[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[S. 1212 Introduced in Senate (IS)]
<DOC>
118th CONGRESS
1st Session
S. 1212
To authorize notaries public to perform, and to establish minimum
standards for, electronic notarizations and remote notarizations that
occur in or affect interstate commerce, to require any Federal court to
recognize notarizations performed by a notarial officer of any State,
to require any State to recognize notarizations performed by a notarial
officer of any other State when the notarization was performed under or
relates to a public Act, record, or judicial proceeding of the notarial
officer's State or when the notarization occurs in or affects
interstate commerce, and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
April 19, 2023
Mr. Cramer (for himself and Mr. Warner) introduced the following bill;
which was read twice and referred to the Committee on the Judiciary
_______________________________________________________________________
A BILL
To authorize notaries public to perform, and to establish minimum
standards for, electronic notarizations and remote notarizations that
occur in or affect interstate commerce, to require any Federal court to
recognize notarizations performed by a notarial officer of any State,
to require any State to recognize notarizations performed by a notarial
officer of any other State when the notarization was performed under or
relates to a public Act, record, or judicial proceeding of the notarial
officer's State or when the notarization occurs in or affects
interstate commerce, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Securing and Enabling Commerce Using
Remote and Electronic Notarization Act of 2023''.
SEC. 2. DEFINITIONS.
In this Act:
(1) Communication technology.--The term ``communication
technology'', with respect to a notarization, means an
electronic device or process that allows the notary public
performing the notarization and a remotely located individual
to communicate with each other simultaneously by sight and
sound during the notarization.
(2) 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).
(3) Law.--The term ``law'' includes any statute,
regulation, rule, or rule of law.
(4) Notarial officer.--The term ``notarial officer''
means--
(A) a notary public; or
(B) any other individual authorized to perform a
notarization under the laws of a State without a
commission or appointment as a notary public.
(5) 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.
(6) Notarization.--The term ``notarization''--
(A) means any act that a notarial officer may
perform under--
(i) Federal law, including this Act; or
(ii) the laws of the notarial officer's
State; and
(B) includes any act described in subparagraph (A)
and performed by a notarial officer--
(i) with respect to--
(I) a tangible record; or
(II) an electronic record; and
(ii) for--
(I) an individual in the physical
presence of the notarial officer; or
(II) a remotely located individual.
(7) 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.
(8) 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.
(9) 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.
(10) Requirement.--The term ``requirement'' includes a
duty, a standard of care, and a prohibition.
(11) Signature.--The term ``signature'' means--
(A) an electronic signature; or
(B) a tangible symbol executed or adopted by a
person and evidencing the present intent to
authenticate or adopt a record.
(12) Simultaneously.--The term ``simultaneously'', with
respect to a communication between parties--
(A) means that each party communicates
substantially simultaneously and without unreasonable
interruption or disconnection; and
(B) includes any reasonably short delay that is
inherent in, or common with respect to, the method used
for the communication.
(13) State.--The term ``State''--
(A) means--
(i) any State of the United States;
(ii) the District of Columbia;
(iii) the Commonwealth of Puerto Rico;
(iv) any territory or possession of the
United States; and
(v) any federally recognized Indian Tribe;
and
(B) 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).
SEC. 3. AUTHORIZATION TO PERFORM AND MINIMUM STANDARDS FOR ELECTRONIC
NOTARIZATION.
(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 with respect to an electronic
record.
(b) Requirements of Electronic Notarization.--If a notary public
performs a notarization under subsection (a), the following
requirements shall apply with respect to the notarization:
(1) The electronic signature of the notary public, and all
other information required to be included under other
applicable law, shall be attached to or logically associated
with the electronic record.
(2) The electronic signature and other information
described in paragraph (1) shall be bound to the electronic
record in a manner that renders any subsequent change or
modification to the electronic record evident.
SEC. 4. AUTHORIZATION TO PERFORM AND MINIMUM STANDARDS FOR REMOTE
NOTARIZATION.
(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.
(b) Requirements of Remote Notarization.--If a notary public
performs a notarization under subsection (a), the following
requirements shall apply with respect to the notarization:
(1) The remotely located individual shall appear personally
before the notary public at the time of the notarization by
using communication technology.
(2) The notary public shall--
(A) reasonably identify the remotely located
individual--
(i) through personal knowledge of the
identity of the remotely located individual; or
(ii) by obtaining satisfactory evidence of
the identity of the remotely located individual
by--
(I) 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
(II) oath or affirmation of a
credible witness who--
(aa)(AA) is in the physical
presence of the notary public
or the remotely located
individual; or
(BB) appears personally
before the notary public and
the remotely located individual
by using communication
technology;
(bb) has personal knowledge
of the identity of the remotely
located individual; and
(cc) has been identified by
the notary public under clause
(i) or subclause (I) of this
clause;
(B) either directly or through an agent--
(i) create an audio and visual recording of
the performance of the notarization; and
(ii) 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--
(I) for a period of not less than--
(aa) if an applicable law
of the notary public's State
specifies a period of
retention, the greater of--
(AA) that specified
period; or
(BB) 5 years after
the date on which the
recording is created;
or
(bb) 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
(II) if any applicable law of the
notary public's State govern the
content, manner or place of retention,
security, use, effect, or disclosure of
such recording or any information
contained in the recording, in
accordance with those laws; and
(C) 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.
(3) 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--
(A) another person is obligated to retain the
recording under applicable law of the notary public's
State; or
(B)(i) 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
(ii) 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.
(4) 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--
(A) the record shall--
(i) 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
(ii) involve property located in the
territorial jurisdiction of the United States
or a transaction substantially connected to the
United States; and
(B) 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.
(c) 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--
(1) the individual--
(A) is a remotely located individual; and
(B) appears personally before the notary public at
the time of the notarization by using communication
technology; and
(2)(A) the notarization was performed under or relates to a
public act, record, or judicial proceeding of the notary
public's State; or
(B) the notarization occurs in or affects interstate
commerce.
SEC. 5. RECOGNITION OF NOTARIZATIONS IN FEDERAL COURT.
(a) Recognition of Validity.--Each court of the United States shall
recognize as valid under the State or Federal law applicable in a
judicial proceeding before the court any notarization performed by a
notarial officer of any State if the notarization is valid under the
laws of the notarial officer's State or under this Act.
(b) Legal Effect of Recognized Notarization.--A notarization
recognized under subsection (a) shall have the same effect under the
State or Federal law applicable in the applicable judicial proceeding
as if that notarization was validly performed--
(1)(A) by a notarial officer of the State, the law of which
is applicable in the proceeding; or
(B) under this Act or other Federal law; and
(2) without regard to whether the notarization was
performed--
(A) with respect to--
(i) a tangible record; or
(ii) an electronic record; or
(B) for--
(i) an individual in the physical presence
of the notarial officer; or
(ii) a remotely located individual.
(c) 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 the notarization shall be prima facie
evidence in any court of the United States that the signature of the
individual is genuine and that the individual holds the designated
title.
(d) Conclusive Evidence of Authority.--In a determination of the
validity of a notarization for the purposes of subsection (a), the
signature and title of the following notarial officers of a State shall
conclusively establish the authority of the officer to perform the
notarization:
(1) A notary public of that State.
(2) A judge, clerk, or deputy clerk of a court of that
State.
SEC. 6. RECOGNITION BY STATE OF NOTARIZATIONS PERFORMED UNDER AUTHORITY
OF ANOTHER STATE.
(a) 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--
(1) the notarization is valid under the laws of the
notarial officer's State or under this Act; and
(2)(A) the notarization was performed under or relates to a
public act, record, or judicial proceeding of the notarial
officer's State; or
(B) the notarization occurs in or affects interstate
commerce.
(b) 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--
(1) with respect to--
(A) a tangible record; or
(B) an electronic record; or
(2) for--
(A) an individual in the physical presence of the
notarial officer; or
(B) a remotely located individual.
(c) 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.
(d) Conclusive Evidence of Authority.--In a determination of the
validity of a notarization for the purposes of subsection (a), the
signature and title of the following notarial officers of a State
conclusively establish the authority of the officer to perform the
notarization:
(1) A notary public of that State.
(2) A judge, clerk, or deputy clerk of a court of that
State.
SEC. 7. ELECTRONIC AND REMOTE NOTARIZATION NOT REQUIRED.
Nothing in this Act may be construed to require a notary public to
perform a notarization--
(1) with respect to an electronic record;
(2) for a remotely located individual; or
(3) using a technology that the notary public has not
selected.
SEC. 8. VALIDITY OF NOTARIZATIONS; RIGHTS OF AGGRIEVED PERSONS NOT
AFFECTED; STATE LAWS ON THE PRACTICE OF LAW NOT AFFECTED.
(a) Validity Not Affected.--The failure of a notary public to meet
a requirement under section 3 or 4 in the performance of a
notarization, or the failure of a notarization to conform to a
requirement under section 3 or 4, shall not invalidate or impair the
recognition of the notarization.
(b) 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--
(1) that a person did not, with present intent to
authenticate or adopt a record, execute a signature on the
record;
(2) 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
(3) of fraud, forgery, mistake, misrepresentation,
impersonation, duress, undue influence, or other invalidating
cause.
(c) Rule of Construction.--Nothing in this Act may be construed to
affect a State law governing, authorizing, or prohibiting the practice
of law.
SEC. 9. EXCEPTION TO PREEMPTION.
(a) In General.--A State law may modify, limit, or supersede the
provisions of section 3, or subsection (a) or (b) of section 4, with
respect to State law only if that State law--
(1) either--
(A) constitutes an enactment or adoption of the
Revised Uniform Law on Notarial Acts, as approved and
recommended for enactment in all the States by the
National Conference of Commissioners on Uniform State
Laws in 2018, except that a modification to such Law
enacted or adopted by a State shall be preempted to the
extent such modification--
(i) is inconsistent with a provision of
section 3 or subsection (a) or (b) of section
4, as applicable; or
(ii) would not be permitted under
subparagraph (B); or
(B) 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--
(i) are consistent with section 3 and
subsections (a) and (b) of section 4; and
(ii) do not accord greater legal effect to
the implementation or application of a specific
technology or technical specification for
performing those notarizations; and
(2) 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.
(b) 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.
SEC. 10. STANDARD OF CARE; SPECIAL NOTARIAL COMMISSIONS.
(a) State Standards of Care; Authority of State Regulatory
Officials.--Nothing in this Act may be construed to prevent a State, or
a notarial regulatory official of a State, from--
(1) adopting a requirement in this Act as a duty or
standard of care under the laws of that State or sanctioning a
notary public for breach of such a duty or standard of care;
(2) establishing requirements and qualifications for, or
denying, refusing to renew, revoking, suspending, or imposing a
condition on, a commission or appointment as a notary public;
(3) creating or designating a class or type of commission
or appointment, or requiring an endorsement or other
authorization to be received by a notary public, as a condition
on the authority to perform notarizations with respect to
electronic records or for remotely located individuals; or
(4) prohibiting a notary public from performing a
notarization under section 3 or 4 as a sanction for a breach of
duty or standard of care or for official misconduct.
(b) Special Commissions or Authorizations Created by a State;
Sanction for Breach or Official Misconduct.--A notary public may not
perform a notarization under section 3 or 4 if--
(1)(A) the notary public's State has enacted a law that
creates or designates a class or type of commission or
appointment, or requires an endorsement or other authorization
to be received by a notary public, as a condition on the
authority to perform notarizations with respect to electronic
records or for remotely located individuals; and
(B) the commission or appointment of the notary public is
not of the class or type or the notary public has not received
the endorsement or other authorization; or
(2) the notarial regulatory official of the notary public's
State has prohibited the notary public from performing the
notarization as a sanction for a breach of duty or standard of
care or for official misconduct.
SEC. 11. SEVERABILITY.
If any provision of this Act or the application of such provision
to any person or circumstance is held to be invalid or
unconstitutional, the remainder of this Act and the application of the
provisions thereof to other persons or circumstances shall not be
affected by that holding.
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