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Law

AZ Senate Bill 1030

Notary Law Update: AZ Senate Bill 1030

State: Arizona

Summary:

Senate Bill 1030 authorizes Arizona Notaries to perform remote online notarizations and makes changes related to a Notary's commission, oversight and journal.

Signed:  April 10, 2019

Effective:  July 01, 2020

Chapter: TBD

Affects:

Adds new Article 4 to Title 41, Chapter 2 and amends Sections 41-319, 41-330 and 44-7011 of the Arizona Revised Statutes.

Changes:

Journal

  1. Requires that if one or more entries in a Notary's journal are not public records, the Notary must keep one journal that contains entries that are not public records and one journal that contains entries that are public records.
  2. Requires a Notary to keep one paper journal at a time, unless the Notary records notarizations that are not public records in a separate journal.
  3. Clarifies that if a Notary keeps only one journal, that journal is presumed to be a public record.

Commissioning; Oversight

  1. Allows the Secretary of State to require a Notary attend a training course instead of or in addition to a suspension of the commission.
  2. Provides that if an application for a commission is denied and the applicant appeals the denial, the applicant may not submit a new application for consideration while the appeal is pending.
  3. Prohibits a Notary whose Arizona commission has been revoked from submitting a new application for a commission for one year after the date of the revocation.
  4. Provides that on denial of an application (and not just suspension or revocation) for a commission the Secretary of State must give notice to the individual and provide an opportunity for a hearing on the denial.

Remote Online Notarization

  1. Defines “communication technology,” “credential analysis,” “electronic seal,” “foreign state,” “identity proofing,” “outside the United States,” “person,” “personal knowledge,” “remotely located individual,” “remote presentation,” and “state.”
  2. Requires the Notary’s electronic seal to contain the words "Notary Public", the name of the county in which the Notary is commissioned, the Notary's name as it appears on the notarial commission, the commission number and the expiration date of the notarial commission.
  3. Requires the Secretary of State to adopt rules for remote online notarization on or before July 1, 2020 related to notarial certificates for remote online notarization, standards for applications and registration, communication technology, credential analysis, identity proofing and retention of the recordings of a remote online notarization.
  4. Authorizes a Notary who is physically located in Arizona and authorized to perform remote online notarizations to perform notarial acts by means of communication technology for a remotely located individual in Arizona, outside of Arizona but within the United States, and outside of the United States.
  5. Provides that if a Notary performs a notarial act by means of communication technology for a remotely located individual outside of the United States the record must either be filed with or relate to a matter before a court, governmental entity, public official or other entity subject to the jurisdiction of the United States, or involve property that is located in the territorial jurisdiction of the United States or a transaction substantially connected to the United States.
  6. Provides that if a Notary performs a notarial act by means of communication technology for a remotely located individual outside of the United States the Notary must have no actual knowledge that the act of making the statement or signing the electronic record is prohibited by the foreign state in which the remotely located individual is located.
  7. Requires a Notary to keep records of remote online notarizations in chronological order in one or more electronic, tamper-evident journals.
  8. Requires the following entries to be recorded in the electronic journal for a remote online notarization: (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 remote online 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 credential analysis and identity proofing, a brief description of the results of the identity verification process and the identification credential presented, including the date of issuance and expiration of the identification credential but not its serial or identification number; (f) if the identity of the individual is based on an oath or affirmation of a credible witness, the information required by (c), (d) and (e) above with respect to the credible witness; and (g) the fee, if any, charged by the Notary.
  9. Prohibits a Notary from recording a remote online notarization in a paper journal.
  10. Requires a Notary, or a person acting on behalf of the Notary, to create an audio and visual recording of the performance of each remote online notarial act.
  11. Requires a Notary to take reasonable steps to: (a) ensure the integrity, security and authenticity of remote online notarizations; (b) maintain a backup of the audio and visual recording and the electronic journal kept by the Notary; and (c) protect the backups of the recordings and electronic journal from unauthorized use.
  12. Clarifies that the electronic journal and recordings of remote online notarizations are subject to ARS 41-319 related to public records and not subject to ARS 41-317.
  13. Requires a Notary or a guardian, conservator or agent of the Notary or a personal representative of a deceased Notary to retain the Notary’s electronic journal and audio and visual recordings or cause the electronic journal and recordings to be retained by a depository designated by or on behalf of the person required to retain the journal and recording.
  14. Requires a Notary to keep the electronic journal of remote online notarizations for 5 years.
  15. Requires a Notary who performs a remote online notarization to attach or logically associate the Notary’s electronic signature and electronic seal to the notarial certificate in a tamper evident format. 
  16. Requires the Notary’s electronic seal to be capable of being copied together with the electronic record to which it is attached or with which it is logically associated. 
  17. Requires a notarial certificate for a remote online notarization to be attached to or logically associated with the electronic record that is the subject of the remote online notarial act. 
  18. Provides that if the Secretary of State establishes standards for attaching or logically associating the electronic signature, electronic seal or notarial certificate, the process must conform to the standards.
  19. Clarifies that a Notary’s use of an electronic seal satisfies the requirement of ARS 41-313 subsection D paragraph 3 to authenticate the remote online notarial act.
  20. Requires a Notary to take reasonable steps to protect the Notary's electronic seal from unauthorized use.
  21. Prohibits a Notary from allowing another person to use the Notary's electronic seal.
  22. 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 seal or electronic journal. 
  23. Requires a Notary to immediately notify the Secretary of State on actual knowledge of the loss or use by another person of the Notary's electronic seal or electronic journal.
  24. Clarifies that a Notary's possession or use of an electronic seal for an electronic notarization under ARS Title 41, Chapter 2, Article 3 (related to electronic notarization) or for a remote online notarization is not a violation of ARs 41-321, subsection B (which specifies the form, dimensions and possession of one official Notary seal only).
  25. Requires a Notary to reasonably confirm that an electronic record before the Notary is the same electronic record in which the remotely located individual made a statement or on which the remotely located individual executed or adopted a signature.
  26. Requires a Notary to take reasonable steps to ensure that the communication technology used in the remote online notarization is secure from unauthorized interception.
  27. Requires a Notary to reasonably verify the identity of the individual for a remote online notarization by any of the following: (a) the Notary's personal knowledge of the individual; (b) the individual’s remote presentation of an identification credential that constitutes satisfactory evidence of identity as defined in ARS 41-311, credential analysis of this identification credential and identity proofing of the individual; or (c) the oath or affirmation of a credible witness with personal knowledge of the individual who appears before and is identified by the Notary either through satisfactory evidence of identity as defined in ARS 41-311 while in the physical presence of the Notary or as a remotely located individual under (b) above.
  28. Authorizes a Notary to require a remotely located individual to provide additional information necessary to assure the Notary of the identity of the individual.
  29. Authorizes a Notary to refuse to perform a remote online notarization if the Notary is not satisfied as to the identity of the remotely located individual.
  30. Allows a translator to be a remotely located individual if the translator, signer and Notary communicate by means of communication technology.
  31. Provides that the provision in ARS 41-319C does not apply to a remote online notarization. (Note: this provision requires a Notary who performs more than one notarization for an individual within a 6-month period to have the individual provide satisfactory evidence of identity the first time only, but prohibits the Notary from requiring identification from the individual or requiring the individual to sign the journal for subsequent notarizations during the 6-month period.)
  32. Requires the notarial certificate for a remote online notarization to indicate that the notarial act was a remote online notarization performed by means of communication technology.
  33. Provides that a notarial certificate is sufficient to satisfy the requirement that the certificate indicate it was performed as a remote online notarization if it either complies with rules adopted by the Secretary of State, or is in a form otherwise sufficient under Arizona law and contains a statement substantially as follows: "this remote online notarization involved the use of communication technology".
  34. Provides that a Notary who is authorized to perform remote online notarizations and whose commission is terminated or revoked must destroy the coding, disk, certificate, card, software or password that enables the Notary to attach or logically associate the Notary's electronic signature and electronic seal to an electronic record and shall certify compliance to the Secretary of State. 
  35. Clarifies that a former Notary whose commission terminated for a reason other than revocation or denial of renewal is not required to destroy the coding, disk, certificate, card, software or password that enables the Notary to attach or logically associate the Notary's electronic signature and electronic seal to an electronic record and to certify compliance to the Secretary of State if the former Notary is recommissioned as a Notary within 3 months after the termination of the Notary's former commission.
  36. Requires the Notary’s personal representative to destroy the coding, disk, certificate, card, software or password that enables the Notary to attach or logically associate the Notary's electronic signature and electronic seal to an electronic record and shall certify compliance to the Secretary of State on the death or adjudication of incompetency of a Notary.
  37. Clarifies that a Notary's electronic seal is not subject to ARS 41 317B. (Note: this section requires a Notary to deliver the official seal to the Secretary of State by certified mail or other means providing a receipt on the resignation or revocation of a commission. It also requires the seal be delivered to the Secretary upon the death of the Notary.)
  38. Clarifies that termination of a Notary's commission does not affect the retention requirements of ARS 41-374D. (Note: this section requires a Notary or a guardian, conservator or agent of the Notary or a personal representative of a deceased Notary to retain the Notary’s electronic journal and audio and visual recordings for 5 years or cause the electronic journal and recordings to be retained by a depository designated by or on behalf of the person required to retain the journal and recording for 5 years.)

Legal Recognition and Validity of Remote Online Notarizations

  1. Clarifies that an online notarization satisfies any law of Arizona requiring a principal to appear before a Notary.
  2. Clarifies that a Notary's verification of a signer's identity for an online notarization according to the rules of identification as specified in ARS 41-376B satisfies any Arizona law requiring a Notary to obtain satisfactory evidence of identity.
  3. Clarifies that the failure of a Notary to perform a duty or meet a requirement for a remote online notarization does not invalidate the online notarial act, but the failure does not prevent an aggrieved party from seeking to invalidate the act or from seeking other remedies based on state or federal law.
  4. Clarifies that the validity provision in #3 above does not validate a purported remote online notarial act that is performed by an individual who is not authorized to perform remote online notarial acts.
  5. Provides that the validity of a remote online notarization shall be determined by applying the laws of Arizona, regardless of the physical location of the remotely located individual at the time of the remote online notarization.
  6. Provides that a Notary who is authorized to perform remote online notarizations is subject to and must comply with ARS Title 41 Chapter 2 except as modified or supplemented by this Article 4 (relating to remote online notarization).
  7. Clarifies that if any conflict between the online notarization laws and any other Arizona law exists, the online notarization laws control.

Other Changes

  1. Makes non-technical changes.
Analysis:

2019 is turning out to be a landmark year for remote online notarization (RON) enactments. Within the first 4 months of the year Idaho, Kentucky, North Dakota, South Dakota, Utah and now Arizona have enacted new RON laws, and Montana has substantively revised its RON law. Like most other states' enactments, Arizona SB 1030 requires Notaries to register to perform RONs with the Secretary of State. The application form and registration requirements will be forthcoming in regulations adopted by the Secretary before the effective date of the new law. In addition, SB 1030 requires Notaries to identify remotely located individuals for a RON using the same identification methods that are required by other states, namely, either through the Notary's personal knowledge, the oath or affirmation of a credible witness, or the combination of remote presentation of an identification credential, credential analysis of that identification credential and identity proofing. SB 1030 relied on the NNA's Model Electronic Notarization Act, the Uniform Law Commission's Revised Uniform Law on Notarial Acts and Mortgage Bankers Association/American Land Title Association's Model Legislation for Remote Online Notarization.

Read the bill text.

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