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Rule

IN Administrative Rules (2020)

Notary Law Update: IN Administrative Rules (2020)

State: Indiana

Summary:

The Indiana Secretary of State has adopted final rules for implementing remote notarizations, Notary commissions, continuing education, and administrative complaints.

Signed:  March 31, 2020

Effective:  March 31, 2020

Chapter: N/A

Affects:

Adds Sections 7-1-1 through 7-8-3 to Title 75 of the Indiana Administrative Code.

Changes:

Definitions

  1. Defines “applicant”, “designated alternative signer”, “disqualifying offense”, “real time” and “remote technology vendor”.

Notary Commissions

  1. Specifies the contents for Notary commission applications.
  2. Clarifies that an applicant for a Notary commission must submit a criminal background check that is not more than 6 months old that may be required by the Secretary of State.
  3. Provides that if an applicant fails to comply with submitting the information required for a commission, the Secretary of State shall inform the applicant that the application has been rejected.
  4. Provides that if an applicant fails to comply with the requirement of submitting a criminal background check that may be required by the Secretary of State or has a disqualifying offense, the Secretary shall inform the applicant that the application has been denied.
  5. Provides that if an applicant is rejected 3 times within thirty (30) days, the applicant must wait thirty (30) days before submitting another application.
  6. Provides that if an application is denied, the applicant is entitled to timely notice and a hearing, as described in IC 4-21.5.

Status Changes

  1. Requires a Notary to notify the Secretary of State not later than 30 days after any change of name, mailing address, personal electronic mail address, personal telephone number and an employer’s address, name, and telephone number.
  2. Requires a Notary to file with the Secretary of State after any change to the Notary’s name on file with the Secretary’s office (a) A rider or other record issued by the Notary’s surety reflecting the change of name and (b) A sample of the Notary’s new signature.
  3. Requires a Notary to notify the Secretary of State not later than 14 days after (a) The Notary is convicted of a felony offense involving deceit, dishonesty, or fraud, (b) The Notary is found to have acted deceitfully, dishonestly, or fraudulently in any disciplinary action or legal proceeding or (c) The Notary has a commission as a Notary denied, restricted, or revoked in a state other than Indiana.
  4. Requires a Notary to notify the Secretary of State after the Notary is no longer an Indiana resident or primarily employed in the state of Indiana, and the notice must be treated as a resignation.

Continuing Education

  1. Provides that 3 continuing education courses must be completed throughout the duration of the Notary’s commission, with the first due 2 years after the Notary is commissioned, the second 4 years after the Notary is commissioned and the third 6 years after the Notary is commissioned.
  2. Clarifies that each of the 3 continuing education courses must be completed by the end of the anniversary of the month in which the Notary is commissioned.
  3. Clarifies that failure to complete the continuing education requirement will result in the expiration of the Notary’s commission.
  4. Outlines the 17 topic requirements, as specified, that the curriculum for the continuing education courses must contain.

Renewal Commissions

  1. Provides that a Notary applying for a commission renewal may apply beginning 90 days prior to the expiration date of the Notary’s current commission.
  2. Requires each applicant for a renewal commission to electronically submit an application using the Notary application prescribed by the Secretary of State and clarifies that the application for renewal is the same as the application for an initial Notary commission.
  3. Provides if the Notary’s commission expires before the commission is renewed, the Notary’s commission shall not be renewed, and the person may apply for a new commission.
  4. Provides that if an applicant fails to comply with the requirements of section 1(b)(1) through 1(b)(10) of the administrative rules and section 1(c)(1) through 1(c)(3) of the administrative rules when applicable, the Secretary of State must inform the applicant that the application has been rejected.
  5. Provides that if an applicant fails to comply with the requirements of section 1(b)(11) of the administrative rules or has a disqualifying offense, the Secretary of State must inform the applicant that the application has been denied.
  6. Provides that if an applicant’s application for renewal is rejected 3 times within 30 days, the applicant must wait 30 days before submitting another application.
  7. Provides that if an applicant for a renewal commission is denied, the applicant is entitled to timely notice and a hearing, as described in IC 4-21.5.

Remote Notarization Authorization

  1. Provides that an applicant for authorization to perform remote notarizations must meet the eligibility requirements of IC 33-42-12-1(b) and be a commissioned Notary to be eligible to register for a remote Notary authorization.
  2. Provides that a Notary must have at least 90 days remaining on the applicant’s Notary commission to register for a remote Notary authorization.
  3. Provides that the application for remote Notary authorization must include the following: (a) The name on the applicant’s Notary commission; (b) The applicant’s Notary commission number. (c) The name of the remote technology vendor that the applicant intends to use to perform remote notarial acts; (d) A disclosure of any and all disciplinary actions or commission revocations taken against the applicant; (e) A passing score on the remote Notary examination and (f) Payment of the nonrefundable application fee to the Secretary of State.
  4. Provides if an applicant fails to comply with any background check required by the Secretary of State or has a disqualifying offense, the Secretary shall inform the applicant that the application has been denied.
  5. Provides if an applicant for remote Notary authorization is rejected 2 times within days, the applicant must wait an additional 30 days before submitting another application.
  6. Provides if an applicant’s registration for remote Notary authorization is denied, the applicant is entitled to timely notice and a hearing, as described in IC 4-21.5.
  7. Provides that a remote Notary authorization is valid from the time the Notary is authorized until the expiration of the Notary commission.
  8. Provides that the application requirements for a consecutive remote Notary authorization are the same as for the initial application.
  9. Provides that a Notary cannot apply for a consecutive remote Notary authorization until the Secretary of State has renewed its Notary commission.
  10. Provides that in order to obtain a consecutive remote Notary authorization, an applicant must electronically apply for authorization using the application prescribed by the Secretary of State and that the application for consecutive authorization is the same as the application for an initial remote Notary authorization registration.

Identification of Remote Signer

  1. The methods by which a remote Notary identifies a principal are any of the following: (a) Personal knowledge; (b) By oath of a credible witness who personally knows the principal and either is personally known to the remote Notary or provides qualifying identification in accordance with #3. (3) Identity proofing and credential analysis standard in accordance with 75 IAC 7-8-1.
  2. Clarifies that the liability, sanctions, and remedies for the improper performance of remote notarial acts are the same as the disciplinary action under IC 33-42-13-1.
  3. Provides that a remote Notary must at a minimum: (a) Confirm that the principal has successfully completed identity proofing and credential analysis, (b) Confirm the identity of the principal through visual inspection of the credential used during credential analysis, and (c) Ensure that an audiovisual recording captures the notarial act performed.
  4. Provides that if the principal is personally known to the remote Notary, the audiovisual conference must include a statement disclosing the personal relationship.
  5. Requires identity proofing and credential analysis to be facilitated by an approved remote technology vendor.
  6. Requires identity proofing to be performed through dynamic knowledge-based authentication or through another process or service approved by the Secretary of State.
  7. Requires dynamic knowledge-based authentication to, at a minimum: (a) Contain five (5) questions, drawn from public or private data sources; (b) Generate a minimum of five (5) possible answer choices per question; (c) Maintain a passing score of at least eighty percent (80%); and (d) Require that all five (5) questions answered within two (2) minutes.
  8. Requires credential analysis to, at a minimum: (a) Verify the identity of a principal or any credible witness; (b) Utilize appropriate technologies to confirm that the credential is not fraudulent or inappropriately modified, and (c) Enable the remote Notary to visually compare for consistency the information and photo presented on the credential itself and the principal as viewed by the remote Notary in real-time through audiovisual communication.
  9. Provides that if the principal exits the identity authentication workflow or the communication is materially interrupted, the principal must meet the criteria outlined in this section and restart the identity proofing and credential analysis.

Technology Systems for Remote Notarization

  1. Requires a remote Notary system used to perform remote notarial acts by means of audiovisual communication to provide for real-time audiovisual feeds.
  2. Requires a remote Notary system used to perform remote notarial acts by means of audiovisual communication to provide sufficient video resolution and audio clarity to enable the remote Notary and the principal to see and speak to each other simultaneously through real-time transmission.
  3. Requires a remote Notary system used to perform remote notarial acts by means of audiovisual communication to provide sufficient captured image resolution for credential analysis to be performed.
  4. Requires a remote Notary system used to perform remote notarial acts by means of audiovisual communication to include a means of authentication that reasonably ensures only the proper parties have access to the audiovisual communication.
  5. Requires a remote Notary system used to perform remote notarial acts by means of audiovisual communication to provide some manner of ensuring that the electronic record that is subject to the remote notarial act is the same record electronically signed by the principal.
  6. Requires a remote Notary system used to perform remote notarial acts by means of audiovisual communication to securely create, store, and transmit an electronic recording of the audiovisual communication, maintaining the confidentiality of any identity proofing responses or analysis.
  7. Requires a remote Notary system used to perform remote notarial acts by means of audiovisual communication to provide reasonable security measures to prevent unauthorized access to: (a) The real-time transmission of the audiovisual communication; (b) The recording of the audiovisual communication; (c) The verification methods and credentials used to verify the identity of the principal; and (d) The electronic documents presented for electronic notarization.

Other Remote Notarization Provisions

  1. Prohibits the remote Notary from disclosing any access information used to affix the Notary’s electronic signature and seal except when requested by the Secretary of State, law enforcement, the courts, and with reasonable precautions, electronic document preparation and remote technology vendors.  
  2. Clarifies that in addition to the refusal grounds set forth in IC 33-42-9-5, relating to refusal of requests for notarial services, a remote Notary must refuse to perform a remote notarial act if: (a) The remote Notary is unable to verify the identity of the principal using an acceptable means of identification; (b) The remote Notary is unable to verify the security of the audiovisual communication; (c) The signature of the principal cannot be attached to the electronic document; or (d) The digital certificate or electronic seal of the remote Notary cannot be attached to the electronic document to render the document tamper-evident.

Electronic Journal

  1. Prohibits a Notary (other than a court clerk notarizing instruments for the court) from recording in the Notary’s record journal: (a) An identification number that was assigned by a governmental agency or by the United States to the principal and that is set forth on the identification card or passport presented as identification; (b) Any other number that could be used to identify the principal of the document; or (c) A biometric identifier, including a fingerprint, voice print, and retina or iris image.
  2. Clarifies that a Notary is not prohibited from recording a number related to the mailing address of the principal of the document or the instrument.
  3. Clarifies that the prohibitions related to recording certain information in the electronic journal does not apply to the audiovisual recording required by a remote Notary performing a remote notarial act.
  4. Requires a Notary who inadvertently records information prohibited in the electronic journal to redact such information prior to providing public access to or copies of the Notary record book.
  5. Provides that upon a remote Notary’s learning that an electronic journal is lost, stolen, or compromised, the remote Notary shall notify the Secretary of State within 15 days.

Certificate of Remote Notarization

  1. Provides that for all notarial acts that require a notarial certificate, the remote Notary shall complete an electronic notarial certificate that meets all the requirements in IC 33-42-17-7.
  2. Requires a notarial certificate for a remote notarization to be signed by affixing the remote Notary’s electronic signature and electronic seal, and the digital certificate must be applied to render the document tamper-evident.
  3. Requires a remote Notary to attach the Notary’s electronic signature and seal to the electronic notarial certificate of an electronic document in a manner that is capable of independent verification and renders any subsequent change or modification to the electronic document tamper-evident.

Electronic Notary Seal and Signature

  1. Requires the electronic Notary seal to match the name, as stated on the application, under which the Notary is commissioned and performs all remote notarial acts.
  2. Requires the technology used to attach an electronic signature to a document to allow a Notary’s electronic signature to be: (a) Attributed or uniquely linked to the Notary; (b) Capable of independent verification; (c) Retained under the Notary’s exclusive control implemented by use of passphrase protection; and (d) Linked to the electronic document to which it relates in such a manner that any subsequent change of the electronic document is detectable.
  3. Requires the official seal of a Notary to include the requirements listed in IC 33-42-0.5-13.

Remote Technology Changes

  1. Requires a Notary to notify the Secretary of State within 30 days after the Notary changes the remote technology vendor or contracts with an additional remote technology vendor.
  2. Clarifies that a Notary may use more than one 1 remote technology vendor.
  3. Provides that if the Notary fails to meet standards in the statutes and rules, then the Secretary of State may suspend or revoke the Notary’s commission and the Notary’s remote authorization.
  4. Requires a Notary to, at all times, maintain a digital certificate and electronic seal that includes the Notary’s electronic signature.
  5. Requires the Notary’s digital certificate to comply with the provisions of IC 33-42-17-7, and the electronic seal to comply with 75 IAC 7-6-2.
  6. Requires a Notary to replace a digital certificate under any of the following circumstances: (a) The electronic seal or digital certificate has expired; (b) The electronic seal or digital certificate is for any reason no longer valid or capable of authentication; (c) The Notary has changed the Notary’s name, county of commission or county of primary employment or Notary commission number.

Technology Vendors

  1. Requires a remote technology vendor to apply with and be approved by the Secretary of State.
  2. Requires the Secretary of State to provide the names and contact information of approved remote technology vendors on its official website.
  3. Requires remote technology vendors to provide notice to the Secretary of State within 15 days if their contact information changes.
  4. Requires remote technology vendors to provide notice to notaries utilizing their services and the Secretary of State’s office 15 days prior to the date that they will no longer provide remote technology services.
  5. Provides that if a remote technology vendor intends to make material modifications that affect its compliance with Indiana law or the administrative rules, notice must be provided to the Secretary at least ten 10 days prior to such modifications, and implementation shall only occur upon receiving the approval from the Secretary of State.
  6. Requires a remote technology vendor to electronically report (a) A monthly listing of all notaries public that have on-boarded to the vendor’s software and (b) A monthly listing of all notaries public that have off-boarded from the vendor’s software.
  7. Provides that a remote technology vendor application expires 2 years after the date the application is approved.

Complaints

  1. Authorizes any person to submit a complaint in writing to the Secretary of State alleging that: (a) A Notary has violated one (1) or more of the provisions of the administrative rules, IC 33-42-13-3, or IC 5-8-3-1; (b) A person is performing notarial acts without a Notary commission; or (c) A person is performing remote notarial acts without a remote Notary authorization.
  2. Lists the information, as specified that each complaint must include, and requires the complaint to be signed by the person alleging misconduct on the part of the Notary.
  3. Provides that the Secretary of State may determine that the allegations in the complaint are not sufficient to warrant formal disciplinary action and (a) Take no action on the complaint; (b) Informally advise the Notary of the appropriate conduct as well as the applicable statutes and rules governing the conduct; or(c) Request further information from the complainant or the Notary prior to taking action.
  4. Provides that if the Secretary of State determines that the complaint alleges sufficient facts to result in disciplinary action against the Notary, the Secretary may send interrogatories or a show cause letter with any attachments the Secretary deems to be relevant to the Notary.
  5. Requires a Notary to respond to the complaint in writing and requires that the response must: (a) Specify any disputed facts and provide such additional information as the Notary shall desire; and (2) Be received by the Secretary of State within 30 days of the date that the Secretary of State’s mailings were sent to the Notary.
  6. Requires the Secretary of State to review the response and determine whether further administrative action is appropriate.
  7. Provides that if the Secretary determines that no further action with respect to a complaint is appropriate, the Secretary shall notify the Notary and the complainant of the determination in writing.
  8. Provides that if the Secretary of State determines further administrative action is appropriate, the Secretary shall take action under IC 33-42-13-1.
Analysis:

The Indiana Secretary of State’s office has adopted final rules to implement its remote notarization statute which takes effect this coming July 1. While most of the new rules provide detail on remote notarization applications, technology systems, identification procedures, electronic Notary seals, signatures and certificates, the rules also dive into matters related to Notary commission applications, continuing Notary education, status changes, and complaints.

Read the administrative rules.

Knowledge Center