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Rule

CO Administrative Rules (2020)

Notary Law Update: CO Administrative Rules (2020)

State: Colorado

Summary:
The Colorado Secretary of State has adopted permanent rules for remote online notarization.

Signed:  December 01, 2020

Effective:  December 31, 2020

Chapter: N/A

Affects:

Adopts Rules 2.1.1, 2.3, and 5.2, 5.3, and 5.4 in and amends Rules 3.3.2, 3.3.3 of the Notary Program Rules in the Code of Colorado Regulations (8 CCR 1505-11), and repeals temporary rules (see “Repealed Temporary Remote Online Notarization Rules,” below).

Changes:

Notary Commissions

  1. Clarifies that an applicant for a Notary commission must put his or her legal name on applications and renewals.
  2. Clarifies that the first and last name on the application for a Notary commission must match the name on the applicant’s government-issued identification.
  3. Clarifies that if the last name on the identification contains more than one name, the applicant must include all those names in the last name field on the application and not abbreviate any part.

Notary Education

  1. Reduces the time that a certificate of successful completion of an approved course of instruction for a Notary commission is valid from six months to 90 days from the date of issuance.
  2. Provides that the prescribed statement of the validity of a proof of completion that appears on a certificate of proof of completion must be amended to read, “This certificate of proof of completion is valid for a period of 90 days from the date of issuance.”

Notarial Acts

  1. Prohibits a Notary from using a translator or translator services to communicate with the individual for whom the Notary is performing a notarial act.
  2. Clarifies that the prohibition of using a translator or translator services applies to all methods of notarization, including paper, electronic and remote online.

Remote Online Notarizations: Definitions

  1. Defines “personal information” as any information or data that is collected or used in order to complete the transaction subject to remote notarization or in the remote notarization itself. The term is not limited to data included in the electronic record that is being remotely notarized.
  2. Defines “provider” to refer collectively to both remote notarization system providers and remote notarization storage providers.
  3. Defines “remote notarization system provider” as a business entity that provides a remote notarization system, as defined in CRS 24-21-502(11.7), that includes storage of both the notarized electronic records and the audio-video recordings required by CRS 24-21-514.5(9)(a).
  4. Defines “remote notarization storage provider” as a business entity that solely provides storage of notarized electronic records and the audio-video recordings required by CRS 24-21-514.5(9)(a).

Remote Online Notarization: Qualifications and Application, Expiration

  1. Requires a Notary to submit a notice of intent on the approved application form and receive approval from the secretary of state before the Notary can remotely notarize a document.
  2. Requires a Notary to submit proof of successful completion of remote notarization training and examination and the required fee. 
  3. Clarifies that a Notary must already be commissioned as Colorado Notary with active status to be approved as a remote Notary.
  4. Clarifies that an individual may file the notice of intent to perform remote online notarizations when initially applying to become a Colorado Notary but may only remotely notarize a document after being commissioned and approved.
  5. Requires a remote Notary to renew every four years or until his or her regular Notary commission requires renewal, whichever date comes first.
  6. Requires a remote Notary no more than 90 days before renewing his or her remote Notary status to successfully complete the renewal training, pass the required exam, and pay the required fee.
  7. Provides that in applying to become a remote Notary or upon renewal, the individual must select at least one approved remote notarization system provider.
  8. Clarifies that an applicant to become a remote Notary may select multiple approved remote notarization system providers.
  9. Provides that approval of authorization to perform RONs automatically expires: (a) upon revocation, expiration, or resignation of the Notary’s commission; (b) 30 days after the Notary’s name changes unless the Notary previously submitted a name change; (c) upon conviction of a felony; (d) upon conviction of a misdemeanor involving dishonesty; (e) when the Notary no longer has a place of employment or practice or a residential address in Colorado; or (f) upon the revocation of approval of the remote notarization system provider or the remote notarization storage provider used by the remote Notary unless the remote Notary either notified the Secretary of State of another provider or already has alternative providers on file with the Secretary as authorized under Rule 5.2.1(e).
  10. Provides that if a remote Notary’s approval expires, the remote Notary or the Notary’s authorized representative must delete the Notary’s seal and electronic signature from the remote Notary provider’s system and dispose of the journal and the audio-video recordings in accordance with sections CRS 24-21-514.5(9)(c) and 24-21-519, unless within 30 days of the expiration, the Secretary of State reapproves the Notary.

Remote Online Notarization: Education and Examination

  1. Clarifies that the Secretary of State will provide a remote notarization training course and examination. 
  2. Provides that if the Secretary determines that there is a need for additional instructors, the Secretary may designate a third-party training course or appoint certified Notary instructors to administer the remote training course and testing for applicants.

Remote Online Notarization: Electronic Seal and Signature

  1. Requires a remote Notary to affix to an electronic record a seal that in both appearance and content matches the manually applied official stamp required by CRS 24-21-517.
  2. Requires the electronic signature used by the remote Notary for remote notarizations to match in appearance the image of the signature that the remote Notary submitted to the Secretary of State for and is on file as the Notary’s most recent underlying commission as a Colorado Notary. This is the signature identified as the Notary’s “official signature” on the Notary’s most recent affirmation form or on the Notary’s most recent signature change form, whichever was filed later.
  3. Requires the remote Notary’s seal and electronic signature must appear as images on any visual or printed representation of a remote notarial certificate regardless of the technology being used to affix the images.
  4. Requires the remote Notary’s seal and electronic signature to be attached or logically associated with both the electronic record being notarized and the certificate of notarial act being affixed and linked such that any subsequent alteration to either item is observable through visual examination (that means the document must be rendered tamper-evident).
  5. Prohibits a remote Notary from using the remote notarization application or any update form to change the Notary’s official signature.
  6. Requires the remote Notary’s seal and electronic signature to be retained under the remote Notary’s sole control and accessed through the authentication required by Rule 5.3.3.
  7. Prohibits a remote Notary’s employer, including the employer's employees and agents, from using or permitting the use of a remote Notary’s seal or electronic signature by anyone except the remote Notary. 
  8. Provides that on resignation from or the revocation of the Notary’s commission or on the death or adjudication of incompetency of the Notary, the Notary or that Notary’s personal representative or guardian must delete the Notary’s seal and signature from the remote Notary system provider’s system.

Remote Online Notarization: Journal and Audio-Video Recordings

  1. Clarifies that in addition to the journal information required by CRS 24-21-519(3), the remote Notary must record the name of the remote notarization system provider used for each remote notarization.
  2. Requires the remote Notary to retain his or her electronic journal under the remote Notary’s sole control and access.
  3. Clarifies that all other requirements of CRS 24-21-519 that pertain to the journal apply to a remote Notary’s journal.
  4. Requires the electronic journal to be securely backed up and be tamper-evident.
  5. Provides that on resignation from or the revocation of the Notary’s commission or on the death or adjudication of incompetency of the Notary, the Notary or that Notary’s personal representative or guardian with knowledge of the existence of or knowingly in possession of the remote notarization journal and recordings must retain or dispose of the journal and the audio-video recordings in accordance with sections CRS 24-21-514.5(9)(c) and 24-21-519.
  6. Provides that only remote notarization system providers and remote notarization storage providers that have been approved by the Secretary of State may store audio-video recordings.

Remote Online Notarization: Notary Duties

  1. Requires a remote Notary to stop the remote notarization process and restart it from the beginning if the remotely located individual or the remote Notary must exit the remote notarization system before completion of the notarial act.
  2. Requires a remote Notary to stop the remote notarization process and restart it from the beginning if the audio or visual feed is interrupted or terminated.
  3. Requires a remote Notary to stop the remote notarization process and restart it from the beginning if the resolution or quality of the transmission becomes such that the remote Notary believes the process has been compromised and cannot be completed.
  4. Clarifies that a remote Notary has an ongoing duty to verify that each remote Notary provider used has active status with the Secretary of State’s office before using the provider’s system to perform a remote notarization. A remote Notary must do this before performing each remote notarization.
  5. Authorizes a remote Notary to charge a fee, not to exceed $10, for the Notary’s electronic signature in compliance with CRS 24-21-529(2).
  6. Requires a remote Notary to notify the Secretary of State in writing through the Secretary’s online system within 30 days after changing a remote notarization system provider or remote notarization storage provider.
  7. Provides that with respect to handling personal information, the limited exceptions in CRS 24-21-514.5(11)(c)(i) through (iv) do not include or authorize the use of personal information for the purpose of generating additional business or marketing opportunities by or for the remote Notary, the remote Notary’s employer or any business for whom the remote Notary may be providing contracted services; or the provider or any of its affiliates.
  8. Clarifies that use of personal information in #7 above is prohibited and cannot be waived by the explicit consent required by CRS 24-21-514.5(9)(a)(ii), or otherwise.

Remote Online Notarization: Provider Requirements

  1. Clarifies that the Colorado Secretary of State’s Provider Protocols (2020) is incorporated into the rules by reference.
  2. Clarifies that all providers must meet the requirements of the Provider Protocols.
  3. Requires a provider of a remote online notarization system to meet the requirements for application, as specified in Rule 5.3.2 and meet the standards for approval, as specified, in Rule 5.3.3.
  4. Requires a provider of a remote online notarization system to have a storage system that complies with Rule 5.3.4.
  5. Requires a provider of a remote online notarization system to comply with the notifications of security breaches, as specified, in Rule 5.3.5.
  6. Provides that a provider of a remote online notarization system is subject to the process for complaints as stated in Rule 5.3.6.
  7. Provides that a provider of a remote online notarization system is subject to the grounds for termination of approval and the appeals process, as specified, in Rule 5.3.7.

Repealed Temporary Remote Online Notarization Rules

  1. Definitions of terms that previously appeared in temporary rules 5.1.1, 5.1.2, 5.1.3, and 5.1.4 have been repealed definitions of those terms are now found in statute.
  2. Temporary Rule 5.2.1, which stated the location where a Notary must be when performing a RON because this provision is now in statute (see CRS 24-21-514.5[2][a]), is repealed.
  3. Temporary Rule 5.2.2, which excluded RONs from being performed on a record relating to the electoral process or a last will as defined in CRS 15-10-201(59) because these exclusions are now in the statute (see CRS 24-21-514.2[2][b]), is repealed.
  4. Temporary Rule 5.2.3, which stated a Notary must be currently commissioned as a Colorado Notary and located in the Colorado at the time the RON is performed because these requirements are in statute (see CRS 24-21-514.5[3]), is repealed.
  5. Temporary Rule 5.2.4, which gave requirements for remote notarization systems because these requirements are in the statute (see CRS 24-21-514.5[5]), is repealed.
  6. Temporary Rule 5.2.5, which gave the requirements for satisfactory evidence of identity for RONs because the new rules for satisfactory evidence are in the statute (see CRS 24-21-514.5[6]), is repealed.
  7. Temporary Rule 5.2.6, which stated a Notary may refuse to perform a notarial act under certain circumstances, as specified, because it duplicates the statutory provision in CRS 24-21-514.5(7), is repealed.
  8. Temporary Rule 5.2.7, which stated a certificate of notarial act for a RON must indicate that the notarial act was performed using audio-video technology is repealed because it duplicates CRS 24-21-514.5(8).
  9. Temporary Rule 5.2.8, which stated the requirements, as specified, for audio-video recordings is repealed because the rules are found in statute in CRS 24-21-514.5(9).
  10. Temporary Rule 5.2.9, which provided the requirements for the transmittal of a signed document notarized in a remote ink-signed notarization, is repealed
  11. Temporary Rule 5.3, which stated a Notary must record all remote notarizations in the Notary’s journal is repealed because a journal requirement is in statute in CRS 24-21-519(2)(b).
Analysis:

The Colorado Secretary of State has adopted permanent rules to implement the state’s remote online notarization new law (Senate Bill 20-096) that takes effect on December 31, 2020. The new permanent rules take effect on that date as well. The new rules describe the qualifications must meet and the process a Colorado Notary must follow to apply to become a remote Notary. Notably, the Secretary requires applicants to take its course on remote online notarization and pass an examination. The rules also describe procedures for the remote Notary’s seal and electronic signature and for providers of remote online notarization systems. Notably, a new rule prohibits the use of any personal information a for the purpose of generating additional business or marketing opportunities by or for the remote Notary, the remote Notary’s employer or any business for whom the remote Notary may be providing contracted services; or the remote notary system provider or any of its affiliates. Protecting the information of consumers has been a weighty issue discussed and debated over a couple of years leading up to the new statute and administrative rules.

Read the permanent rules.

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