VT Emergency Rules (March 2024)

Rule/Regulation

State: Vermont

Effective: March 04, 2024

Summary

The Vermont Secretary of State renews its emergency remote notarization rules for another 180 days and adds to them provisions related to electronic records.

Affects

Adds and amends as yet uncodified sections in the Code of Vermont Rules.

Changes

Definitions

Defines “communication technology,” “digital certificate,” “electronic,” “electronic notarial act,” “electronic notarial certificate,” “electronic signature,” “electronic record,” “notarial certificate,” “Notary Public,” “signature,” and “tamper-evident.”
Modifies the definition of “remote notarial act” to include both tangible and electronic records.

Electronic Notary Special Endorsement

Requires a Notary to obtain an Electronic Notary special endorsement in order to perform notarial acts on electronic records, whether in the presence of the individual or for a remotely located individual.
Temporarily suspends the requirement to obtain an Electronic Notary special endorsement to perform notarial acts for remotely located individuals.
States that to qualify for an Electronic Notary special endorsement, a Notary must: (a) hold a current Notary Public commission in good standing, (b) attest to selecting and using communication and tamper-evident technology that complies with requirements of the rules, and (c) pay all required application fees.
Requires a Notary to renew the Electronic Notary special endorsement commission every 2 years at the same time the Notary renews their Notary Public commission.

Notarial Acts on Electronic Records

Requires a Notary performing a notarial act on an electronic record to be physically located in Vermont at the time the notarial act is performed.
Authorizes a Notary holding an Electronic Notary special endorsement to perform authorized notarial acts relating to electronic records only if the individual personally appears before the Notary at the time of the notarial act in accordance with 26 VSA Section 5364 or remotely in accordance with Part 4 of the rules.
Requires a Notary authorized to perform notarial acts on an electronic record to verify the identity of the individual prior to performing a notarial act in accordance with 26 VSA Section 5365 or, if for a remotely located individual, in accordance with Part 4 of the rules.
Prohibits a Notary from basing identification of an individual solely on familiarity with an individual’s signature or an electronic verification process that authenticates the individual’s electronic signature.
Requires an electronic notarial act to be evidenced by an electronic notarial certificate which must (a) be affixed to or logically associated with the electronic record and (b) contain the information required under 26 VSA Sections 5367 and 5380.
Requires a Notary performing a notarial act on an electronic record to affix to or logically associate with the electronic notarial certificate the Notary’s electronic signature and electronic official stamp, if the Notary uses one, by use of a digital certificate.
Requires a tamper-evident technology selected by a Notary to perform electronic notarial acts to be capable of (a) affixing or attaching the Notary’s electronic signature to the electronic record in a manner that is capable of independent verification and renders any subsequent change or modification to the electronic record evident and (b) utilizing a valid digital certificate issued by a third-party provider.
Prohibits a Notary from performing a notarial act with respect to an electronic record if the digital certificate (a) has expired, (b) has been revoked or terminated by the issuing or registering authority, (c) is invalid, or (d) is incapable of authentication.
Requires a Notary authorized to perform electronic notarial acts to use the same electronic signature and electronic official stamp, if the Notary uses one, for all electronic notarial acts.
Require a Notary to submit to the Office a copy of the Notary’s electronic signature and electronic official stamp, if using.
Requires the Notary’s electronic signature and electronic official stamp, if the Notary uses one, to be unique to the Notary.

Security of Electronic Signature and Official Stamp

Provides that a Notary’s electronic signature and electronic official stamp, if the Notary uses one, must be retained under the Notary’s sole control and access.
Prohibits a Notary from allowing any other individual to use the Notary’s electronic signature or electronic official stamp, if using.
Prohibits a Notary’s employer form permitting the use of a Notary’s electronic signature or electronic official stamp, if the Notary uses one, by anyone except the Notary.
Prohibits a Notary from disclosing any access information used to affix the Notary’s electronic signature or the electronic image of the Notary’s official stamp, if the Notary uses one, except when requested by the Office or a designee, a judicial subpoena, and, with precautions, electronic document preparation and transmission vendors.
Provides that control of security aspects, such as, but not limited to, passwords, token devices, biometrics, PINS, phrases, software on protected hardware must remain under the sole control of the Notary.

Remote Notarial Acts

Clarifies that Notaries Public and not notarial officers may perform remote notarial acts.
Now authorizes a remote notarial act to be performed on an electronic record.
Requires the Notary to reasonably confirm that the tangible or electronic 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.
Requires a remote notarial act to be performed on (a) on a tangible record submitted to the Notary in its original paper format by the remotely located individual, (b) on a record transmitted electronically to the Notary by the remotely located individual and printed by the Notary prior to the notarial act being evidenced by a certificate, or (c) on an electronic record in accordance with Part 6 of the rules.
Requires a notarial certificate or an electronic notarial certificate to be affixed to or logically associated with the tangible or electronic record, and include the certificate language required under 26 VSA Sections 5367 and 5380 and the rules in addition to including a statement that the notarial act was performed remotely and the notarial act involved the use of communication technology.

Other Changes

Provides that upon resignation, revocation, or expiration of the Notary’s commission or Electronic Notary specialty endorsement, the Notary must destroy and disable their electronic signature and electronic official stamp, if the Notary uses one, including any coding, disk, digital certificate, card, software or password that enables the Notary to attach or logically associate the electronic signature or electronic official stamp, if the Notary uses one, to the electronic record, so as to prohibit the use of the electronic signature or electronic official stamp by any other person.
Requires a Notary to immediately notify the Office of the theft of the Notary’s electronic signature, electronic official stamp, if the Notary uses one, or digital certificate.
Strikes the notarial certificate forms for remote notarial acts from the rules.
Makes technical changes.

Analysis

The Vermont Secretary of State extends the emergency rules for remote notarizations for another 180 days but adds provisions allowing Vermont Notaries to perform remote notarizations on electronic records instead of just paper records. In addition, the emergency rules now authorize Notaries to perform in-person electronic notarial acts. If a Notary wants to perform remote notarial acts on electronic records or in-person electronic notarial acts, they now must obtain an Electronic Notary special endorsement. The emergency rules now contain rules for how to obtain this special endorsement, although we expect the Secretary of State to provide additional information on the process and steps on its website.

Read the adopted emergency rules.