia”; (d) the Notary Public’s commission expiration date; and (e) a border in a circular shape no larger than one and three-quarters inches (1.75 in.) surrounding the required words. Prohibits a Notary’s official seal from containing the District of Columbia corporate seal. Requires an official seal affixed on a tangible record to be applied in permanent ink, and be capable of being photocopied. Additionally requires that if the document to be notarized is made of non-porous material such as Mylar or similar to which standard ink will not adhere, an embossed seal must be used alone or in conjunction with a non-porous, permanent ink that dries through evaporation and that will adhere without smearing. Specifies that a Notary Public commissioned by ONCA shall procure an official seal only after receiving the appointment notice evidencing the Notary’s commission from ONCA, and shall provide a copy of this notice to the Notary’s chosen seal vendor as part of procuring the seal. Clarifies that a DC Notary Public whose commission was in effect on December 4, 2018 may continue to use their (existing) notarial seal until their (current) commission expires. Provides procedures for replacement of a Notary Public’s or electronic Notary Public’s lost or stolen official seal. Requires a Notary Public or electronic Notary to notify ONCA, in writing or by email to notary@dc.gov, within ten (10) business days of discovering the seal was lost or stolen. Prohibits a Notary Public or electronic Notary from obtaining a replacement official seal until they have notified ONCA of the lost or stolen seal, as required by administrative rule. Requires a replacement official seal to contain some variance from the original seal, and requires a Notary Public or electronic Notary to provide ONCA an impression of the new seal. Requires that if an original seal or electronic seal that was lost or stolen is found or recovered after a replacement has already been obtained, the Notary Public or electronic Notary must destroy the original seal. Requires a Notary Public whose commission is terminated or expired, either by the Notary or ONCA, to disable his/her/their official seal by destroying, defacing, damaging, or securing the device against further use. Performing Notarial Acts • General Provisions. Requires a Notary Public performing a notarial act pursuant to a commission or an electronic Notary endorsement from ONCA shall perform such act within the geographic borders of the District of Columbia. Establishes the determinations to be made by a DC notarial officer or electronic Notary for performance of an acknowledgment, signature witnessing, verification on oath or affirmation, and certification or attestation of a copy of a record or item that was copied. Requires a notarial officer—other than a Notary Public acting pursuant to a commission from the federal government—who makes or notes a protest of a negotiable instrument to follow the process set forth in D.C. Official Code §28:3-505(b), “Evidence of Dishonor.” Authorizes a DC Notary Public to refuse to perform a notarial act unless refusal is prohibited by other law of the District of Columbia. Clarifies that a Notary Public, other than one acting under a commission from the federal government, may refuse to perform a notarial act if the Notary is not satisfied that (a) the individual executing the record is competent or has the capacity to execute the record; or (b) the individual’s signature is knowingly and voluntarily made. • Identifying Individuals Appearing Before the Notary. Provides that a notarial officer has personal knowledge of the identity of an individual appearing before the notarial officer if prior dealings with the individual give the notarial officer reasonable certainty that the individual has the identity claimed. Specifies that a notarial officer has satisfactory evidence of a present individual’s identity if the notarial officer can identify the individual by means of (a) current government-issued identification that is a passport, driver’s license or government-issued non-driver identification card; or (b) another form of current, government-issued identification that contains the signature or photograph of the individual and is satisfactory to the notarial officer; or (c) a verification on oath or affirmation of a credible witness personally appearing before the notarial officer and known to the officer, or whom the officer can identify based on a current passport, driver’s license or government-issued non-driver identification card. • Notarizing for an Individual Who is Physically Unable to Sign. Allows an individual other than the notarial officer—at the direction of another individual who is physically unable to sign a record—to sign the physically-unable individual’s name on a record requiring a notarial act. Requires the officiating notarial officer to insert “Signature affixed by [name of other individual] at the direction of [name of individual]” or words of similar import. • Notary’s Signature and Certificate Requirements. Requires notarial acts (excepting certain notarial act authorized under a commission from the federal government) to be evidenced by a notarial certificate. Requires a DC Notary Public to sign the notarial certificate for a completed notarial act with the exact name that appears on the Notary’s certificate of commission and his/her/their official seal. Requires a notarial certificate to: (a) be executed contemporaneously with the performance of the notarial act; (b) be dated; (c) identify the jurisdiction in which the notarial act is performed; (d) contain the notarial officer’s title of office; and (e) if the notarial officer is a notary public commissioned by ONCA: 1. be signed by the notary public in the same manner as on file with ONCA; and 2. indicate the date of expiration of the notary’s commission. Requires a notarial act (other than one authorized under a commission from the federal government) regarding a tangible record and performed by a Notary Public to include an official seal affixed to or directly embossed on the certificate. Clarifies that if a notarial act (other than one authorized under a commission from the federal government) regarding a tangible record is performed by a notarial officer other than a Notary Public; and the certificate contains the date of notarization, jurisdiction in which the notarial was performed and the notarial officer’s title of office; an official seal may be affixed to or embossed on the certificate. Prohibits a Notary Public from affixing the Notary’s signature to, or logically associating the signature with, a certificate until the notarial act has been performed. Electronic Notarial Acts • Authorization; Electronic Notarial Acts. Authorizes a DC Notary Public who has received an electronic Notary endorsement from ONCA to perform these notarial acts electronically: taking an acknowledgment; taking a verification on oath or affirmation; witnessing or attesting a signature; certifying or attesting a copy. A DC electronic Notary may also note a protest of a negotiable instrument IF the electronic Notary Public is licensed to practice law in the District; is acting under the authority of an attorney who is licensed to practice law in the District or another state; or is acting under the authority of a financial institution regulated by the District of Columbia, another state, or the federal government. Requires electronic notarial acts to conform to the requirements of these administrative rules and Section 21 of the District of Columbia’s RULONA (D.C. Official Code §1-1231.20). • Notary’s Electronic Notarial Certificate, Electronic Signature, Electronic Seal. Requires that, for every electronic notarial act, an electronic Notary must complete an electronic notarial certificate that complies with the requirements of Sections 15 and 16 of DC’s RULONA (DC Official Code §§1231.14 and 1-1231.15). Requires an electronic notarial certificate to be completed at the time of notarization and in the physical presence of the individual making the statement or executing the signature. Requires an electronic Notary to sign each electronic notarial certificate with an electronic signature that complies with DC Administrative Rule 17-2414; and to authenticate an electronic notarial act with an official electronic seal that complies with DC Administrative 17-2415. Specifies that an electronic Notary shall use a tamper-evident technology that complies with Administrative Rule 17-2410 to produce the Notary’s electronic signature in a manner that is capable of independent verification. Requires an electronic Notary to use a tamper-evident technology that complies with DC Administrative Rule 17-2410 to produce the Notary’s electronic signature in a manner that is capable of independent verification. Requires an electronic Notary to take reasonable steps to ensure that no other individual may possess or access the Notary’s electronic signature. • Technologies Used by a DC Electronic Notary. Prohibits use of the tamper-evident technology used to attach an electronic Notary’s electronic seal for any purpose other than performing electronic notarial acts as authorized and specified under DC’s RULONA and the related administrative rules. Requires the tamper-evident technologies used by a DC electronic Notary Public to comply with the following rules: A technology provider shall: (a) Enroll only DC Notaries Public who have been issued an electronic Notary endorsement pursuant to Administrative Rule Section 2400; (b) Take reasonable steps to ensure that a Notary Public who has selected that provider’s technology has the knowledge to use it to perform electronic notarial acts in compliance with the District’s applicable administrative rules. A tamper-evident technology shall: (a) Require access to the technology provider’s system by use of a password, or other secure means of authentication; (b) Enable an electronic Notary Public to affix the electronic Notary’s electronic signature and electronic seal in a manner that attributes such signature and seal to that Notary, and in such manner that a party that either sought the Notary’s electronic signature and seal on one or more electronic documents or seeks access to one or more documents containing the Notary’s electronic signature and seal can detect unauthorized tampering or alteration of the electronic document after it has been digitally signed by the electronic Notary. Records of Notarial Acts • Journal Required. Requires a DC Notary Public or electronic Notary to record each notarial act performed in a journal, and to do so at the time of notarization. Specifies that journal records shall be kept in compliance with DC’s RULONA (D.C. Official Code §1-1231.18) and applicable administrative rules, as follows. Specifies that the Notary shall maintain the journal containing all notarial acts performed. • Journal Format. Authorizes a journal maintained by a Notary to be created on a tangible medium or in an electronic format. Clarifies that a Notary may maintain a separate journal for tangible records. Requires a journal in a tangible medium to be a permanent, bound register with numbered pages. Specifies that a journal maintained in an electronic format shall be protected with technology designed to allow a person inspecting the journal to determine whether any tampering with the journal has occurred. Specifies the format of a tangible notarial journal, which shall be a permanent, bound book with numbered pages and have the capacity to record, for each notarial act: (1) the information required by DC’s RULONA (D.C. Official Code §1-1231.18(c)(1)-(7)); a description of the Notary’s method of identifying the individual for whom the notarial act was performed; and (3) the individual’s signature, or the signature of an authorized party (one directed by a physically unable individual to sign for the individual under D. C. Official Code §1-1231.08). Requires a Notary Public’s electronic journal, if such is maintained by the Notary, to be capable of recording the same information required for a tangible notarial journal; enable access by a password or other secure means of authentication; be capable of creating a duplicate record of the journal as a backup; and be capable of providing tangible or electronic copies of any entry made in the electronic journal. • Journal Entries. Requires an entry in a journal to be made contemporaneously with performance of the notarial act, and contain the following information: (1) the date and time of the notarial act; (2) a description of the record, if any, and type of notarial act; (3) the full name and address of each individual for whom the notarial act is performed; (4) if the identity of the individual is based on personal knowledge, a statement to that effect; (5) if the identity of the individual is based on satisfactory evidence, a brief description of the method of identification and the identification credential presented, if any, including the date of issuance and expiration of an identification credential when such a credential is used; (6) the fee, if any charged by the Notary; and (7) the signature of each individual for whom the notarial act is performed. • Journal Retention, Disposition. Requires that a Notary Public’s journal containing records of all notarial acts performed shall be retained by the Notary until the journal must be transmitted to ONCA pursuant to Administrative Rule 17-2417.1, paragraphs (e) and (f). Provides that when a Notary Public’s journal is lost or stolen, the Notary must notify ONCA within ten (10) business days of discovering the journal was lost or stolen. Requires the Notary to purchase a new journal within fifteen (15) days of discovering the journal was lost or stolen. Requires a Notary Public or electronic Notary—upon termination, revocation or suspension of the Notary’s commission or electronic Notary endorsement—to transmit the journal to ONCA. Also requires a Notary’s or electronic Notary’s personal representative, guardian, or any other person knowingly in possession of the Notary’s journal to transmit it to ONCA if the Notary dies or is adjudicated incompetent. Fees for Notarial Acts Specifies that the maximum fee a commissioned Notary Public or electronic Notary may charge for witnessing or attesting a signature, taking an acknowledgement or verification on oath or affirmation, certifying or attesting a copy, and administering an oath or affirmation is $5 per act performed. Allows an electronic Notary to also charge an additional fee based on the electronic technology the Notary uses, if that additional technology fee is reasonable, agreed-to in advance with the customer and itemized separately on the invoice of fees. (Note: such a fee is commonly known as a “technology fee,” meant to allow a Notary to recoup the additional costs of utilizing technology to perform electronic notarial acts.) Clarifies that, except for a Notary Public commissioned by the federal government, a Notary Public—including an electronic Notary—who is exempted from paying the commission application fee shall not collect a fee for performing notarial acts. Clarifies that nothing in DC’s administrative rules shall be construed to require a Notary Public or an electronic Notary to charge for performing notarial acts. Establishes that a commissioned DC Notary, including an electronic Notary, may charge the actual costs of copying any instrument or record in addition to charging the authorized fees for performing notarial acts and using electronic technology. Clarifies that the Notary may not charge any other additional fees when performing the notarial act in the Notary’s place of business or residence. Allows a commissioned DC Notary, including an electronic Notary, to charge a travel fee when traveling to perform a notarial act if (a) the Notary and the individual requesting the notarial act agree upon the travel fee in advance of the travel; and (b) the Notary explains to the individual requesting the notarial ac that the travel fee is in addition to notarial-act fees, and is not required by law. Clarifies that the allowed travel fee is (only) for travel to a place that is not the usual place where a Notary performs notarial acts; and that the fee shall not exceed the actual and reasonable expense of traveling to the place where the notarial act is to be performed. Prohibits a District of Columbia Government Notary from charging a fee for notarial acts performed in that capacity, except as authorized by state or regulation. Defines “capable of independent verification,” for purposes of Administrative Rule 7-2414, to mean that any interested individual may confirm through ONCA that an electronic Notary who signed an electronic record in an official capacity had authority at that time to perform electronic notarial acts. Authorizes an electronic Notary to use an electronic seal to authenticate an electronic notarial act, if the electronic notarial certificate conforms to specified requirements of DC’s RULONA (D.C. Official Code §§1-1231.14 and 1-1231.15). Provides that only the electronic Notary shall authenticate an electronic notarial record with the Notary’s official seal. Requires the electronic seal of an electronic Notary to be a digital image appearing in the likeness or representation of a traditional, physical Notary Public official seal and meeting the official seal requirements provided in DC RULONA (D.C. Official Code §1-1231.16) and Administrative Rule 17-2404. Authorizes an electronic Notary to refuse to perform a notarial act for the reasons listed in Section 8 of DC’s RULONA (D.C. Official Code §1-1231.07) and DC Administrative Rule 17-2416. Requires an electronic Notary to refuse a request to use a tamper-evident technology that the electronic Notary does not know how to operate; or perform an electronic notarial act if the electronic Notary has a reasonable belief that the tamper-evident technology does not meet the requirements set forth in the District’s administrative rules. Provides that a notarial certificate is sufficient if it meets the requirements of Administrative Rules 17-2407.2 and 17-2407.3 and it is: (a) In a short from as set forth in Section 16 of DC’s RULONA; (b) In a form otherwise permitted by DC law; or (c) In a form permitted by the law applicable in the jurisdiction in which the notarial act was performed, and it sets forth the actions of the Notary Public. Specifies that by executing a notarial certificate, a Notary Public certifies that the Notary has complied with the requirements, and made the determinations, specified in Sections 4 through 6 of the RULONA (D.C. Official Code §§ 1-1231.03, 1-1231.04, and 1-1231.05). Provides that the certificate forms in D.C.’s RULONA (Official Code §1-1231.15) are examples of certificates with the sufficient information included. Requires that in contexts where another law of the District requires a specific certificate form, that form shall be used. Prohibited Acts and Ethical Conduct Provides that a commission as a Notary Public does not authorize an individual to assist persons in drafting legal records, give legal advice or otherwise practice law; act as an immigration consultant or an expert on immigration matters; represent a person in a judicial or administrative proceeding relating to immigration to the United States, or United States citizenship, or related matters; or receive compensation for performing any of the preceding activities. Prohibits a Notary Public from: • engaging in false or deceptive advertising; • representing themselves as a “notario” or “notario publico” unless the Notary is also an attorney licensed to practice law in the District; • charging a higher fee than permitted in D.C.’s administrative rules; • advertising or representing that the Notary may assist persons in drafting legal records, giving legal advice, or otherwise practicing law, unless the Notary is also an attorney licensed to practice law in the District. Requires a Notary Public who is not a licensed DC attorney, and who advertises or represents orally or in a record (including through broadcast media, print media, and the Internet) that the Notary offers notarial services, to include the following statement in the advertisement or representation: “I am not allowed to draft legal records, give advice on legal matters, including immigration, or charge a fee for those activities.” If the form of advertisement or representation is not broadcast media, print media or the Internet and does not permit inclusion of the required statement due to size, the required statement shall be displayed prominently or provided (to the principal whose signature will be notarized) at the place of performance of the notarial act and before the notarial act is performed. Requires a Notary Public, except as otherwise authorized by law, to return original records to the person who provided them to the Notary Public upon request of the person.* _______________ *Remember that DC’s RULONA defines “person” as an individual, estate, business or nonprofit entity, public corporation, government or governmental subdivision, agency, or instrumentality, or other legal entity. Other Provisions Addresses matters relating to the Secretary of the District’s certifications (authentications) of seals and signatures of Notaries Public appointed in the District, and of the signatures of DC governmental officials who are required to sign documents of public records. ----------------------- DISTRICT OF COLUMBIA - D.C. Act 24-0529 (Law Number L24-0178) Effective 9-21-22 View this bill Amends 2018’s Revised Uniform Law on Notarial Acts. Authorizes a Notary Public to perform notarial acts for remotely located individuals. Definitions Defines the following key terms: “communication technology,” “identity proofing,” “remotely located individual.” Notarial Acts for Remotely Located Individuals Authorizes a District of Columbia Notary Public, located in the District, to perform a notarial act for a remotely located individual, subject to requirements that include: 1. The remotely located individual appears before the Notary Public by means of communication technology; 2. The Notary Public personally knows the remotely located individual, or can identify the individual through satisfactory evidence (oath or affirmation from a credible witness personally appearing before the Notary as specified in DC’s RULONA, or by means of at least two different types of identity proofing); 3. 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; 4. The Notary or a person acting on behalf of the Notary creates an audio-visual recording of performance of the notarial act; and 5. If the remotely located individual is located outside of the United States, all the additional requirements for notarizing under this circumstance can be met. Requires a Notary Public, before performing his/her/their initial act for a remotely located individual, to notify the Mayor of the District that the Notary Public will be performing notarial acts for remotely located individuals, and identify the technologies the Notary intends to use. Requires that the Notary Public use communication technology and identity proofing technologies that conform to standards, if any, established by the Mayor. Requires a certificate of notarial act performed for a remotely located individual to indicate that the notarial act was performed using communication technology. Provides that such a notarial certificate is sufficient if it complies with any rules issued by the Mayor of the District of Columbia, or is in a form that complies with the forms given in the RULONA and contains a statement substantially like, “This notarial act involved the use of communication technology.” Provides procedural requirements for a District of Columbia Notary Public to use communication technology, as prescribed in the RULONA, to take an acknowledgment of a signature on a tangible record not physically present before the Notary. Requires the record to be displayed to, and identified by, the remotely located individual during the required audio-visual recording of the notarial act. Further requires the remotely located individual, during the audio-visual recording, to sign the record and a declaration, in substantially the form provided by law, that is part of or securely attached to the tangible record; and to send the record and declaration to the Notary Public—by First-Class U.S. Mail or delivery by common-carrier or commercial delivery service—not later than three days after the notarial act was performed. Requires the Notary’s completed notarial certificate to include a statement substantially like, “I, (name of Notary Public), witnessed by means of communication technology (name of remotely located individual) sign the attached record and declaration on (date).” Specifies that the completed notarial act for a remotely located individual signing a tangible record not physically present with the Notary is effective on the date the remotely located individual signed the required declaration.* _______________ *NOTE: The effect of this requirement is that the date of the notarial act is deemed to be the date that the Notary performed the notarization using communication technology, and observed the remotely located individual sign the record and declaration during the audio-visual communication session. Allows, except as otherwise provided by other District of Columbia law, a Notary Public located in the District to use communication technology as prescribed in the RULONA to administer an oath to a remotely located individual if the Notary identifies the individual by personal knowledge or satisfactory evidence (oath or affirmation from a credible witness personally appearing before the Notary as specified in DC’s RULONA, or by means of at least two different types of identity proofing). The Notary must also create an audio-visual recording of the individual taking the oath; and retain or cause retention of the required audio-visual recording. Records of Notarial Acts for Remotely Located Individuals Requires a Notary Public; or a guardian, conservator or agent of the Notary Public; or a personal representative of a deceased Notary Public to retain the audio-visual recording of a notarial act performed for a remotely located individual, or cause the recording to be retained by a repository designated by or on behalf of the person required to retain the recording. Each such recording must be retained for at least 10 years. Other Notarial Powers Allows a notarial officer to certify that a tangible copy of an electronic record is an accurate copy of the electronic record. Authorizes a recorder of deeds to accept for recording, as originals, such tangible copies of electronic records. Rulemaking Grants the Mayor broad rulemaking authority to implement the Act as revised. Other Provisions Provides that by allowing its communication technology or identity proofing to facilitate a notarial act for a remotely located individual, or by providing storage of the audio-visual recording, the provider of the communication technology, identity proofing or storage shall be deemed to appoint the Mayor as the provider’s agent for service of process in any civil action in the District related to the notarial act. Enacts various conforming amendments. |
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| FLORIDA—Admin Rule 1N-7.005, Required Information From Online Notaries Public and RON Service Providers Effective February 22, 2022 View these rules Florida Online Notaries Public Requires every current Florida Online Notary Public to file newly created Form No. DC-DOS-50 no later than thirty days after the new rule’s February 22, 2022 effective date; and any Florida Notary registering to function as a Florida Online Notary Public to submit the form at the time of his/her/their registration. Requires changes to any information previously reported on Form No. DC-DOS-50 to be submitted by the Online Notary within 30 days of the change, using the same Form DC-DOS-50. Collects the following information on Form DC-DOS-50: 1. The name of every remote online notarization (RON) service provider the Online Notary uses; 2. The date the Online Notary began using each RON service provider; 3. The ending date (if applicable) of the use agreement between the Online Notary and a RON service provider; 4. Whether the Online Notary delegated, to a secure repository, the Notary’s duty to retain electronic journal records of remote online notarizations. (The Remote Online Notary must provide the secure repository’s name, address, email or phone number; the date the repository began retaining the Notary’s electronic journal records; and any end date of the agreement, if applicable. An Online Notary Public must file a new form DC-DOS-50 upon the Notary making any change, addition, or removal from the Notary’s use of a RON service provider or secure repository. Remote Online Notarization Service Providers Requires every RON service provider offering remote online notarization technology for use by Florida Notaries to file newly created Form No. DC-DOS-51 no later than 30 days after the new rule’s February 22, 2022 effective date, and annually thereafter. Requires a RON service provider to use Form No. DC-DOS-51 to self-certify that its audio-video communication technology and related processes, services software, data storage, or other services provided to Florida’s Online Notaries Public satisfy the requirements of Chapter 117, Florida Statutes, and any administrative rules of the Florida Department of State. Further requires a RON service provider to utilize Form No. DC-DOS-51 to identify any secure repositories the provider is using to delegate its statutory duty to retain audio-video communication recordings of every remote online notarization performed. Provides that a RON service provider’s self-certification shall be effective for a period of one year after filing. Requires entities that seek to provide RON service provider functions after the effective date of Rule 1N-7.005 to submit Form No. DC-DOS-51 prior to providing any such services in Florida. ---------------- FLORIDA – CS/HB 121 Effective January 1, 2022 View this bill Revises Florida remote online notarizations statutes and makes various clarifying amendments to Chapter 117, Florida Statutes. Clarifies that that a Notary Public shall select the technology he/she/they will use to perform a notarial act with respect to an electronic record (document). Provides that a person cannot require a Notary Public to use a particular technology; however if the Notary Public is required by his or her contract or employer to perform electronic notarizations, the contract or employer may require use of a particular technology for such notarial acts. (Bill Section 1, 117.021.) Provides that an Online Notary Public shall select the RON service provider to be used to perform online notarizations. (Selection shall be made from the published list of self-certified RON service providers; see the following paragraph.) Prohibits a person from requiring an Online Notary Public to use a particular RON service provider, but provides that if the Online Notary Public is required by contract or employer to perform online notarizations, the contract or employer may require use of a particular RON service provider for those online notarizations. (Bill Section 8, 117.265.) Requires a RON service provider to file a self-certification with the Department of State, on a form adopted by department rule, confirming that its audio-video communication technology and related processes, services, services, software, data storage or other services provided to Florida’s Online Notaries Public satisfy the requirements of Chapter 117, Florida Statutes and any rules of the Department of State. Removes the requirement for individuals registering to function as an Online Notary Public to certify that their chosen RON service provider(s) satisfy the requirements of Florida’s law and administrative rules. Provides that certification filed by a RON service provider shall remain active for one year after the date of filing. Requires the Department of State to publish on its website a list of each RON service provider that has filed a self-certification, the date of such filing, and other specified information (notably, the effective dates during which an Online Notary Public used each RON service provider, and information about secure repositories used by the Online Notary Public for storage of his/her/their electronic journal). (Bill Section 10, 117.295(4)(a).) Requires an Online Notary Public to notify the Department of State of any change in his/her/their chosen RON service provider(s), and the effective date of the change, within 30 days of such change. (Bill Section 8, 117.265(5)(b).) Clarifies that the fee of a Notary Public may not exceed $10 for any one notarial act under Section 117.05, Florida Statutes, except as provided in F.S. §117.045 (pertaining to solemnizing marriages) or §117.275 (pertaining to fees for online notarizations). (Bill Section 2, 117.05(2)(a).) Authorizes an Online Notary Public or his/her/their employer to charge a fee not exceeding $25 for performance of an online notarial act. Clarifies that fees for services other than notarial acts, including the services of a RON service provider, are not governed by §117.275, Florida Statutes. Further clarifies that a RON service provider’s services are not considered closing services, as defined in F.S. §627.7711, and that a fee for those service may be charged separately. (Bill Section 9, 117.275.) Clarifies that for an online notarization involving a principal signer located outside of the United States, a passport issued by a foreign government that does not include the stamp of the United States Bureau of Citizenship and Immigration Services (USCIS) may be used as a government-issued identification credential to verify that person’s identity. (Bill Section 3, 117.201(6).) Provides that a Florida Notary Public, civil-law notary or commissioner of deeds may, when registering as an Online Notary with the Department of State, submit their commission or appointment number with the registration (instead of a copy of such commission or appointment). Clarifies that when registering to perform online notarizations, the registrant may identify the RON service provider or providers the registrant intends to use. (Bill Section 4, 117.225(1), (5).) Prohibits a RON service provider from using, selling, or offering to sell or transfer to another person, for use or sale, any personal information obtained during an online notarization which identifies a principal, a witness, or a person named in a record presented for online notarization. Provides limited exceptions to this prohibition. (Bill Section 10, 117.295(8).) Clarifies journaling (recordkeeping) requirements for Florida Online Notaries Public. Clarifies that when an Online Notary Public delegates the Notary’s duty to retain his/her/their electronic journal to a repository and notifies the Department of State of such delegation, the Online Notary must include the effective date of the delegation along with other relevant information. (Bill Section 6, 117.245(4).) Requires a RON service provider—not an Online Notary Public—to retain an uninterrupted and unedited copy of the recording of an audio-video communication in which an online notarization is performed. Clarifies that the officiating Online Notary Public must ensure that the recording includes certain specified events and information. Allows a RON service provider to contract with a secure repository to retain the recordings of audio-video communications, in accordance with any applicable administrative rules and if the Department of State is notified of the delegation within 30 days thereafter. Specifies certain information to be included in this notification to the Department of State. Provides that the secure repository shall fulfill the responsibilities of the Online Notary Public or RON service provider to provide copies of or access to recordings under F.S. §117.255(2) and (3). Provides that if an audio-video communication recording of an online notarization relating to the execution of an electronic will cannot be produced by the RON service provider, the Online Notary Public or the qualified custodian, the electronic will shall be treated as lost or destroyed subject to F.S. §733.207. (Bill Section 6, 117.245.) Specifies the parties to whom an Online Notary Public shall upon request provide electronic copies of electronic journal entries; and the parties to whom a RON service provider shall provide upon request access to the related audio-video communication recordings or a copy thereof. Clarifies that an Online Notary performing a particular online notarization shall be given access to or a copy of the related audio-video communication recordings; and that a RON service provider shall be provided electronic copies of pertinent electronic journal entries by an Online Notary Public. (Bill Section 7, 117.255(2).) Authorizes an Online Notary Public to charge a fee not exceeding $20 per transaction record for making and delivering electronic copies of a given series of related electronic records. Authorizes a RON service provider to charge a fee not to exceed $20 for providing access to, or a copy of, the related audio-video communication records. Requires that when an Online Notary Public or RON service provider charges a fee for these specific requests regarding electronic journal records or audio-video communication records, they must disclose the fee amount before fulfilling the request. Clarifies that such copies or access must be provided without charge if requested by certain specified parties within the 10-year retention period for records and recordings. (Those parties include the Online Notary Public performing that particular notarization; the qualified custodian of an electronic will notarized by the Online Notary Public; and the RON service provider used for the online notarization of those records.) (Bill Section 7, 117.255) Establishes that any Florida Notary Public may satisfy the requirements of §117.05 by using audio-video communication technology to take the oath of an individual who is testifying at any court proceeding, deposition, arbitration or public hearing, and who is outside of the Notary’s physical presence. Also allows use of audio-video communication technology by any Florida Notary Public for purposes of administering, to an individual outside of the Notary’s physical presence, an oath of admission to the Florida Bar. Requires that if such an individual from whom a Notary Public is allowed to take an oath using audio-video communication technology is located outside of Florida at the time of the oath-taking, the Notary must obtain the individual’s consent for the Notary to take the individual’s oath using audio-video communication technology. Clarifies that a Florida Notary need not be registered as an Online Notary in order to take an oath remotely under §117.231, Florida Statutes; nor must the Notary utilize a RON service provider for such purpose. (Bill Section 5, 117.231). |
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| GEORGIA – SB 96 Effective July 1, 2022 View this bill Specifies that satisfactory evidence of identification that a Georgia Notary Public may use to confirm the identity of a document signer, oath taker or affirmant shall include, but not be limited to, a valid Veterans health Identification Card issued by the United States Department of Veterans Affairs.”* _______________ *NOTE: While this will be the only actual naming in Georgia Notary law of a particular credential that may be relied upon by a Notary Public as “satisfactory evidence” of a person’s identity, it will not be the only credential that represents satisfactory evidence. The law will continue to allow a Notary to accept what the Notary deems to be satisfactory evidence of a person’s identity.) |
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| HAWAII – Admin Rules (HAR Chapter 5-11) Effective February 27, 2022 View the rules Significantly revises and updates Hawaii Administrative Rules, Chapter 5-11, to regulate the performance of notarial acts for remotely located individuals as authorized by Hawaii’s Revised Uniform Law on Notarial Acts. (All content below relates to amended and new rule provisions.) Definitions Defines the following terms: “affirmation” or “oath,” “appear personally,” “conviction,” “Department,” “electronic Notary seal” or “electronic seal,” “electronic signature,” “identity proofing,” “notarial act,” “Notary Public,” “person,” “remote online Notary Public,” “signature,” and “stamping device.” Notary Public Application, Commission Matters, Sanctions Amends the requirement of certain information to be in the letter of justification from a Notary applicant’s employer or self-employed applicant regarding why a Notary commission is being sought, by deleting the statement acknowledging that a Notary Public is a public officer and may therefore serve the general public during an employer’s or applicant’s normal business hours. Deletes the requirement that each application for a new or renewal Notary Public commission shall be properly notarized by a Hawaiian Notary Public. Expands the information that a Notary Public commission application may require by adding to the existing list of information the following: email address; a conviction of any felony or a misdemeanor related to the qualifications, functions or duties of a Notary Public or involving fraud, false statements or omissions, wrongful taking of property, bribery, perjury, forgery, counterfeiting, extortion, or a conspiracy to commit any of these offenses; proof of the applicant’s identity by a current government-issued photo identification; proof that the applicant is a resident of the State; and proof that the applicant has executed an official surety bond that has been approved by a judge of the circuit court. Amends, to six months (previously one year) the period within which the Attorney General shall take action with respect to investigation of a Notary Public applicant and subsequent written notification to the applicant regarding status of the application. Amends the timeframe for timely filing of a completed Notary commission renewal application, to within sixty calendars prior to expiration of the Notary Public’s current commission (formerly before or on the Notary Public’s current date of commission expiration). Clarifies that the Notary Public examination pertains to notarial acts (formerly “Notary Public duties”) and the laws and rules pertaining to Notaries Public. Amends rule provisions addressing grounds for the Attorney General’s refusal to renew, reinstate, or restore a commission; and the Attorney General’s revocation, suspension, denial, or condition of a commission. Clarifies that administrative fines levied by the Attorney General may be for each occurrence of a former or current Notary Public’s violation of Chapter 456, Hawaii Revised Statutes, and Hawaii Administrative Rules Chapter 5-11. Establishes that an existing Notary commission is forfeited if the Notary Public knowingly fails to submit a completed renewal application, pay the renewal fee, or complete the processing and filing of a commission for renewal by the date of expiration of the Notary Public’s commission. Clarifies what constitutes a “knowing” failure to renew. Establishes that any person seeking to restore his/her/their forfeited commission more than one year from the commission expiration date must reapply as a new applicant for a Notary Public commission. Establishes new rules relative to suspended commissions; deletes the prior rule. Provides for the maximum period of commission suspension, and for reapplication following suspension. Establishes that a person’s failure to file for commission reinstatement within 30 days after the end of the commission suspension period shall result in a forfeited commission. Establishes new rules relative to revoked commissions; deletes the prior rule. Provides that after five years from the effective date of a commission revocation, the person may apply for a Notary commission by complying with all current requirements for new applicants. Deletes, as causes for the Attorney General’s disciplinary or sanctioning action(s), conduct or practice contrary to the National Notary Association’s Code of Professional Responsibility; and violating any condition or limitation upon which a conditional or temporary commission was issued. With regard to grounds for the Attorney General to take action against or relating to a Notary Public commission or application, amends reference to “a crime” to “any felony, or a misdemeanor”; and clarifies that a Notary Public or applicant must report to the Attorney General, in writing, any disciplinary actions that occurred in Hawaii or any other jurisdiction. Establishes new administrative fees that may be charged by the Attorney General. Amends some language relative to administrative fines. Creates new administrative fines, related primarily to a Notary’s failure to perform certain commission responsibilities, provide timely notifications as applicable to the Attorney General, and violating certain requirements. Establishes that all unpaid fees and administrative fines owed by a person shall constitute a debt due and owing to the State of Hawaii. Commission Responsibilities Clarifies that the Notary’s duty to file certain information requires him/her/them to file it with the Attorney General. Adds email address to the list of such information to be filed with the Attorney General. Clarifies that such notification is in writing. Establishes the responsibility of a Notary Public, or the Notary’s representative or guardian, to notify the Attorney General in writing of various status changes (adjudication of the Notary’s incompetency; certain felony or misdemeanor convictions as well as conspiracy to commit such offenses; and any professional disciplinary decision issued against the Notary in Hawaii or another jurisdiction). States the required timeframe for providing notifications. Establishes an administrative fine of $25 per violation for a Notary’s failure to provide timely written notification of any such change(s). Clarifies that upon commission resignation, a Notary Public shall surrender his/her/their commission certificate and rubber stamp Notary seal and provide the Attorney General with the location of the Notary’s journal. Clarifies that within 90 days of resignation, revocation or abandonment of a Notary commission, or expiration of a commission without renewal, the Notary Public shall surrender to the Attorney General the Notary’s Notary Public commission certificate and (if applicable) the Remote Online commission certificate; as well as the Notary’s rubber stamp seal. Further requires a Notary under these circumstances to retain, or cause to be retained, the Notary’s journal and inform the Attorney General of the location of the journal. Specifies actions to be taken, relative to a Notary’s commission certificate, Notary seal or journal, upon a Notary’s death or the death of a former Notary. Clarifies that any fines, for failure to comply with administrative rules relative to these responsibilities, are administrative fines. Clarifies that within 10 days after loss, misplacement or theft of a Notary Public’s Notary seal or journal or both, a Notary shall transmit written notification to the Attorney General and perform other specified actions as applicable. Clarifies that the fine for failure to comply with these requirements is an administrative fine of $20. Provides that a person who has resigned his/her/their Hawaii Notary commission may obtain a new commission by successfully applying as a new applicant. Prescribes actions to be taken by a Notary Public when the Notary Public is no longer commissioned due to resignation, revocation, commission abandonment or expiration without renewal. Charges the employer, personal representative, or any other person knowingly in possession of a currently commissioned but deceased Notary Public’s commission certificate or Notary seal with taking certain actions relative to those items. Deletes the requirements that a Notary display a sign at the place of business where the Notary is employed; and that a Notary provide notarial services to the public during all normal business hours where the Notary is employed, except that Notaries in government service shall still provide services to the public during business hours. Notary Signature Requires a Hawaii Notary Public to sign on every notarial certificate, at the time of notarization, the Notary’s official signature as filed with the Clerk of the Circuit Court in the circuit of the Notary’s residence, and as the Notary’s name appears on his/her/their Notary seal. Specifies that a Notary Public shall “always add” to the Notary’s official signature the typed or printed name of the Notary Public and a statement indicating the date of commission expiration. Notary Seal Requires a Notary Public to obtain and use a rubber stamp seal (no engraved seal) that when stamped or impressed on a tangible document clearly shows the specified information elements. Prohibits a Notary Public from possessing more than one rubber stamp Notary seal at a time. Requires a Notary Public to safeguard and maintain sole control of his/her/their Notary seal. Specifies that a Notary’s rubber stamp seal shall be a circular, rubber stamping device with a serrated or milled edge border between one inch and two inches in diameter, and shall include the wording and information specified by HAR §5-11-5(a). Clarifies the requirement that a Notary Public authenticate all notarial acts with his/her/their Notary seal, by specifying that it shall be affixed contemporaneously [on the notarial certificate] with performance of the notarial act as prescribed by Chapter 456, Hawaii Revised Statutes (HRS). Clarifies provisions relative to the Notary Public’s surrender of his/her/their rubber stamp seal to the Attorney General upon resignation, revocation, or abandonment of commission, or upon non-renewal of an expired commission. Further clarifies that the $200 fine for failure to comply with this requirement is an administrative fine. Notarial Records (Journal) Requires a Notary Public to create, maintain and retain a journal in which the Notary chronicles all notarial acts performed, in accordance with HRS§456-15 and applicable administrative rules. Clarifies that such journal is tangible (not electronic). Requires a Notary Public to retain his/her/their journal for ten years after performance of the last notarial act chronicled in it (deletes the former requirement to deposit the Notary’s record book (journal) with the Attorney General within 90 days of the current commission term’s expiration). Requires a Notary Public to provide the Attorney General with the journal’s location upon the Notary’s commission resignation, revocation, abandonment, suspension, or expiration without renewal. Provides that a journal shall be subject to an audit at any time. Clarifies that the $50-to-$500 fine that may be levied for noncompliance is an administrative fine. Performing Notarial Acts Clarifies that every Hawaii Notary Public shall perform notarial acts in accordance with Chapter 456, Hawaii Revised Statutes; with HAR Chapter 5-11; and with other laws in Hawaii and official guidelines [such as the Attorney General’s Notary Manual] that pertain to notarial acts. Provides that Hawaii Notaries shall also follow recognized industry best practice standards that do not conflict with Hawaii law. Authorizes a Hawaii Notary Public to take acknowledgments, administer oaths and affirmations, witness the signing of documents, attest to the identity of the signer of a document, note protests, and perform any other act permitted by Chapter 456, Hawaii Revised Statutes. Prohibits a Notary Public from performing a notarial act unless there is proof of the signer’s signature and identity as defined in HRS §456-1.6 or as otherwise provided in HRS§5-11-69 and 5-11-70 [which pertain to identifying remotely located individuals appearing for performance of a remote online notarial act]. (Repeated in Prohibited Acts, below.) Requires every acknowledgment or jurat to be evidenced by a notarial certificate, signed and dated by the Notary contemporaneously with performance of the notarial act as prescribed by Chapter 456, HRS. Specifies that a notarial certificate shall include the printed name of the Notary Public, the expiration date [of the Notary’s commission], the Notary seal and jurisdiction in which the notarial act was performed. Charging Fees Clarifies that HAR §5-11-4.5(a)(2) shall not be construed to prohibit a Notary from reducing or waiving a fee at the Notary’s discretion, provided that doing so is not for an unlawful or discriminatory purpose. Advertising Clarifies that no person shall act as, advertise or represent oneself as a Notary Public or perform notarial acts without a current commission obtained from the Attorney General. Prohibited Acts States specific acts a Hawaii Notary Public is prohibited from performing. Such acts pertain to improper refusal to perform a notarial act; improper charging of a fee for performing a notarial act; notarizing the Notary’s own signature; performing a notarial act when the Notary Public has an actual and apparent conflict of interest; delivering a signed notarial certificate to another person and authorizing its attachment to a document outside of the Notary’s presence; and providing legal advice unless the Notary Public is also a licensed Hawaii attorney. Clarifies that these rule provisions shall not be construed to limit or deny enforcement of any provision of Chapters 456 and 502, Hawaii Revised Statutes, or of HAR Chapter 5-11. Prohibits a Notary Public from performing a notarial act unless there is proof of the signer’s signature and identity as defined in HRS §456-1.6 or as otherwise provided in HRS §5-11-69 and 5-11-70 [which pertain to identifying remotely located individuals appearing for performance of a remote online notarial act]. (Repeated in Performing Notarial Acts, above.) Remote Online Notarization Establishes detailed rules regulation performance of remote online notarizations. • Remote Online Notary Commission Establishes that a person must obtain from the Attorney General a current commission as a remote online Notary Public , before performing notarial acts for remotely located individuals or advertising or representing themselves as able to perform such notarial acts. Allows only a Notary Public with an active commission to apply for a remote online Notary commission. Establishes that a remote online Notary commission shall expire on the same date as the individual’s Notary Public commission. Establishes the requirements for a remote online Notary application, among which are payment of the remote online Notary examination fee, passing the examination, and reporting via the application the Notary’s choice of communications technology and devices. Provides that no remote online Notary commission shall be effect, nor shall a Notary Public perform a remote online notarization, unless the Notary has filed a literal or photostatic copy of the Notary’s remote online Notary commission with the clerk of the circuit court where the Notary resides, within thirty days of commission receipt; and submits to the Attorney General a tangible copy of the Notary’s electronic seal and electronic signature. Establishes a six-month period, after filing of a complete remote online Notary application, for the Attorney General to conduct any investigations if applicable and subsequent notifications to the applicant of the findings. Requires an explanation of any application denial, and informing the applicant of the right to a hearing in accordance with Chapters 91 and 5-1, HRS. Establishes remote online Notary Public commission renewal requirements, including that to be timely filed a completed renewal application must be received by the Attorney General within sixty calendar days prior to the applicant Notary’s current commission expiration. Provides circumstances under which a remote online Notary commission is automatically forfeited. Provides the circumstances under which an application for remote online Notary commission may be considered abandoned. Establishes that the Attorney General shall not be required to act on any abandoned application and that the Attorney General may destroy it. Requires a remote online Notary to report use of any technologies or devices of a vendor or person that were not previously identified in the remote online Notary application. • Electronic Signature and Electronic Notary Seal Requires a remote online Notary Public to use technology from a third-party provider of communication technology for an electronic stamping device, electronic signature, electronic Notary seal, and electronic notarial certificate. Mandates that a remote online Notary shall safeguard and maintain sole control of the remote online Notary’s electronic Notary seal and electronic stamping device by means of use of a password or other secure method of authentication. Specifies that an electronic notarial certificate shall comply with §456-32 and §456-23, HRS; the form of certificate provided in §501-41, HRS, if applicable; or the form of certificate provided by other applicable law and Chapter 5-11, HAR. Further requires an electronic notarial certificate for a remote online notarization to indicate that the notarial act was performed using communication technology. Requires a remote online Notary Public to obtain and keep one or more electronic stamping devices. Clarifies that these shall be in addition to the rubber stamp Notary seal required for paper notarial acts. Requires an electronic stamping device to consist of a digital certificate complying with the X.509 standard adopted by the International Telecommunication Union. Requires a remote online Notary to use a digital certificate to attach or logically associate the remote online Notary’s electronic signature and electronic Notary seal to an electronic document that is the subject of a notarial act. Prohibits a remote online Notary from performing a remote online notarization with a digital certificate that has expired, or does not comply with §5-11-71 HRS, is invalid, or is incapable of authentication at the time the notarial act is performed. Clarifies that a remote online Notary shall apply his/her/their electronic signature, notarial certificate and electronic seal to an electronic document that is the subject of a remote online notarization, before applying the digital certificate to the electronic document. Specifies that once logically associated with an electronic document, the remote online Notary’s electronic seal shall contain the Notary’s name, his/her/their commission number, and the words “Notary Public” and “State of Hawaii.” Specifies actions the remote online Notary must take regarding disposition of his/her/their electronic stamping device should the Notary resign the remote online Notary commission, abandon it, allow it to expire without renewal, or suffer its revocation. Further requires, within 90 days following such resignation, abandonment, expiration or revocation, the remote online Notary to submit a declaration to the Attorney General in which the remote online Notary declares the electronic stamping device was disabled, and indicates the date and manner in which it was disabled. Establishes a $200 administrative fine that may be levied for failure to comply with these requirements. • Electronic Journal, Audiovisual Recording of Remote Online Notarial Acts Requires a remote online Notary Public to retain an electronic journal in addition to the tangible journal required of all Hawaii Notaries Public. Further requires a remote online Notary Public to retain any audiovisual recording of a remote online notarial act that is made as prescribed in §456-23, HRS. Specifies that the journal and audiovisual recordings shall be retained in a computer or other electronic storage device that protects the journal and recordings against unauthorized access by password or cryptographic process. Further requires the journal and audiovisual recordings to be maintained and retained in an industry-standard audiovisual file format that can be viewed by the Attorney General without the need for additional software. Clarifies that the journal and audiovisual recordings are not subject to the requirements of §5-11-9, HRS. Requires a remote online Notary Public to retain his/her/their electronic journal and audiovisual recording(s) for ten years after performance of the last notarial act chronicled in the electronic journal, and to provide the location of the electronic journal to the Attorney General upon the remote online Notary’s commission resignation, revocation, abandonment, suspension or expiration without renewal. Requires a remote online Notary to take reasonable steps to ensure that a backup of the electronic journal and audiovisual recording exists and is secure from unauthorized use. Prescribes actions to be taken by a remote Online Notary’s personal representative or guardian, or any other person knowingly in possession of an electronic journal or audiovisual recording, upon the death or adjudication of incompetency of a current or former remote online Notary Public. Allows such parties to, by written contract, engage a third person to act as a repository to carry out certain prescribed functions. Provides the parameters and requirements of such a contract. Establishes that at any time, the electronic journal and audiovisual recording(s) are subject to reasonable periodic, special or other audits or inspections by the Department as required under §456-15, HRS. Further establishes that failure to comply with §5-11-73, HAR (concerning journal and audiovisual recording retention and repositories) may result in an administrative fine of between $50 and $500. • Performing Remote Online Notarial Acts Personal Appearance. Establishes that a remotely located individual seeking a notarial act may satisfy the requirement to personally appear by using communication technology to appear before a Hawaii remote online Notary Public who is located in Hawaii at the time of notarization. Specifies that a Hawaii remote online Notary located in Hawaii may perform a notarial act for remotely located individuals only if the remotely located individual personally appears before the remote online Notary Public at the time of the notarization. Satisfactory Evidence of Identification. Provides that a remote online Notary has satisfactory evidence of a remotely located individual’s identity if the remote online Notary personally knows that individual through dealings sufficient to provide reasonable certainty that the remotely located individual has the identity claimed. Further provides that a remote online Notary Public has satisfactory evidence of a remotely located individual’s identity by the oath or affirmation of a credible witness who personally knows the remotely located individual seeking a notarial act. Requires that the remote online Notary either personally knows the credible witness, or has verified the credible witness’ identity using identity proofing as prescribed by HAR §5-11-69. Clarifies that a credible witness may be a remotely located individual if the remote online Notary Public, credible witness and remotely located individual seeking the notarial act can communicate by using communication technology. Requires a remote online Notary Public who does not have satisfactory evidence of a remotely located individual’s identity to reasonably verify that individual’s identity through two different types of identity proofing, consisting of multi-factor authentication as specified in these administrative rules. Specifies requirements for analysis of an identity credential (“credential analysis”) and knowledge-based authentication (KBA), including that the remote online Notary shall not be able to see or record the KBA questions or answers. Standards for Communication Technology. Establishes detailed standards for communication technology used in performing remote online notarizations, and prohibits a remote online Notary Public from performing a remote online notarization unless the technology used satisfies all such standards (see HAR §5-11-71). Requires communication technology used to perform remote online notarizations to provide an electronic-format Notary journal that complies with Chapter 456, HRS and HAR Chapter 5-11. Specifies that if a remotely located individual exits the remote online notarization workflow or if such workflow is interrupted for any reason, the remotely located individual shall restart the required identity verification process from its beginning. Requires that communication technology provide security measures the Attorney General deems reasonable to prevent unauthorized access to the live transmission of the audiovisual communication of a remote online notarization; the audiovisual recording; the verification methods and credentials used in the identity proofing process; the electronic records presented for online notarization; and any personally identifiable information used in the identity proofing. Specifies conditions under which an online Notary Public shall immediately cease performing remote online notarial acts. Requires the online Notary Public to immediately notify the Attorney General of such circumstances. |
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| IDAHO – PERMANENT ADMIN RULES, RON (search PDF for “IDAPA 34.07.01”) Effective March 31, 2022 View these rules Establishes rules governing notarial acts performed by authorized Idaho Notaries Public for remotely located individuals (to be referred-to herein as “remote online notarization”). Definitions Establishes that all terms used in the rules but not otherwise defined have the same meaning as in Sections 51-102 and 51-114A, Idaho Code. Provides a definition (matching the existing statutory definition) for knowledge-based authentication. Required Notification to the Secretary of State, Related Matters Provides the qualifications an individual must meet in order to be allowed to perform notarial acts for remotely located individuals. Provides for the form and other details relating to an Idaho Notary Public notifying the Idaho Secretary of State of the Notary’s intent to perform notarial acts facilitated by communication technology and meets Idaho’s requirements. Establishes that commission renewal by a Notary Public who has qualified to perform remote notarizations constitutes renewal of the Notary’s qualification to perform remote online notarizations (if applicable) without need of another notification. Clarifies that technology updates received by the Notary that do not result in technologies that are materially different from those/that previously identified by the Notary may be received, installed and/or used by the Notary without prohibition. Use of Electronic Records Requires a Notary to select one or more tamper-evident technologies to perform notarial acts with respect to electronic records. Requires tamper-evident technologies to consist of a digital certificate complying with the X.509 standard, or similar. Provides that a person may not require a Notary Public to use a technology the Notary has not selected. Requires a Notary Public to use a digital certificate to attach or logically associate the Notary’s electronic signature and official stamp to an electronic record that is the subject of a notarial act. Prohibits a Notary from performing an electronic notarial act when the digital certificate is expired, revoked, terminated, valid, or incapable of authentication. (For additional remote notarial act requirements, see “Certificate of Notarial Act” at the end of this rule summary.) Identity Proofing Provides that a Notary Public who cannot identify a remotely located individual by personal knowledge or use of a credible witness must reasonably verify the individual’s identity through two different types of identity proofing as provided by the rule. Establishes certain requirements that any credential analysis and knowledge-based authentication must meet in order to be used by an Idaho Notary performing a remote online notarization. Establishes that a Notary Public has satisfactory evidence of a remotely located individual’s identity by means of (a) the Notary’s personal knowledge of the individual’s identity, or (b) satisfactory evidence in the form of the oath or affirmation of a credible who is physically present with the Notary or remotely present by means of communication technology (if remotely present, the Notary, credible witness and individual must be able to communicate with each other using the communication technology). Clarifies that a remotely located credible witness must meet the same requirements for identity proofing provided by IDAPA 34.07.01, Section 13 or be personally known by the Notary Public. Communication Technology Provides performance requirements for communication technology specifically pertaining to the synchronous audio-video fees; and the means by which the Notary will confirm that a record before the Notary is the same record in which the remotely located individual made a statement or on which he/she/they executed a signature. Requires communication technology to provide reasonable security measures to prevent unauthorized access to the live transmission of audio-visual fees, the methods used to perform identity proofing, and the electronic record that is the subject of the notarial act. Requires that if a remotely located individual must exit the workflow, that individual must restart the identity proofing process from its beginning. Record Retention and Repositories Gives Notaries performing remote online notarizations the option to maintain one or more journals. Provides that a Notary may create a journal in a tangible medium that is a permanent, bound register with numbered pages; or in an electronic format with an industry-standard data file format. Requires journal entries to be made contemporaneously with performance of the notarial act. Requires a Notary or person acting on behalf of the Notary to retain an audio-visual recording of performance of a remote online notarization. Provides requirements for creation, retention, duration of retention, and actions to be taken by the Notary’s personal representative, guardian or any other person knowingly in possession of an audio-visual recording upon the death or adjudication of incompetency of the Notary (whether still commissioned or formerly commissioned). Allows a Notary Public or other named representatives of a living or deceased Notary Public to engage a third person to act as a repository to satisfy the audio-visual recording storage requirement. Requires a written contract for such arrangement, and clarifies that a third person under such contract shall be deemed a “repository” under Section 51-114A, Idaho Code. Provides certain requirements for the written storage contract. Fees and Expenses Clarifies that Section 51-133, Idaho Code, shall not be construed to prevent a third person providing technologies or storage capabilities that help a Notary Public perform remote notarial acts and/or fulfill related duties from separately charging and collecting any additional fee for the services provided. Certificate of Notarial Act Specifies that, per Section 51-114A, Idaho Code, a notarial certificate for a remote online notarization—whether in the standard or “short” form—must include additional language indicating performance of a remote online notarization. Provides that such language will be sufficient if it is substantially as follows: “This notarial act involved the use of communication technology.” |
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| ILLINOIS—HB 3764 Effective January 1, 2022 View this bill Amends Illinois’ Uniform Recognition of Acknowledgments Act by clarifying that the words “acknowledged before me” mean* that the acknowledging person appeared before the individual taking the acknowledgment in a manner prescribed by the laws or regulations applicable in the place in which the acknowledgment is taken. ______________________________ *Comment – This statutory amendment ensures that, when an acknowledging person in another state appears before an individual authorized to take the acknowledgment in that state, any manner of such appearance that is authorized in that state will be recognized in Illinois. --------------- ILLINOIS – SB 2664 Effective the later of January 1, 2022 or the Secretary of State’s notification of adoption of rules necessary to implement the Act. (As of this report’s publication date of 1-20-22, rules have not yet been adopted.) Some provisions of the Act are effective July 1, 2022, and are so noted. View this bill Significantly amends the Illinois Notary Public Act, including new provisions governing “remote notarization” and “electronic notarization.” Provides the newly defined terms “accredited immigration representative,” “acknowledgment,” “audio-video communication,” “communication technology,” “credential,” “digital certificate,” dynamic knowledge-based authentication assessment,” “electronic,” “electronic document,” “electronic notarial act,” “electronic notarial certificate,” “electronic notarization system,” “Electronic Notary Public,” “electronic presentation,” “electronic record,” “electronic seal,” “electronic signature,” “identity proofing,” “in the presence of” or “appear before,” “notarial act,” “Notary Public” or “Notary,” “notarization,” “outside the United States,” “principal,” “public key certificate,” “real time,” “remote notarial act,” “remote Notary Public,” “sole control,” “tamper-evident,” “unique to the Electronic Notary Public.” (5 ILCS 312/1-104) Establishes provisions for “electronic acknowledgments.” Provides that for purposes of the Act, a person may appear before the person taking the acknowledgment by (1) being in the same physical location as the other person and close enough to see, hear, communicate with, and exchange tangible identification credentials with that person; or (2) being outside the physical presence of the other person, but interacting with the other person by means of communication technology. Requires a certificate of acknowledgment with respect to an acknowledgment performed for a person outside the physical presence of the person taking the acknowledgment to include a statement substantially like, “The foregoing instrument was acknowledged before me by means of communication technology this (date) by… (each form continued as sufficient for its respective purposes).” (5 ILCS 312/6A-106) Commissioning Matters Amends the Illinois Notary Public Act by repealing Section 2-106 (5 ILCS 312/2-106) dealing with Notary commissions’ recordation with the County Clerk, effective July 1, 2022 (ending the requirement to record a Notary commission with the county clerk upon that date). Makes a conforming amendment, effective upon the effective date of Senate Bill 2664, to repeal the ability of Illinois county boards to increase the Notary Public commission recordation fee. (55 ILCS 5/4-4001) Establishes that applicants applying for their initial (first) and renewal Notary Public or Electronic Notary commissions to complete a course of study on notarization and electronic notarization as required by the Secretary of State; and pass an examination at completion of the course. (5 ILCS 312/2-101.5) Clarifies that no person is automatically reappointed as a Notary Public or Electronic Notary Public. (5 ILCS 312/5-101) Authorizes the Secretary of State to adopt administrative rules mandating a course of study and examination; establishing the course of study’s content and required length; and providing for approval of any course of study providers. (5 ILCS 312/2-101.5) Effective July 1, 2022, increases the Notary Public application fee from $10 to $15, and provides that $5 of each application fee paid shall be deposited in the newly created Electronic Notarization Fund (see below). (5 ILCS 212/2-103) Amends the notarial certificate language on the paper application for a Notary Public commission, to include a venue and the name of the principal signer/applicant. (5 ILCS 312/2-104) Clarifies that the applicant’s email address is statutorily required information to be submitted on the application for Notary Public commission. Clarifies that an applicant must be proficient in the English language. Requires an applicant to provide satisfactory proof of successful completion of any required course of study on notarization. Clarifies other commission application requirements. Establishes that any Notary Public appointed by the Secretary of State shall have authority to conduct remote notarizations (involving paper-and-ink-signed document(s) for remotely located individuals. (5 ILCS 312/2-102) Amends the law pertaining to changes causing a Notary commission to cease to be in effect, by adding residential address and email address to the list of information that when changed, must be reported to the Secretary of State within the specified timeframe. (5 ILCS 312/4-101) Clarifies that when the commission of a Notary Public ceases to be in effect, his or her (their) notarial seal or electronic notary seal (if applicable) must be surrendered to the Secretary of State, as must the Notary’s certificate of notarial commission or certificate of electronic notarial commission (if applicable). Requires that any change to the information submitted by an Electronic Notary Public in registering to perform electronic notarial acts must be reported by the Notary to the Secretary of State within 30 business days of the change. Establishes that any Notary Public or Electronic Notary Public failing to comply with these notification requirements shall be prohibited from obtaining a new commission for a period not less than five years. (5 ILCS 312/4-101) Requires that upon surrender, revocation or expiration of a Notary Public or Electronic Notary Public commission, all notarial records or electronic notarial records required under Illinois law, except as otherwise provided by law, must be kept by the Notary Public or Electronic Notary Public for 5 years after termination of the [commission] of the Notary Public or Electronic Notary Public. (5 ILCS 312/6-104) Clarifies that an applicant’s Notary Public commission will be received from the Secretary of State (not the county clerk). (5 ILCS 312/3-101) (NOTE: See this report’s “Commissioning Matters” section above, on repeal of the requirement for Notary commissions to be recorded with the county clerk, effective July 1, 2022.) Prescribes requirements for individuals to file an application with the Secretary of State for appointment and commission as an Electronic Notary Public, including that the applicant has given satisfactory proof that he/she/they successfully completed any required course of study on electronic notarization and passed a qualifying examination. Requires an applicant for an Electronic Notary Public commission to sign the application with his/her/their electronic signature and identify the Secretary-approved technology the applicant intends to use to perform electronic notarial acts. Clarifies that an individual cannot perform an electronic notarial act using audio-video communication without having first been granted an Electronic Notary Public commission by the Secretary of State. Provides that the Secretary of State shall issue a unique commission number to each Electronic Notary Public. Provides for the Secretary’s rejection of an application for Notary Public or Electronic Notary public commission. (5 ILCS 312/2-102) Clarifies that an Electronic Notary Public is not automatically reappointed. (5 ILCS 312/5-101) Requires a Notary Public who performs notarizations either remotely (notarization of ink-signed documents for a remotely located principal) or electronically, and by means of audio-video communication, to obtain and maintain a $25,000 surety bond from a surety or insurance company licensed to do business in Illinois. Provides requirements for such bond. Clarifies that when a Notary is required to hold both the $5000 bond (for the traditional Notary Public commission) and the $25,000 bond (for an Electronic Notary Public commission), one bond totaling $30,000 shall satisfy the requirements of Illinois law. Requires the entity issuing a bond to a Notary Public or Electronic Notary Public to submit verification of the bond information for the Notary to the Secretary of State, in a format prescribed by the Secretary. (5 ILCS 312/2-105) Prohibits any person from soliciting a Notary Public or Electronic Notary Public with an offer to provide a surety bond more than 60 days in advance of the expiration date of the individual’s commission. (5 ILCS 312/5-102) Amends current statutes regarding Illinois’ online application system, to clarify that it shall support applications for Notary Public or Electronic Notary Public. Provides for applicants’ authorization for the Secretary of State to utilize applicants’ signatures to conduct an application information verification, including a criminal background check if necessary. Further provides for use of an applicant’s last four digits of their Social Security number to assist in matching of information in the Secretary of State’s driver license and Illinois Identification Card databases. (5 ILCS 312/2-102.5) Requires the Secretary of State to maintain a database of Notaries Public on a publicly accessible website, and prescribes the information that any interested person must be able to see to verify the authority and good standing of an Illinois Notary Public. Requires the database to indicate whether a Notary holds a valid electronic Notary commission, and to describe any administrative or disciplinary action taken against a Notary by the Secretary of State. (5 ILCS 312/2-102.6) Revises Illinois law regarding the statutory wording of certificates of authority (i.e., verifying a Notary’s authority to notarize on a date indicated in a notarial certificate) issued by the Secretary of State or County Clerk, to reflect that the notarial act was “notarized or electronically notarized.” (5 ILCS 312/3-106) Electronic Notarization* NOTE: Under Illinois law, “electronic notarial act” pertains to an electronic notarial act performed for a remotely located individual, involving electronic signatures on electronic records (documents). “Remote notarization” pertains to a paper-and-ink notarial act performed for a remotely located individual. Both forms of notarization rely on communication technology for personal appearance of the principal (signer) before the Notary. Establishes that a Notary Public commissioned in Illinois may apply for an Electronic Notary Public commission to perform electronic notarial acts with the name that appears on the Notary’s commission. (NOTE: both commissions must be held if an individual wishes to function as an Electronic Notary Public.) Clarifies that application may be made for a Notary Public commission and an Electronic Notary Public commission at the same time. (5 ILCS 312/2-101) Clarifies that any revocation, resignation, expiration or suspension of the Notary Public commission terminates or suspends any commission to notarize electronically. (5 ILCS 312/7-108) Effective July 1, 2022, creates the Electronic Notarization Fund as a special fund in the State Treasury (5 ILCS 312/1-106). Also effective July 1, 2022, increases the Notary Public commission application to $15, and provides for funding of the Electronic Notarization Fund from the additional $5 charged for each Notary Public application fees; and from electronic Notary Public commission application fees. (5 ILCS 212/2-103). Also provides for distribution of moneys in the Electronic Notarization Fund to the Secretary of State to fund the Department of Index’s implementation and maintenance of electronic notarization commissions. (5 ILCS 312/1-106) Provides that an individual’s Notary Public and Electronic Notary Public commission terms shall be the same. Establishes that an Electronic Notary Public Commission shall be suspended by operation of law when that Notary Public is no longer appointed and commissioned as an Illinois Notary Public. Requires the Secretary of State to immediately notify a Notary Public with a revoked or suspended commission, in writing, that his/her/their Notary Public commission and Electronic Notary Public commission will be suspended by operation of law until that individual is reappointed. (5 ILCS 312/2-101) Requires that upon receiving notice from the Secretary of State of a revoked Electronic Notary commission, the Electronic Notary Public must immediately notify his/her/their technology provider(s) and, to the extent possible, destroy or remove the software used for electronic notarizations. (5 ILCS 312/7-108) Allows an Electronic Notary Public to voluntarily resign from appointment by notifying the Secretary of State in writing, and by notifying the Electronic Notary’s chosen technology provider. To the extent possible the resigning Notary must destroy or remove the software used for electronic notarizations. (5 ILCS 312/7-108) Clarifies that a Notary Public may voluntarily terminate registration to notarize electronically but may maintain his or her Notary Public commission upon notifying the Secretary of State within 30 days of this change. (5 ILCS 312/7-108) Clarifies that an Electronic Notary Public has authority to perform notarial acts throughout Illinois, so long as the Notary resides in the same county in which the Notary was commissioned or his/her/their principal place of work or business is in the same Illinois county where the Notary was commissioned. (5 ILCS 312/3-105) Provides that a commissioned Electronic Notary Public who is physically located in Illinois may perform an electronic notarial act using communication technology, in accordance with Illinois law and any administrative rules, for a remotely located individual who is in Illinois; or who is outside of Illinois but not outside of the United States. Clarifies that an Electronic Notary Public may perform an electronic notarial act for an individual remotely located outside the United States if conditions specified in the Act apply. (5 ILCS 312/3-105) Requires commissioned Electronic Notaries Public, prior to performing any electronic notarial acts, to register their adoption of a new or additional technology with which to perform electronic notarial acts. Requires chosen technology or vendors to be approved by the Secretary of State. Requires a vendor of electronic notarization technology to submit the technology to the Secretary of State and receive approval, prior to any use of the technology to perform an electronic notarial act in Illinois. Requires the Secretary of State to adopt rules establishing the standards electronic Notary platforms must achieve to be approved for use in Illinois, and requirements with which electronic Notary platform vendors must comply. (5 ILCS 312/2-102.7) Requires electronic notarization systems used to perform electronic notarial acts by means of audio-video communication to conform to the requirements set forth in the Act and in administrative rules adopted by the Secretary of State. Requires electronic notarization systems requiring enrollment to enroll only persons commissioned as Electronic Notaries Public by the Illinois Secretary of State. (5 ILCS 312/6A-101) Requires the provider of an electronic notarization system requiring enrollment to notify the Secretary of State of the name of each Electronic Notary Public enrolled in the system within 5 days of enrollment, and to do so using means prescribed by administrative rule of the Secretary of State. (5 ILCS 312/6A-101) Mandates that an electronic notarization system requiring enrollment shall take reasonable steps to ensure that enrolled Electronic Notaries Public have the knowledge to use the system to perform electronic notarial act that comply with the Act. (5 ILCS 312/6A-101) Requires an Electronic Notary to register his or her chosen device to be used to create an electronic seal or electronic signature, and to register such device before its first use. Requires an Electronic Notary to keep his/her/their electronic signature and electronic seal secure and under the Notary’s exclusive control; and never to allow another person to use the Notary’s electronic signature or electronic seal. (5 ILCS 312/3-101) Requires an Electronic Notary to take reasonable steps to ensure that any registered device used to create an electronic seal or electronic signature is current, and not revoked nor terminated by the device’s issuing or registering authority. Provides required actions the Electronic Notary shall take upon learning that his/her/their chosen technology or device has been rendered ineffective or unsecure, including to cease performing electronic notarial acts upon such discovery. (5 ILCS 312/3-101) Requires an Electronic Notary Public to notify an appropriate law enforcement agency, the vendor of the electronic notary technology, and the Secretary of State after the theft, compromise or vandalism of the Electronic Notary’s signature or electronic seal. Such notification must occur no later than the next business day after such event has occurred. (5 ILCS 312/3-101) Prohibits an Electronic Notary Public from disclosing any access information used to affix the Notary’s electronic signature and electronic seal, except when requested by law enforcement. (5 ILCS 312/3-101) Provides that an Electronic Notary who exercised reasonable care in enrolling in and using an electronic notarization system shall not be liable for any damages resulting from the system’s failure to comply with the requirements of the Act. Provides that any contractual or agreement provision between the Electronic Notary and an electronic notarization system provider that attempts to waive this immunity shall be null, void, and of no effect. (5 ILCS 312/6A-102) Electronic Notary Public – Requirements for Performing Electronic Notarizations Establishes that an Electronic Notary Public is a Notary Public for purposes of the Act and subject to all provisions of the Act; may perform notarial acts provided by the Act in addition to performing electronic notarizations; and may perform an electronic notarization authorized under the Act. (5 ILCS 312/6A-103) Requires an Electronic Notary Public who performs an electronic notarial act for a principal by means of audio-video communication to be located within the State of Illinois at the time the electronic notarial act is performed. (5 ILCS 312/6A-104) Requires an Electronic Notary Public to: execute an electronic notarial act in a single recorded session that complies with provisions of the Act; be satisfied that any electronic record presented by the principal is the same record electronically signed by the Electronic Notary Public; be satisfied that the quality of the audio-video communication is sufficient to make the determination required for the electronic notarial act under the Act and any other law of Illinois; and to identify the venue for the electronic notarial act as the jurisdiction within Illinois where the Notary is physically located while performing the notarial act. (5 ILCS 312/6A-104) Provides requirements for an Electronic Notary Public to verify the identity of a person creating an electronic signature, which must be done at the time the signature is taken by using two-way audio and video conference technology that meets the requirements of the Act and any rules adopted by the Secretary of State. Prescribes how an Electronic Notary shall have satisfactory or documentary evidence of the identity of a person receiving an electronic notarial act. Allows an Electronic Notary to perform any of the notarial acts authorized in the Act using audio-video communication in accordance with the Act and any rules adopted by the Secretary of State. Specifies particular minimum requirements when an electronic notarial act is performed using audio-video communication. (5 ILCS 312/6A-103) Provides detailed requirements for electronic certificates of notarial acts. Requires an electronic notarial certificate to be signed and dated by the Electronic Notary Public; to include identification of the jurisdiction in which the electronic notarial act is performed [the actual location in Illinois of the Electronic Notary Public, as in “State of Illinois, County of _____”]; and to include the electronic seal of the Electronic Notary Public. (5 ILCS 312/6A-105) Provides the criteria for a sufficient electronic notarial certificate of an electronic notarial act. Specifies that at the time of an electronic notarial act, an Electronic Notary Public shall electronically sign every electronic notarial certificate and electronically affix the electronic seal clearly and legibly, so that it is capable of photographic reproduction. Clarifies that the illegibility of any of the information required to be in an electronic notarial certificate does not affect the validity of a transaction. (5 ILCS 312/6A-105) Requires that when performing an electronic notarization, an Electronic Notary Public shall complete an electronic notarial certificate and attach or logically associate the Electronic Notary’ electronic signature and seal to that certificate in a tamper-evident manner. Provides that evidence of tampering may be used to determine whether the electronic notarial act is valid or invalid. (5 ILCS 312/6A-103) Also requires an Electronic Notary Public to attach his/her/their electronic signature and electronic seal with the electronic notarial certificate of an electronic document in a manner capable of independent verification. (5 ILCS 312/3-101) Requires every [notarial certificate for an] electronic notarial act to be evidenced by the electronic signature and electronic seal of the Electronic Notary Public; the words “Notary Public,” “State of Illinois,” and “My commission expires [commission expiration date]”; and language explicitly stating that the electronic notarial act was performed using audio-video communication, if applicable. Allows the language indicating that the notarial act was performed using audio-video communication to also be included in the electronic notarial seal. (5 ILCS 312/6A-104) Requires the notarial certificate to be attached to or logically associated with the electronic document being notarized, and to be immediately perceptible and reproducible. Requires the Electronic Notary’s electronic seal to look identical to a traditional Notary Public seal. (5 ILCS 312/3-101) Provides additional, detailed requirements for performance of an electronic notarial act Requires an Electronic Notary Public to arrange for a recording to be made of each electronic notarial act performed using audio-video communication, and clarifies that this recording shall be in addition to the journal entry also required by the Act. Requires the Electronic Notary Public, before performing any electronic notarial act using audio-video communication, to inform all participating persons that the electronic notarization will be electronically recorded. Specifies information the Electronic Notary Public must ensure is included in the recording, particularly with regard to how the remotely located principal was identified. Requires an Electronic Notary Public to keep a recording of each electronic notarial act for at least 7 years, regardless of whether the notarial act was actually completed. (5 ILCS 312/6A-104) Establishes that the Act’s provisions related to security, inspection, copying and disposition of a Notary Public’s journal shall also apply to the security, inspection, copying and disposition of audio-video recordings required in 5 ILCS 312/6A-104. Authorizes (but does not require) the Secretary of State to adopt administrative rules to implement the law’s section dealing with a Notary Public’s or Electronic Notary Public’s official seal. (5 ILCS 312/3-101) Provides that an Electronic Notary Public’s electronic signature and electronic seal must be used only for the purposes of performing electronic notarial acts. Specifies the requirements that must be met for the Electronic Notary’s electronic signature and electronic seal to be deemed reliable. (5 ILCS 312/3-101.5) Prohibits an Electronic Notary Public from selling or transferring personal information learned through the course of an electronic notarization, except when required by law, law enforcement, the Secretary of State or court order. (5 ILCS 312/3-101.5) Authorizes the Secretary of State to adopt administrative rules to implement the law’s section dealing with security of an Electronic Notary’s electronic signature and seal. (5 ILCS 312/3-101.5 Modifies statutory language dealing with advertisement of notarial services to also apply its provisions to Electronic Notary services. (5 ILCS 312/3-103) Broadens applicability of the Act’s provisions dealing with offenses resulting in commission revocation, and clarifies that they apply to Notaries Public and Electronic Notaries Public. (5 ILCS 312/3-103) Establishes requirements for systems and providers of electronic notarial technology. (5 ILCS 312/6A-101) Requires the Secretary of State to adopt administrative rules setting forth the requirements that providers of electronic notarization technology must meet in order to be approved by the Secretary for use by Illinois Notaries. Provides the minimum standards that such administrative rules must establish. (5 ILCS 312/6A-101) Provides that the validity of an electronic notarial act will be determined by applying the laws of the State of Illinois. Addresses requirements for electronic notarial acts related to authentication of such acts by the Secretary of State. (5 ILCS 312/6A-103) Remote Notarization* NOTE: Under Illinois law, “electronic notarial act” pertains to an electronic notarial act performed for a remotely located individual, involving electronic signatures on electronic records (documents). “Remote notarization” pertains to a paper-and-ink notarial act performed for a remotely located individual. Both forms of notarization rely on communication technology for personal appearance of the principal (signer) before the Notary. Provides that any commissioned Illinois Notary Public may perform an authorized notarial act for a remotely located individual and using communication technology. Requires the Notary to first determine, from personal knowledge or from satisfactory evidence, that the (ink) signature on the (paper) document (that is displayed to the Notary onscreen) is that of the person appearing (onscreen) before the Notary, and who is named in the document being shown. (5 ILCS 312/6-102.5) Prescribes how a Notary Public performing a remote notarization has satisfactory evidence that a person is the person whose true signature is on a document (being displayed to the Notary onscreen). Such person must be either personally known to the Notary; or identified upon oath or affirmation of a credible witness personally known to the Notary; or identified on the basis of identification documents that are (i) valid at the time of the notarial act, (ii) issued by a State agency, federal government agency, or consulate and (iii) bear the photographic image of the remotely located individual’s face and the signature of that individual. (5 ILCS 312/6-102.5) Establishes technical and procedural requirements for remote notarizations, including that: 1. Two-way audio-video communication technology must allow for remotely located notaries and principals to engage in direct, contemporaneous interaction between the individual signing the document (signatory) and the witness by sight and sound. 2. The two-way audio video communication technology must be recorded and preserved by the signatory or the signatory's designee for a period of at least 3 years. 3. The signatory must attest to being physically located in Illinois during the two-way audio-video communication. 4. The signatory must affirmatively state on the two-way audio-video communication what document the signatory is signing. 5. Each page of the document being witnessed must be shown to the witness on the two-way audio-video communication technology in a means clearly legible to the witness. 6. The act of signing must be captured sufficiently up close on the two-way audio-video communication for the witness to observe. (5 ILCS 312/6-102) For application of the Notary’s seal and signature in a remote notarization, requires the signatory to transmit by over mail, fax or electronic means a legible copy of the entire signed document directly to the Notary, no later than the day after the document is signed. Requires the Notary to sign the document (the notarial certificate) and transmit the signed copy of the document back to the signatory by any of several prescribed means, within 24 hours after receipt. Under certain specified conditions, allows the Notary, if necessary, to sign the original signed document as of the date of the original execution of it by the signatory. (5 ILCS 312/6-102.5) Requires the Secretary of State to adopt administrative rules to implement these “remote notarizations” in Illinois. (5 ILCS 312/6-102.5) Notarial Acts (General); Prohibitions and Sanctions Authorizes a duly commissioned Illinois Notary Public to certify that a paper or tangible copy of an electronic document is a true and correct copy of the electronic document. Provides that a paper or tangible copy of an electronic document certified by a Notary to be a true and correct copy satisfies any requirement of law that, as a condition for recording, the document must be an original or in writing; be signed or contain an original signature, if the document contains an electronic signature of the person required to sign the document; and be notarized, acknowledged, verified, witnessed, or made under oath, if the document contains an electronic signature of the person authorized to perform that act, and all other information required to be included. (765 ILCS 33/3.5) Further provides that in order to certify that a paper or tangible copy of an electronic document is a true and correct copy of the electronic document, the Notary Public must have: reasonably confirmed that the electronic document is in a tamper-evident format; detected no changes or errors in any electronic signature or other information in the electronic document; personally printed or supervised the printing of the electronic document onto paper or other tangible medium; not made any changes or modifications to the electronic document or to the paper or tangible copy thereof, other than the certification described (in this new law). Requires a county recorder to accept for recording a paper or tangible copy of a document that has been certified by a Notary Public to be a true and correct copy of an electronic document under subsection (b) as evidenced by a notarial certificate. Provides the form of notarial certificate for this authorized act, and provides that a notarial certificate substantially in this form is sufficient (for purposes of performing this notarial act). (765 ILCS 33/3.5) Establishes that if a notarial certificate is attached to or made a part of a paper or tangible document, the certificate is prima facie evidence that the requirements of Illinois law have been met, with respect to a Notary certifying that a paper or tangible copy of an electronic document is true and correct. Clarifies that a paper or tangible copy of a deed, mortgage or other document shall be deemed, from the time of being filed for record, as providing notice to subsequent purchasers and creditors, but it may not be certified as provided in 765 ILCS 33/3.5. Further clarifies that these provisions for a Notary to certify a paper or tangible copy of an electronic record do not apply to any map or plat governed by the Plat Act, the Judicial Plat Act, or the Permanent Survey Act, or to any monument record governed by the Land Survey Monuments Act. (765 ILCS 33/3.5) Provides that a Notary Public or Electronic Notary Public has no obligation to perform any notarial act or electronic notarial act, and may refuse to perform a notarial or electronic notarial act without further explanation. (5 ILCS 312/6-102) Provides that the liability, sanctions and remedies for improper performance of electronic notarial acts are the same as described and provided by law for the improper performance of non-electronic notarial acts as described in the Act. (5 ILCS 312/6A-103) Establishes new prohibited acts and sanctions: 1. Prohibits a Notary Public from explaining, certifying or verifying the contents of any document, but clarifies that this prohibition shall not prevent an attorney who is also a Notary Public from performing notarial acts for any document prepared by that attorney. (5 ILCS 312/6-104) 2. Prohibits a Notary Public from representing themselves as an Electronic Notary Public if that person is not commissioned as an Electronic Notary Public by the Secretary of State. (5 ILCS 312/6-104) Establishes that any Notary Public or other person who is not an Electronic Notary Public, who impersonates an Electronic Notary Public to perform electronic notarial acts, is guilty of a Class A misdemeanor. (5 ILCS 312/7-106) 3. Establishes that it is a Class A misdemeanor for any person to knowingly create, manufacture or distribute software or hardware for purposes of allowing persons not properly commissioned to act as an Electronic Notary Public. (5 ILCS 312/6-104) 4. Prohibits any person from wrongfully obtaining, concealing, damaging or destroying the technology or device used to create an Electronic Notary Public’s electronic signature or seal, and establishes that doing so is a Class A misdemeanor. (5 ILCS 312/6-104) 5. Prohibits a Notary Public from selling, renting, transferring or otherwise making available to a third party—other than the electronic notarization platform—the contents of the notarial journal, audio-video recordings, or any other record associated with any notarial act including personally identifiable information, except when required by law, law enforcement, the Secretary of State, or a court order. Allows a Notary to supply a copy of a line item representing the requested transaction after personally identifying information has been redacted, and the Notary has received from a third party a written request that meets specified requirements. (5 ILCS 312/6-104) 6. Provides that no person may lawfully possess, obtain, conceal, damage, or destroy a Notary’s official seal. Further provides that no person may unlawfully possess, conceal, damage, or destroy the certificate, disk, coding, card, program, software, or hardware enabling an Electronic Notary Public to affix an official electronic signature or seal. Makes any person who violates these prohibitions guilty of a misdemeanor and punishable upon conviction by a fine not exceeding $1000. (5 ILCS 312/7-107) 7. Establishes that the Secretary of State may revoke the commission of any Notary Public who, during the current term of appointment, is a licensed attorney who has been sanctioned, suspended, or disbarred by the Illinois Attorney Registration and Disciplinary Commission or the Illinois Supreme Court. (5 ILCS 312/7-108) 8. Amends current law to clarify that the Secretary of State’s investigatory authority and related matters pertain to Notaries Public and to Electronic Notaries Public. (5 ILCS 312/7-108) Allows the Secretary of State to suspend the commission of a Notary or Electronic Notary who fails to produce any journal entry within 10 days after receipt of a request from the Secretary of State. (5 ILCS 312/6-104) Journal Required Requires Illinois Notaries Public and Electronic Notaries Public to keep a journal of each notarial act or electronic notarial act (as applicable). Requires such journaling to meet, without limitation, the requirements set by administrative rule of the Secretary of State. Prohibits journals from including any electronic signatures of the perform for whom a notarial act was performed, or of any witnesses. (5 ILCS 312/3-107) Allows Notaries Public and Electronic Notaries Public to maintain their journal in either paper or electronic form, and to maintain more than one paper or electronic journal. Clarifies that the fact that an employer or contractor of a Notary of Electronic Notary keeps a record of notarial acts or electronic notarial acts does not relieve the Notary or Electronic Notary of his/her/their required journaling duties. (5 ILCS 312/3-107) Prohibits a Notary or Electronic Notary from surrendering his/her/their journal to an employer upon termination of employment. Prohibits an employer from retaining the journal of an employee Notary or electronic Notary when the Notary’s employment ceases. (5 ILCS 312/3-107) Requires a Notary or Electronic Notary to notify the Secretary of State within 10 business days after discovering that his/her/their journal is lost, stolen, or compromised (breach of security). (5 ILCS 312/3-107) Requires that upon surrender, revocation or expiration of a Notary Public or Electronic Notary Public commission, all notarial records or electronic notarial records required under Illinois law, except as otherwise provided by law, must be kept by the Notary Public or Electronic Notary Public for 5 years after termination of the [commission] of the Notary Public or Electronic Notary Public. (5 ILCS 312/6-104) Requires the Secretary of State to adopt administrative rules relative to keeping journal records, and provides minimum requirements that such rules must impose. (5 ILCS 312/3-107) Fees for Notarial Acts Increases the maximum fee a Notary Public may charge for non-electronic notarization from $1 to $5 per notarial act. (5 ILCS 312/3-104) Establishes a maximum fee of up to $25 for any electronic notarial act performed pursuant to Illinois law. Authorizes an Electronic Notary Public to charge a reasonable fee to recover any cost of providing a copy of an entry or a recording of an audio-video communication in an electronic journal. Requires all Notaries Public to provide itemized receipts for fees charged, and to list fees on an itemized receipt as separate and distinct from any other charges assessed. (5 ILCS 312/3-104) Notary Public Remittance Agents Requires the Secretary of State to adopt administrative rules describing the requirements for a Notary Public remittance agent (an entity that remits Notary Public applications to the Secretary of State on behalf of applicants) to be licensed in the State of Illinois. Requires a Notary Public remittance agent to remit applications and application fees within 30 days after receiving them from an applicant. Prohibits remittance agents from modifying a Notary’s application information in any way prior to submitting the application information to the Secretary of State. Prohibits a remittance agent from issuing a Notary seal or Notary stamp to an applicant until sufficient evidence of a commission issued by the Secretary of State has been received. Clarifies that these provisions do not apply to units of government or private businesses that make applications and provide application fees for their employees. (5 ILCS 312/2-107) Establishes that any violation of Illinois’ Notary Public Act, including violations by remittance agents, may result in an administrative citation, criminal complaint, or civil action arising from his/her/their duties as a Notary Public or Notary Public remittance agent. (5 ILCS 312/2-107) Requires the Secretary of State to adopt administrative rules applicable to Section 5 ILCS 312/2-107 of the Act. (5 ILCS 312/2-107) |
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| KANSAS – PERMANENT ELECTRONIC, RON REGULATIONS (Formerly temporary rules reported in July 2022 Alert; permanent rules are unchanged.) Effective October 28, 2022 View the regulations These temporary regulations implement Kansas’ Revised Uniform Law on Notarial Acts (RULONA). Kansas’ RULONA took effect on January 1, 2022. Definitions Defines key terms: “digital certificate,” “notarial certificate,” “Secretary.” Commissioning Matters; Notification Regarding Electronic Notarization, Remote Online Notarization Provides that any applicant for an initial Notary Public commission, and any commissioned Notary Public at any time during the Notary’s commission term, may notify the Secretary of State that the applicant or Notary intends to perform notarial acts with respect to electronic records (physically present individuals) or for remotely located individuals. Provides that these notifications shall each include the $20 fee prescribed in K.A.R. 7-43-11. (Must be accompanied by proof of examination passage, see below.) Establishes that a Notary Public commission and any notification to perform notarial acts on electronic records or for remotely located individuals may be renewed in the same manner and on the same form(s) used for an initial commission or notification, along with payment of the prescribed fees. Clarifies that if an individual renewing a Notary Public commission also intends to continue performing notarial acts with respect to electronic records or for remotely located individuals (if applicable), he/she/they shall submit such notification and appropriate fee(s) when submitting the Notary commission renewal. Establishes that no Notary commission renewal application may be submitted to the Secretary of State sooner than 90 days before expiration of the Notary Public’s commission. Provides that the commission of individuals providing notification of intent to perform notarial acts with respect to electronic records or for remotely located individuals shall reflect that such notification was made to the Secretary of State. Establishes that the authorization to perform notarial acts on electronic records or for remotely located individuals shall be concurrent with, and shall expire on the same date as, the Notary Public’s commission. Allows any Notary Public to terminate an authorization to perform notarial acts on electronic records or for remotely located individuals at any time during the Notary’s commission, by submitting the form provided by the Secretary of State for this purpose. Requires every Notary Public notifying the Secretary of his/her/their intent to perform notarial acts on electronic records or for remotely located individuals to complete a course of study and pass an examination, both approved by the Secretary of State. Allows a Notary Public to take the examination as many times as needed to achieve a passing score. Requires each Notary Public’s proof of passing the examination to be submitted with the notification of intent to perform notarial acts on electronic records or for remotely located individuals. Clarifies that the surety bond shall be a commercial surety bond from an insurance company licensed to do business in Kansas. Specifies that the bond shall be written for a period of four years, covering the dates of the Notary Public’s commission. [NOTE: see underlined text above; this is an important distinction because the governing statute requires a surety bond or its functional equivalent. This rule clearly specifies only a commercial surety bond, no other form of assurance.] Notarial Certificates Establishes short-form notarial certificates for authorized notarial acts, as required by Kansas’ RULONA Section 53-5a17. Provides that the notarial certificate for a notarial act performed for a remotely located individual shall contain a statement substantially like, “This notarial act involved the use of communication technology.” Official Stamp Requires each Notary Public’s stamping device to be retained under the Notary’s sole control. Requires every Notary Public obtaining a new stamping device for use on a tangible record to destroy or render unusable any previous stamping device, applicable if the previous stamping device will no longer be used. [Comment – this clarifies that a Notary Public may have more than one stamping device for a current commission term, but stamping devices for an expired or terminated commission must be destroyed.] Requires that when replacing a stamping device that has been lost or stolen, the Notary Public must use a different style of official stamp [i.e., it must contain a variance of some manner] to ensure the new official “looks different” from the prior official stamp. Requires every Notary Public’s official stamp for a tangible record to provide a space for the Notary Public to record the Notary’s commission expiration date. [NOTE: Kansas’ RULONA requires an official stamp to include the Notary’s name exactly as commissioned, the words “Notary Public” and “State of Kansas,” “and other information required by the Secretary of State.”] Requires a Notary Public’s official stamp, when affixed to an electronic record, to be clear, legible, and photographically reproducible. Clarifies that such official stamp on an electronic record shall not be required to be within a minimum or maximum size when photographically reproduced on the electronic record. Requires each official stamp affixed on an electronic record to include the Notary Public’s name exactly as commissioned; the words “State of Kansas” and “Notary Public”; the Notary’s commission number; and the date of expiration of the Notary’s commission. Requires a Notary Public to maintain a stamping device under his/her/their sole control, and to secure (an electronic official stamp) by means of a password or other secure method of authentication. Prohibits a Notary Public from disclosing any access information used to affix the Notary’s electronic signature or official stamp to an electronic record, except when required by a court order or subpoena. Requires a Notary Public to promptly notify the Secretary of State upon the Notary’s actual knowledge of the theft, vandalism or unauthorized by another person of the Notary’s stamping device. Specifies that when a Notary Public resigns a commission or such commission is revoked, the Notary shall request the provider of the Notary’s digital certificate to revoke the digital certificate ad provide evidence of the revocation to the Secretary of State. Journal Requires each Notary Public to retain his/her/their journal under the Notary’s sole control. Further requires that a Notary Public’s journal records shall be capable of being produced in a tangible medium when requested. Requires a Notary Public to retain the required journal of notarial acts for at least 10 years after performance of the last notarial act chronicled in it. Requires a Notary Public to retain each audiovisual recording of a remote online notarization for at least 10 years after the recording is made. Requires a Notary Public retaining a journal in an electronic format to retain the journal and any audiovisual recordings in a way that protects the journal and recordings against unauthorized access by means of a password or other secure means; and to take reasonable steps to ensure that a backup of the journal and audiovisual recordings exists and is secure from unauthorized use. Requires that upon the death or adjudication of incompetency of a current or former Notary Public, the Notary’s personal representative or guardian or any other person knowingly in possession of a journal or an audiovisual recording shall perform one of the following: (1) comply with the retention requirements of this regulation; (2) transmit each journal and audiovisual recording to one or more repositories (as addressed in the rule); or (3) transmit each journal and audiovisual recording in an industry-standard readable data storage device to the Secretary. Provides regulations for the disposition of the journal with respect to the Notary Public or a guardian, conservator or agency of the Notary, or the personal representative of a deceased Notary engaging a third party by written contract to act as a repository for stored journal records. Requires such a third-party repository to verify to the Secretary of State under penalty of perjury that the party meets the requirements of the Secretary’s regulations. Provides additional requirements for such written contracts relative to storage of journal records by a third-party repository. Notarial Act Fees Establishes that any Notary Public may charge a fee for notarization of a tangible or electronic record, or for a notarial act performed for a remotely located individual. Requires a Notary Public intending to charge a fee to disclose the fee and obtain the signer’s agreement to the fee prior to performance of the notarial act. Requires a Notary disclose to the signer that the fee is permitted but not required by state law or regulation. Requires a Notary to collect any fee charged when the notarial act is performed, and to record the fee in the Notary’s journal record. Remote Notarization Technologies Establishes minimum performance standards for the communication technology used in performance of a notarial act for a remotely located individual. Allows any provider of communication technology to provide a hardware or software update to the technologies that the Notary Public has notified the Secretary he/she/they will be using, if such update is not materially different from (does not materially alter) the technologies. Requires a provider of communication technology to offer an assurance to a Notary Public that an update does not represent a material difference from the technology that the Notary informed the Secretary that he/she/they would be using. Clarifies that a Notary Public may receive, install or use a hardware or software update to the technologies the Notary uses to perform notarial acts for remotely located individuals, if such update(s) is/are not materially different from the technologies the Notary Public informed the Secretary that he/she/they would be using. Requires the Notary Public to update the technology information filed with the Secretary of State, by notifying the Secretary of any hardware or software update that the Notary is told will be materially different (materially alter) the technologies. Establishes that all communication technology verified by the technology provider under penalty of perjury as meeting the requirements of the Secretary’s administrative rules shall be approved by the Secretary for use by Kansas Notaries Public. Allows a Notary Public authorized to perform notarial acts for remotely located individuals to use only a provider of communication technology and identity proofing that has submitted evidence under penalty of perjury to the Secretary and to the Notary Public that the provider meets the requirements of KAR 7-43-18 and 7-43-19(b), and that: • Allows the Notary Public sole control of the recording of the notarial act using audiovisual communication, subject to the authorized access granted by the notary public; and • Provides the Notary Public with access to the recording of the notarial act using audiovisual communication technology. Requires each provider of communication technology to protect from unauthorized access the audiovisual recording of each notarial act and any “personal information,” as defined in K.S.A. 50-7a01 and amendments thereto, disclosed during the performance of a notarial act using communication technology. Requires the audiovisual recording to be created in an industry-standard file format. Prohibits such recording from including images of any electronic record on which the remotely located individual made a statement or on which the remotely located individual executed a signature. Requires a communication technology and identity proofing provider to make and retain a secure backup of any record that is related to a notarial act for a remotely located individual. Requires a provider of the backup, at a Notary Public’s request, to release to the Notary any record related to a notarial act for a remotely located individual that the requesting Notary performed. Requires, if the provider of communication technology and provider of the backup are the same entity and it ceases its business operations, notification to a Notary Public in advance and upon request of the Notary, release of any records related to such notarial acts. Provides additional related requirements if the provider of communication technology and the provider of the backup are separate entities. Notarial Acts for Remotely Located Individuals Establishes that any Notary Public may perform notarial acts for remotely located individuals only after being commissioned as a Notary Public and notifying the Secretary that the Notary Public will be performing notarial acts for remotely located individuals. Prohibits a Notary Public from performing a notarial act for a remotely located individual if the Notary is not physically located in Kansas at the time of the notarization. Requires a Notary Public to take reasonable steps to ensure that the communication technology used to perform a notarial act for a remotely located individual is secure from unauthorized interception. Requires that upon performing a notarial act for a remotely located individual, a Notary Public shall electronically attach a notarial certificate to the document being notarized. Specifies the information that each completed (electronic) notarial certificate of a notarial act for a remotely located individual must contain, including the Notary Public’s official stamp that is attached to the record and the Notary’s signature, signed with the Notary’s digital certificate (thereby satisfying the rule requirement for each Notary to attach his/her/their electronic signature to the notarial certificate on an electronic record in a manner that is capable of independent verification and renders any subsequent change or modification to the electronic record tamper-evident). Requires a Notary Public who performs notarial acts for remotely located individuals to maintain an audiovisual recording of all such notarial acts, in addition to a journal of notarial acts that contains the entries required under K.S.A. 2021 Supp. 53-5a20(c), and amendments thereto. Specifies that the audiovisual recording shall include, at a minimum, confirmation by the Notary Public that the individual has successfully completed identity proofing and credential analysis; visual confirmation of the identity of the individual through visual inspection of the credential used during credential analysis; and the actual notarial act performed. Specifies that if a Notary Public does not have personal knowledge of a remotely located individual per KSA 2021 Supp. 53-5a07(a); or satisfactory evidence of identification of the remotely located individual per KSA 2021 Supp. 5a07(b)(2) and amendments thereto, the Notary Public must obtain satisfactory evidence of the individual’s identity through a multi-factor authentication procedure. Provides detailed requirements for such multi-factor authentication procedure. Requires that after obtaining satisfactory evidence of a remotely located individual (as described above), the remotely located individual must visually compare for consistency the information and photo presented on the identification credential itself and the individual as viewed by the Notary Public in real time through communication technology. Requires the image resolution of the communication technology to be sufficient to enable visual inspection by the Notary Public, including legible text and the clarity of identification credential features. Allows any Notary Public to obtain satisfactory evidence of a remotely located individual by oath or affirmation of a credible witness by means of: the Notary’s personal knowledge of the credible witness’ identity; the credible witness’ presentation to the Notary of an identification credential as required by KSA 2021 Supp. 53-5a07(b)(2) and amendments thereto, IF the credible witness is in the same location as the Notary Public; or utilizing the multifactor authentication procedure (pursuant to this rule) for verifying the identity of a remotely located individual and visually comparing the identification credential presented (by means of communication technology if the credible witness is not in the same location as the Notary Public). Requires a Notary Public to reverify, in the manner prescribed by this rule, the identity of a remotely located individual who has exited a remote online notarization session at any point. Security Procedures, Tangible and Electronic Records Requires a Notary Public, for each tangible record notarized, to affix the notarial certificate directly on the record. Provides that if a notarial certificate cannot be affixed to a record because the record lacks adequate space for a notarial certificate, the notary public shall affix a notarial certificate to a separate page and attach the record to the notarial certificate by staple or other secure method so that the removal of the record or the addition of a record is discernible. Requires each notarial certificate attached in this manner to include a description of the document to which it is attached. Requires a Notary Public notarizing an electronic record to attach or logically associate the Notary’s electronic signature to the notarial certificate by use of a digital certificate. Requires the digital certificate to have tamper-evident technology that meets the requirements specified in this rule. Allows a Notary Public to attach an official stamp to a notarial certificate that is affixed to or logically associated with the electronic record. Prohibits a Notary Public from performing a notarial act with respect to an electronic record if the digital certificate has expired; or has been revoked or terminated by the issuing or registering authority; or is invalid; or is incapable of authentication. Notary Complaints, Errors Provides that any person may file with the Secretary of State a written complaint against a Notary Public. Provides for the Secretary’s review, determinations, and actions with respect to such written complaint. Specifies a Notary’s allowed response period following the Secretary’s notification that a complaint found to require investigation has been filed, and following notification of any error in the Notary’s notarial act(s) identified by the Secretary. Clarifies that each response to the Secretary from a Notary Public shall be reviewed by the Secretary before any action is taken. Requires notifications from the Secretary to a Notary under investigation to be in writing. Requires a suspended Notary, within 30 days before the end of the suspension period, to notify the Secretary of any changes to the Notary’s commission that occurred during the suspension. Provides that failure to comply with this requirement may result in revocation of the Notary’s commission. ---------- KANSAS - SB 106 Effective January 1, 2022 View this bill Enacts the Revised Uniform Law on Notarial Acts in the Sunflower State, substantially revising Kansas’ Notary Public statutes. Provides that the Act applies to a notarial act performed on or after January 1, 2022. Repeals numerous sections of prior law. Definitions Defines “acknowledgment,” “communication technology,” “electronic,” “electronic signature,” “foreign state,” “identity proofing,” “in a representative capacity,” “notarial act,” “notarial officer,” “Notary Public,” “official stamp,” “person,” “record,” “sign,” “signature,” “stamping device,” “state,” “verification on oath or affirmation.” (See Bill Section 9, 41-251.) Also defines “communication technology,” “foreign state,” “identity proofing,” “outside the United States,” and “remotely located individual.” (Bill Sections 2; 14; 15.) _______________ Please note: Under Kansas’ RULONA, a notarial officer is a Notary Public or other individual who is authorized to perform a notarial act (under Kansas law); and a Notary Public or Notary is an individual commissioned by the Secretary of State to perform notarial acts. Notary Public Commission and Related Matters Provides the qualifications for an individual to obtain a commission as a Kansas Notary Public. Specifies that a Notary commission applicant shall file an application including an oath of office; an assurance in the form of a surety bond or its functional equivalent in the amount of $12,000 issued by a surety or other entity licensed or authorized to do business in Kansas; evidence of completion of the required course of study and examination; the official signature and impression of the stamp to be used by the applicant as Notary Public; and the $10 application fee. Further provides that a Notary Public commission may not be automatically renewed, and that renewing Notaries must be qualified and apply for each new commission in the same manner as if for an initial commission. (Bill Section 22.) Allows an individual to resign their Notary Public commission by mailing or delivering to the Secretary of State a resignation notification; such commission shall terminate upon delivery of the notification. (Bill Section 22.) Specifies requirements relative to a Notary’s required assurance. Allows a Notary Public to perform notarial acts in Kansas only during the period that a valid assurance is on file with the Secretary of State. Specifies that no suit shall be made against a Notary Public, or the surety or issuing entity of the assurance, more than three years after the related cause of action occurs. Requires a surety or issuing entity to notify the Secretary of State 30 days before canceling the assurance, and provides that the surety or issuing entity shall no longer be liable on such assurance 30 days after the Secretary’s receipt of such notice. Requires the Secretary of State, upon receiving a notice of intent to cancel an assurance, to notify an affected Notary that the Notary will not be authorized to act as a Notary Public in Kansas unless the Notary files another assurance with the Secretary of State, on or before the cancellation date of the prior assurance. Also requires a surety or issuing entity to notify the Secretary of State not later than 30 days after making a payment to a claimant; or upon denying a claim against a Notary’s assurance. (Bill Section 22.) Provides that any person injured by the failure of a Kansas Notary Public to faithfully perform any notarial act for which a bond or functional equivalent is given may, in any court of competent jurisdiction, sue to recover damages the person may have sustained from such failure. (Bill Section 22.) Provides that a Kansas Notary Public commission does not give the Notary any immunity or benefit conferred by Kansas law on public officials or employees, and further provides that a Kansas Notary Public shall not be considered a state officer. (Bill Section 22.) Allows the Secretary of State to deny, refuse to renew, revoke, suspend or impose a condition as Notary Public for any act or omission that demonstrates an individual lacks the honesty, integrity, competence or reliability to act as a Notary Public; and provides specific circumstances that demonstrate an individual’s inability to qualify for a Notary Public commission. (Bill Section 24.) Prohibits an individual whose Notary commission has been revoked for certain reasons described in Kansas’ RULONA from applying for a new commission until after four years from the date of the commission revocation. Provides that an individual whose Notary commission has been revoked for certain other offenses may not apply for or receive another Kansas Notary commission for the individual’s lifetime. Clarifies that the Secretary’s authority to deny, refuse to renew, suspend, revoke or impose conditions on a Notary Public commission does not prevent a person from seeking and obtaining other criminal or civil remedies provided by law. (Bill Section 24.) Notarial Acts Generally Authorizes a notarial officer (a commissioned Notary Public or other individual authorized to perform notarial acts under Kansas law) to perform the following notarial acts: take an acknowledgment; administer an oath or affirmation; witness or attest a signature; certify or attest a copy; note a protest of a negotiable instrument; and perform (other) notarial act(s) authorized in Kansas law. (Bill Section 4.) Lists the individuals (notarial officers) who may perform a notarial act under Kansas law (a Notary Public; a judge, clerk or deputy clerk of any Kansas court; a county clerk or deputy county clerk; an election commissioner or assistant election commissioner; or any other person authorized by the law of Kansas to perform the specific act). (Bill Section 10.) Provides that the signature and title of an individual authorized to perform a notarial act in Arizona are prima facie evidence that their signature is genuine and the individual holds the designated title, and that the signature and title of a Kansas notarial officer conclusively establish the authority of the notarial officer to perform the notarial act. (Bill Section 10.) Provides for Kansas’ recognition of notarial acts performed in another state, under authority of a federally recognized Indian tribe, under federal law, and under authority and in the jurisdiction of named entities and governments outside of the United States. Provides how the authority of the individuals performing notarial acts in these jurisdictions is conclusively established. Establishes that the signature and title of such individuals performing notarial acts in these jurisdictions are prima facie evidence that the signature is genuine and the individual holds the designated title. Further provides that appropriately issued Apostilles and consular authentications conclusively establish that the signature of the notarial officer is genuine and that said officer holds the indicated office. Clarifies that for purposes of this section, “foreign state” means a government other than the United States, a state or a federally recognized Indian tribe. (Bill Sections 11-14.) Provides that (except when a Notary Public has notarized for a spouse) the failure of a notarial officer to perform a duty or meet a requirement specified in Kansas’ RULONA does not invalidate a notarial act performed by the notarial officer. Further provides that this provision does not prevent an aggrieved person from seeking to invalidate the record or transaction that is the subject of the notarial act, or from seeking other state or federal law remedies. Clarifies that these provisions do not validate a purported notarial act performed by an individual who was not authorized to perform notarial acts. (Bill Section 26.) Performing Notarial Acts Establishes the fundamental requirements for performance of an acknowledgment, verification of a statement on oath or affirmation, witnessing or attestation of a signature, certification or attestation of a copy of a record or copied item, and noting of a protest. (Bill Section 5.) Establishes that if a notarial act relates to a statement made in or a signature executed on a record, the individual making the statement or executing the signature shall appear personally before the notarial officer. (Bill Section 6.) Provides that a notarial officer has personal knowledge of the identity of an individual appearing before the officer, if the individual is personally known to the officer through dealings sufficient to provide reasonable certainty that the individual has the identity claimed. Establishes the forms of documentary identification credentials* that provide a notarial officer satisfactory evidence of the identify of a present individual; specifies that such credentials shall be current or expired not more than three years before performance of the notarial act. (Bill Section 7.) Also authorizes a notarial officer to satisfactorily identify a present individual by a verification on oath or affirmation of a personally present credible witness who is known to the notarial officer or whom the officer can identity on the basis of a passport, driver’s license or government-issued nondriver ID card that is current or expired not more than three years before performance of the notarial act. Further provides that a notarial officer may require an individual to provide additional information or ID credentials necessary to assure the officer of the individual's identity. (Bill Section 7.) _______________ *A passport, driver’s license or government-issued nondriver identification card; another form of government identification issued to an individual that contains the signature and a photograph of the individual and is satisfactory to the officer. All such forms must be current or expired not more than three years before performance of the notarial act. Provides the circumstances under which a notarial officer may refuse to perform a notarial act, unless refusal is prohibited by other Kansas law or federal law. (Bill Section 8.) Allows an individual who is physically unable to sign to direct an individual other than the notarial officer to sign the individual’s name on a record; requires such notarial officer to insert specified language indicating this occurrence. (Bill Section 9.) Notarial Certificates Requires a notarial act to be evidenced by a certificate executed contemporaneously with (at the same time as) performance of a notarial act; signed and dated by the notarial officer; and, if the notarial officer is a Notary Public, signed in the same manner as on file with the Secretary of State. Further requires a notarial certificate to identify the jurisdiction* where the notarization was performed, the title of the notarial officer and the expiration date of the notarial officer’s commission if the officer is a Notary Public. Establishes that it is a Class C nonperson misdemeanor for a Notary Public to willfully neglect or refuse to include his/her/their commission expiration date in a completed notarial certificate. (Bill Section 16.) _______________ *Evidenced in a notarial certificate by the venue statement, “State of Kansas, County of [Kansas county where the notarial act was performed].” Specifies that a completed notarial certificate on a tangible record shall be part of, or securely attached to, the record. Specifies that a completed notarial certificate on an electronic record shall be affixed to, or logically associated with, the electronic record. Requires that a notarial certificate’s attachment, affixation, or logical association with a record shall conform to any standards established by the Secretary of State in rules and regulations. (Bill Section 16.) Requires a Notary Public to affix or emboss an official stamp on every notarial certificate the Notary completes regarding a tangible record. Allows other notarial officers to forego use of an official stamp when notarizing a tangible record, if the certificate contains the notarial officer’s signature, date of notarization, jurisdiction (venue of the notarial act) and the officer’s title. (Bill Section 16.) Clarifies that when notarizing an electronic record, a notarial officer (including a Notary Public) may forego use of an official stamp if the notarial certificate contains the notarial officer’s signature and date of notarization; the jurisdiction where the notarial act was performed; the notarial officer’s title; and date of commission expiration if applicable. (Bill Section 16.) Prohibits a notarial officer from affixing his/her/their signature to a notarial certificate, and from logically associating it with a certificate, until the notarial act has been performed. (Bill Section 16.) Provides that a notarial certificate is sufficient if it meets specified requirements of Kansas law. Further provides that when completing a notarial certificate, a notarial officer certifies his/her/their compliance with the requirements of Kansas Notary law, and that he/she/they made the determinations specified in the law. (Bill Section 16.) Official Stamp, Stamping Device Particulars Defines an official stamp as a physical image affixed to or embossed on a tangible record; or an electronic image attached to or logically associated with an electronic record, including an official Notary seal. Defines a stamping device as (1) a physical device capable of affixing to or embossing, on a tangible record, an official stamp; or (2) an electronic device or process capable of attaching to or logically associating with, and electronic record, an official stamp. (Bill Section 2.) Specifies certain information to be included on the official stamp of a Notary Public, including other information required by the Secretary of State. Requires the official stamp to be capable of being copied together with the record to which it is affixed or attached, or with which it is logically associated. Prohibits a Notary Public from using an official stamp unless he/she/they have filed an impression of the official stamp with the Secretary of State. (Bill Section 18.) Requires a Notary Public with a legal name change to obtain a new official stamp meeting the requirements of Kansas’ RULONA and amendments thereto, and reflecting the Notary’s new name. Requires a Notary, prior to performing any notarial acts following a name change, to mail or deliver a name change notice to the Secretary of State and include a specimen of the Notary ‘s new official stamp and a specimen of the Notary’s new official signature. Clarifies that if a Notary Public obtains a new stamp for any reason, the Notary shall mail or deliver to the Secretary of State a notice of the stamp change that must include an impression of the new stamp. Provides that a Notary Public is responsible for the security of his/her/their stamping device and may not allow another individual to use the device to perform a notarial act. Requires a Notary Public, upon resignation, revocation or expiration of the Notary Public’s commission or expiration of the date on the stamping device, to disable the stamping device by destroying, defacing, damaging, erasing or securing it against use in a manner that renders it unusable. Further provides that upon a Notary Public’s death or adjudication of incompetency the Notary’s personal representative or guardian, or any other person knowingly in possession of the stamping device, shall render it unusable by destroying, defacing, damaging, erasing or securing it against use. (Bill Section 19.) Requires a Notary Public or the Notary’s personal representative or guardian to promptly notify the Secretary of State upon discovering that the Notary’s stamping device is lost or stolen. (Bill Section 19.) Journal Requirements Requires a Notary Public to maintain a journal (also called a recordbook) in which the Notary chronicles all notarial acts he/she/they perform. Specifies the Notary must retain the journal for 10 years after performance of the last notarial act chronicled in the journal. (Bill Section 20.) Requires a journal to be created in a tangible medium or electronic format. Limits a Notary to maintaining only one journal in a tangible medium, but allows a Notary to maintain one or more journals in an electronic medium. Provides format specifications for tangible and electronic journals. (Bill Section 20.) Specifies the information to be recorded in every journal entry. Requires an entry in a journal to be made contemporaneously with (at the same time as) performance of the notarial act. (Bill Section 20.) Mandates actions the Notary Public shall take if the Notary’s journal is lost or stolen, or upon the Notary’s resignation, or upon the Notary’s commission revocation or suspension. Allows a Notary’s obligation to retain journal records as specified in the law to be met by transmitting the journal to a repository approved by the Secretary of State. Specifies actions to be taken by a Notary’s personal representative, guardian or any other person knowingly in possession of the Notary’s journal(s) upon the death or adjudication of incompetency of a current or former Notary Public. In all cases, disposition of the Notary journal(s) must be reported to the Secretary of State. (Bill Section 20.) Electronic, Remote Online Notarizations Provides that if a law requires a signature or record to be notarized, acknowledged, verified or made under oath, that requirement is satisfied if the electronic signature of the person authorized to perform those acts, together with all other information required to be included by other applicable law, is attached to or logically associated with the signature or record. (Bill Section 32.) Allows a Notary Public to select one or more tamper-evident technologies to performing notarial acts with respect to electronic records. Prohibits any person from requiring a Notary Public to notarize an electronic record using a technology that the Notary has not selected. (Bill Section 21.) Requires a Notary Public, prior to performing the Notary’s initial notarial act regarding an electronic record, to notify the Secretary of State that he/she/they will be performing notarial acts regarding electronic records; identify the technology the Notary intends to use; and provide evidence of completing the required course of study and passing the required examination. Requires such technology to conform to standards, if any, established by the Secretary of State. Provides that if the technology conforms to such standards, the Secretary of State shall approve use of the technology. Requires a Notary Public to pay the Secretary of State an information and services fee, in an amount determined by rule of the Secretary but not exceeding $25, for the various notifications related to performing electronic notarizations. (Bill Section 21.) Provides that the required course of study for a Notary Public desiring to perform electronic notarial acts shall be regularly offered by the Secretary of State or an entity approved by the Secretary of State. Specifies that the required course of study shall cover the laws, rules, procedures and ethics relevant to notarial acts with respect to electronic records. Further provides that the examination required for a Notary public desiring to perform electronic notarial acts shall be administered by the Secretary of State or an entity approved by the Secretary. Establishes that the examination shall be based on the required course of study. (Bill Section 23.) Prohibited Acts Prohibits a notarial officer from affixing his/her/their signature to a notarial certificate, and from logically associating it with a certificate, until the notarial act has been performed. (Bill Section 16.) Provides a lengthy list of acts that a Kansas Notary Public commission does not authorize a person to perform, including assisting persons in drafting legal records, giving legal advice or otherwise practicing law; acting as an immigration consultant or an expert on immigration matters; and representing a person in a judicial or administrative proceeding relating to immigration, United States citizenship or related matters. Prohibits a Notary Public from performing a notarial act involving a record in which the Notary or the Notary’s spouse has a direct financial or beneficial interest. Clarifies when a notarial officer has a direct financial or beneficial interest, and when a notarial officer does not have a direct financial or beneficial interest. (Bill Section 25.) Prohibits a Notary Public from engaging in false or deceptive advertising. Prohibits a Notary Public, other than one also licensed as a Kansas attorney, from using (in any business card, advertisement notice or sign) the term “notario” or “notario publico,” or any equivalent non-English term. (Bill Section 25.) Further prohibits a Notary Public who is not also a licensed Kansas attorney from advertising or representing that he/she/they may assist persons in drafting legal records, giving legal advice or otherwise practicing law. Requires a non-attorney Notary Public who elects to advertise his/her/their Notary services—whether orally or in a record including broadcast media, print media and the Internet—to include a statutorily prescribed statement about the Notary’s non-attorney status and inability to perform certain duties (that would require a license to practice law in Kansas). (Bill Section 25.) Prohibits a Notary Public from withholding access to or possession of an original record provided by a person seeking performance of a notarial act from the Notary. (Bill Section 25.) Administrative Rules Requires the Secretary of State to adopt rules and regulations providing short-form certificates of notarial acts that are sufficient for indicated purposes, if the certificates are completed with the information required by law. (Bill Section 17.) Requires the Secretary of State to adopt rules and regulations to implement the RULONA. Provides the scope of such rulemaking authority. Requires that the Secretary, when adopting such rules and regulations, to consider adopted standards by national bodies; and practices, standards and customs of other jurisdictions that have substantially enacted the RULONA. (Bill Section 27.) Notary Commissions in Effect Provides that a Notary Public commission or appointment in effect on the RULONA’s effective date of January 1, 2022 continues until its date of expiration. Requires Kansas Notaries Public performing notarial acts after January 1, 2022 to comply with the requirements of Kansas’ RULONA. Provides that a Notary Public applying to renew a commission on or after January 1, 2022 is subject to and shall company with Kansas’ RULONA. (Bill Section 28.) Clarifies that enactment of Kansas’ RULONA does not affect the validity or effect of a notarial act performed before January 1, 2022. Further clarifies that a cause of action against a Notary Public or the Notary Public’s securities before January 1, 2022 are governed by any statute or other rule amended or repealed by Kansas’ RULONA, as if amendment or repeal had not occurred. Provides that Section 29 of SB 106 shall take effect on and after January 1, 2022. (Bill Section 29.) Other Provisions Establishes that a Kansas register of deeds 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 certified that the tangible copy is an accurate copy of the electronic record. (Bill Section 21.) Makes conforming amendments to Kansas law (primarily to reflect references to Kansas’ Revised Uniform Law on Notarial Acts). Repeals specified sections of Kansas law. (Bill Section 43.) |
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| LOUISIANA – HB 903 Effective August 1, 2022 View this bill Clarifies that a remote online notarial act is deemed to be executed in any parish of Louisiana where the Notary Public is physically located at the time of the remote online notarization, if the Notary Public has jurisdiction in that parish. Establishes that an action on a contract that is a remote online notarial act may be brought in any parish in which a party was physically located at the time of the remote online notarization. -------------- LOUISIANA – HB 39 Effective August 1, 2022 View this bill Allows the superintendent of the Beauregard Parish School Board—notwithstanding any provisions of law relative to qualifications of Notaries Public—to designate and appoint no more than two employees in the superintendent’s office to serve as ex officio Notaries Public. Empowers the Beauregard Parish School Board superintendent to suspend or terminate such appointments at any time. Establishes that such appointment as an ex officio Notary Public shall automatically terminate upon the individual’s separation from school board employment. Limits the powers of these particular ex officio Notaries by allowing them, within their jurisdictional limits, to administer only oaths, receive sworn statements, and execute affidavits and acknowledgments concerning only matters within the official functions of the office of the Beauregard Parish School Board. Prohibits these ex officio Notaries Public from charging fees or receiving other compensation for their notarial acts, and authorizes them to serve without necessity of obtaining a bond. ------------- LOUISIANA - HB 274/ACT No. 254 This bill contains multiple effective dates for its sections, made contingent on the progress of a measure before the U.S. Congress (the “SECURE Notarization Act”) to enact remote online notarization in states where it was not yet enacted. The effective dates that appear in the summary below are the actual effective dates. View this bill Amended and reenacted Louisiana’s Civil Code Article 3344 and Revised Statutes Section 35:6. Enacted Revised Statutes Section 9:2760 and Sections 35:621 through 630, creating the “Remote Online Notarization Act.” Effective 8-1-20: Addresses recordation of an electronic record in tangible form (effective 8-1-20). Establishes that a recorder shall not refuse to record a tangible copy of an electronic record on the grounds that it does not bear the original signature of a party, if a Notary Public or other officer before whom it was executed certifies that the tangible copy is an accurate copy of the electronic record (effective 8-1-20). Made a conforming amendment to Civil Code Article 3344(A) (effective 8-1-20). (Bill Sections 1 and 2.) Effective 8-1-20: Amends R.S. 35:6 to deny interstate recognition to remote online notarial acts performed in states other than Louisiana. (Bill Section 3.) Effective 2-1-22: Defines “communication technology,” “credential analysis,” “identity proofing,” “remote online notarial act,” and “remote online notarization.” Establishes that the definitions of “electronic,” “electronic record,” “electronic signature,” and “record” as provided in Louisiana’s Uniform Electronic Transaction Act apply in this chapter of law (Chapter 10, Title 35, Louisiana Revised Statutes of 1950). (Bill Section 4.) Effective 2-1-22: Authorizes remote online notarization by establishing that except as otherwise provided (in R.S. 35:623 B. and C.), a remote online notarial act that meets the requirements of R.S. 35:625-627 satisfies any requirements that a party [physically] appear before a Notary Public at the time of the instrument’s execution. Requires that in all other respects a remote online notarial act shall comply with other applicable laws governing performance of that notarial act. (Bill Section 4.) Effective 2-1-22: Establishes that only a regularly commissioned Louisiana Notary Public with a valid commission may be authorized by the Secretary of State to perform remote online notarizations. Requires Notaries seeking such authorization to submit an application to the Secretary of State, in a format to be prescribed by the Secretary. Additionally requires such applicants to complete any course of instruction required by the Secretary, and satisfy any other requirements imposed by rules adopted by the Secretary of State. (Bill Section 6.) Effective 2-1-22: Provides that the authorization to perform remote online notarizations shall continue as long as the Notary Public is validly commissioned and the Secretary of State has not revoked the Notary’s authority to perform remote online notarizations. (Bill Section 6.) Effective 2-1-22: Prohibits certain documents from being executed by means of remote online notarization: testaments or codicils thereto; trust instruments or acknowledgments thereof; donations inter vivos; matrimonial agreements or acknowledgments thereof; acts modifying, waiving or extinguishing an obligation of final spousal support or acknowledgements thereof. (Bill Section 4.) Effective 2-1-22: Prohibits use of remote online notarization to execute an authentic act as defined in Civil Code Article 1833. Provides that except as otherwise provided (in R.S. 35:623B), an act that fails to be authentic due to its execution by remote online notarization may still be valid as an act under private signature or an acknowledged act. (Bill Section 4.) Effective 2-1-22: Clarifies this Chapter’s relationship to provisions of the Louisiana Uniform Electronic Transactions Act. (Bill Section 4.) Effective 2-1-22: Requires the Secretary of State to adopt rules to develop and maintain standards for implementation of remote online notarization under Chapter 10, Title 35 of the Louisiana Revised Statutes. Requires the Secretary of State to form a stakeholder committee to participate in development of these standards, and specifies certain stakeholders to be included on the committee. Mandates rules to be adopted prior to February 1, 2022 and thereafter, may be modified, amended or supplemented with or without stakeholder committee input. (Bill Section 4.) Effective 2-1-22: Specifies the location of the Notary Public, parties to the transaction and witnesses for performance of a remote online notarial act. Provides that a Louisiana Notary Public physically located in any parish of the state where the Notary may exercise notarial powers may perform a remote online notarization for a remotely located party who is within or outside of Louisiana. Requires a witness to a remote online notarial act to be in the physical presence of the remotely located party. (Bill Section 4.) Effective 2-1-22: Establishes that a remote online notarial act is deemed to be executed in any parish of Louisiana where the (transacting) party is physically located at the time of the remote notarization. Further establishes that if the party is outside of Louisiana, then the remote online notarial act is deemed to be executed in the parish where the Notary Public is physically located at the time of the remote online notarization. (Bill Section 4.) Effective 2-1-22: Specifies procedures for performing remote online notarizations including verification of a party or witness’ identity; inclusion of a statement that it is a remote online notarial act; the manner in which the Notary’s electronic signature shall be attached or caused to be attached to [the electronic notarial certificate]; and how the Notary Public shall digitally sign the remote online notarial act [notarial certificate]. (Bill Section 4.) Effective 2-1-22: Requires a Notary Public performing a remote online notarial act to take reasonable steps to ensure that the communication technology used in the remote online notarial act is secure from unauthorized interception; and the electronic record before the Notary is the same electronic record in which the party made a statement or on which the party executed or adopted an electronic signature. (Bill Section 4.) Effective 2-1-22: Requires a Notary public to maintain electronic copies of all remote online notarial acts for at least 10 years after the date of the remote online notarization. Requires such electronic copies to be capable of being printed in a tangible medium. Also requires a Notary Public to maintain an audio and video recording of each remote online notarization for at least 10 years after the date of the remote online notarization. Mandates that a Notary shall take reasonable steps to secure all such records from corruption, loss, destruction and unauthorized interception or alteration. (Bill Section 4.) Effective 2-1-22: Allows a Notary Public to designate a custodian to maintain the electronic records required under the Act, provided that the Notary has unrestricted access to the electronic records and the custodian meets any standards established by the Secretary of State for the maintenance of such records. (Bill Section 4.) Effective 2-1-22: Establishes that the provisions of Chapter 10, Title 35, Louisiana Revised Statutes of 1950 (R.S. 35:621 through 624 and 626 through 630 may not be varied by agreement. (Bill Section 4.) ---------------- LOUISIANA ADMIN RULE (RON) (Title 46, Part XLVI, Chapter 1, Section 144) Effective January 20, 2022 View this rule These administrative rules implement Louisiana Act No. 254 (HB 274), which authorizes remote online notarizations in The Pelican State. Establishes the process by which a Louisiana Notary Public in good standing (their commission is not suspended) may be authorized to perform remote online notarizations. Requires a Louisiana Notary Public seeking authorization to perform remote online notarial acts to: 1. submit an application form provided by the Secretary of State during the term of that Notary’s commission; 2. successfully complete an education program provided by the Secretary of State and covering the statutes and rules governing remote online notarizations; 3. paying a one-time fee of $100 to the Secretary upon filing the application. (Section 144 A.) Establishes that a Notary Public authorized by the Secretary to perform remote online notarizations may do so as long as: 1. the Notary maintains a valid Notary commission under Louisiana law; 2. the Notary’s authority to perform notarial functions is not suspended; 3. the Notary’s authority to perform remote online notarizations is not suspended or revoked. (Section 144 B.) Requires identity proofing during a remote online notarization to be performed through either: 1. Dynamic knowledge-based authentication that is performed through administration of a quiz completed by the party [principal signer]; or witness whose identity is being verified. Provides requirements for such identity proofing. 2. Analsis of biometric data, including facial recognition, voiceprint analysis, or fingerprint analysis. (Section 144 C.) Requires that credential analysis shall ensure that the credential is an unexpired, government-issued identification credential that contains the photograph and signature of the party or witness, whose identity is being verified by a process that does both of the following: 1. uses automated software processes to aid the Notary Public in verifying the identity of a party of any witness; and 2. ensures the credential passes an authenticity test consistent with sound commercial practices (that meet requirements specified in the administrative rule). (Section 144 D.) Specifies certain technology/performance standards for the communication technology systems used for remote online notarization. (Notably, one such standard is that such systems must provide a means by which the Notary Public is able to add a statement to any document being notarized that the act is a remote notarial act.) (Section 144 E.) Provides that the Secretary of State shall maintain a registry of identity-proofing, credential-analysis, and communication providers who have certified by affidavit that their technologies meet the minimum requirements set forth in Subsections C and D of this administrative rule. (Section 144 F.) |
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| MARYLAND – Amendments to Notary Public General Regulations (Charges and Fees for Certain Notarial Acts; Notary’s Intent to Perform Remote Notarial Acts; Enforcement Actions) Effective November 14, 2022 View the regulations Fees for Notarial Services Increases, to $6 (formerly $4) the maximum fee a Notary Public may charge for performance of an original notarial act. Establishes that a Notary Public may charge a maximum fee of $25 for performance of a remote notarial act. Further provides that when a Notary Public is asked to notarize more than one copy of the same record—when the copy or copies have been signed at the same time by the same person or persons—the Notary may charge a maximum of $6 (formerly $2) for notarizing each signature on the original or first copy of the record, and a maximum of $3 (formerly $1) for each signature on each additional copy of the same record. Increases to $6 (formerly $2) the maximum fee a Notary Public may charge for certifying a copy of a record in the Notary’s journal. Allows a Notary Public to charge not more than $2 (formerly $1) for each copy of a notarized record the Notary reproduces, by photocopying or other means; or for each copy the Notary reproduces of an entry in the Notary’s journal. Continues to allow a Notary to demand and receive reimbursement at the prevailing rate for mileage established by the Internal Revenue Service for business travel, and a fee not exceeding $5 for travel if required for the performance of a notarial act. Remote Notarial Acts Defines “remote online notary vendor” as a company that provides communication technology primarily used to facilitate a notarial act for a remotely located individual, and the technology offered by the vendor includes identity proofing and credential analysis that the Notary Public may use when required by law to identify a remotely located individual. Requires that a Maryland Notary Public wishing to perform remote notarial acts using a remote online notary vendor must first notify the Secretary of State, in writing, of such intent using the Secretary’s specified form and also must: 1. be a currently commissioned Maryland Notary Public in good standing; 2. identify to the Secretary of State the authorized remote online notary vendor or vendors the Notary intends to use; 3. notify the Secretary of State in writing within 10 business days after making a change to a new remote online notary vendor; and 4. promptly notify the Secretary of State in writing if the Notary Public reasonably believes a previously selected remote online Notary vendor does not allow the Notary to meet the requirements of State Government Article, Title 18, Subtitle 2, Annotated Code of Maryland, and any applicable regulations. Requires a Notary Public intending to perform remote notarial acts using technology that does not include use of identity proofing and credential analysis to: 1. first notify the Secretary of State using the Secretary’s form created for this purpose; 2. acknowledge (in the notification to the Secretary of State) that when performing remote notarial acts using technology that does not include identity proofing and credential analysis, the Notary must have personal knowledge of the remotely located individual’s identity under State Government Article §18-206(a), Annotated Code of Maryland; or satisfactory evidence of identity by means of a verification on oath or affirmation of a credible witness appearing before and identified by the notary public under State Government Article, § 18–206(b), Annotated Code of Maryland or as a remotely located individual pursuant to applicable law. Provides that an act or omission that may constitute failure to discharge any duty required of a Notary Public, whether imposed by any federal or state law or regulation adopted by the Secretary of State, includes performing a remote notarial act before notifying the Secretary of State as required. Makes various conforming amendments. ----------------------- MARYLAND—HB 663/SB 317 Effective June 1, 2022 View SB 317 (HB 663 is identical) Requires the Secretary of State to adopt regulations establishing a fee up to $25 that a Notary may charge for performing a notarial act. Additionally requires the Secretary’s regulation(s) to establish a lesser fee amount for performing a repetition of that notarial act; or to “make a copy of the matter addressed by” that notarial act. Authorizes a Notary Public or person acting on behalf of the Notary to charge a fee up to $50, subject to regulations of the Secretary of State, for performance of a notarial act for a remotely located individual as authorized under Maryland law. Provides for Notaries to charge a mileage fee at the prevailing per-mile business travel rate established by the Internal Revenue Service in addition to a flat fee not to exceed $5. Clarifies that the Secretary of State may, by administrative rulemaking, set a different amount a Notary may charge for travel and that such amount established by rule may exceed the statutory fee limit. Deletes the statutory restriction against remote notarization of a will or trust instrument. Authorizes, and provides procedures for, a Notary’s use of communication technology to notarize a tangible record (remote ink-signed notarization, or “RIN”). Establishes that the effective date of such a notarial act is the date the remotely located individual signed a required declaration as follows: “I declare under the penalty of perjury that the record of which this declaration is a part or to which it is attached is the same record on which (name of Notary Public), a Notary Public, performed a notarial act and before whom I appeared by means of communication technology on (date).” Authorizes a Maryland Notary Public to use communication technology to administer an oath or affirmation to a remotely located individual if, except as otherwise provided in Maryland law, the Notary Public identifies the remotely located individual as statutorily prescribed, creates or causes creation of an audio-visual recording of the individual taking the oath or affirmation; and retains or causes retention of such recording subject to applicable law. Clarifies that identity proofing of a remotely located individual shall not be required when a Notary Public identifies such person by personal knowledge or use of a credible witness in accordance with applicable law. Establishes that regulations of the Secretary of State may prescribe the methods for reasonable confirmation of a tangible record by a Notary Public. Clarifies that when necessary under Maryland Code (St. Gov’t) 18-214(a)(1)(iii), identity proofing and credential analysis must be performed by a reputable third party who has provided evidence to the Notary of the ability to satisfy the requirements of the law. Clarifies that when necessary under Maryland Code (St. Gov’t) 18-214(a)(1)(iii), identity proofing must be performed through a dynamic knowledge-based authentication that meets the specified requirements. Clarifies that when necessary under Maryland Code (St. Gov’t) 18-214(a)(1)(iii), credential analysis must use public or private data sources to confirm the validity of an identification credential presented by a remotely located individual and shall meet specified minimum requirements. Clarifies that communication technology shall provide reasonable security measures to prevent unauthorized access to: the methods used to perform credential analysis and identity proofing if such identification methods are necessary; and the electronic record that is the subject of the notarial act, if the subject record is electronic instead of tangible. Clarifies that the statutory requirement for use of an X.509 digital certificate when a Notary Public attaches or logically associates his/her/their electronic signature and official stamp to an electronic record applies if the notarial act is regarding an electronic record. Further clarifies the applicability of Maryland Code (St. Gov’t) 18-215(B)(1)—requiring a Notary Public’s official stamp on a notarial certificate—if the notarial act is regarding a tangible record. Establishes the validity of the notarization of any document under the requirements of Executive Order 20.03.30.04 or Executive Order 20.09.29.01 (these orders authorized emergency remote notarization measures due to the COVID-19 pandemic). ---------------- MARYLAND – HB 576/SB 36 Effective April 21, 2022 View this bill Authorizes a person to execute an electronic will or remotely witnessed will without a Notary Public, if the supervising attorney creates a “certified” will. Prescribes a form that shall be attached or annexed to such will. Prohibits a supervising attorney from being a witness to an electronic will or remotely witnessed will that is executed without a Notary Public. Strikes the statutory prohibition against a Maryland Notary Public performing a remote notarization for a remotely located individual, with respect to a will as defined in §1-101 of Maryland’s Estates and Trusts Article; or a trust instrument as defined in §14.5-103 of Maryland’s Estates and Trusts article. |
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| MASSACHUSETTS – HB 4345 Effective February 15, 2022 Bill Section 7 (Temporary Remote Notarization Provisions) Effective December 15, 2021 View this bill Continues, until July 15, 2022, the temporary remote notarization provisions established in response to the COVID-19 pandemic. These provisions were originally established in Senate Bill 2645 (2020) and later extended to be effective through December 15, 2021 by Senate Bill 2475 (2021). Validates notarizations performed that occurred on or after December 15, 2021 and until the February 15, 2022 effective date of HB 4345, provided that such notarizations satisfied each requirement of Chapter 71, Acts of 2020. |
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| MISSISISPPI – HB 1351 Effective July 1, 2022 View this bill Amends Section 89-5-8, Mississippi Code Annotated (1972) to prescribe the execution of scrivener’s error affidavits for property deeds. Requires affidavits of such scrivener’s errors to be executed and acknowledged by the affiant and verified upon oath or affirmation before a notarial officer. Provides that such affidavit shall be recordable in the land records of the office of chancery clerk, in the county where the real property is located. Provides affidavit wording requirements. Clarifies that an affidavit of scrivener’s error must be executed by an attorney licensed to practice in Mississippi and who also prepared any document in the chain of title to the subject real property regardless of the date of recording, or the affidavit shall be void. -------------- MISSISSIPPI—Administrative Rule Effective June 24, 2022 View these rules Revises an existing administrative rule to clarify that, for purposes of identifying persons appearing for a notarial act, a Notary Public may rely upon a driver’s license or nondriver identification card issued by a state of the United States that is current or has not been expired for more than five (5) years. COMMENT: This revision resolves conflict between two provisions in the rule… one that required driver’s licenses or nondriver ID cards to be current and unexpired; and one that allowed such cards to be current or not expired for more than five (5) years. The “current and unexpired” language will be deleted from the rule effective June 24. The rule’s language on driver’s licenses or nondriver ID cards being current or expired for not more than five (5) years remains unchanged, as does the language specifying other acceptable forms of documentary identification. ---------------- MISSISSIPPI – Administrative Rules Effective May 26, 2022 View the rules Revises Mississippi Administrative Code Part 5, Chapter 1, General Provisions, by adding two new definitions. • “Affirmation” means a notarial act, or part thereof, which is legally equivalent to an oath and in which an individual at a single time and place (1) appears in person before the Notary; (2) is personally known to the Notary or identified by the Notary through satisfactory evidence; and (3) makes a vow of truthfulness or fidelity on penalty of perjury, based on personal honor and without invoking God or using any form of the word “swear.” • “Oath” means a notarial act, or part thereof, which is legally equivalent to an affirmation and in which an individual at a single time and place: (1) appears in person before the Notary; (2) is personally known to the Notary or identified by the Notary through satisfactory evidence; and (3) makes a vow of truthfulness or fidelity on penalty of perjury while invoking God or using any form of the word “swear.” |
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| NEW HAMPSHIRE SB 134-FN Effective February 6, 2022 (Section 456 B:2, VII only―effective August 10, 2021) View this bill Definitions Defines “electronic,” “electronic signature,” “Notary Public,” “official stamp,” “person,” “record,” “sign,” “signature,” “stamping device” and “state.” Clarifies existing definitions of “notarial act,” “acknowledgment,” “verification on oath or affirmation,” and “in a representative capacity.” (See Bill Part II, Section 3). Notarial Powers Generally Provides that every Notary Public, in addition to the usual powers of the office, shall have the same powers as a justice of the peace in relation to depositions and the acknowledgment of deeds and other instruments and the administering of oaths. (See Bill Part II, Section 1). Performing Notarial Acts Prescribes the mandatory requirements and determinations for performing the notarial acts of an acknowledgment, verification or oath or affirmation, witnessing or attesting a signature, certifying or attesting a copy of a record or other item that was copied, and making or noting a protest of a negotiable instrument. (See Bill Part II, Section 4) Authorizes New Hampshire notarial officers to certify that a tangible copy of an electronic record is an accurate copy of the electronic record, and provides a new short-form certificate for this notarial act. (See Bill Part II, Sections 4 and 9). Requires an individual making a statement in or executing a signature on a record to personally appear before the notarial officer. (See Bill Part II, Section 5) Requires a notarial officer to identify an individual appearing before the officer, by means of personal knowledge of the individual’s identity or satisfactory evidence of the individual’s identity. Provides that a notarial officer has personal knowledge of an individual appearing before the officer if the individual is known to the officer through dealings sufficient to provide reasonable certainty that the individual has the identity claimed. Provides that satisfactory evidence of an individual’s identity can be established by means of a current and unexpired passport, driver’s license, or other government-issued nondriver identification card which is current and unexpired; or another form of government identification issued to an individual, which is current and unexpired, contains the signature or photograph of the individual, and is satisfactory to the notarial officer; or by a verification upon oath or affirmation of a credible witness personally appearing before the notarial officer and known to the notarial officer or whom the notarial officer can identify on the basis of a passport, driver’s license or government issued identification card which is current and unexpired. (See Bill Part II, Section 5) 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. (See Bill Part II, Section 5) Provides that a Notary Public must use an embossed official seal, or rubber official stamp, or electronic stamp (as appropriate, see NOTE below) for all notarial acts performed by a Notary Public with respect to a record. (See Bill Part II, Section 1). _______________ *NOTE: An embossed official seal or rubber stamp will be used for notarization of tangible (paper) records; an electronic stamp will be used for notarization of electronic records. Provides that the electronic or rubber official stamp of a Notary Public shall include the information required in RSA 455:3; and be capable of being copied together with the record to which it is affixed or attached or with which it is logically associated. (See Bill Part II, Section 8). Clarifies that provisions relative to a Notary’s completed notarial certificate being prima facie evidence that the (Notary’s) signature is genuine and that he/she/they hold the designated title (of office) contemplate an embossed official seal or the legible imprint of an electronic or rubber official stamp. (See Bill Part II, Section 6) Provides that a Notary Public is responsible for the security of the Notary Public’s stamping device and may not allow another individual to use the device to perform a notarial act. On resignation from, or the revocation or expiration of, the Notary Public’s commission, or on the expiration of the date set forth in the stamping device, if any, the Notary Public shall disable the stamping device in a manner that renders it unusable. Requires a Notary Public’s personal representative or guardian or any other person knowingly in possession of the stamping device to render it unusable (by means specified in the Act) upon the death or adjudication of incompetency of the Notary Public. (See Bill Part II, Section 8). Requires a Notary Public or the Notary’s personal representative or guardian to promptly notify the Secretary of State upon discovering that the Notary’s stamping device is lost or stolen. (See Bill Part II, Section 8). Electronic and Remote Online Notarization Authorizes a Notary Public to select one or more tamper-evident technologies to perform notarial acts with respect to electronic records. Prohibits a person from requiring a Notary Public to perform a notarial act with respect to an electronic record using a technology that the Notary Public has not selected. (See Bill Part II, Section 8). Requires a Notary Public to notify the Secretary of State that he/she/they will be performing notarial acts with respect to electronic records and identify the technology the Notary intends to use; such notification must occur before the Notary Public performs his/her/their initial notarial act with respect to an electronic record. If the Secretary of State has established standards for approval of technology, the technology shall conform to the standards. If the technology conforms to the standards, the Secretary of State shall approve the use of the technology. (See Bill Part II, Section 8). Authorizes the Secretary of State to adopt rules regarding the performance of notarial acts with respect to electronic records. The rules may not require, or accord greater legal status or effect to, the implementation or application of a specific technology or technical specification. (See Bill Part II, Section 8). Requires that unless the Secretary of State has adopted a rule establishing standards for tamper-evident technology, a Notary Public shall attach or logically associate the Notary Public’s 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. (See Bill Part II, Section 8). Authorizes a New Hampshire Notary Public to perform a notarial act using communication technology for a remotely located individual who is not in the physical presence of the Notary. (See Bill Part II, Section 7). Establishes that the remotely located individual complies with the law requiring personal appearance before or being in the presence of the Notary Public at the time of the notarial act, by using communication technology to appear before the Notary. Establishes that, before a Notary Public performs the Notary Public’s initial notarial act for a remotely located individual, the Notary Public must notify the Secretary of State that the Notary Public will be performing such notarial acts and identify the technologies the Notary Public intends to use. Requires that if the Secretary of State has established standards for approval of communication technology or identity proofing, the Notary Public must use communication technology and identity proofing conforming to such standards. (See Bill Part II, Section 7) Provides that a Notary Public may use communication technology to perform a notarial act for a remotely located individual, if: (a) the Notary Public (1) has personal knowledge of the identity of the individual; (2) has satisfactory evidence of the identity of the remotely located individual by oath or affirmation from a credible witness appearing [physically or by use of communication technology] before the Notary; or (3) has obtained satisfactory evidence of the identity of the remotely located individual by using at least two different types of identity proofing; (b) 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 remotely located individual executed a signature; and (c) 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 (see Recordkeeping section below). (See Bill Part II, Section 7) Requires that, unless the Secretary of State has adopted a rule establishing standards for identity proofing, a Notary Public notarizing for a remotely located individual shall comply with the credential analysis and authentication provisions of certain specified standards adopted by the Mortgage Industry Standards Maintenance Organization (MISMO) on August 28, 2019. Establishes that compliance with this requirements satisfies the requirement of using at least two different types of identity proofing when notarizing for a remotely located individual. (See Bill Part II, Section 7) Requires that when a remotely located individual is located outside the United States, the record shall be filed with or it relates to a matter before a public official or court, governmental entity, or other entity subject to the jurisdiction of the United States; or 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. (See Bill Part II, Section 7) Requires that in the performance of a notarial act for a remotely located individual, the Notary Public’s completed notarial certificate must indicate that the notarial act was performed using communication technology. Establishes that the statutory short-form certificate of notarial act (RSA 456-B:8) is sufficient if it complies with rules adopted by the Secretary of State pursuant to the Act; and is in the form provided in RSA 456-B:8 and contains a statement substantially like: “This notarial act involved the use of communication technology.” Provides that a Notary Public may charge a fee of $25 for performing a notarial act for a remotely located individual under RSA 456-B:6-a. (See Bill Part II, Section 2) Provides conditions under which―solely within the context of executing an estate planning instrument such as a will or estate planning instrument―the requirement of a person’s personal appearance before a notarial officer* at the time of the notarial act may be satisfied by use of an electronic device or process enabling the person and the notarial officer to communicate simultaneously by sight and sound. Clarifies that this provision applies only to notarial acts performed on or after March 23, 2020. Establishes the validity of a notarial act performed in compliance with Emergency Order #11 pursuant to Executive Order 2020-04 from its effective date through the date of its expiration. (Only the provisions noted in this paragraph were effective August 10, 2021.) _______________ *NOTE – Senate Bill 134-FN defines a “notarial officer” as a Notary Public, justice of the peace, or other officer authorized to perform notarial acts. Recordkeeping Requires a Notary Public to maintain a journal in which the Notary Public chronicles all notarial acts the Notary Public performs with respect to a remotely located individual. The Notary Public shall retain the journal for 10 years after the performance of the last notarial act chronicled in the journal. (See Bill Part II, Section 8). Authorizes the Notary to create a journal on a tangible medium or in an electronic format. A Notary Public shall maintain only one journal at a time to chronicle all notarial acts performed regarding tangible records and one or more journals to chronicle all notarial acts performed regarding electronic records. If a journal is maintained on a tangible medium, it shall be a permanent, bound register with numbered pages. If the journal is maintained in an electronic format, it shall be in a permanent, tamper-evident electronic format complying with the rules of the Secretary of State. (See Bill Part II, Section 8). Requires that an entry be made in a journal contemporaneously with performance of the notarial act and contain the date and time of the notarial act; a description of the record, if any, and type of notarial act; the full name and address of each individual for whom the notarial act is performed; if identity of the individual is based on personal knowledge, a statement to that effect; if identity of the individual is based on satisfactory evidence, a brief description of the method of identification and the identification credential presented, if any, including the date of issuance and expiration of the identification credential; and the fee, if any, charged by the Notary Public. (See Bill Part II, Section 8). Requires a Notary Public to promptly notify the Secretary of State upon discovering that a journal is lost, that access is lost, or that a journal is stolen. On resignation from, or the revocation or suspension of, the commission of a Notary Public, the Notary Public shall retain the journal and inform the secretary of state where the journal is located. Instead of retaining a journal a current or former Notary Public may transmit the journal to a repository approved by the Secretary of State. (See Bill Part II, Section 8) Provides that upon death or incompetency of a current or former Notary Public, the Notary’s personal representative or guardian shall retain the journal as provided in law or transmit it to a repository approved by the Secretary of State. (See Bill Part II, Section 8) Requires a Notary Public using communication technology to perform a notarial act for a remotely located individual, or a person acting on behalf of the Notary Public, to create an audio-visual recording of the performance of the notarial act. (See Bill Part II, Section 7) Requires a Notary Public, a guardian, conservator, or agent of a Notary Public, or a personal representative of a deceased Notary Public, to retain the audio-visual recording or cause it to be retained by a repository designated by or on behalf of the personal required to retain the recording. Specifies a retention period for the recording of at least 10 years after the recording is made, unless a different period is required by rules of the Secretary of State. (See Bill Part II, Section 7) Rulemaking Authorizes the Secretary of State to adopt rules regarding the performance of a notarial act for 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 retention of the audio-visual recording. (See Bill Part II, Section 7) Validity of Notarial Acts Provides that the failure of a notarial officer to perform a duty or meet a requirement specified in New Hampshire law on notarial acts does not invalidate a notarial act performed by the notarial officer. The validity of a notarial act does not prevent an aggrieved person from seeking to invalidate the record or transaction that is the subject of the notarial act or from seeking other remedies based on law of this state other than this chapter or law of the United States. (See Bill Part II, Section 8). Other Provisions Enacts the Uniform Real Property Electronic Recording Act, thereby allowing New Hampshire’s local recording officials to accept deeds and other property records in electronic form. Provides that a New Hampshire Register of Deeds shall accept for recording a tangible copy of an electronic document (other than a plat, map, survey, or plat of land as provided in RSA 478:1-a) containing a notarial certificate as satisfying any requirement that a document 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 document. (See Bill Part II, Section 10) |
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| NEW JERSEY Notary Rules – N.J.A.C. 17:50 Effective January 11, 2022 (to expire January 11, 2029) View these rules Upon opening the above link, select NJ Administrative Code (see right margin); select Title 17 Treasury; select Chapter 50 Notary Public Rules; select Subchapter 1 General Provisions to access all rule sections. These administrative rules implement New Jersey’s Public Act 2021-179 (see Law Alert submitted October 20, 2021). These rules expire on January 11, 2029. Defines “acknowledgment,” “electronic,” “electronic signature,” “in a representative capacity,” “non-attorney applicant,” “notarial act,” “notarial journal,” “notarial officer,” “Notary Public,” “official stamp,” “person,” “record,” “sign,” “signature,” “stamping device,” “verification on oath or affirmation.” (Section 17:50-1.2) Also defines terms relating to electronic and remote online notarization: “biometric identification,” “communication technology,” “digital public key certificate,” “dynamic knowledge-based authentication assessment,” “foreign state,” “identity proofing,” “outside the United States,” and “remotely located individual.” (Rule 17:50-1.14.) Provides requirements to be met by New Jersey Notary commission applicant requirements at the time of appointment: be at least 18 years of age; be a legal resident of New Jersey State or have a place of employment or practice in New Jersey; and not be disqualified to receive a commission pursuant to N.J.A.C. 17:50-1.5. (Rule 17:50-1.3) Provides that a Notary Public who has been duly commissioned and qualified is authorized to perform the duties of a Notary Public throughout the State of New Jersey. (Rule 17:50-1.3) Prohibits a Notary Public from performing a notarial act with respect to a record to which the Notary Public r the Notary Public’s spouse or civil union partner is a party, or in which either of them has a direct beneficial interest. Establishes that a notarial act performed in violation of these prohibitions is voidable. (Rule 17:50-1.3) Prohibits a Notary Public not also licensed as an attorney-at-law to use or advertise the title of lawyer or attorney-at-law, or equivalent terms in any other language that mean or imply that the Notary Public is licensed as an attorney-at-law in the State of New Jersey or in any other jurisdiction of the United States. (Rule 17:50-1.3) Requires Notaries Public who advertise their services in any language to include a notice that contains the following statement or translation of the following statement if the advertisement is not in English: "I am not an attorney licensed to practice law and may not give legal advice about immigration or any other legal matter or accept fees for legal advice." (Rule 17:50-1.3) Prescribes Notary commission application procedures. Requires a Notary commission applicant to apply to the State Treasurer on a form prescribed by the Treasurer. Further requires the application to be endorsed by a member of the New Jersey Legislature. Requires Notary commission renewals to be made in the same manner as the original application. Mandates that all applications shall be submitted electronically through a means provided by the State Treasurer at www.nj.gov/njbgs. Provides for a Notary commission application fee of $25, non-refundable. (Rule 17:50-1.4) Requires each Notary Public, within three months of the receipt of a commission, to take and subscribe an oath to faithfully and honestly discharge the duties of the office, and to make and keep a true record of all such matters as are required by law (maintain a journal). Requires the oath to be sworn before the clerk of the county in which the Notary Public resides, and to be filed with that clerk. (Rule 17:50-1.4) Requires the oath of office for a non-resident Notary Public to be taken and subscribed before the clerk of the county in which the nonresident Notary Public maintains an office, or in the county in which the nonresident Notary Public is employed by a business with its domicile or primary place of business in New Jersey. Provides that the oath shall be sworn before the clerk of the county in which the notary public resides and shall be filed with said clerk. (Rule 17:50-1.4) Provides that following the Notary’s oath of office and endorsement of the certificate of commission and qualification, the clerk shall transmit the certificate to the State Treasurer within 10 days of the administration of the oath, through an electronic method provided by the State Treasurer. Further provides that the clerk shall give notice to the person that a Notary Public not also licensed as an attorney-at-law shall not use or advertise the title of lawyer or attorney-at-law, or equivalent terms, in any language, which mean or imply that the Notary Public is licensed as an attorney-at-law in the State of New Jersey or in any other jurisdiction of the United States. Requires the notice to also state that a Notary Public who advertises his/her/their services in any language must include with such advertisement a notice in the language of the advertisement, which states "I am not an attorney licensed to practice law and may not give legal advice about immigration or any other legal matter or accept fees for legal advice." (Rule 17:50-1.4) Provides that the State Treasurer shall cancel and revoke the appointment of any Notary Public who fails to take and subscribe the oath within three months of the receipt of the commission. Clarifies that any appointment so canceled and revoked shall be null, void, and of no effect. (Rule 17:50-1.4) Allows a person who is not a legal resident of the State of New Jersey, but who maintains, or is regularly employed in, an office in this State or is an employee of a business with its domicile or primary place of business in this State and performs his or her employment duties remotely from a home office or a co-working space, to apply for a commission by complying with the requirements at N.J.A.C. 17:50-1.4 and certifying certain additional information through the online commissioning site at www.nj.gov/njbgs. Provides that once commissioned, any such nonresident notary public shall file online with the State Treasurer at www.nj.gov/njbgs a certificate showing any change of residence or change of the office or place of employment of the Notary Public in New Jersey. (Rule 17:50-1.5) Requires a Notary Public with a name change to notify the State Treasurer using a statement/form provided online by the Treasurer. Requires such notification be made before the Notary Public signs any record that the Notary is authorized or required to sign (in their capacity as Notary Public). Further provides that such statement, or a certified copy, shall be evidence of the right of the notary public to continue to exercise the powers and privileges and perform the duties of a notary public in the changed or new name. (Rule 17:50-1-6) Affirms that the State Treasurer may refuse to renew a commission of a notary public; or suspend, revoke, or otherwise limit the commission of a notary public for any act or omission that demonstrates that the individual lacks the honesty, integrity, competence, or reliability necessary to act as a notary public, and provides examples of such act or omission. (Rule 17:50-1.7) Further provides that when the State Treasurer denies a Notary Public application; refuses to renew a Notary Public commission; or suspends, revokes, or otherwise limits a Notary Public’s commission; the State Treasurer shall provide written notice to the applicant or commission holder. Provides the contents of such written notice. (Rule 17:50-1.7) Addresses procedures and requirements for hearings requested by individuals who were denied a Notary commission; or whose commission was not renewed; or was suspended, revoked or otherwise limited. (Rule 17:50-1.7) Specifies the forms of identification a notarial officer shall rely upon or accept to identify an individual appearing for a notarial act, including personal knowledge, documentary evidence of identity, and verification on oath or affirmation of a credible witness personally known to the notarial officer or whom the notarial officer can identify based on specified forms of identification. Allows a notarial officer to require an individual to provide additional information or identification credentials necessary to assure the notarial officer of the identity of the individual. (Rule 17:50-1.13.) Requires all notarial acts to be evidenced by a certificate and stamped by the Notary Public. Requires a notarial certificate to be executed contemporaneously with the performance of the notarial act; signed and dated by the notarial officer; identify the jurisdiction in which the notarial act is performed; contain the title of office of the notary public; and, if the notarial officer is a notary public, indicate the date of expiration of the officer's commission. 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. (Rule 17:50-1.8) Further provides that a certificate of a notarial act is sufficient if it meets these (preceding) requirements and is in a short form as set forth at N.J.A.C. 17:50-1.10; is in a form otherwise permitted by the law of New Jersey; and is in a form permitted by the law applicable in the jurisdiction in which the notarial act was performed. (Rule 17:50-1.8) Requires that if a notarial act regarding a tangible record is performed, a certificate shall be part of, or attached to, the record. Further requires that if a notarial act regarding an electronic record is performed, the certificate shall be affixed to, or logically associated with, the electronic record. (Rule 17:50-1.8) Prescribes the requirements for the official stamp of a Notary Public, which shall: include the name of the Notary Public, the title "Notary Public, State of New Jersey," and the Notary's commission expiration date; and be capable of being copied together with the record to which it is affixed or attached or with which it is logically associated. (Rule 17:50-1.8.) Makes a Notary Public responsible for the security of the Notary’s stamping device. Prohibits the Notary from allowing another individual to use the device to perform a notarial act, except at the specific instruction of a Notary Public who cannot physically use the stamping device. (Rule 17:50-1.8.) Provides that the stamping device is the property of the Notary Public and not of the Notary’s employer, even if the employer paid for the stamping device. (Rule 17:50-1.8.) Requires that if a Notary’s stamping device is lost or stolen, the Notary or the Notary’s personal representative must notify the State Treasurer at http://www.nj.gov/treasury/revenue/revgencode.shtml of the stamping device’s loss or theft within 10 calendar days. (Rule 17:50-1.8.) Establishes notarization procedures for an individual who is physically unable to sign a record. (Rule 17:50-1.9.) Also provides the requirements for a notarial officer’s certification or attestation that a copy of a record, or an item that was copied, is a full, true, and accurate transcription or reproduction of the record or item. (Rule 17:50-1.12.) Provides short-form notarial certificate forms for New Jersey’s authorized notarial acts involving a record. (Rule 17:50-1.10.) Prescribes extensive journal requirements relative to the journal’s medium (tangible or electronic), format and entries. Requires a Notary Public to maintain a journal of all notarial acts performed. Allows a journal to be created on a tangible medium or in an electronic format. Allows a Notary Public to maintain only one journal at a time in which to chronicle all notarial acts, whether such acts are performed regarding tangible or electronic records. (Rule 17:50-1.11.) Requires a Notary Public to retain the journal for 10 years after performance of the last notarial act chronicled in the journal; or write to the State Treasurer (URL provided) for instructions on how to send or transmit the journal securely to the Division. (Rule 17:50-1.11.) Provides procedures relative to the disposition of journals belonging to Notaries who resign their commission, or whose commission is revoked or suspended. Allows a Notary Public who is a New Jersey attorney-at-law; or who is employed by a New Jersey attorney; or who is employed by or acting as an agent for a title insurance company licensed to do business in New Jersey pursuant to P.L. 2001, c. 210 (N.J.S.A. 17:22A-26 et seq.); to maintain a record of notarial acts in the form of files regularly maintained for the attorney's law practice or the title insurance company's business activities, as the case may be. (Rule 17:50-1.11.) Requires a Notary Public to notify the State Treasurer within 10 days of the loss or theft of his/her/their journal using an online form provided by the Treasurer. (Rule 17:50-1.11.) Provides for the disposition of a Notary’s journal upon the Notary’s death or adjudication of incompetency. (Rule 17:50-1.11.) Establishes criteria for a notarial officer’s refusal to perform a notarial act, and clarifies that a notarial officer may refuse to perform a notarial act unless the individual presenting the record provides the officer with proof that refusal is prohibited by a State of New Jersey law other than N.J.S.A. 52:7-10 et seq. (Rule 17:50-1.17.) Provides the fees that notarial officers may collect for services rendered: 1. For administering oaths, taking affidavits, taking proofs of a deed, and taking acknowledgments, $ 2.50 per act. 2. For administering oaths, taking affidavits, taking proofs of a deed, and taking acknowledgments of the grantors in the transfer of real estate, regardless of the number of such services performed in a single transaction to transfer real estate, $ 15.00. 3. For administering oaths, taking affidavits, and taking acknowledgments of the mortgagors in the financing of real estate, regardless of the number of such services performed in a single transaction to finance real estate, $ 25.00. (Rule 17:50-1.18.) Electronic Notarization Defines terms relating to electronic notarization: “tamper-evident,” and “logically associated with.” (Rule 17:50-1.15.) Authorizes a notarial officer to select one or more tamper-evident technologies to perform notarial acts with respect to electronic records. Specifically excludes wills, codicils and testamentary trusts from performance of an electronic notarization. Prohibits a person from requiring a notarial officer to perform a notarial act with respect to an electronic record, using a technology that the notarial officer has not selected. (Rule 17:50-1.15.) Authorizes a New Jersey notarial officer, located in New Jersey, to perform a notarial act using tamper-evident technology if the individual requesting the act appears in person (is physically present) before the notarial officer at the time of the act. Requires the notarial officer at the time of the notarial act to obtain a satisfactory form of identification for the individual (forms required for traditional notarization for a physically-present signer); and to complete an electronic notarial certificate with an electronic signature and stamp, including all elements required by NJAC 17:50-1.13 (administrative rule). Further requires the notarial officer to attach the certificate and stamp to, or logically associate them with, the electronically notarized record. (Rule 17:50-1.16.) Requires a Notary Public, before performing his/her/their initial notarial act with respect to an electronic record, to notify the State Treasurer electronically at www.nj.gov/njbgs that the notary public will be performing notarial acts with respect to electronic records and identify the technology that the notary public intends to use. (Rule 17:50-1.16.) Requires a notarial officer to ensure that the officer’s electronic signature stamp is reliable, and provides the criteria for such reliability. (Rule 17:50-1.16.) Prohibits a Notary Public from disclosing any access information used to affix the Notary’s electronic signature and seal; provides exceptions to this prohibition. (Rule 17:50-1.16.) Remote Online Notarization Defines terms relating to remote online notarization: “biometric identification,” “communication technology,” “digital public key certificate,” “dynamic knowledge-based authentication assessment,” “foreign state,” “identity proofing,” “outside the United States,” and “remotely located individual.” (Rule 17:50-1.14.) Establishes that a remotely located individual may comply with New Jersey’s notarial law and requirements by using communication technology to appear before a notarial officer. Further establishes that a notarial act performed using communication technology for a remotely located individual is deemed performed in New Jersey and is governed by New Jersey law. (Rule 17:50-1.14.) Provides requirements for a New Jersey notarial officer’s use of communication technology for performance of a notarial act, including that the notarial officer must be located in New Jersey (the individual remotely appearing for the notarial act need not be in New Jersey). Clarifies that if a notarial act related to a statement made in, or a signature executed on, a record the individual making the statement or executing the signature shall appear personally before the notarial officer, or shall use communication technology to appear before the notarial officer. Further requires that the certificate for such notarial acts performed for a remotely located individual must indicate that the notarial act was performed using communication technology. (Rule 17:50-1.14.) Requires a notarial officer performing a notarial act for a remotely located individual and using communication technology to create an audio-visual recording of the performance of the notarial act. Requires a notarial officer, guardian, conservator, agent of a notarial officer, or personal representative of a deceased notarial officer to retain the audio-visual recording or cause such recording to be retained by a designated repository for a period of 10 years. (Rule 17:50-1.14) Provides requirements for a New Jersey notarial officer’s performance of a remote online notarization for an individual located outside the United States. (Rule 17:50-1.14.) Requires that before a Notary Public performs the Notary’s initial notarial act for a remotely located individual using communication technology, the Notary Public must notify the State Treasurer electronically at www.nj.gov/njbgs that the Notary Public will be performing such notarial acts and identify the technologies the Notary Public intends to use. (Rule 17:50-1.14.) Clarifies that a notarial officer may administer an oath to a remotely located individual using communication technology pursuant to requirements set forth in Rule 17:50-1.14. Remote Notarization, Tangible (Paper) Records Allows a notarial officer of New Jersey to use communication technology to take an individual’s acknowledgement of his/her/their signature on a tangible record in the possession of the Notary Public. Requires the record to be displayed to, and identified by, the remotely located individual during the audio-visual session. (Rule 17:50-1.14.) Provides the requirements for a notarial officer to perform a notarial act with respect to a tangible record not physically present before the notarial officer. Such requirements include the remotely located individual signing a declaration about the record, made under penalty of perjury; and the notarial officer ensuring that the individual’s signing of the record and declaration are recorded in the audio-visual recording. Establishes that the date of notarization for such a document is the date on which the remotely located individual signed the declaration. (Rule 17:50-1.14.) Requires, for both these circumstances involving communication technology and notarization of a tangible record, that the Notary create an audio-visual recording of performance of the notarial act. (Rule 17:50-1.14.) ---------------- NEW JERSEY Continuing Education, Exam Rules – N.J.A.C. 17:50-2 Effective February 7, 2022 (to expire January 11, 2029) View these rules Upon opening the above link, select NJ Administrative Code (see right margin); select Title 17 Treasury; select Chapter 50 Notary Public Rules; select Subchapter 2 Continuing Education and Examination Requirements to access all rule sections. Establishes education and testing requirements for non-attorney applicants seeking a new or renewed Notary Public commission. Requires non-attorney applicants for an initial commission as a Notary Public to complete a course of study that fosters the applicant’s understanding of the statutes, rules, procedures and ethical requirements of a Notary Public, as documented in the State of New Jersey’s Notary Manual (www.nj.gov/njbgs). Requires the State Treasurer to ensure that the online course can be accessed through www.nj.gov/njbgs. (Rule Section 17:50-2.2.) Establishes an online testing requirement for non-attorney applicants seeking an initial commission as a New Jersey Notary Public. Requires such test to confirm the applicant’s understanding of the course content provided at www.nj.gov/njbgs. Further provides for accessibility of the online test and test instructions, and that the testing process shall be integrated with the State’s online Notary Public commissioning system. Requires the State’s online Notary Public commissioning system to generate certificates of approval evidencing that applicants have passed the required test, and to record that applicants have passed the test and clear them to submit their Notary Public commission applications. (Rule Section 17:50-2.2.) Allows the State Treasurer to charge up to $15.00 for administering each test. (Rule Section 17:50-2.2.) Requires non-attorney applicants for a renewed Notary commission who have previously completed the education and testing requirements at least one time, or who were commissioned for the first time before July 22, 2021, to complete a continuing education course. Requires the course to focus on the statutes, rules, procedures, and ethical requirements documented in the State of New Jersey Notary Manual (see URL above); provides that the online course shall be accessed at (see URL above). (Rule Section 17:50-2.3.) Requires the State Treasurer to ensure that the online course is integrated with the State’s online Notary Public commissioning system. Requires the online system to provide certificates of approval evidencing each applicant’s completion of the continuing education course. Further requires the system to record that applicants have completed the course and clear them to submit their Notary Public commission applications. (Rule Section 17:50-2.3.) |
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| NEW MEXICO – HB 180 Effective March 1, 2022 View this bill Repeals Section 14-14A-29, New Mexico Statutes Annotated 1978, thereby eliminating authorization under New Mexico’s Inspection of Public Records Act (IPRA) for members of the public to request Notary Public journal entries or audiovisual recordings. Also repeals statutory provisions that (1) required public requests for Notary journal entries or audiovisual recordings to name the notarial transaction “with particularity”; and (2) that deemed records requests that omitted naming the document that was the subject of the notarial act as unenforceable under New Mexico’s IPRA. --------------- NEW MEXICO – SB 12 Effective January 1, 2022 View this bill Enacts the Revised Uniform Law on Notarial Acts (RULONA); repeals prior New Mexico law pertaining to notarial acts. Authorizes rulemaking by the Secretary of State; provides the scope of rulemaking authority conferred to the Secretary of State. (See Bill Section 26. A.) Specifies standards, practices, recommendations, customs, input, etc. to be considered by the Secretary of State with regard to rulemaking. (See Bill Section 5.H.-I.) Includes the following provisions. Definitions Defines “acknowledgment,” “electronic,” “electronic signature,” “foreign state,” “in a representative capacity,” “notarial act,” “notarial officer,” “Notary Public,” “official stamp,” “person,” “record,” “sign” or “subscribe,” “signature,” “stamping device,” “verification on oath or affirmation.” (See Bill Section 2., A.-O.) Also defines “communication technology,” “identify proofing,” “outside the United States,” and “remotely located individual.” (See Bill Section 5.K.) (Comment: Notably, many definitions establish that their meaning is the same whether with regard to a tangible or electronic medium… that is, fundamental terms and phrases such as signing, performing a notarial act, and including an official Notary seal in a notarial certificate pertain to notarization of paper and electronic records.) Commissioning; Notary’s Commission Provides that a New Mexico Notary Public is commissioned by the Secretary of State (formerly the Governor). Modifies some qualifications for a New Mexico Notary Public commission, which are: 1. Be at least eighteen years of age; 2. Be a citizen or permanent legal resident of the United States; 3. Be a resident of or have a place of employment in New Mexico; 4. Be able to read and write English; 5. Not be disqualified to receive a commission under the Revised Uniform Law on Notarial Act’s Section 22 (Grounds to Deny, Refuse to Renew, Revoke, Suspend or Condition Commission of Notary Public); 6. Have passed the examination required pursuant to Subsection A of Section 21 of the RULONA; and 7. Not otherwise be disqualified as a notarial officer; provided that an individual who is employed as a court clerk, deputy court clerk, county clerk or deputy county clerk may also be commission as a Notary Public. (See Bill Section 20.B.) No longer prescribes a $20 commission application in statutes; instead requires an applicant to pay “any application fee.” (Comment: the SOS’s revised Notary Public commission application information indicates the application fee is $30.) (See Bill Section 20.A.) Retains prior law’s requirement for a $10,000 surety bond, which may now also be a “functional equivalent.” Requires the surety or issuing entity to give thirty days’ notice to the Secretary of State before canceling the assurance/bond; and notify the Secretary of State not later than 30 days after making a payment to a claimant under the assurance. (See Bill Section 20.D.) Retains prior law’s provision that the Secretary of State will mail a notice of commission expiration to each Notary at least 30 days before the expiration date; and that a Notary Public will apply for reappointment in the same manner as required for an original application. (See Bill Section 20.G) Requires an applicant for a New Mexico Notary commission, who does not already hold such commission, to pass an examination administered by the Secretary of State or an approved entity.* Provides that the Secretary of State or an approved entity shall offer a course of study to Notary commission applicants who do not already hold a commission. (See Bill Section 21.A., B.) Provides for continuing legal education credit for New Mexico’s attorney-Notaries. (See Bill Section 21.C.) _______________ *NOTE: This statement reflects the wording of SB 12, but the Secretary of State’s website instructs new and renewing Notaries (some of which may still be operating on an unexpired commission) that they are required to complete the Notary Education course and exam approved by the Secretary of State. Provides that the New Mexico state ethics commission may deny, refuse to renew, revoke, suspend or impose a condition on a commission as Notary Public for any act or omission that demonstrates that the individual lacks the honesty, integrity, competence or inability to act as a Notary Public; lists certain such acts and omissions. (See Bill Section 22.A.) Further provides that the Secretary of State may deny or refuse to renew an applicant upon notice form the state ethics commission of adverse action upon a Notary Public. (See Bill Section 22.B.) Requires the Secretary of State to maintain an electronic database of Notaries Public and specifies the information to be maintained, including whether a Notary Public has notified the Secretary that he/she/they will be performing notarial acts on electronic records. (See Bill Section 23.) Clarifies that an individual with a commission as Notary Public in effect on the date of the New Mexico RULONA’s adoption may retain that commission until the scheduled date of expiration. Provides that a notarial officer authorized to practice law in New Mexico may practice notarial acts with no expiration of such authority, but must maintain an active law license. Clarifies that a New Mexico Notary Public who renews his/her/their commission on or after the effective date of the RULONA is subject to and shall comply with the Act. Specifies that a Notary Public or notarial officer shall comply with the RULONA when performing notarial acts after the effective date of the Act. (See Bill Section 27.) Notarial Acts Explicitly requires a Notary Public or notarial officer of New Mexico to perform all notarial acts pursuant to (in compliance with) New Mexico’s RULONA or other law of the state. Prohibits a notarial officer from notarizing when his/her/their spouse or domestic partner is a party to the record, or when either of them has a direct beneficial interest. (See Bill Section 3.A., B.) Authorizes a notarial officer (not only a Notary Public) to certify that a tangible copy of an electronic record is an accurate copy of the record. (See Bill Section 3.C.) Establishes the requirements for performance by a notarial officer of an acknowledgment; verification on oath or affirmation; witnessing or attestation of a signature; certification or attestation of a copy of a record or copied item; and noting of a protest. (See Bill Section 4. A.-E.) Requires individuals making a statement in, or executing a signature on, a record to personally appear before a notarial officer. (See Bill Section 5.A.) Provides that a remotely located individual may satisfy the personal appearance requirement by use of communication technology* to appear before a notarial officer, at the time of the notarial act. (See Bill Section 5.B.) ________ *Comment – see defined term for communication technology. Provides that a notarial officer may identify an individual appearing for a notarial act by means of personal knowledge or satisfactory evidence. Specifies the forms of identification deemed to be satisfactory evidence. 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. (See Bill Section 6.A.-C.) Provides for individuals physically unable to sign to direct an individual other than the notarial officer to sign; requires the notarial officer to insert language indicating such circumstances. (See Bill Section 8.) Requires a notarial act to be evidenced by a certificate, and establishes notarial certificate requirements for performance of a notarial act by Notaries Public and other notarial officers (notably, that the certificate shall be executed contemporaneously—at the same time as—performance of the notarial act; that if the notarial officer is a Notary Public, include the Notary’s commission number and commission expiration date; and that a notarial officer shall not sign a notarial certificate until after the notarial act has been performed). (See Bill Section 14.A., E.) Clarifies what constitutes the sufficiency of a completed notarial certificate, and provides short-form certificate examples for an acknowledgment by an individual and in a representative capacity; a verification on oath or affirmation; witnessing or attesting a signature; and certifying a copy of a record. Provides that by executing a notarial certificate, a notarial officer certifies his/her/their compliance with the requirements of RULONA and made determinations specified in the Act. (See Bill Section 14.C., D.; 15.A.-E.) Requires performance of a notarial act regarding a tangible record by a Notary Public or other notarial officer to be evidenced by an official stamp affixed or embossed on the notarial certificate. Requires performance of a notarial act regarding an electronic record by a Notary Public or other notarial officer to be evidenced by an official stamp attached to or logically associated with the electronic record’s notarial certificate. Requires the process for attaching, affixing, or logically associating a notarial certificate with an electronic record to conform to any standards established by the Secretary of State. (See Bill Section 14.B., F.) Establishes a comprehensive listing of prohibited acts. (See Bill Section 24.) Authorizes a notarial officer to refuse to perform a notarial act, and provides the grounds for such refusal. Clarifies that such refusal must not be prohibited by a state or federal law other than New Mexico’s RULONA. In accordance with New Mexico’s Human Rights Act, prohibits a notarial officer from discriminating in the performance of a notarial act. (See Bill Section 7. A.-C.) Provides for the legal recognition of notarial acts performed by notarial officers of another state; a federally-recognized Indian tribe; certain officers and individuals under federal law; under authority and jurisdiction of a foreign state or constituent unit of the foreign state; or under authority of a multinational or international governmental organization. (See Bill Sections 10, 11, 12 and 13.) Provides that (enactment of) New Mexico’s RULONA does not affect the validity or effect of a notarial act performed before the effective date of the Act. (See Bill Section 30.) Provides for the validity of notarial acts performed by a New Mexico notarial officer, while also providing for aggrieved persons to seek invalidation of the record or transaction that is the subject of the notarial act or to seek other remedies based on other New Mexico law, or U.S. law. Clarifies that this section of law does not validate a purported notarial act performed by an individual who does not have the authority to perform notarial acts. (See Bill Section 25.) Electronic and Remote Online Notarial Acts Allows a Notary Public or notarial officer to select one or more tamper-evident technologies with which to perform notarial acts with respect to electronic records. Prohibits a person from requiring a Notary Public or notarial officer to electronically notarize using a technology the Notary has not selected. (See Bill Section 19.A.) Requires a Notary Public or notarial officer to notify the Secretary of State, prior to performing his/her/their initial electronic notarial act, that the Notary will be performing notarial acts with respect to electronic records, and identify the technology the Notary intends to use. Requires such technology to conform to standards, if any, establishes by the Secretary of State. (See Bill Section 19.B.) Authorizes remote online notarization by use of communication technology. (See Bill Section 5.C.) Requires a notarial officer (including a Notary Public), prior to performing his/her/their initial notarial act with a remotely located individual, to notify the Secretary of State of the intent to perform these notarizations, and identify the technologies the Notary or notarial officer will use. Requires chosen (remote) communication and identity proofing technologies to conform to standards established by rule of the Secretary of State, if any. (See Bill Section 5.G.) Specifies the conditions under which a Notary Public or notarial officer, located in New Mexico, may perform a notarial act using communication technology. Requires the Notary to identify the remotely located individual through personal knowledge or specified forms of satisfactory evidence, pursuant to New Mexico’s RULONA. Further requires the Notary to reasonably confirm that a record before the Notary is the same record in which the remotely located individual made a statement or executed a signature; and the Notary or a person acting on behalf of the Notary to create an audiovisual recording of performance of the notarial act for the remotely located individual. Establishes additional requirements to be met if the remotely located individual appearing before the Notary is located outside of the United States. (See Bill Section 5.C.) Requires a certificate of notarial act performed for a remotely located individual to indicate the notarial act was performed using communication technology. Provides that such a notarial certificate is sufficient if it complies with rules adopted by the Secretary of State; or it is in the form provided in the RULONA and contains a statement substantially like: “This notarial act involved the use of communication technology.” (See Bill Section 5.D.-E.) Requires retention of the audiovisual recording of a remote online notarial act to be retained by the Notary Public or certain other specified individuals; 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 recordings shall be retained for a period of at least 10 years after the recording is made, unless a different retention period is required by rule of the Secretary of State. (See Bill Section 5.F.) Notary’s Official Stamp Provides that an official stamp of a Notary Public shall include the Notary Public’s name, jurisdiction, commission number, date of commission expiration and other information required by the Secretary of State. Specifies additional required information elements for Notaries who are New Mexico attorneys, judges, clerks and deputy clerks and that any other information required by the Secretary of State must be included. Requires all notarial officers including Notaries Public to file his/her/their official stamp with the Secretary of State before performing a notarial act with it. (See Bill Section 16.A.) Prohibits use by any other individual of a Notary Public’s stamping device, and charges a Notary with the stamping device’s security. Specifies that the Notary shall disable the stamping device (make it unusable) upon the Notary’s commission resignation, revocation or expiration. Charges the Notary’s personal representative or guardian or any other person knowingly in possession of the stamping device with the same duty to render it unusable upon the Notary’s death or adjudication of incompetency. Requires a Notary Public or the Notary’s personal representative or guardian to promptly notify the Secretary of State on discovering that the Notary’s stamping device is lost or stolen. (See Bill Section 17.A.-B.) Journal Requires New Mexico Notaries Public to record all notarial acts performed in a journal, and retain every journal for ten years after performance of the last notarial act chronicled in it. Provides that a journal may be in a tangible or electronic format, and allows use of a tangible journal for chronicling notarization of tangible records and use of an electronic journal for chronicling notarization of electronic records. Prescribes the basic attributes of a tangible and electronic journal. Clarifies that a New Mexico attorney-Notary notarizing for members of the public (unrelated to an established, attorney-client relationship) shall maintain one journal at a time to chronicle all notarial acts, whether those notarial acts are with regard to electronic or electronic records. Requires a journal entry to be made contemporaneously with (at the same time as) performance of the notarial act, and specifies the information that must be contained in every journal entry. (See Bill Sections 18.A., B., C., E.) Requires a Notary Public to promptly notify the Secretary of State upon discovering that his/her/their journal is lost or stolen. Establishes requirements for retention of journal records and addresses journal records disposition under circumstances such as the Notary’s resignation, revocation, death or adjudication of incompetency. (See Bill Sections 18.D., F., G., H.) Provides for public inspection of journal records pursuant to New Mexico’s Inspection of Public Records Act. Specifies the information that must be included in requests for such inspection. Clarifies that a public records request relating to a notarial act that does not name the subject document is not enforceable under the Inspection of Public Records Act. (See Bill Sections 19.A.-C.) Fees for Notarial Acts Provides the maximum fees that a Notary Public or notarial officer licensed to practice law may charge: 1. for acknowledgments, five dollars ($5.00) per acknowledgment; 2. for oaths or affirmations without a signature, five dollars ($5.00) per person; 3. for jurats, five dollars ($5.00) per jurat; and 4. for copy certifications, fifty cents ($.50) per page with a minimum total charge of five dollars ($5.00) (See Bill Sections 28.C.) Clarifies that the fee charged may be the maximum fee allowed, or less than the maximum fee allowed, or waived. Prohibits an employer from establishing fees for notarial services that exceed those specified, and from establishing fees (based) on the attributes of the principal. (See Bill Sections 28.A., B.) Provides the conditions under which a Notary Public or notarial officer may charge a travel fee. Allows a Notary Public to charge a technology fee not to exceed $25, or other amount established by rule of the Secretary of State, per notarial act performed with respect to an electronic record. (See Bill Sections 28.D., E.) Prohibited Acts Establishes a significant body of prohibited acts by a Notary Public, and provides that a notarial officer who violates any of those provisions is guilty of a misdemeanor for each violation and subject to a fine of up to $1000 or imprisonment for up to six months, or both. Further provides that an individual who purportedly notarizes with knowledge that the individual’s Notary commission has expired—or that the individual is otherwise disqualified from the office of Notary Public or notarial officer—is guilty of a misdemeanor and subject to a $500 fine and removal from office. (See Bill Sections 24.H., I.) Rulemaking Provides for rulemaking by the Secretary of State. (See Bill Sections 26.A.-B.) Other Provisions Provides various provisions relative to the New Mexico State Ethics Commission. (See Bill Section 33.) --------------- NEW MEXICO – ADMIN RULES, Notaries Public – Notarial Procedures Effective January 1, 2022 Title 12, Chapter 9, Part 3 – Notarial Procedures Title 12, Chapter 9, Part 4 – Remote Online Notarization Standards The Office of the Secretary of State has repealed its rule 12.9.2 NMAC, Performing Electronic Notarial Acts, filed May 30, 2008; and replaced it with 12.9.3 NMAC – Notarial Procedures, and 12.9.4 NMAC – Remote Online Notarizations; in order to establish standards, guidelines, procedures, fees, and responsibilities under New Mexico’s Revised Uniform Law on Notarial Acts. Definitions Defines “county clerk duties,” “deputy county clerk,” “electronic record,” “in-person electronic notarization,” “Notary seal,” “remote online notarization,” “tamper-evident,” “tangible copy,” “tangible record.” (See 12.9.3.7, A.-I. – NMAC) Also defines “certified tangible copy of an electronic record,” “credential analysis,” “identity credential,” “knowledge-based authentication,” “remote online notarization system,” and “remote online notarization system provider.” (See 12.9.4.7, A.-H.—NMAC) Commissioning, Commission Matters Requires an applicant for a Notary commission to use the applicant’s name as it appears on the applicant’s state-issued identification. (See 12.9.3.8, A—NMAC) Requires an applicant for a Notary Public commission to provide proof of having successfully completed an approved training course and passing the required examination; a surety bond in the amount of $10,000 containing the applicant’s notarized signature; an executed, notarized oath of office on the form prescribed by the Secretary of State; and a non-refundable application fee of $30. (See 12.9.3.8, A.(1)-(4) – NMAC) Clarifies that an applicant must pass the required exam with a score of 80% or higher. Requires examination records maintained by third-party vendors, including the applicant’s score, to be retained for five years. (See 12.9.3.10.C., D.—NMAC) Exempts renewing Notaries that have previously passed the examination from taking the training and examination upon renewal unless the renewing Notary’s commission has been expired for more than one year; or there have been substantial changes to the statutes or rules pertaining to notarial procedures, as determined by the Secretary of State, since the applicant’s last application date. (See 12.9.3.8 A.(1)(a), (b) – NMAC) Clarifies that the fee for providing the training and examination is not included in the $30 Notary Public commission application fee. Further provides that the Secretary of State shall issue the applicant a Notary certificate of commission containing the Notary’s commission number and term expiration date, once the Secretary determines that: (a) the applicant has met the qualifications to be commissioned as a Notary; (b) the name on the bond, on the application, and the signatures on those documents are the same; and (c) the applicant has not previously had a Notary commission denied or revoked. (See 12.9.3.8.B.(1)-(3) – NMAC) Requires a Notary to provide a copy of his/her/their official stamp to the Secretary of State, within 45 days of receiving the Notary commission and prior to the Notary performing his or her first notarial act; failure to provide this information results in a referral to the State Ethics Commission. (See 12.9.3.8.C. – NMAC) Requires a Notary to maintain the Notary’s current name, contact information, signature and official stamp on file with the Secretary of State by submitting the form prescribed by the Secretary of State within 30 days of the change of information. Provides that an amended commission shall be issued upon such notification to the Secretary of State, and the Notary Public must obtain a new official stamp showing the updated information. (See 12.9.3.8.E. – NMAC) Provides that the State Ethics Commission shall notify the Secretary of State in writing of the recommended action and reason for the determination, upon the determining to deny, refuse to renew, revoke, suspend, or impose a condition on a Notary pursuant to NMSA Section 14-14A-22 Subsection A. 12.9.3.9.A. Requires the Secretary of State to update the electronic database of Notaries Public, maintained pursuant to NMSA 14-14A-23, upon receipt of such notification. (See 12.9.3.9.A., B. – NMAC) Clarifies that a notarial officer who is not a Notary Public is not required to follow the prescribed Notary Public commission application process, but a notarial officer seeking authorization to conduct remote online notarizations must follow the application procedures pursuant to 12.9.4.8, NMAC. (See 12.9.3.16.A. – NMAC) Provides the commission expiration date of December 31, 2021, for notarial officers authorized to practice law in New Mexico who were commissioned under the previous Uniform Law on Notarial Acts. (See 12.9.3.16.B. – NMAC) Notarial Acts Provides detailed requirements for notarial procedures with respect to tangible records, including that a notarial officer (includes Notaries Public) shall ensure: that the individual signs the record using permanent ink in a photo-reproducible color; that the notarial certificate meets specified statutory requirements; that he/she/they sign the notarial certificate using permanent ink and affix the official stamp; and if the notarial officer is a Notary Public or otherwise required to keep a journal, he/she/they shall chronicle or note the notarization in a paper or electronic journal in accordance with applicable law. (See 12.9.3.12.A.(1)-(3) – NMAC) Provides detailed requirements for notarial procedures with respect to in-person electronic records, including that the individual and notarial officer shall meet physically face-to-face; the notarial officer shall determine whether specified statutory requirements have been met and shall verify the identity of the individual appearing before the officer in accordance with specified statutory requirements. (See 12.9.3.12.B – NMAC) Provides that upon the notarial officer making such determination and identity verification, the individual shall sign the electronic record using an electronic signature; the notarial officer shall ensure the notarial certificate meets statutory requirements; the notarial officer shall sign the notarial certificate with an electronic signature and affix the electronic seal provided the electronic signature and seal have been previously provided to the Secretary of State. Further provides that if the notarial officer is a Notary Public, or otherwise required to keep a journal, he/she/they shall chronical or note the notarization in a paper or electronic journal in accordance with statutory requirements. (See 12.9.3.12.B.(1)-(4) – NMAC) Provides detailed requirements for performance of the acknowledgment, verification on oath or affirmation, certifying or attesting a copy of a record, and witnessing or attesting a signature notarial acts. Clarifies how witnessing or attesting a signature differs from the acknowledgment and verification on oath or affirmation notarial acts. (See 12.9.3.12.C.-F. – NMAC) Establishes standards and procedures for preventing fraud or mistakes in the performance of notarial acts, whether notarization is with respect to paper or electronic records. (See 12.9.3.13—NMAC) Provides that “certified tangible copy of an electronic record” means an original tangible copy of an electronic record that has been certified by a notarial officer as an accurate copy of the electronic record. (See 12.9.4.7.A.—NMAC) Further provides that a certified tangible copy of an electronic record shall be considered an original record, and must include a notarial certificate substantially in the short form provided in Subsection E of Section 14-14A-15 NMSA 1978. (See 12.9.4.16.B.—NMAC) Official Stamp Requires an official stamp of a commissioned Notary Public to conform to the requirements of Sec. 14-14A-16, NMSA 1978 and include the words “Notary Public” and “State of New Mexico.” Provides that the official stamp of a notarial officer that is not a commissioned Notary Public shall conform to the requirements of Section 14-14A-16 NMSA 1978 and also include the words “Notarial Officer” and “State of New Mexico.” Requires the official stamp to be in 10-point type; if affixed to a tangible record, it shall be applied in permanent ink and be capable of being photocopied; and shall not contain the New Mexico state seal. Further provides that if a notarial officer is authorized to perform remote online notarizations, the official stamp shall also conform to the requirements of Section 12.9.4.13 NMAC. (See 12.9.3.14.A.-D.—NMAC) Requires a Notary to provide a copy of his/her/their official stamp to the Secretary of State, within 45 days of receiving the Notary commission and prior to the Notary performing his or her first notarial act; failure to provide this information results in a referral to the State Ethics Commission. (See 12.9.3.8.C. – NMAC) Grants a Notary Public with a commission date prior to the effective date of the administrative rule up to six months of the rule’s effective date to upload a copy of the Notary’s official stamp conforming to Subsection A of Section 14-14A-16 NMSA 1978 and 12.9.3.14 NMAC. (See 12.9.3.16.C.—NMAC) Requires a notarial officer who is not a Notary Public to upload a copy of the notarial officer’s official stamp to the Secretary of State prior to the notarial officer’s initial notarial act. (See 12.9.3.16.D.—NMAC) Journal Requires a current or former Notary Public to store the journal required under Section 14-14A-18 NMSA 1978 in a secure location under the Notary’s sole control, unless a current or former Notary Public transmits the journal to the Secretary of State or state records officer. Requires a notarial officer to provide a copy of a requested journal entry or audiovisual recording related to a specified notarial act to a member of the public upon request pursuant to Section 14-14A-29 NMSA 1978. Provides that such request shall name the subject of the record and the date the notarial act was performed. (See 12.9.3.15.A.-C.—NMAC) Requires a current or former Notary Public that has transmitted the journal to the state records officer to notify the Secretary of State within 30 days, using the prescribed form. (See 12.9.3.15.D.—NMAC) Allows a former employer of a Notary Public to retain a copy of the Notary’s journal, but such copy must be clearly marked as a copy. (See 12.9.3.15.E.—NMAC) Provides various requirements for an electronic journal, notably that entries from the electronic journal must be available to the public or the state ethics commission in a PDF format; and that an electronic journal turned over to the Secretary of State or the state records officer shall be transferred in PDF format. (See 12.9.3.15.F.—NMAC) Requires a Notary Public whose journal is lost or stolen to promptly notify the Secretary of State utilizing a form prescribed by the Secretary. (See 12.9.3.15.G.—NMAC) Requires a notarial officer authorized to perform remote online notarizations to adhere to the rule on journals pursuant to 12.9.3.16—NMAC. Requires a notarial officer authorized to perform remote online notarizations to record in his/her/their journal entry the name of the remote online notarization system provider used for each remote online notarization, in addition to the other journal information required by statute. (See 12.9.4.15.B.—NMAC) Electronic, Remote Online Notarizations Clarifies that a notarial officer may apply and must receive approval before conducting remote online notarizations pursuant to NMAC 12.9.4.8. (See 12.9.3.8.D.—NMAC) Provides detailed remote online notarization application requirements. (See 12.9.4.8.A.-F.—NMAC) Requires an applicant for approval to conduct remote online notarizations to provide proof of having successfully completed an approved training course, and proof of passing the required exam with a score of 80% or higher. (See 12.9.4.8.A.(4) and 12.9.4.9.C.—NMAC) Provides that the fee for administering the training and examination is not included in the $75 fee for applying to perform remote online notarizations. (See 12.9.4.9.B.—NMAC) Allows a Notary Public or notarial officer to charge the maximum fees pursuant to NMSA 14-14A-28 and a fee not exceeding $20 for each remote notarial act. Clarifies that for an in-person notarization of an electronic record, a Notary Public must follow the statutory fee structure provided in NMSA 14-14A-28. (See 12.9.3.11.A.-B.) Provides extensive standards and procedures for performance of notarial acts for remotely located individuals, including that the electronic notarial certificate for a remote online notarization must clearly state that the remotely located signing the record appeared using communication technology. (See 12.9.4.16—NMAC) . Requires a notarial officer authorized to perform remote online notarizations to be physically located in New Mexico at the time the notarial act takes place. Allows a notarial officer who is authorized to perform remote online notarizations to do so only if the individual personally appears before the notarial officer at the time of the notarization by means of communication technology. (See 12.9.4.10.A.-B.—NMAC) Provides that a notarial officer who is authorized to perform remote online notarizations may make a reasonable determination regarding whether an individual is under duress or being coerced to complete a transaction by (a) observing the individual’s behavior for signs of being nervous, fearful, hesitant, distracted, distraught or uncomfortable, (b) observing the surroundings and watch the behavior of others in the room who seem to make the individual uncomfortable, (c) requesting to speak privately with the individual, and (d) asking direct questions such as “are you signing this record of your own free will?” Provides that a notarial officer may refuse to perform a notarial act if the notarial officer has reasonable grounds to believe that the individual is acting under coercion or undue influence. (See 12.9.4.10.C.-D.—NMAC) Requires a notarial officer authorized to perform remote online notarizations to verify the identity of the individual at the start of an online notarial session by means of communication technology pursuant to NMSA 14-14A-6 or NMAC 12.9.4.11. Prohibits a notarial officer from basing identification merely on familiarity with a remotely located individual’s signature or an electronic verification process that authenticates the individual’s electronic signature without the individual personally appearing before the notarial officer by two-way audio and video communication technology. (See 12.9.4.10.E.-F.—NMAC) Requires a notarial officer authorized to perform remote online notarizations to refuse to complete the notarial act if the officer: (1) is unable to verify the identity of the individual in compliance with the rules: (2) becomes aware that communication technology is not secure; (3) determines the signature of the individual cannot be attached to the electronic record; or (4) cannot attach the officer’s electronic stamp to the electronic record using technology that renders any subsequent change or modification to the record evident. (See 12.9.4.10.G.—NMAC) Requires the notarial officer who performs a remote online notarization to complete and affix or attach the officer’s signature and official stamp to the electronic notarial certificate, and requires the electronic notarial certificate for a remote online notarization to meet the requirements of NMSA 14-14A-14 Subsection A. (See 12.9.4.10.H.—NMAC) Specifies certain requirements for the communication technology used for a remote online notarization. Provides that communication technology used for a remote online notarization must provide reasonable security measures to prevent unauthorized access to the live transmission of the audiovisual feeds, the methods used to perform the identity proofing process, and the electronic record that is the subject of the notarial act. (See 12.9.4.12.A.-C.—NMAC) Requires a notarial officer authorized to perform remote online notarizations to stop and restart the remote online notarization process from the beginning if the: (1) remotely located individual or the remote notarial officer must exit the remote online notarization system before the completion of the notarial act; (2) audio or visual feed is interrupted or terminated; or (3) resolution or quality of the transmission becomes such that the remote notarial officer believes the process has been compromised and cannot be completed. (See 12.9.4.12.C.—NMAC) Requires a notarial officer to verify that each remote online notarization system provider has an active status with the Secretary of State before using that provider’s remote online notarization system to perform a remote notarization, and requires such verification for each remote online notarization. (See 12.9.4.12.D.—NMAC) Requires a notarial officer authorized to perform remote online notarization to retain the audiovisual recording required under MMSA 14-14A-5 Subsection C(4) on a computer, storage device, or online storage that protects the audiovisual recording against unauthorized access by password or cryptographic process. Requires the audiovisual recording to be created in an open file format and not include images of any record in which a remotely located individual made a statement or on which the remotely located individual executed a signature. (See 12.9.4.14 NMAC) Provides actions to be taken, upon the death or adjudication of incompetency of a current or former notarial officer, by the notarial officer's personal representative or guardian or any other person knowingly in possession of an audiovisual recording. (See 14.9.4.14.B., NMAC) Authorizes a notarial officer, a guardian, conservator, or agent of a notarial officer, or a personal representative of a deceased notarial officer to, by written contract, engage a third person to act as a secure repository to provide the storage required by NMAC 12.9.4.14 Subsection C. Provides requirements for such contract with a secure repository. (See 12.9.4.14.C.(1)-(3)—NMAC) Regarding an electronic certificate of a notarial act for a remote online notarization, provides that the requirement for such certificate to clearly state that the remotely located individual signing the record appeared using communication technology is met if the statement is substantially as follows: “This notarial act involved the use of communication technology.” (See 12.9.4.16.A., NMAC) Clarifies that a tangible copy of an electronic record, certified as a true copy by a notarial officer, shall be considered an original record. Requires a certified tangible copy of an electronic record to include a notarial certificate substantially in the short form provided in NMSA 14-14A-15 Subsection E. (See 12.9.4.16.B., NMAC) Prescribes the requirements for the identity proofing utilized in a remote online notarization (for principal signers who are not personally known). Specifies the requirements to be met by the credential analysis and knowledge-based authentication methods of identifying remotely located individuals. Clarifies that a credible witness used to verify the identity of a remotely located individual may be remotely located if the notarial officer, credible witness, and remotely located individual can communicate simultaneously by using communication technology. (See 12.9.4.11.A.-C.—NMAC) Establishes detailed standards and procedures for remote online notarization system providers including: • A provider must submit an application, on a form prescribed by the Secretary of State, before the provider can provide its remote online notarization system to a New Mexico notarial officer. Provides that the Secretary of State shall list, as active, approved providers on its website. • No later than 30 days before making any substantial changes or feature enhancements to the remote online notarization previously approved by the Secretary of State, a provider must request approval from the Secretary and notify the New Mexico notarial officers using its system. • The Secretary of State may terminate approval of a provider for certain specified reasons. (See 12.9.4.17.A.; D.2.; and F.—NMAC) Clarifies that a notarial officer not commissioned as a Notary Public, who desires to be authorized to conduct RONs, shall follow the authorization application procedures under 12.9.4.8.—NMAC. Further clarifies that upon the Secretary’s approval that the (non-commissioned) notarial officer may perform RONs, the notarial officer shall comply with these administrative rules and all statutes applicable to a commissioned Notary Public performing RONs. (See 12.9.4.18.A., B.—NMAC) Clarifies that a Notary Public with an appointment or renewal date prior to the effective date of the Revised Uniform Law on Notarial Acts who desires to be authorized to perform RONs shall follow the application process prescribed by Subsection B of 12.9.4.8. NMAC to apply to be authorized to perform RONs. (See 12.9.4.19—NMAC) |
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| NEW YORK – SB 4784 Effective July 21, 2022 View this bill Allows acknowledgments and proofs to be performed by any officer in active service authorized to act as Notary in any component part of the U.S. military. -------------------------- NEW YORK - SB 1780 Effective June 20, 2022 View this bill Click “View this bill” link; then check “Text” box; then hover mouse over “Text” and click to view bill text. Authorizes electronic notarization and remote online notarization in the Empire State. Provides an effective date (the 180th day after SB 1780 became law). Authorizes addition, amendment and/or repeal of any rule or regulation necessary for implementation of SB 1780 on its effective date. Defines “communication technology,” “electronic,” “electronic document,” “electronic notarial act,” “electronic Notary Public,” and “electronic signature.” (Bill Section 1, 1.(a) – (e).) Establishes that the methods for identifying document signers for an electronic notarization shall be the same as those required for a paper-based notarization. Clarifies that an electronic notarization performed using communication technology shall meet the standards approved through regulation by the Secretary of State. Provides that such regulations shall include, but not be limited to: i. that the signal transmission shall be secure from interception through lawful means by anyone other than the persons communicating; ii. that the signal transmission shall be live, in real time; and iii. that the technology shall permit the notary to communicate with and identify the remotely located individual at the time of the notarial act. (Bill Section 1, 2.(a)) Requires that if video and audio conference technology has been used to ascertain a document signer's identity, the electronic notary shall keep a copy of the recording of the video and audio conference and a notation of the type of any other identification used. Further requires that the recording be maintained for a period of at least ten years from the date of transaction. (Bill Section 1, 2.(b)) Requires that before performing any electronic notarial act or acts, a Notary Public shall register the capability to notarize electronically with the Secretary of State, using a form prescribed by the Secretary. Specifies information the Notary Public shall provide with such registration: i. the applicant's name as currently commissioned and complete mailing address; ii. the expiration date of the Notary Public's commission and signature of the commissioned Notary Public; iii. the applicant's e-mail address; iv. the description of the electronic technology or technologies to be used in attaching the Notary Public's electronic signature to the electronic document; and v. an exemplar of the Notary Public's electronic signature, which shall contain the Notary Public's name and any necessary instructions or techniques that allow the Notary Public's electronic signature to be read. (Bill Section 1, 3.(a)-(b)) Establishes that any notarial act authorized by Section 135 of New York’s Executive Law may be performed electronically as prescribed in Section 137-a if: i. under applicable law document may be signed with an electronic signature; and ii. the electronic Notary Public is located within the state of New York at the time of the performance of an electronic notarial act using communication technology, regardless of the location of the document signer. (Bill Section 1, 4.(a)) Provides that an electronic notarial act performed using communication technology pursuant to this Section 137-a satisfies any requirement of New York law that a document signer personally appear before, be in the presence of, or be in a single time and place with a Notary Public at the time of the performance of the notarial act. (Bill Section 1, 4.(b)) Requires that when performing an electronic notarial act, a Notary Public shall apply an electronic signature, which shall be attached to the electronic document such that removal or alteration of the electronic signature is detectable and will provide evidence of alteration of the document containing the Notary’s signature. Further provides that such evidence of alteration may invalidate the electronic notarial act. (Bill Section 1, 5.(a)) Deems a Notary Public’s electronic signature to be reliable if it meets the standards approved by regulations of the Secretary of State. Requires such regulations to include, but not be limited to, certain specified requirements (the Notary’s electronic signature must be unique to the Notary Public; capable of independent verification; retained under the Notary Public’s sole control; attached to the electronic document; and linked to the data in such a manner that any subsequent alterations to the underlying document are detectable and may invalidate the electronic notarial act). (Bill Section 1, 5.(b)) Prohibits use of a Notary Public’s electronic signature for any purpose other than performing electronic notarial acts. (Bill Section 1, 5.(c)) Requires the notarial certificate for a (remote) electronic notarial act to state that the person making the acknowledgement or making the oath appeared remotely online. (Bill Section 1, 5.(d)) Requires the Secretary of State to adopt rules establishing standards, procedures, practices, forms and records relating to a Notary Public’s electronic signature; requires a Notary Public’s electronic signature to conform to any standards adopted by the Secretary. (Bill Section 1, 5.(e)) Establishes that a paper copy of an electronic record that complies with (new) Section 137-a of New York Executive Law satisfies a requirement of law that as a condition of recording, a document must be an original document, printed on paper or other tangible medium, or be in writing. (Bill Section 1, 6.(a)) Provides that if otherwise required by law that a document be signed as a condition of recording, the requirement may be satisfied by an electronic signature. (Bill Section 1, 6.(b)) Further provides that a requirement that a document or a signature associated with a document be notarized, acknowledged, verified, witnessed or made under oath is satisfied if the electronic signature of the person authorized to perform the act, and all other information required to be included, is attached to or logically associated with the document or signature. Clarifies that a physical or electronic image of a stamp, impression or seal need not accompany an electronic signature if the Notary has attached an electronic notarial certificate meeting the requirements of Section 137-a of New York Executive Law. (Bill Section 1, 6.(c)) Requires a Notary Public to notify the Secretary of State within five days after the change of an email address; such notification, signed with the Notary Public’s official electronic signature, must be electronically transmitted to the Secretary of State. (Bill Section 1, 7.) Prohibits any Notary Public or business employing the services of a Notary Public operating in New York State from exclusively requiring that notarial transactions utilize electronic notarization. (Bill Section 1, 8.) Amends Section 136 of New York Executive Law to establish that a Notary Public performing an electronic notarial act under Section 137-a of New York Executive Law may charge a fee set through regulation of the Secretary of State. (Bill Section 2, 3.) ---------------- NEW YORK – SB 7780 Effective February 25, 2022 View this bill Moves the June 20, 2022 effective date of “permanent” remote notarization provisions enacted in 2021 to January 31, 2023. Establishes, effective immediately, “temporary” remote notarization provisions that are effective through January 30, 2023. Enacts remote ink notarization provisions that are repealed on January 30, 2023. Temporary Remote Notarization Provisions (Effective Through January 30, 2023) Definitions. Defines “communication technology,” “credential,” “credential analysis,” “electronic,” “electronic record,” “electronic signature,” “identity proofing,” “notarial act,” “principal,” “record,” “remote notarization,” “remote presentation,” “wet signature,” and “outside the United States.” Authorization, Procedures and Requirements. Allows any commissioned New York Notary to perform a remote notarization on electronic or paper documents, using communication technology allowing the Notary to interact with a principal and subject to all statutory conditions. The Notary Public must be physically situated in New York State at the time of the remote notarization; the principal may be situated anywhere including outside New York and/or outside the United States, subject to specified conditions. Establishes that the provisions of temporary Executive Law 135-c shall not be construed to require any Notary Public to perform a remote notarization. Further provides that the provisions of temporary Executive Law 135c shall not be construed to require a Notary Public to use an electronic signature to perform a remote notarization, and clarifies that a remote notarization may be completed by wet signature or electronic signature. Authorizes a Notary Public to refuse to perform a notarial act if the Notary Public is not satisfied that (a) the principal is competent or has the capacity to execute a record; or (b) that the principal’s signature is knowingly and voluntarily made. Provides the required attributes of a Notary Public’s electronic signature when the Notary performs a remote notarization relating to an electronic record (capable of independent verification; retained under the Notary’s sole control’ attached or logically associated with the electronic record; and linked to the data such that any subsequent alterations to the underlying electronic record are detectable and may invalidate the notarial act. Establishes that notwithstanding Article Nine of New York’s Real Property Law or any other law to the contrary, any notarial act performed in conformity with the (temporary) law satisfies any requirement of law that a principal personally appear before, be in the presence of, or be in a single time and place with a Notary Public at the time of performance of a notarial act, unless a law expressly excludes the authorization provided for. Requires a Notary performing a remote notarization using communication technology to: • Verify the principal’s identity by means of personal knowledge; or all three of the principal’s remote presentation of a credential, credential analysis and identity proofing of the principal; or oath or affirmation of a credible witness who personally knows the principal and who is either personally known to the Notary or who is identified by the Notary (by means noted immediately above). A Notary may require an individual to provide additional information or ID credentials needed to assure the Notary of the principal’s identity. • Utilize communication technology that allows real-time, direct interaction between the principal and the Notary. • Ensure an audio-video recording of the remote notarization is made, and must retain the recording for at least 10 years. • Take reasonable steps to ensure that a backup of the recording exists and is secured against unauthorized use. (A Notary may authorize a third party to retain the recordings on the Notary’s behalf, provided that all such recordings are available to the Secretary of State upon request. • Ensure he/she/they can reasonably confirm that a record before the Notary is the same record in which the principal made a statement or on which the principal executed a signature. • Maintain a journal of each remote notarization performed and upon demand, produce the journal for inspection by the Secretary of State. Requires a notarial act performed remotely to contain a statement substantially like: “This remote notarial act involved the use of communication technology.” (Generally appearing in the notarial certificate.) Authorizes a Notary Public to certify that a tangible copy of the signature page and document type of an electronic record remotely notarized by the Notary is an accurate copy of such electronic record. Requires such certification to be dated and signed by the Notary (with the Notary’s official signature on file with the Secretary of State) and to comply with Executive Law Section 137. Provides for the acceptance into public records (recording) by a county clerk, city registrar or other recording officer, where applicable, of such tangible copy of an electronic record when the record is otherwise eligible to be recorded under New York law. Provides statutory language for a sufficient “Certificate of Authenticity” (the notarial certificate) for a certified tangible copy of the signature page and document type of an electronic record. Provides that a Notary Public shall maintain a journal in which all remote notarizations are recorded for as long as the Notary remains in office, and for an additional five years thereafter. Requires journal entries to be made contemporaneously (at the same time as) performance of each remote notarization. Provides the required information to be entered into each journal entry. Provides procedural requirements for a remote notarization involving paper documents. Establishes the fees a Notary Public may receive for performing specified notarial acts by means of remote notarization. Rulemaking, Secretary of State. Authorizes the Secretary of State to promulgate regulations establishing minimum standards for various aspects of remote notarization, as well as for any other matters necessary to administer the provisions set forth in SB 7780. Other Provisions. Establishes circumstances justifying a civil cause of action by persons suffering actual damages resulting from a principal violating the temporary remote notarization provisions set forth in SB 7780. Affirms the Secretary of State’s statutory authority to suspend or remote from office any Notary Public that violates these provisions. Permanent Remote Notarization Provisions (Effective January 31, 2023) Amends Section 137-a of New York’s Executive Law, which was enacted in 2021 and now will be effective on January 31, 2023. Amends references to “electronic document” to “electronic record.” Establishes definitions for “principal,” and “record.” Clarifies that any New York Notary Public will be authorized to perform an electronic notarial act by means of audio-video communication technology allowing the Notary to interact with a principal and subject to conditions set forth in statutes. Requires that regulations by the Secretary of State to establish standards for performance of (permanent; i.e. post-January 31, 2023) remote notarizations shall include a standard requiring two or more different processes for authenticating the identity of a remotely located individual utilizing technology in order to detect and deter fraud, but also allow a Notary Public’s personal knowledge of a document signer to satisfy such requirement. Clarifies that a Notary Public’s registration with the Secretary of State of his/her/their capability to notarize electronically shall involve payment of a fee set by regulation. Clarifies that any notarial act authorized by Executive Law Section 135 may be performed as an electronic notarization on any instrument in writing that under applicable law may be signed with an electronic signature, provided the Notary is reasonably able to confirm that such instrument is the same instrument in which the principal made a statement or on which the principal executed a signature. Establishes certain requirements for a New York Notary’s remote notarization involving a principal located outside the United States: the record or subject of the notarial act must be intended 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 it shall involve property located in the territorial jurisdiction of the United States or shall involve a transaction substantially connected to the United States. Clarifies that a Notary Public shall use/apply an electronic signature when performing an electronic notarial act relating to instruments in writing. Clarifies that the remote online notarial certificate for an electronic notarial act shall state that the person making the acknowledgment or making the oath appeared through use of communication technology. Provides that a Notary Public may use electronic means to affix, beneath the Notary’s signature in a notarial certificate for an electronic notarial act, information conveying the Notary’s authority (the Notary’s name, “Notary Public, State of New York,” etc.) Establishes that the provisions of permanent Executive Law 135-c shall not be construed to require any Notary Public to perform a remote notarization. Authorizes a Notary Public to refuse to perform a notarial act if the Notary Public is not satisfied that (a) the principal is competent or has the capacity to execute a record; or (b) that the principal’s signature is knowingly and voluntarily made. Establishes that notwithstanding Article Nine of New York’s Real Property Law or any other law to the contrary, any notarial act performed in conformity with the law satisfies any requirement of law that a principal personally appear before, be in the presence of, or be in a single time and place with a Notary Public at the time of performance of a notarial act, unless a law expressly excludes the authorization provided for. Authorizes a Notary Public to certify that a tangible copy of the signature page and document type of an electronic record remotely notarized by the Notary is an accurate copy of such electronic record. Requires such certification to be dated and signed by the Notary (with the Notary’s official signature on file with the Secretary of State) and to comply with Executive Law Section 137. Provides for the acceptance into public records (recording) by a county clerk, city registrar or other recording officer, where applicable, of such tangible copy of an electronic record when the record is otherwise eligible to be recorded under New York law. Provides statutory language for a sufficient “Certificate of Authenticity” (the notarial certificate) for a certified tangible copy of the signature page and document type of an electronic record. |
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| RHODE ISLAND – HB 7363 Effective June 20, 2022 View this bill Amends current law and enacts remote online notarization in the Ocean State. Defines key terms not already defined in Rhode Island’s Notary law: “communication technology,” “foreign state,” “identity proofing,” “outside the United States,” and “remotely located individual.” Authorizes a notarial officer to certify that a tangible copy of an electronic record is an accurate copy of the electronic record. Requires a notarial officer who certifies or attests a copy of a record or an item that was copied to determine that the copy is a full, true and accurate transcription or reproduction of the record or item. Clarifies that “personal appearance” means that the principal and the Notary Public communicate by communication technology at the time of the notarization; or that the principal and Notary Pubic are physically close enough to communicate with each other at the time of notarization. Clarifies that a notarial officer has personal knowledge of the identity of an individual appearing before the notarial officer if the individual is personally known to the notarial officer through dealings sufficient to provide reasonable certainty that the individual has the identity claimed. Establishes verification on oath or affirmation of a credible witness as a form of satisfactory evidence of identification of an individual appearing before a notarial officer. Requires that the credible witness be personally known to the notarial officer or be identified by the notarial officer on the basis of a passport, driver’s license, or government issued nondriver identification card which is current or expired not more than three (3) years before performance of the notarial act. Clarifies that “foreign state” means a government other than the United States or a state. Provides that if a notarial act is performed under authority and in the jurisdiction of a foreign state or constituent unit of the foreign state, or is performed under the authority of a multinational or international governmental organization, the act has the same effect under Rhode Island law as if performed by a Rhode Island notarial officer. Provides that a remotely located individual may comply with Rhode Island’s requirement that an individual personally appear before a notarial officer for performance of a notarial act, by using communication technology to appear. Establishes that a Rhode Island Notary Public located in Rhode Island may perform a notarial act using communication technology for a remotely located individual if: • the Notary Public has either personal knowledge of the remotely located individual’s identity; or satisfactory evidence of identity by means of an oath or affirmation by a credible witness appearing before the Notary Public (personally known to the Notary or identifiable by means of a passport, driver’s license or government issued nondriver identification card that is current or expired not more than three (3) years before performance of the notarial act); or by using at least two different types of identity proofing as defined in the Act; • the Notary Public is 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 Notary Public or a person acting on the Notary’s behalf creates an audio-visual recording of the performance of the notarial act; and • for a remotely located individual located outside the United States, the record shall 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 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. Requires a Notary Public, before performing his/her/their initial notarial act for a remotely located individual, to notify the commissioning agency that the Notary Public will be performing notarial acts with respect to remotely located individuals, and identify the technologies the Notary Public intends to use. Provides that if the commissioning agency has established standards for approval of communication technology or identity proofing, the communication technology and identify proofing must conform to the standards. Requires that a notarial act for a remotely located individual shall be evidenced by a notarial certificate, which must be executed contemporaneously with performance of the notarial act; signed and dated by the notarial officer and, if the notarial officer is a Notary Public, be signed in the manner on file with the commissioning agency; identify the jurisdiction in which the notarial act is performed; contain the title of office of the notarial officer; and—if the notarial officer is a Notary Public—indicate the date of expiration, if any, of the Notary Public’s commission. Requires, for a notarial act regarding a tangible record and performed by a Notary Public, that an official stamp be affixed to the notarial certificate. Clarifies that if a notarial act is performed regarding a tangible record by a notarial officer other than a Notary Public and the certificate contains certain specified information, an official stamp may be affixed to the notarial certificate by the notarial officer. Further clarifies that if a notarial act involving an electronic record is performed by a notarial officer (including a Notary Public) and the certificate contains certain specified information, an official stamp may be affixed to the notarial certificate by the notarial officer. Prohibits a notarial officer from affixing his/her/their signature to, or logically associating it with, a notarial certificate until the notarial act has been performed. Requires a notarial certificate for a notarial act regarding a tangible record to be part of, or securely attached to, the record. Requires that if a notarial act is performed regarding an electronic record, the notarial certificate must be affixed to, or logically associated with, the electronic record. Provides the criteria for a certificate of notarial act to be sufficient under Rhode Island’s Act. Establishes that by executing a certificate of notarial act, a notarial officer certifies that he/she/they have complied with the requirements and made the determinations specified in Sections 42-30.1-3, 42-30.1-4, and 41-30.1-5, Rhode Island General Laws. Requires that for a record involving a notarial act for a remotely located individual, the certificate of notarial act required by the Act’s Section 42-30.1-12.2 and the short-form certificate provided in Section 42-30.1-12.2 must indicate that the notarial act was performed using communication technology. Provides that use of a short-form certificate contemplated in the Act’s Section 42-30.1-12.2(g) (this section requires Rhode Island’s Notary commissioning agency to develop short-form certificates of notarial act for the authorized notarial duties) is sufficient for a notarial act performed for a remotely located individual if it complies with administrative rules adopted pursuant to the Act; or contains a statement substantially like, “This notarial act involved the use of communication technology.” Requires a Notary Public, guardian, conservator or agent of a Notary Public, or a personal representative of a deceased Notary Public to either retain the audio-visual recording of every notarial act performed for a remotely located individual or cause the recording to be retained by a repository designated by or on behalf of the person required to retain the recording. Requires such recordings to be retained for at least ten (10) years after the recording is made, unless a different period is required by administrative rules of the Secretary of State. Allows a Notary Public to charge a fee not to exceed $25 per document or notarization for performance of a notarial act for a physically present individual, or for an individual appearing by means of communication technology. Requires all fees to be disclosed to any physically or remotely present person utilizing a Notary Public’s services, prior to performance of the notarial act. |
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| SOUTH CAROLINA – Electronic Notarization Administrative Rules Effective June 24, 2022 View these rules The South Carolina Secretary of State has adopted regulations to implement the Palmetto State’s 2021 enactment of its Electronic Notary Public Act. The regulations appear as Chapter 113, Article 4 of South Carolina’s Code of Regulations. Registration – Electronic Notary Public Provides that, before performing notarial acts electronically, a Notary Public shall register with the Secretary of State to perform electronic notarial acts. Establishes that the term of registration as an electronic Notary shall coincide with the individual’s Notary Public commission term. Allows an electronic Notary to commence performing electronic notarial duties upon receipt of the Secretary of State’s confirmation of successful registration as an electronic Notary Public. Requires that the application to register as an electronic Notary Public must be submitted electronically, and shall include: 1. the Notary’s full legal name and the name under which the individual’s Notary Public commission was issued, if different; 2. the residential address of the Notary Public and the county in which the Notary’s commission is enrolled; 3. the Notary’s email address; 4. the Notary’s proof of successful completion of the approved electronic Notary course of instruction, including the date of completion and name of the course of instruction; 5. the expiration date of the Notary Public’s commission; 6. disclosure of all license or commission revocations or other disciplinary actions against the Notary; 7. a description of the technology the Notary intends to use to perform electronic notarizations, including the name of the technology provider (referenced in the rule as “electronic Notary system provider”); 8. specified information to be included in the Notary’s description of the electronic notarization technology the Notary intends to use; 9. specified information that must be included if the device used to create the Notary-registrants electronic signature was issued or registered through a licensed certification authority; 10. a copy of the Notary’s electronic signature, electronic notarial certificate and electronic seal, including any necessary instructions or techniques that allow the signature and stamp to be read and authenticated. Allows the Secretary of State, under the Freedom of Information Act, to exempt from disclosure the residential address and email address of the Notary, except as otherwise required by state, regulation or court order. Provides for circumstances under which the Secretary of State may reject an application for registration as an electronic Notary Public: 1. the individual’s failure to comply with any of the requirements of the South Carolina Electronic Notary Public Act; 2. if the application is incomplete or contains any misstatement or omission of fact; 3. if at the time of application there is a pending inquiry by the Secretary of State or law enforcement into the applicant’s alleged failure to comply with any of the statutes, regulations or policies governing Notaries Public and electronic Notaries Public; 4. a finding against or an admission of liability by the applicant in any legal proceeding or disciplinary action based on the applicant’s conduct as a Notary Public or an electronic Notary Public; or 5. the applicant has been convicted of a criminal offense involving fraud, theft, forgery, or breach of trust. Establishes requirements for any change of electronic Notary Public registration information on file with the Secretary of State, including that any changes in this information must be reported to the Secretary of State within thirty days following the date of the change(s). Provides that failure to timely notify the Secretary of any change in electronic Notary Public registration information may subject the Notary to termination of his/her/their registration. Requires such notifications to be made in a form or manner prescribed by the Secretary of State and be accompanied by a fee of $10. Clarifies that an electronic Notary Public is not prohibited from receiving, installing, or using hardware and/or software updates to the technologies that the Notary identified in his/her/their registration application, if such updates do not result in technology that is materially different from any previously reported. Course of Instruction Establishes, as a requirement of electronic Notary registration, that an applying Notary Public complete a course of instruction approved by the Secretary of State, and pass an examination based on the course. Specifies that the course content shall include notarial rules, procedures, and ethical obligations pertaining to electronic notarization as provided in the South Carolina Electronic Notary Public Act or in any other law or official guideline of South Carolina. Provides that the Secretary of State or his designee will administer the training course and testing for electronic Notary Public registrants. Electronic Notary Signature and Electronic Notary Seal Requires both an electronic Notary signature and electronic seal to be: • independently verifiable and unique to the electronic Notary; • retained under the electronic Notary’s sole control; • accessible by and attributable solely to the electronic Notary, when the Notary performs an electronic notarization, to the exclusion of all other persons and entities for the entire time necessary to perform the electronic notarization; • attached to or logically associated with the document in a manner such that any subsequent alterations to the underlying document or electronic Notary certificate are observable through visual examination; and • appear as an image on any visual or printed representation of an electronic notarial certificate regardless of the technology used to affix the Notary’s electronic signature or electronic seal. Allows the perimeter of the Notary’s electronic seal to contain a border such that the physical appearance of the seal replicates the appearance of an inked seal on paper. Requires an electronic Notary seal to have, within its border, the electronic Notary Public’s name exactly as commissioned, the title “Notary Public,” the words “State of South Carolina,” the electronic Notary Public’s registration number indicating the Notary’s authority to perform electronic notarial acts, and the expiration date of the electronic Notary Public’s commission. Requires an electronic Notary Public’s electronic signature and seal to remain within the Notary’s exclusive control. Further requires that access to an electronic Notary Public’s signature and seal must be protected by use of biometric verification, password authentication, token authentication, or other form of authentication approved by the Secretary of State in accordance with South Carolina’s Electronic Notary Public Act. Prohibits an electronic Notary Public from disclosing any access information used to affix his/her/their electronic Notary signature and/or electronic seal to an electronic record, except when requested by the Secretary of State or a law enforcement officer; when required by court order or subpoena; or pursuant to an agreement to facilitate electronic notarizations with a vendor or other technology provider identified in an application submitted under the South Carolina Electronic Notary Public Act. Provides the circumstances under which an electronic Notary signature or seal must be replaced (upon the electronic Notary’s registration expiration; if the electronic signature or seal for any reason is no longer valid or capable of authentication; if any of the following have changed: the electronic Notary’s name, jurisdiction, registration number or commission expiration date). Employers of Electronic Notaries Public Prohibits an employer of an electronic Notary Public, including ay of the employer’s employees or agents, from using or permitting use of an electronic Notary seal or signature by anyone other than the electronic Notary Public to whom those are registered. Imposes duties on the employer of an electronic Notary Public: • to relinquish, upon cessation of such Notary’s employment, any and all control of such Notary’s electronic Notary seal conveyed by an electronic notarization system provided by the electronic Notary’s employer as part of that Notary’s employment; • to transfer possession of the electronic Notary seal to the electronic Notary Public; and • to eliminate the ability of any other person to use the former employee’s electronic Notary seal if the electronic notarization system used by the employer does not permit transfer of possession of the electronic Notary seal. Electronic Notary Journal Requires an electronic Notary journal to be created and stored in a computer or other electronic storage device or process that protects against unauthorized journal access by a form of authentication such as, but not limited to, password, biometric verification, or token. Further requires an electronic Notary journal to be tamper-evident, and capable of providing tangible or electronic copies of any entry made in the journal. Prohibits a Notary Public from allowing a journal record/entry from being deleted or altered in content or sequence by the electronic Notary or any other person after such record has been entered into and stored in the electronic journal. Establishes that an electronic Notary journal is the exclusive property of the Notary Public and no employer or vendor of e-notary services may retain control of a Notary Public’s electronic record for any reason. Requires an electronic Notary journal to be retained at least 10 years after the last notarial act chronicled in it. Requires that upon the death or adjudication of incompetency of a current or former Notary Public registered to perform electronic notarial acts, the electronic Notary’s personal representative or guardian or any other person knowingly in possession of the journal shall comply with the journal retention requirements established by South Carolina’s administrative rule; transmit the journal to a third person contracted to act as a repository to provide such required retention (storage); or transmit the journal in an industry-standard readable data storage device to the electronic Notary Public’s notary technology provider. Electronic Notary Providers Requires electronic notarization system providers desiring designation as a registered electronic notarization system provider to complete and electronically submit an application to the Secretary of State. Establishes that the Secretary shall review and approve such application before authorizing use of a provider’s electronic Notary seals, digital certificates or electronic signatures. Establishes the information that must be submitted with an electronic Notary provider application, which includes a description of the technology used including hardware and software specifications and requirements for the provider’s electronic notarization system; and a plan for retention and disposition of records created, generated, or retained in conjunction with use of the technology, including any electronic journal or records created or retained during an electronic notarization (in the event the technology provider no longer engages in the business of providing electronic or online Notary technology). Specifies certain technology and business requirements for an electronic notarization system and provider, including that the system provider verify that a Notary Public is registered to act as a South Carolina electronic Notary Public prior to authorizing an electronic Notary seal and electronic signature for that Notary Public; notify the Secretary of State within five days of enrollment of each Notary Public who enrolls to use the provider’s technology; submit an exemplary of the electronic Notary Public’s electronic signature and electronic seal to the Secretary of State; and suspend use of the provider’s system for any Notary Public whose commission has been revoked, suspended or cancelled by the Secretary of State. Requires an electronic notarization system provider to notify the Secretary of State within 30 days of any changes, modifications or updates to information previously submitted to the Secretary, using a form or manner of notification prescribed by the Secretary. Requires an electronic notarization system provider to be (fully) registered with the Secretary of State at the time it makes available to South Carolina Notaries any updates or subsequent versions of the provider’s electronic notarization system. Requires all electronic notarization providers to respond to a request for information by the Secretary of State, within the time directed. Provides that any request for information shall be sent to the contact person designated by the provider upon registration, or as updated pursuant to Regulation 113-150. |
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| VERMONT – Emergency Remote Notarization Rules Extended effective September 11, 2022; in effect no later than March 9, 2023 View these rules Extends, again, the Secretary’s emergency rules for performance of remote notarizations with respect to an “original”—i.e., tangible—document. These rule provisions do not apply to remote notarization of electronic documents. These rules were originally adopted in March 2020. --------------- VERMONT – HB 512 Effective July 1, 2022 View this bill Enacts the Uniform Real Property Electronic Recording Act (URPERA): • Provides that if a law requires, as a condition for recording, that a document be an original, be on paper or another tangible medium, or be in writing, the requirement is satisfied by an electronic document that satisfies the requirements of 27 VSA Chapter 5, Subchapter 8 (URPERA). • Defines key terms. Provides for the validity of electronic documents. Establishes provisions relative to receiving and recording electronic documents, and that recorders accepting electronic documents shall continue to accept paper documents as authorized by state law. • Clarifies that “paper document” means a document received by a record in a form that is not electronic. • Establishes requirements for recording standards and best practices. Establishes that a requirement that a document or a signature associated with a document be notarized, acknowledged, verified, witnessed or made under oath is satisfied if the electronic signature of the person authorized to perform that act, and all other information required to be included, is attached to or logically associated with the document or signature. Substantially amends Vermont Statutes Annotated, Chapter 103, Notaries Public, as follows. Definitions Defines key terms—“communication technology,” “foreign state,” “identity proofing, “outside the United States,” and “remotely located individual.” Amends the definition of “notarial act” by adding the act of certifying or attesting a copy. Amends the definition of “notarial officer” to a Notary Public or other individual authorized to perform a notarial act. Amends the definition of “official stamp” to a physical image affixed to or embossed on a tangible record or an electronic image attached to or logically associated with an electronic record. Amends the definitions of “outside the United States,” and “remotely located individual.” Secretary of State; Rulemaking Adds, to the Secretary of State/Office of Professional Regulation’s rulemaking authority, the ability to prescribe the process of granting, renewing, conditioning, denying, suspending, or revoking a special commission endorsement or otherwise regulating and discipling an individual holding a Notary commission or special commission endorsement. Modifies rulemaking language to clarify that additionally, the Secretary’s rules 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 standards and a period for the retention of an audiovisual recording created under section 5379 of VSA Chapter 103; and prescribe methods for a Notary Public to confirm, under VSA Chapter 103, subsections 5379(c) and (d), the identity of a tangible record. Requires the Office of Professional Regulation to adopt rules for obtaining and regulating a special commission endorsement authorizing a Notary Public to perform electronic and remote online notarizations. Specifies that the rules shall require Notaries performing notarial acts regarding electronic records and for remotely located individuals to ensure that the communication technology and identity proofing used both comply with the requirements of section 5380, VSA Chapter 103 and any applicable administrative rules. Clarifies that the Secretary’s administrative rulemaking shall consider the most recent standards regarding electronic records promulgated by national bodies such as the National Association of Secretaries of State; and the standards, practices, and customs of other jurisdictions with laws substantially similar to those of VSA Chapter 103. Repeals the prohibition against performance of electronic notarization and remote online notarization prior to the Secretary of State’s adoption of rules and prescribed standards for such notarial acts. Commissioning; Special Commission Endorsement Raises the Notary commission issuance fee that shall be charged by the Office of Professional Regulation to $30. Establishes that the Office’s fee for issuance of a special endorsement authorizing performance of electronic and remote notarial acts shall be $30. Prohibits a Notary Public from performing a notarial act on an electronic record for a remotely located individual without first obtaining a special commission endorsement from the Office of Professional Regulation. Requires an individual to hold a Notary Public commission to be eligible for such special endorsement. Clarifies that a Notary Public must hold a special commission endorsement in order to perform notarial acts with respect to electronic records, or in order to select any tamper-evident technology to perform notarial acts with respect to electronic records. Accordingly, strikes prior statutory language requiring a Notary Public to (only) notify the Office of Professional Regulation that the Notary would be performing electronic and remote online notarizations. Establishes that a Notary Public holding a special commission endorsement may use communication technology to administer an oath or affirmation to a remotely located individual subject to statutory requirements. Electronic and Remote Notarial Acts Authorizes a Vermont Notary Public located in Vermont to perform a notarial act using communication technology, for a remotely located individual, if the Notary Public holds the required special commission endorsement; can identify the remotely located individual using a method prescribed under VSA Chapter 103; is reasonably able to confirm that a record before the Notary Public is the same record in which the remotely located individual made a statement in or on which the individual executed a signature; and if the Notary or person acting on the Notary’s behalf creates an audiovisual recording of the performance of the notarial act. Additionally provides that for a remote online notarization performed for an individual located outside the United States, the record must be one to be filed with or relating to a matter before a public official or court, governmental entity, or other entity subject to the jurisdiction of the United States; or involves property located in the territorial jurisdiction of the United States or involves a transaction substantially connected with the United States. Further requires that 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. General Provisions Clarifies that a Notary Public may perform a notarial act as authorized by and in accordance with the requirements of VSA Chapter 103 or other (applicable) law of Vermont. Notarial Powers Authorizes a Notary Public to certify that a tangible copy of an electronic record is an accurate copy of the electronic record. Establishes that a recorder 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 Notary Public executing the notarial certificate certifies that the tangible copy is an accurate copy of the electronic record. Also clarifies that a Notary Public who certifies or attests a copy of a record or an item that was copied shall determine that the copy is a full, true and accurate transcription or reproduction of the record or item. Remote Notarization, Tangible Records Allows any Notary Public of Vermont to use communication technology to take the acknowledgment of a signature on a tangible record physically present before the Notary (often referred to as remote ink-signed notarization). Provides that such record must be displayed to and identified by the remotely located individual during the required audiovisual recording. Establishes the effective date of such a notarial act. Provides how the requirement for a Notary Public to reasonably confirm that a tangible record before the Notary is the same record in which the remotely located individual made a statement or executed a signature may be satisfied. Clarifies that other methods of satisfying this requirement are not precluded. Requires a Notary Public to ensure that communication technology and identity proofing used to perform a notarial act for a remotely located individual complies with Section 5380 of VSA Chapter 103 and any standards adopted by the Office of Professional Regulation. Notarial Certificates Requires that the certificate for a notarial act performed for a remotely located individual must indicate that the notarial act was performed using communication technology. Establishes that a notarial certificate is sufficient if it complies with rules adopted under Section 5323 of VSA Chapter 103, or is in the form provided in Section 5367 of VSA Chapter 103 and contains a statement substantially as: “This notarial act involved the use of communication technology.” Adds short-form certificate language for the notarial act of certifying a copy of a record. Retention of Audiovisual Recordings Provides for the retention requirements of the required audiovisual recordings of notarial acts for remotely located individuals. Requires such recordings to be retained for a period of at least 10 years after the recording is made, unless a different period is required by any administrative rules of the Office of Professional Regulation. Technology Providers Requires that providers of communication technology, identity proofing and/or audiovisual recording storage must be registered with the Secretary of State to do business in Vermont. Establishes that by allowing communication technology or identity proofing to facilitate a notarial act of an electronic record or for a remotely located individual—or by providing storage of audiovisual recordings—providers of communication technology, identity proofing or storage consent and agree that the service or process being provided is in compliance with the requirements of VSA Chapter 103 and any rules adopted by the Office of Professional Regulation. Establishes minimum performance and operational standards for providers of communication technology and identity proofing. Requires such providers to comply with all applicable federal and state regulations and standards, including any relating to individuals with physical, sensory and cognitive disabilities and any with respect to identity proofing, regulations, rules and standards specific to the enrollment and verification of an identity used in digital authentication. Requires a provider of communication technology or identity proofing to provide evidence, to the Notary Public’s satisfaction, of the provider’s ability to satisfy the requirements of VSA Chapter 103 relative to the service or process being provided. Other Provisions Repeals statutory language that conflicts or no longer aligns with newly adopted additions and revisions. |
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| WASHINGTON – Amendment to Washington Administrative Code 308-30-060, Application Fees Effective November 22, 2022 View this rule Updates Notary-related fees to be charged by the Department of Licensing: • Application for Notary Public commission: formerly $30; new fee is $40. • Renewal of a Notary Public commission: formerly $30; new fee is $42. • Application for an electronic records Notary Public endorsement: $15 (no change). • Renewal of electronic records Notary Public endorsement: $15 (no change). • License print fee (newly created): $5 The $15 fee for obtaining a duplicate certificate of commission, including name change, is deleted. |
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| WEST VIRGINIA – Admin Rules on Electronic, RON and RIN, Title Series 153-45 Effective March 1, 2022 (provides a sunset date of August 1, 2027) View these rules (These administrative rules were proposed and modified in 2021, and required legislative approval to be enacted. The approving legislation was Senate Bill 334 of West Virginia’s 2022 Regular Legislative Session.) Establishes requirements for electronic notarization and remote online notarization in the Mountain State. Definitions Establishes these definitions: “capable of independent verification,” “electronic,” “electronic document,” “electronic journal of notarial acts” and “electronic journal,” “electronic notarial act” and “electronic notarization,” “electronic notarial certificate,” “electronic Notary Public” and “electronic Notary,” “electronic Notary seal” and “electronic seal,” “electronic signature,” “individual,” “Notary,” “registered electronic Notary seal,” “registered electronic signature,” “remote ink notarial act,” and “security procedure.” Registration Requires a Notary Public—before performing any electronic, or remote online, or remote ink notarial acts—to register their capability to do so with the Secretary of State. Upon the Notary’s recommissioning (commission renewal), the Notary must again register as an electronic Notary with the Secretary of State before notarizing or witnessing electronically. Allows a person to apply or reapply for a Notary commission and register/reregister to perform electronic notarial acts at the same time. Establishes that the term of registration of an electronic Notary Public begins on the registration starting date set by the Secretary of State, and continues while the Notary’s commission remains in effect or until the registration is terminated pursuant to provisions of the rule. Provides the requirements for the Secretary of State’s form enabling a Notary to register the capability to perform electronic notarial acts, remote online notarial acts or remote ink notarial acts. Allows a Notary Public to register at the same time, or at different times, one or more respective means for producing electronic signatures and electronic Notary seals, remote online notarization, remote ink notarization, in compliance with other administrative rule requirements. Provides that the Secretary of State shall deny registration to any Notary whose electronic/remote online/remote ink notarization registration contains a material misstatement or omission of fact. Specifies other causes for denial, conditioning, suspension, or termination of a Notary’s registration. Allows a Notary who is denied a registration to request a hearing to contest the Secretary’s decision, in accordance with West Virginia administrative rules. Provides that any revocation, resignation, expiration or other termination of a Notary Public’s commission immediately terminates any existing registration as an electronic Notary, remote online Notary, or remote ink Notary. Requires a Notary wishing to terminate a registration must notify the Secretary of State in writing and dispose of any pertinent software, coding, disk, certificate, card, token or program described within the rule. Clarifies that a Notary’s decision to terminate registration as an electronic Notary, remote online Notary, or remote ink Notary does not automatically terminate the underlying Notary Public commission, nor does expiration or termination of a Notary commission or registration preclude or terminate an investigation by the Secretary of State into the Notary’s conduct. Duties Relative to Registration Changes, Status Provides for the disposition of a registered Notary’s software, coding, disk, certificate, card, token or program used relative to electronic, remote online and remote ink notarial acts upon the Notary’s commission resignation, revocation, or registration termination. Performing Notarial Acts (Electronic, Remote Online and Remote Ink) Authorizes the following notarial acts to be performed electronically: acknowledgments, oaths or affirmations, witnessing or attesting signatures, certifying or attesting copies, and noting protests of negotiable instruments. Clarifies that remote online notarial acts, including the procedures for properly identifying the parties, shall be performed for a remotely located individual pursuant to the standards and procedures set worth in W. Va. Code §39-4-37. Clarifies that remote ink notarial acts performed for a remotely located individual, including procedures for properly identifying the parties, shall be performed pursuant to the standards and procedures set forth in W. Va. Code §39-4-38. Allows an electronic notarial act to be performed only if the individual seeking the notarial act is: in the Notary’s presence at the time of notarization; and is personally known to the Notary or identified through satisfactory evidence as prescribed in Section 39-4-7, West Virginia Code. Allows an electronic Notary Public to refuse to perform a notarial act if the Notary is not satisfied that the individual executing the record is competent or has the capacity to execute the record; or that the individual’s signature is knowingly or voluntarily made. Establishes that in performing electronic notarial acts, an electronic Notary shall adhere to al applicable rules governing notarial acts provided in this rule, 153 CSR 46A, and W. Va. Code §39-1-1. Requires a Notary performing an electronic notarial act to properly complete an electronic notarial certificate. Specifies the contents/information that must be contained in a “proper” electronic notarial certificate: • Completed wording appropriate to the particular notarial act as prescribed within this rule; • A registered electronic signature and a registered electronic Notary seal, and the required elements to be included in the electronic Notary seal; • The wording of an electronic notarial certificate, which must be in a form that is set forth in W. Va. Code §39-4-16; is otherwise prescribed by West Virginia law; is prescribed by law, regulation or custom of another jurisdiction provided it does not require actions by the electronic Notary that are not authorized in West Virginia; or describes the actions of the electronic in such a manner that meets the requirements of the particular notarial act, as defined within this rule. Provides that a notarial certificate must be worded and completed using only letters, characters and a language that are read, written and understood by the electronic Notary. Requires a Notary Public notarizing an electronic document (not a remote ink notarial act) to attach to, or logically associate with, the electronic notarial certificate a registered electronic signature and registered electronic Notary seal, or a registered single element in conformance with this rule’s Section Six. Such attachment or logical association must be in such a manner that the signature and the seal, or the single element, are attributed to the Notary as named on the commission. Electronic Notary Public Signature, Seal Specifies the required attributes of a registered electronic Notary Public signature, which must be unique to the electronic Notary Public; capable of independent verification; attached to or logically associated with an electronic notarial certificate such that any subsequent alteration of the certificate or underlying electronic document prominently displays evidence of the alteration; and attached to or logically associated by a means under the electronic Notary’s sole control. Requires that at all times the electronic Notary Public must keep his/her/their means for producing their registered electronic Notary seal, or registered single element, under the Notary’s sole control. Further requires that if the means for producing registered electronic Notary seals or registered single elements are accessed by a username and password, the electronic Notary must maintain sole control of the access information. Prohibits an electronic Notary Public’s employer from using or controlling the means for producing registered electronic signatures and Notary seals, or registered single elements combining the two. Also prohibits employers from retaining, upon termination of a Notary’s employment, any software, coding, disk, certificate, card, token, or program intended exclusively to produce a registered electronic signature, Notary seal, or combined single elements. Clarifies that these prohibitions apply regardless of whether the employer financially supported the employee’s activities as a Notary Public. Clarifies that an electronic Notary’s registered electronic signature may be used by that Notary for lawful purposes other than performing electronic notarizations, but neither the title “Notary” nor any other indication of status as a notarial officer may be part of the signature when so used. Prohibits use of a registered electronic Notary seal or a combined single element containing the seal for any purpose other than performing lawful electronic notarizations. Journal Requirements Allows but does not require a Notary who performs an electronic notarial act, remote online notarial act or remote ink notarial act to keep, maintain, protect, and provide for lawful inspection a chronological journal of notarial acts. Allows such journal to be a permanently bound book with numbered pages or an electronic journal as described within this administrative rule (see Section 153-45-18, Attributes of Electronic Journal). Evidence of Notary’s Authority Addresses the manner of forms of evidence of authority for an electronic notarial act (Apostilles, authentications requested by document relying parties). Requires such certificates of authority to be attached to or logically associated with an electronically notarized document in a manner that provides evidence of any subsequent document alteration or removal/alteration of the electronic certificate of notarial authority. Requires the wording of an electronic certificate of notarial authority to be substantially as provided in the administrative rule (see Section 153-45-20, Certificate of Authority of Electronic Notarial Act). Notification Responsibilities Requires a Notary Public to electronically transmit to the Secretary of State notice of any change regarding a Notary’s email address; requires such notice to be made within five business days after the change and include the Notary’s identification number. Additionally requires any change or addition to the information given on a previously submitted registration form (to perform electronic or remote online or remote ink-signed notarial acts) to be reported to the Secretary of State within 10 days of such change. Requires notification to the Secretary of State when a Notary becomes aware of certain specified changes, expirations, terminations or compromise with regard to the means of producing a registered electronic signature, Notary seal, remote online notarial act, remote ink notarial act, or single elements combining the Notary’s signature and seal used to perform such acts. Requires a Notary to immediately cease producing seals or signatures using those means and take other specified steps. Provides that when such reporting by the Notary occurs and involves the Notary’s only means of producing electronic signatures or Notary seals, performing remote online notarial acts or remote ink notarial acts, the Secretary of State will immediately suspend the status of that Notary to perform those types of notarial acts. |
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