Utah Amends Provisions Regarding Notaries Public Reform Act
The State of Utah amended its provisions under its Notaries Public Reform Act that include establishing requirements for the process by which a remote notary may perform a remote notarization, requiring a remote notary to maintain an electronic journal, and amending the fees a notary may charge for performing a notarization. The bill takes effect on November 1, 2019.
The amendment under Section 1 provides that a notary includes a “remote notary” and defines remote notarization as “a notarial act performed by a remote notary for an individual who is not in the physical presence of the remote notary at the time the remote notary performs the notarial act.”
Section 3 of the amendment allows an individual commissioned as a notary or an individual applying to be commissioned as a notary to apply to the Lieutenant Governor for a remote notary certification and the Lieutenant Governor shall certify that individual to perform remote notarizations as a remote notary if he or she meets certain conditions.
Section 4 of the amendment provides for remote notarization procedures and states that “a remote notary who receives a remote notary certification may perform a remote notarization if the remote notary is physically located in the state.” Also, “a remote notary that performs a remote notarization for an individual that is not personally known to the remote notary shall, at the time the remote notary performs the remote notarization, establish satisfactory evidence of identity for the individual by communicating with the individual using an electronic device or process and by requiring the individual to transmit to the remote notary an image of a form of identification or passport that is of sufficient quality for the remote notary to establish satisfactory evidence of identity.”
A remote notary is required to create an audio and video recording of the performance of each remote notarization and store the recording and is required to take reasonable steps consistent with industry standards, to ensure that any non-public data transmitted or stored in connection with a remote notarization performed by him or her is secure from unauthorized interception or disclosure.
Section 5 provides for rule making authority for remote notarization and provides that “the director of elections in the office of the Lieutenant Governor may make rules in accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, regarding standards for and types of electronic software and hardware that a remote notary may use to perform a remote notarization and to keep an electronic journal.”
The amendment further provides that “the director of elections may also make rules standards and types for public and proprietary data sources that a remote notary may use to establish satisfactory evidence of identity, dynamic knowledge-based authentication or biometric data analysis that a remote notary may use to establish satisfactory evidence of identity and electronic seals a remote notary may use to complete an electronic notarial certificate.”
The director of elections in the office of the Lieutenant Governor, when making a rule under this section, shall review and consider standards recommended by one or more national organizations that address the governance or operation of notaries.
Section 6 provides for bond and states that a remote notary certification is not effective until the notary in the remote notary certification files with the lieutenant governor evidence that the notary has obtained $5,000 of bond coverage.
Section 8 provides for the form of notarial certificate for document notarizations and under subsection 6 states that a remote notary should ensure that the notarial certificate used for a remote notarization includes a statement that the remote notary performed the notarization remotely.
Section 10 amends the fees and a notary may charge. The maximum fees a notary may charge for notarial acts are: $10 per signature for an acknowledgment, $10 per page certified for a certified copy, $10 per signature for a jurat, $10 per person for an oath or affirmation, $10 for each signature witnessing.
The amendment further provides that $25 is the maximum fee a remote notary may charge for an item described above that he or she may perform as part of remote notarization.
Section 11 provides for notary journal and requires a remote notary to keep a secure electronic journal of each remote notarization the notary performs. The amendment under section 12 describes the kind of information that should be entered in the journal and also states that a remote notary shall include with the journal a copy of the electronic recording of the remote notarization. The remote notary is required to maintain or ensure that a person that the notary designates as a custodian maintains information entered in the journal for a period of five years.
Section 13 provides for inspection of journal and requires a remote notary to ensure that the electronic journal and electronic recording that is maintained by the remote notary is a secure and authentic record of the remote notarizations that the notary performs. The remote notary is also required to maintain a backup electronic journal and electronic recording and must protect the backup electronic journal and electronic recording from unauthorized access or use.
A custodian may be designated for the remote notary’s electronic journal and electronic recording and an agreement must be executed by the remote notary with the custodian that requires the custodian to comply with the safety and security requirements with regard to the electronic journal, the information in the electronic journal, and the electronic recording.
Section 14 require a remote notary to keep an electronic seal and electronic signature which may not be used by any other person. However, a remote notary may allow any person that provides an electronic seal to the remote notary to act as a guardian over the electronic seal and the guardian may access and use the seal of the notary for purposes of solely completing the notarization by the notary for which the seal is accessed or used or for purposes of storing and protecting the seal.
The amendment also provides that “the official seal used for an in-person notarization shall be in purple ink while each official seal used for a remote notarization shall be rendered in black.”
The amendment requires a notary who resigns or whose commission expires or is revoked to destroy the notary’s official seal and certificate and if the notary is a remote notary, to destroy any coding, disk, certificate, card, software, or password that enables the remote notary to affix the remote notary’s electronic signature or electronic seal to a notarial certificate.
A former remote notary is required to certify within 10 days after the day on which the notary resigns or the notary’s commission expires or is revoked to the lieutenant governor in writing that the former remote notary has complied with the requirements of destroying any coding, disk, certificate, card or password.
Section 15 provides for obtaining an official seal and states that a person may not provide an official seal to an individual claiming to be a notary unless they present a copy of their notarial commission. The amendment forbids anyone from creating, obtaining or possessing an electronic seal unless the individual is a remote notary.
Rhona Kyeyune, LLM, is a regulatory compliance consultant with CLA. She is a graduate of Makerere University and earned her master of laws at Boston University School of Law.
Comments are closed.