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AZ Administrative Rules (2019)

Rule/Regulation

State: Arizona

Effective: December 30, 2019

Summary

The Arizona Secretary of State adopts final rules for electronic notarization.

Affects

Amends Sections R2-12-1201, R2-12-1202, R2-12-1203, R2-12-1204, R2-12-1205, R2-12-1206, R2-12-1207, R2-12-1208 and repeals sections R2-12-1208 and R2-12-1209 of the Arizona Administrative Code.

Changes

Definitions and General Changes

  1. Defines “apostille,” “certificate authority,” “commission,” “electronic,” “electronic notarization,” “electronic notary public,” “electronic record,” “electronic seal,” “electronic signature,” “non-repudiation,” “notarial act,” “‘notary public or ‘notary,” “person,” “qualified certificate authority,” and “tamper-evident technology.”
  2. Repeals the existing eNotarization rules.
  3. Renumbers many of the existing sections.

Electronic Notarization Registration

  1. Authorizes a Notary to perform eNotarizations or remote online notarizations during the Notary's commission term if the Notary has received written authorization from the Secretary of State and the Secretary has not terminated or revoked such authorization.
  2. Specifies the information a Notary must provide to the Secretary of State in an application to obtain written authorization to perform eNotarizations: (a) The applicant’s full legal name and the name under which the applicant is commissioned as a Notary (if different); (b) The applicant’s email address; (c) A description of the technologies or devices that the applicant intends to use to perform electronic notarizations; (d) The name, address, and website URL of any vendors or other persons that will directly supply to the applicant the technologies that the applicant intends to use; (e) A statement certifying that the applicant has obtained a digital certificate from a qualified certificate authority to be used by the applicant in performing electronic notarizations; and (f) A statement certifying that the technologies described in the application comply with the requirements of administrative rules.
  3. Requires the application to be submitted to the Secretary of State as provided by information posted on the Secretary's website.
  4. Provides that if during the term of a Notary’s commission, the Notary intends to use additional technologies other than those identified in an application, an application or amendment identifying such other vendors or other persons must be submitted to the Secretary of State.
  5. Establishes an application fee of $25 for authorization to perform eNotarizations, but repeals the prior requirement that a Notary post a separate $25,000 bond and the $25 filing fee for the bond.
  6. Provides the grounds under which the Secretary of State may reject or terminate an application, or terminate or revoke a prior authorization to perform eNotarizations: (a) The applicant’s failure to comply with A.R.S. §§ 41-311 through 41-351 or the administrative rules; (b) Any information required on the application for registration is missing, inaccurate, or incomplete; or (c) The technology identified in the application does not conform to the standards adopted under the administrative rules.
  7. Requires the Secretary of State to notify the Notary of approval or rejection of the application within 45 days after receipt, and if rejected, the Secretary must state the reasons for the rejection.
  8. Allows an applicant for registration to appeal rejection of an application or revocation of a prior authorization to perform electronic notarizations.
  9. Clarifies that the term of the commission for eNotarization shall be the same as the term of the Notary’s existing Notary commission.
  10. Clarifies that the renewal of a Notary commission does not constitute renewal of authorization to perform eNotarizations and requires the Notary to submit another application to receive authorization to continue to perform eNotarizations under the new Notary commission.
  11. Clarifies that nothing in the rules shall be construed to prohibit a Notary from receiving updates to the technologies that the Notary identified in an application for authorization if the updates do not materially change the technologies that the Notary identified previously.

Standards for Electronic Notarization Tamper-Evident Technologies

  1. Requires a Notary to select one or more tamper-evident technologies to perform eNotarizations.
  2. Requires the tamper-evident technology to consist of a digital certificate complying with the X.509 standard adopted by the International Telecommunication Union or a similar industry-standard technology.
  3. Provides that a Notary must attach or logically associate the Notary’s electronic signature and seal to an electronic record by use of the digital certificate.
  4. Prohibits a Notary from performing an eNotarization if the digital certificate has expired, has been revoked or terminated by the issuing or registering authority; is invalid; or is incapable of authentication.
  5. Clarifies that renewal of the Notary’s digital certificate is separate from the registration process and must be obtained from a qualified certificate authority and is the responsibility of the Notary.

Electronic Notary Seal

  1. Requires a Notary to use the same unique electronic seal for all eNotarizations performed during an applicable commission period.
  2. Requires an electronic seal to substantially conform to the following design: (a) Be a rectangular or circular seal with the Notary’s name as it appears on the commission, (b) Contain the great seal of the state of Arizona, (c) Contain the words “Notary Public”, “State of Arizona” and “My commission expires on (date)”, (d) Contain the name of the county in which the Notary is commissioned, and the Notary’s commission number.
  3. Requires that when affixed to an electronic record, an electronic seal must be clear, legible, and photographically reproducible.
  4. Clarifies that an electronic seal does not have to be a particular size.

Security of Electronic Notarizations

  1. Requires a Notary’s electronic signature and seal to remain within the exclusive control of the Notary, including control by means of a password or other secure method of authentication.
  2. Prohibits a Notary from disclosing any access information used to affix the Notary’s electronic signature or seal, except: (a) When requested by the Secretary of State or a law enforcement officer; (b) When required by court order or subpoena; or (c) Pursuant to an agreement to facilitate eNotarizations with a vendor or other technology provider identified in an application submitted for authorization.
  3. Prohibits a Notary from allowing any other individual to use his or her electronic signature or seal.
  4. Requires that upon resignation, revocation, or expiration of the Notary’s commission, the Notary’s electronic seal (including any coding, disk, digital certificate, card, software, or password that enables the Notary to attach or logically associate the electronic seal to an electronic record) must be destroyed or disabled to prohibit its use by any other person.
  5. Requires a Notary to immediately notify an appropriate law enforcement agency and the Secretary of State on actual knowledge of the theft or vandalism of the Notary's electronic signature, electronic seal or digital certificate.
  6. Requires a Notary to immediately notify the Secretary of State on actual knowledge of the unauthorized use by another person of the Notary’s electronic signature, electronic seal or digital certificate.

Electronic Apostilles

  1. Clarifies that electronic notarial acts need to fulfill the following basic requirements to ensure non-repudiation and the capability of being authenticated by the Secretary of State for purposes of issuing Apostilles and Certificates of Authentication: (a) The fact of the notarial act, including the Notary’s identity, signature, and commission status, must be verifiable by the Secretary of State, and (b) The notarized electronic document will be rendered ineligible for authentication by the Secretary of State if it is improperly modified after the time of notarization, including any unauthorized alterations to the document content, the electronic notarial certificate, the Notary’s electronic signature, and/or the Notary ’s official electronic seal.
Analysis

The Arizona Secretary of State’s office has published final rules for electronic notarizations that took effect on December 30, 2019. The rules clarify how a Notary registers with the Secretary of State to perform face-to-face electronic and remote online notarizations. The rules prescribe the technology requirements for executing an electronic signature and affixing an electronic seal using a digital certificate that makes an electronic document "tamper-evident" once it is applied to the electronic document. The rules also prescribe several requirements for ensuring the security of electronic notarization.

To read the adopted administrative rule, click to download the PDF file below.

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