H.R. 3962 — what changed

Electronic; electronic record; electronic signature; information; person; record— The terms electronic, electronic record, electronic signature, information, person, and record have the meanings given those terms in section 106 of the Electronic Signatures in Global and National Commerce Act (15 U.S.C. 7006).

Law— The term law includes any statute, regulation, rule, or rule of law.

Notarial officer— The term notarial officer means—

a notary public; or

any other individual authorized to perform a notarization under the laws of a State without a commission or appointment as a notary public.

Notarial officer’s State; notary public’s State— The term notarial officer’s State or notary public’s State means the State in which a notarial officer, or a notary public, as applicable, is authorized to perform a notarization.

Notarization— The term notarization—

means any act that a notarial officer may perform under—

Federal law, including this Act; or

the laws of the notarial officer's State; and

includes any act described in subparagraph (A) and performed by a notarial officer—

with respect to—

a tangible record; or

an electronic record; and

for—

an individual in the physical presence of the notarial officer; or

a remotely located individual.

Notary public— The term notary public means an individual commissioned or appointed as a notary public to perform a notarization under the laws of a State.

Personal knowledge— The term personal knowledge, with respect to the identity of an individual, means knowledge of the identity of the individual through dealings sufficient to provide reasonable certainty that the individual has the identity claimed.

Remotely located individual— The term remotely located individual, with respect to a notarization, means an individual who is not in the physical presence of the notarial officer performing the notarization.

Requirement— The term requirement includes a duty, a standard of care, and a prohibition.

Signature— The term signature means—

an electronic signature; or

a tangible symbol executed or adopted by a person and evidencing the present intent to authenticate or adopt a record.

Simultaneously— The term simultaneously, with respect to a communication between parties—

means that each party communicates substantially simultaneously and without unreasonable interruption or disconnection; and

includes any reasonably short delay that is inherent in, or common with respect to, the method used for the communication.

State— The term State—

means—

any State of the United States;

the District of Columbia;

the Commonwealth of Puerto Rico;

any territory or possession of the United States; and

any federally recognized Indian Tribe; and

includes any executive, legislative, or judicial agency, court, department, board, office, clerk, recorder, register, registrar, commission, authority, institution, instrumentality, county, municipality, or other political subdivision of an entity described in any of clauses (i) through (v) of subparagraph (A).

Authorization— Unless prohibited under section 10, and subject to subsection (b), a notary public may perform a notarization that occurs in or affects interstate commerce for a remotely located individual.

Requirements of remote notarization— If a notary public performs a notarization under subsection (a), the following requirements shall apply with respect to the notarization:

The remotely located individual shall appear personally before the notary public at the time of the notarization by using communication technology.

The notary public shall—

reasonably identify the remotely located individual—

through personal knowledge of the identity of the remotely located individual; or

by obtaining satisfactory evidence of the identity of the remotely located individual by—

using not fewer than 2 distinct types of processes or services through which a third person provides a means to verify the identity of the remotely located individual through a review of public or private data sources; or

oath or affirmation of a credible witness who—

is in the physical presence of the notary public or the remotely located individual; or

appears personally before the notary public and the remotely located individual by using communication technology;

has personal knowledge of the identity of the remotely located individual; and

either directly or through an agent—

create an audio and visual recording of the performance of the notarization; and

notwithstanding any resignation from, or revocation, suspension, or termination of, the notary public’s commission or appointment, retain the recording created under clause (i) as a notarial record—

for a period of not less than—

if an applicable law of the notary public’s State specifies a period of retention, the greater of—

that specified period; or

5 years after the date on which the recording is created; or

if no applicable law of the notary public’s State specifies a period of retention, 10 years after the date on which the recording is created; and

if the notarization is performed with respect to a tangible or electronic record, take reasonable steps to confirm that the record before the notary public is the same record with respect to which the remotely located individual made a statement or on which the individual executed a signature.

If a guardian, conservator, executor, personal representative, administrator, or similar fiduciary or successor is appointed for or on behalf of a notary public or a deceased notary public under applicable law, that person shall retain the recording under paragraph (2)(B)(ii), unless—

another person is obligated to retain the recording under applicable law of the notary public’s State; or

under applicable law of the notary public’s State, that person may transmit the recording to an office, archive, or repository approved or designated by the State; and

that person transmits the recording to the office, archive, or repository described in clause (i) in accordance with applicable law of the notary public’s State.

If the remotely located individual is physically located outside the geographic boundaries of a State, or is otherwise physically located in a location that is not subject to the jurisdiction of the United States, at the time of the notarization—

the record shall—

be intended for filing with, or relate to a matter before, a court, governmental entity, public official, or other entity that is subject to the jurisdiction of the United States; or

involve property located in the territorial jurisdiction of the United States or a transaction substantially connected to the United States; and

the act of making the statement or signing the record may not be prohibited by a law of the jurisdiction in which the individual is physically located.

Personal appearance satisfied— If a State or Federal law requires an individual to appear personally before or be in the physical presence of a notary public at the time of a notarization, that requirement shall be considered to be satisfied if—

the individual—

is a remotely located individual; and

appears personally before the notary public at the time of the notarization by using communication technology; and

the notarization was performed under or relates to a public act, record, or judicial proceeding of the notary public’s State; or

the notarization occurs in or affects interstate commerce.

Recognition of validity— Each State shall recognize as valid under the laws of that State any notarization performed by a notarial officer of any other State if—

the notarization is valid under the laws of the notarial officer’s State or under this Act; and

the notarization was performed under or relates to a public act, record, or judicial proceeding of the notarial officer’s State; or

the notarization occurs in or affects interstate commerce.

Legal effect of recognized notarization— A notarization recognized under subsection (a) shall have the same effect under the laws of the recognizing State as if that notarization was validly performed by a notarial officer of the recognizing State, without regard to whether the notarization was performed—

with respect to—

a tangible record; or

an electronic record; or

for—

an individual in the physical presence of the notarial officer; or

a remotely located individual.

Presumption of genuineness— In a determination of the validity of a notarization for the purposes of subsection (a), the signature and title of an individual performing a notarization shall be prima facie evidence in any State court or judicial proceeding that the signature is genuine and that the individual holds the designated title.

A notary public of that State.

A judge, clerk, or deputy clerk of a court of that State.

Rights of aggrieved persons— The validity and recognition of a notarization under this Act may not be construed to prevent an aggrieved person from seeking to invalidate a record or transaction that is the subject of a notarization or from seeking other remedies based on State or Federal law other than this Act for any reason not specified in this Act, including on the basis—

that a person did not, with present intent to authenticate or adopt a record, execute a signature on the record;

that an individual was incompetent, lacked authority or capacity to authenticate or adopt a record, or did not knowingly and voluntarily authenticate or adopt a record; or

of fraud, forgery, mistake, misrepresentation, impersonation, duress, undue influence, or other invalidating cause.

Rule of construction— Nothing in this Act may be construed to affect a State law governing, authorizing, or prohibiting the practice of law.

either—

would not be permitted under subparagraph (B); or

specifies additional or alternative procedures or requirements for the performance of notarizations with respect to electronic records or for remotely located individuals, if those additional or alternative procedures or requirements—

are consistent with section 3 and subsections (a) and (b) of section 4; and

do not accord greater legal effect to the implementation or application of a specific technology or technical specification for performing those notarizations; and

requires the retention of an audio and visual recording of the performance of a notarization for a remotely located individual for a period of not less than 5 years after the recording is created.

Rule of construction— Nothing in section 5 or 6 may be construed to preclude the recognition of a notarization under applicable State law, regardless of whether such State law is consistent with section 5 or 6.