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HI Administrative Rules (2022)

Rule/Regulation

State: Hawaii
Signed: February 17, 2022

Effective: April 27, 2022
Chapter: N/A

Summary
The Hawaii Attorney General has thoroughly revised its Notary Public administrative rules and added provisions related to remote online notarization.

Affects
Amends Sections 5-11-1 through 5-11-3, 5-11-5 through 5-11-10, 5-11-12, 5-11-16 through 5-11-23, 5-11-32 through 5-11-39, 5-11-46, 5-11-53 of; adds Sections 5-11-1.5, 5-11-4.5, 5-11-10.5, 5-11-40 through 5-11-42, and 5-11-61-73 to; and repeals Sections 5-11-13 through 5-11-15 of the Hawaii Administrative Code.

Changes

Definitions

  1. Defines “affirmation” or “oath,” “appear personally,” “conviction,” “Department,” “electronic Notary seal” or “electronic seal,” “electronic signature,” “identity proofing,” “notarial act,” “person,” “Remote Online Notary Public,” “signature,” and “stamping device.”

Notary Commission Applications

  1. Continues to require a Notary’s employer or a self-employed Notary seeking a Notary commission to submit a letter explaining in detail the reasons why the commission is being sought, but no longer requires the letter to acknowledge that the Notary is a public officer and that the applicant would be permitted to serve the general public during the employer’s or self-employed applicant’s normal business hours.
  2. Clarifies that the application for a commission may require the applicant to provide information related to (a) any felony, or a misdemeanor related to the qualifications, functions, or duties of a Notary or involving fraud, false statements or omissions, wrongful taking of property, bribery, perjury, forgery, counterfeiting, extortion, or a conspiracy to commit any of these offenses; (b) proof of the applicant's identity by a current government-issued photo identification; (c) proof that the applicant is a resident of Hawaii; and (8) proof that the applicant has executed an official surety bond that has been approved by a judge of the circuit court.
  3. No longer requires the application for a Notary commission or an application for a renewal commission to be properly notarized by a Hawaii Notary.
  4. Changes the time from 1 year to 6 months within which the Attorney General must take investigative action against an applicant for a commission.
  5. Provides that the completed application of a Notary seeking renewal of the commission received by the Attorney General within 60 calendar days prior to the expiration of the Notary’s current commission is considered timely filed.

Status Changes and Related Matters

  1. No longer requires a Notary to deposit the journal with the Attorney General within 90 days of the end date of the Notary’s commission but requires the Notary to retain the journal for 10 years after the performance of the last notarial act chronicled in the journal.
  2. Requires a Notary to provide to the Attorney General the location of the journal upon resignation from, or revocation, abandonment, or suspension of the Notary's commission, or the expiration of a commission without renewal.
  3. Clarifies that at any time, the journal shall be subject to an audit pursuant to HRS Section 456-15.
  4. Requires a Notary to file with the Attorney General the Notary's email address and to notify the Attorney General of any change, in writing, within 30 days of the change.
  5. Requires a Notary or the Notary's representative or guardian to notify the Attorney General in writing of an adjudication of the Notary's incompetency within 30 days of the adjudication.
  6. Requires a Notary to notify the Attorney General in writing of a criminal conviction against the Notary, of any felony, or a misdemeanor related to the qualifications, functions, or duties of the Notary or involving fraud, false statements or omissions, wrongful taking of property, bribery, perjury, forgery, counterfeiting, extortion, or a conspiracy to commit any of these offenses.
  7. Requires a Notary to notify the Attorney General in writing of any professional disciplinary decision issued against the Notary in Hawaii or another jurisdiction within 30 days of the disciplinary decision.
  8. Provides that a failure to provide timely written notification to the Attorney General of any change subjects the Notary to an administrative fine of $25 per violation.
  9. No longer requires a Notary to display a 3 x 5-inch sign with the words “Notary Public” in the place of business where the Notary is employed.
  10. No longer requires a Notary to provide notarial service to the public during all normal business hours of operation where the Notary is employed.
  11. Provides that a Notary may resign the Notary’s commission, must surrender the Notary’s commission certificate and rubber stamp seal, and notify the Attorney General of the location of the Notary’s journal, and no longer requires the Notary to surrender the Notary’s journals to the Attorney General.
  12. Clarifies that within 90 days of resignation from, or revocation or abandonment of, a commission, or the expiration of a commission without renewal, the Notary Public must: (a) surrender the Notary’s commission certificate, including the Remote Online Notary's commission certificate, if applicable, to the Attorney General for the purpose of destruction; (b) surrender the Notary’s rubber stamp Notary seal to the Attorney General for the purpose of defacement; and (3) retain the Notary's journal and inform the Attorney General of the location of the journal.
  13. Provides that upon the death of a current Notary, the Notary’s employer, personal representative, or any other person knowingly in possession of the Notary’s certificate or Notary seal shall within 90 days fulfill the same requirements as a Notary with respect to surrendering the commission certificate, Remote Online Notary commission certificate and rubber stamp, and notify the Attorney General where the journal or journals are located.
  14. Provides that upon the death of a current or former Notary, the Notary's employer, personal representative, or any other person knowingly in possession of the Notary's journal must transmit the journal to the Attorney General or a repository approved by the Attorney General as provided in section HRS 456-15(h) and notify the Attorney General of the location of the repository.
  15. Changes the administrative fine from $25 to $20 for a Notary’s failure to transmit written notification to the Attorney General that the Notary’s seal, journal, or both, had been lost, misplaced, or stolen.

Notarial and Improper Acts

  1. Clarifies that no person may act as a Notary or perform notarial acts without a current commission.
  2. No longer requires Notaries to follow The Notary Public Code of Professional Responsibility, but requires them to follow HRS Chapter 456, other Hawaii laws and official guidelines (e.g., Notary Manual), and recognized industry best practice standards that do not conflict with Hawaii law.
  3. Prohibits a Notary from refusing to perform a lawful and proper notarial act or base the charging of a fee for performing a notarial act or the amount of the fee because of the race; sex, including gender identity or expression; sexual orientation; color; ancestry; nationality; ethnicity; religion; politics; advanced age; or disability, including the use of a service animal, of the person appearing before the Notary; or any disagreement with the statements or purpose of a document.
  4. Prohibits a Notary from notarizing the Notary's own signature.
  5. Prohibits a Notary from performing a notarial act if the Notary has an actual and apparent conflict of interest regarding the transaction in question.
  6. Prohibits a Notary from delivering a signed notarial certificate to another person and authorizing that person to attach the certificate to a document outside of the Notary's presence.
  7. Prohibits a Notary from providing legal advice, unless the Notary is an attorney licensed to practice law in Hawaii.
  8. Clarifies that nothing contained in HAR Section 5-11-4.5(a)(2) prohibiting Notaries from performing the acts specified above shall be construed to limit or deny the enforcement of any provision of HRS Chapters 456 and 502, HRS, or the administrative rules.
  9. Clarifies that nothing contained in the prohibition against charging or basing the amount of a fee for a notarial act shall be construed to prohibit reducing or waiving a fee at the Notary’s discretion, provided that doing so is not done for an unlawful or discriminatory purpose.

Official Stamp and Notarial Certificate

  1. Requires a Notary Public to obtain and keep a rubber stamp Notary seal which, when stamped or impressed upon a tangible document, clearly shows the name of the Notary Public, the commission number of the Notary Public, and the words "Notary Public" and "State of Hawaii". 
  2. Prohibits a Notary from possessing more than one rubber stamp Notary seal at a time.
  3. Requires the Notary to authenticate all of the Notary's notarial acts, attestations, certifications, and instruments with the Notary seal contemporaneously with the performance of the notarial act, as prescribed by HRS chapter 456.
  4. Clarifies that the dimensions of the circular rubber stamp Notary must be between 1 inch and 2 inches in diameter.
  5. Requires the Notary to safeguard and maintain sole control of the Notary seal.
  6. In addition to the reasons for surrendering the Notary seal to the Attorney General within 90 days as under the current rules, requires the Notary to surrender the rubber stamp for abandonment of the commission, and clarifies that the fine for not doing so is $200 and not up to $200 as under the current rules.
  7. Prohibits a Notary from performing a notarial act unless there is proof of the signer's signature and identity as defined in section 456-1.6, HRS, or as otherwise provided in HAR Sections 5-11-69 and 5-11-70.
  8. Clarifies that an acknowledgment or jurat shall be evidenced by a certificate signed and dated by a Notary Public contemporaneously with the performance of the notarial act, as prescribed by HRS Chapter 456, HRS.
  9. No longer requires the description of the document to be noted in close proximity to the acknowledgment or jurat, or the number of pages and date of the document.

Disciplinary Sanctions

  1. Authorizes the Attorney General to seek administrative fines against a Notary for each occurrence.
  2. No longer provides that the Attorney General may take action against a Notary’s commission or fine a Notary for conduct or practice contrary to The Notary Public Code of Professional Responsibility as adopted by the National Notary Association or violating any condition or limitation upon which a conditional or temporary commission was issued.
  3. Provides that the Attorney General may take action against the commission of a Notary or former Notary, or fine the Notary for a criminal conviction of any felony or misdemeanor related to the qualifications, functions, or duties of a Notary or involving theft, fraud, dishonesty, or false statement, and not for a crime as before.
  4. Provides that the Attorney General may take action against the commission of a Notary or former Notary, or fine the Notary for failure to report in writing to the Attorney General any disciplinary decision issued against the Notary Public or the applicant in Hawaii or another jurisdiction within 30 days of the disciplinary decision.
  5. Clarifies that any person seeking to restore the person's forfeited commission more than one year from the date of expiration of the commission shall reapply as a new applicant for a Notary commission.
  6. Provides that a Notary commission may be suspended by the Attorney General for a period not exceeding 10 years.
  7. Provides that a person whose commission is revoked may apply for a new commission, unless the revocation is permanent, after 5 years from the effective date of the revocation of the commission by filing an application and complying with all current requirements for new applicants.

Fees and Administrative Fines

  1. Sets the following fees in addition to the fees already in the rules: (a) administrative fee to process returned documents from the court, $15; (b) application for Remote Online Notary commission, $20; (c) application for renewal of Remote Online Notary commission, $20; (d) issuance of Remote Online Notary Public commission, $100; (e) renewal of Remote Online Notary Public commission, $100; (f) administrative fee to process and catalogue audiovisual recordings, $10; and (g) any other fees or charges referenced in HRS Chapter 456, or HAR Chapter 5-11.
  2. Authorizes the Attorney General to impose and collect, in addition to the fines and occurrences in the rules, the following administrative fines for each occurrence: (a) failure to surrender the Notary’s rubber stamp Notary seal to the Attorney General within 90 days of resignation from, or revocation or abandonment of, a commission, or the expiration of a commission without renewal, $200; (b) failure to surrender the Notary’s commission certificate to the Attorney General within 90 days of resignation from, or revocation or abandonment of, a commission, or the expiration of a commission without renewal, $200; (c) failure to destroy or disable the Remote Online Notary’s electronic stamping device and to submit a declaration to the Attorney General within 90 days of resignation from, or revocation or abandonment of, a commission, or the expiration of a commission without renewal that the electronic stamping device was destroyed or disabled, $200; (d) possessing more than one rubber stamp Notary seal at a time, $200; (e) failure to retain the Notary’s journal for 10 years after the performance of the last notarial act chronicled in the journal, $50 to $500; (f) failure to comply with the audit or inspection of the Notary’s journal by the Attorney General, $50 to $500; (g) failure to inform the Attorney General of the location of the Notary’s journal, $50 to $500; (h) failure to transmit the Notary’s journal to the Attorney General or a repository approved by the Attorney General upon the Notary’s death, $50 to $500; (i) failure to timely notify the Attorney General of the Notary’s status change as required by HAR Section 5-11-10.5, $25; and (j) any other administrative fines referenced in HRS Chapter 456 or the administrative rules.
  3. Provides that all unpaid fees and administrative fines shall constitute a debt due and owing to the state of Hawaii.

Remote Online Notary Commission

  1. Prohibits a person from performing notarial acts for remotely located individuals or advertising or representing oneself as a Notary who is able to do so, without a current commission as a Remote Online Notary obtained from the Attorney General.
  2. Provides that only a Notary Public with an active commission may apply for a Remote Online Notary Public commission.
  3. Provides that each applicant for a Remote Online Notary Public commission must complete and file with the Attorney General a Remote Online Notary commission application.
  4. Provides that in addition to the information required under HAR Section 5-11-21(b), a completed Remote Online Notary application must include: (a) a non-refundable application fee; (b) the applicant's email address; (c) the applicant's Notary commission number; (d) a description of the communication technologies and devices that the applicant intends to use to perform remote online notarization; (e) the name, address, and website address of any vendors or other persons that will directly supply to the Notary the technologies and devices that the Notary intends to use; (f) a description of the data storage methods to maintain a secure backup of electronic journals and audiovisual recordings; (g) a statement certifying that the applicant has obtained a digital certificate from a qualified certificate authority or a trusted service provider to be used by the applicant in performing remote online notarizations; and (h) a statement of compliance that the technologies named in the application are fully compliant with HRS Chapter 456, and HAR Chapter 5-11.
  5. Provides that if, during the term of a Remote Online Notary’s commission, the Remote Online Notary intends to use the technologies or devices of a vendor or person other than those identified in the application, the Remote Online Notary must notify the Attorney General identifying such other business or other person. 
  6. Provides that unless otherwise provided by law, the Attorney General shall, if the Attorney General deems appropriate, conduct an investigation of the applicant for a remote Notary commission within 6 months after the filing of a complete application and notify the applicant in writing of the status of the investigation and the next steps, if appropriate.
  7. Clarifies that an application for a Remote Online Notary commission may be considered abandoned if the application is not completed and the required documents and other information are not submitted to the Attorney General within 90 days from the date the application is first filed with the Attorney General.
  8. Clarifies that the Attorney General is not required to act on any abandoned application and the abandoned application may be destroyed by the Attorney General.
  9. Provides that a Remote Online Notary commission shall not be issued to any Notary unless the Notary pays the examination fee and takes and passes an examination specific to notarization of remotely located individuals as prescribed by the Attorney General and pursuant to the requirements of Section 5-11-32 of the rules.
  10. Requires the Notary who has been issued a Remote Online Notary commission to file a literal or photostatic copy of the Notary’s Remote Online Notary commission with the clerk of the circuit court of the circuit in which the Remote Online Notary resides within 30 days of the receipt of the commission; and submit to the Attorney General a tangible copy of the Notary’s electronic seal and electronic signature.
  11. Clarifies that a Remote Online Notary’s commission to perform notarial acts for remotely located individuals expires on the same date as the Notary’s commission.
  12. Requires a Remote Online Notary to be responsible for timely renewing the Remote Online Notary’s commission and satisfying the renewal requirements provided by law.
  13. Provides that a completed renewal application to perform remote online notarial acts received by the Attorney General within 60 calendar days prior to the expiration of the Notary’s current commission is considered timely filed.
  14. Provides that at the time of commission renewal as a Remote Online Notary, each Remote Online Notary must submit a completed renewal application, pay all applicable fees, and comply with any other requirement provided by law.
  15. Provides that the failure to timely renew a commission as a Remote Online Notary, the failure to pay all applicable fees, the dishonoring of any check upon first deposit, or the failure to comply with any other requirement may cause the commission to be automatically forfeited.

Remote Notarization Standards of Practice

  1. Provides that a Remote Online Notary may perform a notarial act for remotely located individuals only if the remotely located individual personally appears before the Remote Online Notary at the time of the notarization and clarifies that the appearance may be satisfied by means of communication technology.
  2. Provides that if a Remote Online Notary does not have satisfactory evidence of the identity of a remotely located individual, the Remote Online Notary shall reasonably verify the remotely located individual's identity through two different types of identity proofing consisting of a multi-factor authentication procedure.
  3. Clarifies that the multi-factor authentication procedure must analyze the remotely located individual's identity credential against trusted third-person data sources, bind the remotely located individual's identity to the remotely located individual following successful knowledge-based authentication, and permit the Remote Online Notary visually to compare the identity credential and the remotely located individual.
  4. Provides that the analysis of an identity credential must use public or private data sources to confirm the validity of the identity credential presented by a remotely located individual and, at a minimum: (a) use automated software processes to aid the Remote Online Notary in verifying the identity of each remotely located individual; (b) require the identity credential to pass an authenticity test, consistent with sound commercial practices that use appropriate technologies to confirm the integrity of visual, physical, or cryptographic security features and to confirm that the identity credential is not fraudulent or inappropriately modified; (c) use information held or published by the issuing source or an authoritative source, as available and consistent with sound commercial practices, to confirm the validity of personal and identity credential details; and (d) enable the Remote Online Notary visually to compare for consistency the information and photograph on the identity credential and the remotely located individual as viewed by the Remote Online Notary in real time through communication technology.
  5. Provides that a knowledge-based authentication is successful if it meets the following requirements: (a) the remotely located individual answers a quiz consisting of a minimum of 5 questions related to the remotely located individual's personal history or identity formulated from public or private data sources; (b) each question has a minimum of 5 possible answer choices; (c) at least 80% of the questions are answered correctly; (d) all questions are answered within 2 minutes; (e) if the remotely located individual fails the first attempt, the remotely located individual may retake the quiz 1 time within 24 hours; (f) during a retake of the quiz, a minimum of 40% of the prior questions are replaced; (g) if the remotely located individual fails the second attempt, the remotely located individual is not allowed to retry with the same Remote Online Notary within 24 hours of the second failed attempt; and (h) prohibits the Remote Online Notary from seeing or recording the questions or answers of a knowledge-based authentication quiz.
  6. Provides that a Remote Online Notary has satisfactory evidence of the identity of a remotely located individual if the Remote Online Notary has personal knowledge of the identity of the remotely located individual or if the Remote Online Notary has satisfactory evidence of the identity of the remotely located individual by oath or affirmation of a credible witness.
  7. Defines personal knowledge of the identity of the remotely located individual appearing before the Remote Online Notary if the remotely located individual is personally known to the Remote Online Notary through dealings sufficient to provide reasonable certainty that the remotely located individual has the identity claimed.
  8. Provides that to be a credible witness for a remote online notarization, the witness must have personal knowledge of the remotely located individual who has made a statement in or executed a signature on the record that is the subject of the notarial act.
  9. Requires the Remote Online Notary to have personal knowledge of the credible witness or to have verified the identity of the credible witness under HAR Section 5-11-69.
  10. Clarifies that a credible witness may be a remotely located individual if the Remote Online Notary, credible witness, and remotely located individual whose statement or signature is the subject of the notarial act can communicate by using communication technology.
  11. Requires the communication technology for a remote online notarization to (a) provide continuous synchronous audiovisual feeds; (b) provide sufficient video resolution and audio clarity to enable the Remote Online Notary and remotely located individual to see and speak with each other simultaneously through live, real-time transmission; (c) provide sufficient captured-image resolution for identity proofing; (d) provide a means of authentication that reasonably ensures only authorized parties have access to the audiovisual record of the performed notarial act; (e) provide for the recording of the remote online notarial act in compliance with HAR Chapter 5-11 in sufficient quality to ensure the verification of the remote online notarial act; (f) ensure that any change to or tampering with an electronic record before or after the electronic Notary seal has been affixed and the remote online notarial act has been completed is evident; (g) provide confirmation that the electronic record presented is the same electronic record notarized; (h) provide a means of electronically affixing the Notary’s Notary seal, signature, and certification to the notarized document based on an electronic technology standard that utilizes public key infrastructure (PKI) technology from a PKI service provider that is x.509 compliant; (i) provide an electronic-format Notary journal that complies with the provisions of HRS Chapter 456, and the administrative rules to document the remote online notarial acts; (j) provide that if a remotely located individual exits the workflow or if the workflow is interrupted for any reason, the remotely located individual must restart the identity verification process under HAR Section 5-11-69 or 5-11-70 from the beginning; and (k) provide security measures the Attorney General deems reasonable.
  12. Provides that the security measures of communication technology that are reasonable to the Attorney General will prevent unauthorized access to: (a) the live transmission of the audiovisual communication; (b) the recording of the audiovisual communication; (c) the verification methods and credentials used in the identity proofing procedure; (d) the electronic records presented for online notarization; and (e) any personally identifiable information used in the identity proofing.
  13. Requires an online Notary to immediately cease performing remote online notarial acts and notify the Attorney General if: (a) the technology no longer permits the Remote Online Notary to meet the requirements of HRS Chapter 456, or HAR Chapter 5-11; (b) the vendor ceases to provide the technology, which met the requirements of HAR 5-1-71; (c) the vendor has failed to protect from unauthorized access any information it is required to protect under HRS Chapter 456, HAR Chapter 5-11, or any other Hawaii laws; or (d) any other grounds that may materially affect the ability of Notaries to meet the requirements of Hawaii law.

Official Electronic Stamp and Notarial Certificate

  1. Provides that in addition to the required rubber stamp Notary seal, a Remote Online Notary must obtain and keep one or more electronic stamping devices, on which, when logically associated with an electronic document, contains the name of the Notary, the Notary’s commission number, and the words "Notary Public" and "State of Hawaii” and utilize tamper-evident technology.
  2. Requires the Remote Online Notary to authenticate all notarial acts, attestations, certifications, and instruments with the Notary’s electronic Notary seal, using an electronic stamping device, contemporaneously with the performance of the notarial act, as prescribed by HRS Chapter 456.
  3. Requires an electronic stamping device to consist of a digital certificate complying with the X.509 standard adopted by the International Telecommunication Union.
  4. Requires a Remote Online Notary to attach or logically associate the Remote Online Notary’s electronic signature and electronic seal to an electronic document that is the subject of a notarial act for a remotely located individual by use of a digital certificate.
  5. Prohibits a Remote Online Notary from performing a notarial act for a remotely located individual if the digital certificate (a) has expired; (b) does not comply with HAR 5-11-71; (c) is invalid; or (d) is incapable of authentication at the time the notarial act is performed.
  6. Requires that prior to the application of a digital certificate on an electronic document, the Remote Online Notary Public must apply their electronic signature, notarial certificate, and electronic Notary seal, that, when logically associated with an electronic document, shall contain the name of the Notary Public, the commission number of the Notary Public, and the words “Notary Public” and “State of Hawaii”.
  7. Requires a Remote Online Notary to use technology from a third-party provider of the communication technology for an electronic signature, electronic Notary seal, and electronic notarial certificate.
  8. Requires an electronic notarial certificate to comply with HRS Sections 456-21 and 456-23, the form of certificate provided in HRS Section 502-41, if applicable, or the form of certificate provided by other applicable law, and HAR Chapter 5-11, and requires the certificate to indicate that the notarial act was performed using communication technology.
  9. Requires a Remote Online Notary to safeguard and maintain sole control of the Remote Online Notary’s electronic Notary seal and electronic stamping device by means of use of a password or other secure method of authentication.
  10. Provides that upon resignation from, or revocation or abandonment of, a commission, or the expiration of a commission without renewal, the Remote Online Notary must destroy or disable the Remote Online Notary’s electronic stamping device, including but not limited to, any coding, disk, digital certificate, card, software, or password, that enables the Notary to attach the electronic Notary seal to an electronic record.
  11. Requires the Remote Online Notary to submit a declaration to the Attorney General within 90 days of resignation from, or revocation or abandonment of, a commission, or the expiration of a commission without renewal in which the Remote Online Notary declares that the electronic stamping device was disabled and indicate the date and manner in which the electronic stamping device was disabled, and further provides that a failure to comply may result in an administrative fine of $200.

Records of Remote Notarizations

  1. Requires a Remote Online Notary in addition to keeping the tangible journal required by HRS Section 456-15, to retain an electronic journal as required under HRS Section 456-15, and HAR Chapter 5-11 and any audiovisual recording created under HRS Section 456-23, in a computer or other electronic storage device that protects the journal and recording against unauthorized access by password or cryptographic process.
  2. Requires the electronic journal and audiovisual recording to be maintained and retained in an industry-standard audiovisual file format that can be viewed by the Attorney General without the need for additional software.
  3. Clarifies that an electronic journal kept by the Remote Online Notary and the audiovisual recording created pursuant HAR Chapter 5-11, Subchapter 7 are not subject to the requirements of HAR Section 5-11-9.
  4. Requires a Remote Online Notary to take reasonable steps to ensure that a backup of the electronic journal and audiovisual recording exists and is secure from unauthorized use.
  5. Provides that on the death or adjudication of incompetency of a current or former Remote Online Notary, the Remote Online Notary’s personal representative or guardian, or any other person knowingly in possession of an electronic journal or audiovisual recording shall comply with the retention requirements of HRS Chapter 456, and HAR Chapter 5-11, and transmit the journal and recording to (a) 1 or more repositories under subsection (d); or (2) the Attorney General in an industry-standard data storage device that is readable without the need for additional software or password or cryptographic process.
  6. Authorizes a Remote Online Notary, a guardian or personal representative of a Remote Online Notary, or any other person knowingly in possession of an electronic journal or audiovisual recording to, by written contract, engage a third person to act as a repository to provide the storage required by HAR Chapter 5-11.
  7. Clarifies that a third person under a contract to provide storage of records is deemed a repository under HRS Chapter 456, HRS.
  8. Requires the contract to provide storage as a repository to: (a) enable the Notary Public, the guardian or personal representative, or the person in possession to comply with the retention requirements of HRS Chapter 456, and HAR Chapter 5-11, even if the contract is terminated; or (b) provide that the information will be transferred to the Attorney General in an industry-standard data storage device that is readable without the need for additional software or password or cryptographic process upon the Attorney General's request or if the contract is terminated.
  9. Clarifies that at any time, the electronic journal and audiovisual recording are subject to reasonable periodic, special, or other audits or inspections by the department as required under HRS Section 456-15.
  10. Requires a Remote Online Notary to retain the Remote Online Notary’s electronic journal and audiovisual recording for 10 years after the performance of the last notarial act chronicled in the journal and provide to the Attorney General the location of the electronic journal upon resignation from, or revocation or abandonment or suspension of, a commission, or the expiration of a commission without renewal; and further provides that the failure to comply may result in an administrative fine of $50 to $500.
Analysis

The Hawaii Attorney General implements comprehensive changes to Hawaii’s Notary Public administrative rules. The changes affect virtually every major section of Title 5, Subtitle 1, Chapter 11 of the Hawaii Administrative Code. The major changes, however, pertain to Hawaii’s remote online notarization statutes in Act No. 054 (Senate Bill 2275) that took effect on January 1, 2021. Most of the rule conform to the practices of other states that have enacted remote online notarization, notably, standards for identity proofing, credential analysis, knowledge-based authentication, and communication technology. There also are new rules on the Remote Online Notary Public commission process.

Read the text of the administrative rules.

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