DAR File No. 44029

Lieutenant Governor, Elections

Rule R623-100

Remote Notarization

Notice of Proposed Rule

(New Rule)

DAR File No.: 44029
Filed: 09/03/2019 10:20:30 AM

RULE ANALYSIS

Purpose of the rule or reason for the change:

Rulemaking authority is granted by Section 46-1-3.7.

Summary of the rule or change:

This rule outlines technical and procedural guidance for remote notaries public and solution providers to complete remote notarizations.

Statutory or constitutional authorization for this rule:

• Section 46-1-3.7

Anticipated cost or savings to:

the state budget:

There are state agencies that will experience a fiscal cost associated with increased prices. The full impact to state government cannot be estimated as the necessary data is unavailable. The Lt. Governor's Office is using funds for the project derived from a legislative funding to make any adjustments to the current system to allow for the process or commissioning Remote Notaries Public.

local governments:

There are local governments that will experience a fiscal cost associated with increased prices. The full impact to local governments cannot be estimated as the necessary data is unavailable.

small businesses:

There are small businesses that will experience a fiscal cost associated with increased prices. The full impact to small businesses cannot be estimated as the necessary data is unavailable.

persons other than small businesses, businesses, or local governmental entities:

Of the approximately 24,000 notaries public commissioned by the state of Utah, any that are hired or contracted with an approved remote notary vendor will pay a fee to the lieutenant governor for commissioning and that fee has yet to be set by the Lt. Governor.

Compliance costs for affected persons:

The fee has not been determined as of 08/30/2019.

Comments by the department head on the fiscal impact the rule may have on businesses:

If a business chooses to contract with an approved remote notary vendor, the costs associated would be dependent on whether the business assumes financial responsibility for their notaries public employees.

Spencer Cox, Lieutenant Governor

The full text of this rule may be inspected, during regular business hours, at the Office of Administrative Rules, or at:

Lieutenant Governor
Elections
Room 220 UTAH STATE CAPITOL
350 N STATE STREET
SALT LAKE CITY, UT 84114

Direct questions regarding this rule to:

• Jennifer Storie at the above address, by phone at 801-538-1746, by FAX at , or by Internet E-mail at jenstorie@utah.gov

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

10/15/2019

Interested persons may attend a public hearing regarding this rule:

• 10/16/2019 09:30 AM, Lt. Governor's Office, 220 State Capitol Bldg, 350 N State Street, Salt Lake City, UT

This rule may become effective on:

11/01/2019

Authorized by:

Justin Lee, Director

Appendix 1: Regulatory Impact Summary Table*

Fiscal Costs	FY 2020	FY 2021	FY 2022
State Government	$0	$0	$0
Local Government	$0	$0	$0
Small Businesses	$0	$0	$0
Non-Small Businesses	$0	$0	$0
Other Person	$0	$0	$0
Total Fiscal Costs:	$0	$0	$0
Fiscal Benefits
State Government	$0	$0	$0
Local Government	$0	$0	$0
Small Businesses	$0	$0	$0
Non-Small Businesses	$0	$0	$0
Other Persons	$0	$0	$0
Total Fiscal Benefits:	$0	$0	$0
Net Fiscal Benefits:	$0	$0	$0

 

*This table only includes fiscal impacts that could be measured. If there are inestimable fiscal impacts, they will not be included in this table. Inestimable impacts for State Government, Local Government, Small Businesses and Other Persons are described in the narrative. Inestimable impacts for Non-Small Businesses are described in Appendix 2.

 

Appendix 2: Regulatory Impact to Non-Small Businesses

There are non-small businesses that will experience a fiscal cost associated with increased prices. The full impact to small business cannot be estimated as the necessary data is unavailable.

 

 

R623. Lieutenant Governor, Elections.

R623-100. Remote Notarization.

R623-100-1. Authority.

This rule is required by Section 46-1-3.7 and is enacted under the authority of Chapter 3 of Title 63G, the Utah Administrative Rulemaking Act.

 

R623-100-2. Definitions.

A. "Credential Analysis" means a method to verify a principal's identity, as described in 46-1-2(19) and R623-100-4, utilized by a remote notary public.

B. "Identity proofing" means a process or a service operating according to this rule through which a third person or party affirms the identity of a principal through a review of the principal's personal information.

C. "Knowledge-Based Authentication" is an identity assessment that is based on a set of questions formulated from public or private data sources.

D. "Multi-Factor Authentication" means a method of access control in which a principal is granted access after successfully presenting personal identity evidence using at least two or more of the following mechanisms: knowledge-based authentication; credential analysis; or biometric data.

E. "Principal" means a person whose electronic signature is notarized in a remote notarization.

F. "Record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.

G. "Remote Notarial Act" means the recorded process of completing a remote notarization between the principal and remote notary public described in Section 46-1-6.

H. "Remote Notarial Certificate" means the portion of a remotely notarized electronic document that is completed by a remote notary public and that bears the notary public's electronic signature, electronic seal and certification language as provided by Section 46-1-6.5.

I. "Remote notarization solution" means a set of applications, programs, hardware, software or technology designed to enable the performance of a remote notarial act.

J. "Solution Provider" means a third-party vendor, approved by the lieutenant governor, providing a software solution enabling a Utah remote notary public to perform the duties of, or complete, a remote notarial act.

K. "Tamper-Evident" means a technology-based process that indicates whether a change has been made to an electronic document since the technology was applied.

 

R623-100-3. Purpose.

Pursuant to Section 46-1-3.7, this rule outlines technical and procedural guidance for remote notaries public and solution providers to complete remote notarizations.

 

R623-100-4. Remote Notary Public Certification.

A. A commissioned notary public may apply for certification to perform remote notarizations from the lieutenant governor.

B. In addition to meeting the application requirements in Section 46-1-3.5, the applicant shall submit to the lieutenant governor the following information:

1. The notary public's commission number as assigned by the lieutenant governor;

2. The notary public's commission expiration date;

2. The name of the solution provider authorizing the notary public's use of the remote notarization product;

3. A copy of the notary public's electronic seal and electronic signature provided by the solution provider; and

4. A statement certifying that the notary public will comply with the provisions of R623 Remote Notarization and Title 46 Chapter 1 Notaries Public Reform Act.

C. Upon an applicant's meeting the requirements set forth in Section 46-1-3.5 and R623-100-1, the lieutenant governor may update the notary public's record allowing the applicant to perform remote notarial acts.

D. A remote notary public shall use an approved solution vendor to perform remote notarial acts.

E. A notary public providing remote notarial services without a current remote notary certificate is subject to suspension or revocation of his or her notary commission and other penalties as prescribed by Title 46 Chapter 1 Notaries Public Reform Act.

F. Any suspension or revocation of a remote notary public's traditional notary public commission will result in suspension or revocation of the notary public's remote certification until such time that the lieutenant governor lifts such suspension or revocation.

 

R623-100-5. Credential Analysis and Authentication.

A. Credential analysis must be provided by a reputable third-party vendor or software tool that can demonstrate proven credential analysis processes and shall employ technology that provides the following:

1. The principal's identity must be bound to the principal following successful knowledge-based authentication, or biometric data; and

2. Remote notarization procedures shall provide for human visual comparison between the principal and the principal's identification presented to the remote notary.

B. Remote notarization solution providers shall use an automated software process to aid the notary in verifying each principal's identity.

1. The identification shall pass an authenticity test that:

i. Uses appropriate technologies to confirm the integrity of visual, physical or cryptographic security features;

ii. Uses appropriate technologies to confirm that the identification is not fraudulent or inappropriately modified;

iii. Uses information held or published by the issuing source or authoritative source, as available, to confirm the validity of the identification details; and

iv. Provides the result of the authenticity test to the notary.

2. The identification analysis procedure shall enable the notary to visually compare the following for consistency:

i. The information and photo on the identification image presented; and

ii. The principal as viewed by the notary in real time through the audio/video system.

3. If the remote notary public is unable to validate the identification of the principal, or to match the 's physical features with the credential, the remote notary public shall not complete the remote notarial act.

i. No further attempt may be made by the notary or the Solution Provider to complete the notarial act using audio-video communication using that credential.

4. Identification requirements shall be a type required under 46-1-2(19)(b).

5. The identification image shall be captured and shall confirm that:

a. The principal is in possession of the identification at the time of the notarial act;

b. The identification images submitted for credential analysis have not been manipulated; and

c. The identification images match the identification in the principal's possession.

ii. The following general principles should be considered in the context of image resolution:

a. Captured image resolution should be sufficient for the issuing source or authoritative source to perform Credential Analysis per the requirements above;

b. Image resolution should be sufficient to enable visual inspection by the notary, including legible text and clarity of photographs, barcodes, and other identification features; and

c. All images necessary to perform visual inspection and Credential Analysis shall be captured.

C. Knowledge-based authentication procedure must meet the following

requirements:

1. Each principal must answer questions and achieve a passing score. The procedure must

include:

a. Five multiple choice questions, drawn from public or private data sources.

b. A minimum of five possible answer choices per question.

c. Require that 80% of the questions are correctly answered within two minutes by

the principal.

2. Each principal is to be provided a reasonable number of attempts per signing session.

i. If a principal fails their first quiz, they may attempt up to two additional quizzes within 48 hours from the first failure.

ii. During any quiz retake, a minimum of 40% (2) of the prior questions shall be replaced.

3. Biometric sensing technologies for remote notarization in the areas of authentication, credential analysis, and identity proofing verification may include facial, voice, and fingerprint recognition.

4. If a principal exits the notarial act during the notarial act, they shall restart the credential analysis and authentication workflow from the beginning.

 

R623-100-6. Audio and Video Quality Requirements.

A. A reliable remote notarization operating model should consist of continuous, synchronous audio and video feeds with good clarity such that all participants can always be clearly seen and understood.

B. The remote notary shall determine if the quality of both the audio and the video are adequate for communication and provide direction to terminate the session if adequate conditions are not met.

C. The audio/video recording shall include the person-to-person interaction required as part of the remote notarial act, shall be logically associated to the electronic notary journal, and shall be capable of being viewed and heard using broadly available audio/video players.

1. The transaction documents executed in the remote notarization act shall not be recorded as part of the video recording.

 

R623-100-7. Electronic Notary Journal Storage.

A. Actions completed as part of a remote notarization act shall be recorded in an electronic notary journal. Each entry in this electronic journal shall clearly indicate the notarial act performed, the date and time of its performance, the name of the principal performing the action and the IP address of the principal performing the action.

B. Each document completed as part of a Remote Notarization shall be electronically signed and rendered Tamper-Evident.

C. Solution Providers shall have comprehensive security programs in place to ensure privacy and data security. D. Solution Providers shall be vigilant to ensure consumer data, privacy and information security laws and regulations are satisfied through their information security programs.

 

R623-100-8. Solution Provider Application Process.

A. A solution provider may apply for approval to provide a remote notary solution submitted to the lieutenant governor electronically and shall include the following:

1. Legal name of the Solution Provider;

2. How the business is organized;

3. Mailing address of the Solution Provider;

4. Physical address of the Solution Provider;

5. Solution provider's contact name;

6. Phone number of the contact person;

7. Email of the contact person;

8. The name of the remote notarization solution provided;

9. The name of the provider or providers of the knowledge-based authentication, Credential Analysis and digital certificate services

10. A description of the technology used to ensure compliance with R623-100;

11. Plan for the disposition, including but not limited to the retention and storage of documents, journals, recordings, etc., in the event the Solution Provider no longer provides the remote notary solution, for whatever reason; and

12. Declaration that the solution complies with Utah laws pertaining to remote notarization.

B. Any information provided to the lieutenant governor pursuant to R623-100-7 is confidential and shall not be disclosed by the lieutenant governor except when required by law.

C. A Solution Provider's solution shall be approved by the lieutenant governor prior to use in this state and shall:

1. Provide secure access to the solution by password or other secure means identifying the Utah remote notary public;

2. Verify from the lieutenant governor's notary registry, each time a remote notary public logs into the solution to ensure that the remote notary public is in active status before performing a remote notarization;

D. Approval of the Solution Provider by the lieutenant governor will be sent electronically to the provider's contact email.

E. The lieutenant governor may approve, reject or request additional information on the application.

 

R623-100-9. Recording for Remote Notarized Documents.

A. The remote notarization solution provider's system, process, and procedures shall be capable of generating a printable version of all documents executed in the system, including but not limited to the documents executed in the notarial act, and associated tamper-evident certifications as required by the lieutenant governor.

B. Any document notarized remotely shall clearly state, in the remote notarial certificate, that the principal making the acknowledgment, oath or affirmation and signing the document appeared remotely using audio/video communication technology.

 

KEY: remote notarization

Date of Enactment or Last Substantive Amendment: 2019

Authorizing, and Implemented or Interpreted Law: 46-1-3.7