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Law

AR Senate Bill 340

Notary Law Update: AR Senate Bill 340

State: Arkansas

Summary:
Senate Bill 340 authorizes Arkansas Notaries to permanently perform remote notarizations and provides standards for these notarizations and extends the temporary COVID-19 remote notarization authorizations.

Signed:  April 29, 2021

Effective:  April 29, 2021

Chapter: Act No. 1047

Affects:
Amends Sections 21-14-302, 21-14-304, and 21-14-307 of and adds Sections 21-14-309, 21-14-310, 21-14-311, 21-14-312, and 21-14-313 to the Arkansas Statutes.

Changes:

Definitions

  1. Defines “communication technology,” “credential analysis,” “credible witness,” “foreign state,” “identity proofing,” “online notarial act,” “online notary public,” “outside the United States,” “principal,” “remote presentation,” and “remotely located individual.”
  2. Clarifies that an “electronic notary public” possesses the capability of performing electronic notarial acts and online notarial acts.
  3. Clarifies that “solution provider” means a business entity that has submitted an application, meets standards and has been approved by the Secretary of State to offer electronic notarization notarial acts or online notarial acts or solutions to duly commissioned electronic Notaries.
  4. Clarifies that an “online notarial act” includes (a) taking an acknowledgment; (b) administering an oath or affirmation; (c) taking a verification on oath or affirmation; (d) witnessing or attesting a signature; and (e) certifying or attesting a copy.

Registration to Perform Online Notarial Acts

  1. Clarifies that Notaries who want to perform online notarial acts must register with the Secretary of State by meeting the same requirements for registration as an Electronic Notary Public.

Performing Online Notarial Acts

  1. Requires an Online Notary to be physically located in Arkansas when performing an online notarial act.
  2. Requires an Online Notary to verify the principal’s identity by (a) personal knowledge, (b) the oath or affirmation of a credible witness, or (c) remote presentation by the person creating the electronic signature of a government-issued identification credential, including without limitation a passport or a state-issued driver’s license, that contains the signature and a photograph of the person, credential analysis of the credential, and identity proofing.
  3. Requires an Online Notary to reasonably confirm that a record before the notary public is the same record on which the principal made a statement or on which the principal executed a signature.
  4. Requires an Online Notary who performs an online notarial act for a remotely located individual located outside the United States to confirm that the record is to be filed with or relates to a matter before a public official or court, governmental entity, or other entity subject to the jurisdiction of the United States; or involves property located in the territorial jurisdiction of the United States or involves a transaction substantially connected with the United States.
  5. Requires an Online Notary who performs an online notarial act for a remotely located individual located outside the United States to confirm that 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.
  6. Requires an Online Notary to take reasonable steps to ensure that the communication technology used in an online notarial act is secure from unauthorized interception.
  7. Requires an electronic notarial certificate for an online notarial act to include a notation that the notarization is an online notarization.
  8. Requires an Online Notary to take reasonable steps to ensure the integrity, security, and authenticity of online notarial acts.
  9. Provides that an Electronic Notary whose commission terminates shall destroy the coding, disk, certificate, card, software, or password that enables electronic affixation of the Electronic Notary’s official electronic signature or seal and requires the Electronic Notary to certify his or her compliance with this requirement to the Secretary of State.
  10. Clarifies that a former Electronic Notary whose commission terminated for a reason other than revocation or denial of renewal is not required to destroy the items described above if the former online Notary is recommissioned as an Electronic Notary with the same electronic signature and seal within three 3 months after the former Electronic Notary’s former commission terminated.

Online Notarial Act Records

  1. Requires an Online Notary to create an audio-visual recording of the performance of the online notarial act or designates an individual to do this on behalf of the online Notary.
  2. Requires an online Notary to keep a secure electronic record of electronic documents notarized.
  3. Specifies the following entries to be recorded in the electronic record for each online notarial act: (a) the date and time of the online notarial act; (b) the type of online notarial act; (c) the type, the title, or a description of the electronic document or proceeding; (d) the printed name and address of each principal involved in the transaction or proceeding; (e) evidence of identity of each principal whether by personal knowledge, noting the type of identification document presented and an identity verification made under Section 21-14-309, the printed name and address of each credible witness and for a witness not personally known to the Online Notary, a  description of the type of identification documents provided to the Online Notary; (f) a recording of any video and audio conference that is the basis for satisfactory evidence of identity and a notation of the type of identification presented as evidence; (g) an audio and video copy of the performance of the notarial act; and (h) The fee, if any, charged for the notarization.
  4. Requires an Online Notary to take reasonable steps to maintain a backup for the electronic record required, and protect the backup record from unauthorized use.
  5. Requires the electronic record to be maintained for at least 5 years after the date of the transaction or proceeding.

Other Provisions

  1. Extends the temporary remote notarization authorization in the Governor’s Executive Order 20-12 and successive Orders until Executive Order No. 21-07 expires, is terminated, or is renewed.
  2. Provides that if a law requires as a condition for recording that a document be an original, be on paper or another tangible medium, or be in writing, the requirement is satisfied by use of a paper copy of an electronic document.
  3. Provides that if a law requires, as a condition for recording, that a document be signed, then the requirement is satisfied by an electronic signature.
  4. Clarifies that a requirement that a document or a signature associated with a document be notarized, acknowledged, verified, witnessed, or made under oath is satisfied if the electronic signature of the person authorized to perform that act, and all other information required to be included, is attached to or logically associated with the document or signature.
  5. Clarifies that a physical or electronic image of a stamp, impression, or seal is not required to accompany an electronic signature if the Online Notary has attached a notarial certificate that meets the requirements of Chapter 21-14 of the Arkansas Statutes.
  6. Penalizes a person who, without authorization, knowingly obtains, conceals, damages, or destroys the certificate, disk, coding, card, program, software, or hardware enabling an online notary public to affix an official electronic signature or seal with a Class D felony.
  7. Authorizes the Secretary of State to promulgate rules to administer online notarization.
  8. Requires the Secretary of State to promulgate rules to enforce the requirement for a Notary registering with the Secretary to perform electronic or online notarizations before performing an electronic notarial act.
Analysis:

Effective immediately, Senate Bill 340 authorizes Arkansas Notaries Public to register as an online Notary and to perform online notarial acts. This emergency legislation was signed into law as COVID-19 continues and both signers of documents and Notaries need to be protected. The online notarization provisions in the new law are a mishmash of provisions taken the Unform Law Commission’s Revised Uniform Law on Notarial Acts provisions for remotely located individuals, the NNA’s Model Electronic Notarization Act and the MBA/ALTA Model Legislation on Remote Notarization. Arkansas now becomes the 35th state to authorize permanent remote online notarization and the 6th state in 2021.

Senate Bill 340 also extends the temporary remote provisions related to paper documents contained in the Arkansas Governor’s Executive Order 20-12 and makes them retroactive to March 20, 2020.

Read the bill text.

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