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Law

AK House Bill 124

Notary Law Update: AK House Bill 124

State: Alaska

Summary:

House Bill 124 enacts permanent provisions for performing notarizations for remotely located individuals (remote online notarizations).

Signed:  April 30, 2020

Effective:  January 01, 2021

Chapter: 24

Affects:

Amends Sections 40.17.020, 40.17.030, 44.50.033, 44.50.034, 44.50.060, 44.50.062, 44.50.072, and 44.50.200 of, and adds Sections 40.17.140, 44.50.075, 44.50.078, 44.50.145, 44.50.165, 44.50.185 to, the Alaska Statutes.

Changes:

Definitions

  1. Defines “acknowledgment”, “communication technology”, “credential analysis”, “electronic”, “electronic signature”, “foreign state”, “identity proofing”, “in a representative capacity”, “notarial act”, “notarial officer”, “outside the United States”, “record”, “remotely located individual”, “sign”, and “signature”.

Commissioning

  1. Strikes the amount of the application fee for a Notary commission ($40) from the statute.
  2. Requires the Lieutenant Governor to set the amount of the Notary commission application fee by regulation.
  3. Raises the amount of the Notary bond from $1,000 to $2,500.
  4. Provides that the application fee established by the Lieutenant Governor and the increased bond apply to a person who applies for a new or subsequent commission as a Notary under AS 44.50.032 or 44.50.038 on or after the effective date of the Act (January 1, 2021).

Notarial Acts; Prohibited Acts

  1. Authorizes a Notary to give a notarial certificate stating that a tangible copy of an electronic record is an accurate copy of the electronic record.
  2. Clarifies that except as provided by AS 44.50.075 (notarial acts for remotely located individuals), a Notary is prohibited from affixing the Notary’s seal to a document unless the person who is to sign the document appears and signs the document before the Notary, or, for an acknowledgment, appears and indicates to the Notary that the person voluntarily affixed the person’s signature on the document for the purposes stated within the document.
  3. Clarifies that except as provided by AS 44.50.075 (notarial acts for remotely located individuals), a Notary is prohibited from affixing the Notary’s seal to a document unless the person who is to sign the document in the case of a notarial act performed in the physical presence of the Notary, is personally known to the Notary, produces government-issued identification containing the photograph and signature of the person signing, or produces (a) government-issued identification containing the signature of the person signing, but without a photograph; and (b) another valid identification containing the photograph and signature of the person signing.
  4. Clarifies that except as provided by AS 44.50.075 (notarial acts for remotely located individuals), a Notary is prohibited from affixing the Notary’s seal to a document unless the person who is to sign the document in the case of a notarial act performed for a remotely located individual, satisfies the requirements of AS 44.50.075.

Notarial Acts for Remotely Located Individuals

  1. Provides that a remotely located individual may comply with AS 44.50.062(5)(A) (personal appearance before a Notary) by using communication technology to appear before a Notary.
  2. Provides that a Notary may perform a notarial act using communication technology for a remotely located individual if the Notary has (a) personal knowledge of the identity of the individual; (b) obtained satisfactory evidence of the identity of the remotely located individual by oath or affirmation from a credible witness appearing before the Notary under AS 44.50.062(5)(A); or (c) obtained satisfactory evidence of the identity of the remotely located individual by using a government-issued identification card, a credential analysis of the identification card and at least one type of identity proofing.
  3. Requires the Notary to reasonably confirm that a record before the Notary is the same record in which the remotely located individual made a statement or on which the individual executed a signature.
  4. Requires the Notary, or a person acting on behalf of the Notary, to create an audiovisual recording of the performance of the notarial act.
  5. Requires the record for a notarial act for a remotely located individual located outside the United States, (a) to be filed with or relates to a matter before a public official, court, governmental entity, or other entity subject to the jurisdiction of the United States, or (b) involve property located in the territorial jurisdiction of the United States or involve a transaction substantially connected with the United States.
  6. Provides that a Notary may perform a notarial act for a remotely located individual located outside of the United States only if the act of making the statement or signing the record is not prohibited by the foreign state in which the remotely located individual is located.
  7. Requires a certificate of notarial act performed for a remotely located individual under AS 44.50.060 to state that the notarial act was performed using communication technology.
  8. Provides that the statement required in a certificate of notarial act performed for a remotely located individual is sufficient if it states substantially as follows: “This notarial act involved the use of communication technology.”
  9. Requires a Notary, guardian, conservator, or agent of a Notary or a personal representative of a deceased Notary to retain the audiovisual recording of a notarial act performed for a remotely located individual or cause the recording to be retained by a repository designated by or on behalf of the person required to retain the recording.
  10. Provides that unless a different period is required by regulation, the recording of an audiovisual recording of a notarial act performed for a remotely located individual must be retained for a period of at least 10 years after the recording is made.
  11. Requires a Notary before performing the Notary’s initial notarial act for a remotely located individual to notify the Lieutenant Governor that the Notary will be performing notarial acts with respect to remotely located individuals and identify the communication technologies the Notary intends to use.
  12. Provides if the Lieutenant Governor has established standards for approval of communication technology or identity proofing, the communication technologies and identity proofing the Notary identifies to the Lieutenant Governor and that the Notary uses to perform notarial acts for remotely located individuals must conform to the standards.
  13. Provides that a provider of the communication technology, identity proofing, or storage appoints the Lieutenant Governor as the provider’s agent for service of process in any civil action in Alaska related to the notarial act.

Journal of Notarial Acts for Remotely Located Individuals

  1. Requires a Notary to maintain a journal in which the Notary chronicles all notarial acts for remotely located individuals that the Notary performs.
  2. Requires the Notary to retain the journal of notarial acts for remotely located individuals for 10 years after the performance of the last notarial act chronicled in the journal.
  3. Authorizes a Notary to create a journal of notarial acts for remotely located individuals on a tangible medium or in an electronic format.
  4. Requires a Notary to maintain at least one journal in a tangible medium to chronicle all notarial acts for remotely located individuals.
  5. Authorizes a Notary to maintain one or more journals in an electronic format to chronicle all notarial acts for remotely located individuals.
  6. Requires an electronic journal of notarial acts for remotely located individuals to be in a permanent, tamper-evident electronic format complying with the regulations of the lieutenant governor.
  7. Requires each entry to be made in a journal of notarial acts for remotely located individuals contemporaneously with the performance of the notarial act for a remotely located individual.
  8. Requires each entry to contain the following information: (a) the date and time of the notarial act; (b) a description of the record, if any, and type of notarial act; (c) the full name and address of each individual for whom the notarial act is performed; (d) if the identity of the individual is based on personal knowledge, a statement to that effect; (e) if the identity of the individual is based on satisfactory evidence, a brief description of the method of identification and the identification credential presented if any, including the date of issuance and expiration of the identification credential; and (f) the fee if any, charged by the Notary.
  9. Requires a Notary to promptly notify the Lieutenant Governor upon discovering that the journal of notarial acts for remotely located individuals is lost or stolen.
  10. Provides that upon resignation from, or revocation or suspension of, a Notary’s commission, the Notary shall retain the Notary’s journal of notarial acts for remotely located individuals for 10 years and inform the Lieutenant Governor where the journal is located.

Notarization of Electronic Records

  1. Authorizes a Notary to select one or more tamper-evident technologies with which to perform notarial acts with respect to electronic records.
  2. Prohibits a person from requiring a Notary to perform a notarial act with respect to an electronic record with a technology that the Notary has not selected.
  3. Provides that before a Notary performs the Notary’s initial notarial act with respect to an electronic record, a Notary shall notify the Lieutenant Governor that the Notary will be performing notarial acts with respect to electronic records and identify the communication technology the Notary intends to use.
  4. Provides that if the Lieutenant Governor has established standards for approval of communication technology, the technology must conform to the standards and that if the communication technology conforms to the standards, the Lieutenant Governor shall approve the use of the communication technology.

Validity of Notarial Acts

  1. Provides that the failure of a notarial officer to perform a duty or meet a requirement specified in Title 44, Chapter 50 of the Alaska Statutes does not invalidate a notarial act performed by the notarial officer.
  2. Provides that the validity of a notarial act does not prevent an aggrieved person from seeking to invalidate the record or transaction that is the subject of the notarial act or from seeking other remedies based on a law of this state other than this chapter or a law of the United States.
  3. Clarifies that the validity extended to a notarial act does not validate a purported notarial act performed by an individual who does not have the authority to perform a notarial act.

Other Provisions

  1. Provides that to be eligible for recording, a document must contain original signatures but that original signatures may be provided in electronic form.
  2. Provides that the Department of Natural Resources shall accept notarial acts performed for remotely located individuals under AS 44.50.075.
  3. Requires the Lieutenant Governor to adopt regulations under AS 44.62 (Administrative Procedure Act) to carry out the purposes of Title 44, Chapter 50 of the Alaska Statutes.
  4. Provides rules to guide the Lieutenant Governor in adopting regulations to implement Title 44, Chapter 50 of the Alaska Statutes.
  5. Authorizes the Lieutenant Governor to adopt regulations related to the means of performing a notarial act involving a remotely located individual using communication technology, standards for communication technology and identity proofing, requirements or procedures to approve providers of communication technology and the process of identity proofing, and standards and a period for the retention of an audiovisual recording.
  6. Authorizes a recorder to accept for recording a tangible copy of an electronic record containing a notarial certificate as satisfying any requirement that a record accepted for recording be an original, if the notarial officer executing the notarial certificate certifies that the tangible copy is an accurate copy of the electronic record.
  7. Clarifies that the Act does not affect the validity or effect of a notarial act performed before the effective date of Sections 4-16 of the Act (January 1, 2021).
Analysis:

Alaska becomes the latest state to enact permanent laws for notarizing records for remotely located individuals. House Bill 124 also enacts provisions for the notarization of electronic records as well. Most of the provisions are adaptations from the Uniform Law Commission’s Revised Uniform Law on Notarial Acts. As the substance of Alaska’s enactment goes, it is fairly consistent with the permanent enactments of the other states. It requires the Notary to notify the Lieutenant Governor that the Notary will be performing notarial acts for remotely located individuals and notarial acts regarding electronic records before doing so. The identification, retention of an audiovisual recording, and journal provisions are consistent with other state enactments. Even the standards for the Lieutenant Governor to follow in adopting regulations and standards to implement House Bill 124 are consistent with other states.

Read the bill text.

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