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Rule

Kentucky Emergency Regulations (2020)

Notary Law Update: Kentucky Emergency Regulations (2020)

State: Kentucky

Summary:

The Secretary of State issues emergency regulations to implement the provisions of Senate Bill 114 related to notarial acts, notarial acts respecting electronic records and online notarizations.

Signed:  December 30, 2019

Effective:  January 01, 2020

Chapter: N/A

Affects:

Adds new Sections to Title 30, Chapter 8 of the Kentucky Administrative Regulations.

Changes:

Definitions

  1. Defines “digital certificate,” “member of the Notary’s immediate family,” “online notarial act,” and “Notary technology.”

Notary Commission

  1. Requires individuals who apply for a Notary commission to use a form provided by the Secretary.
  2. Prescribes the information required in the Notary commission application form.
  3. Requires the commission application to be signed under penalty of perjury.
  4. Clarifies that a Notary commission is effective on the date of entry of that commission in the Secretary of State’s database of Notaries Public.
  5. Prescribes the grounds for the Secretary of State disapproving a Notary commission application.
  6. Allows a Notary to terminate a Notary commission by notifying the Secretary of State in writing or on an electronic portal created by the Secretary.
  7. Requires a Notary to notify the Secretary of State if there is a change of any of the following information: (a) A change in the mailing, physical or electronic mail address of the  Notary; (b) A change in the county of residence of the  Notary; (c) A change in the legal name of the  Notary; (d) A change in the  Notary’s signature; (e) A change in the  Notary’s electronic signature, if any; and (f) A change in the Notary technology used by the  Notary.

Online Notary Registration

  1. Clarifies that a Notary is authorized to perform notarial acts with respect to electronic records by being commissioned as a Notary Public, registering with the Secretary of State to perform notarial acts with respect to electronic records, and receiving written authorization to perform electronic notarial acts from the Secretary.
  2. Clarifies that a Notary is authorized to perform online notarial acts by being commissioned as a Notary Public, registering with the Secretary of State to perform online notarizations, and receiving written authorization to perform online notarial acts from the Secretary.
  3. Provides that registration to perform notarial acts with respect to electronic records and online notarizations must be by electronic registration to the Secretary of State.
  4. Specifies the personal information an applicant to perform notarial acts with respect to electronic records and online notarizations must provide to register to perform these acts.
  5. Specifies the registration requirements surrounding the technology a Notary will use to perform electronic and/or online notarizations, including the technologies or devices to maintain a journal and to render electronic records tamper-evident.
  6. Provides that if during the term of a Notary’s commission, the Notary intends to use other technologies than those identified when registering to perform electronic and/or online notarial acts, the Notary must notify the Secretary in accordance with the manner established by the Secretary on the Secretary’s website.
  7. Provides the grounds for which the Secretary of State may disapprove a registration to perform electronic and/or online notarizations.
  8. Allows a Notary to terminate an electronic registration by notifying the Secretary of State in writing or on any electronic portal created by the Secretary.
  9. Clarifies that termination of electronic registration does not terminate a Notary’s commission.
  10. Provides that renewal of a Notary commission of a Notary who has previously registered to perform electronic and/or online notarial acts constitutes renewal of the Notary’s registration to perform those acts without the necessity of submitting another registration.
  11. Clarifies that a Notary is not prohibited from receiving, installing, or using a hardware or software update to the technologies that the Notary identified in a registration if the hardware or software update does not result in technologies that are materially different from the technologies that the Notary identified.

Electronic Signature and Official Stamp

  1. Requires the tamper-evident technology a Notary must select to perform notarial acts with respect to electronic records to consist of a digital certificate complying with the X.509 standard adopted by the International Telecommunication Union or a similar industry-standard technology.
  2. Requires a Notary to attach or logically associate the Notary’s electronic signature and official stamp, if used, to an electronic record that is the subject of a notarial act by use of the digital certificate.
  3. Prohibits a Notary from performing an electronic notarization if the Notary’s digital certificate: (a) Has expired; (b) Has been revoked or terminated by the issuing or registering authority; (c) Is invalid; or (d) Is incapable of authentication.
  4. Clarifies that a Notary is not required to use an official stamp when performing notarial acts, notarial acts with respect to electronic records or online notarizations.
  5. Clarifies that a Notary who uses an official stamp must use the same unique official stamp for all notarial acts with respect to electronic records that are performed for an individual that is not remotely located and for all online notarizations.
  6. Clarifies that an official stamp used for notarizations with respect to electronic records and online notarizations is an official seal of office of the Notary Public for all purposes.
  7. Provides that an official stamp used for notarial acts with respect to electronic records and online notarizations must conform to the following design: a rectangular or circular seal with the Notary’s name as it appears on the commission, the words “Commonwealth of Kentucky” and “Notary Public”, the Notary’s commission number, and the Notary’s commission expiration date.
  8. Provides that if an online Notary uses an official stamp to perform online notarizations, the official stamp must contain the words “Online Notary Public” in lieu of the words “Notary Public.”
  9. Clarifies that an official stamp that contains the words “Online Notary Public” may only be used to perform notarizations with regard to remotely located individuals.
  10. Provides that an official stamp used for notarial acts with respect to electronic records and online notarizations must be clear, legible, and photographically reproducible.
  11. Clarifies that an official stamp is not required to be within a minimum or maximum size when photographically reproduced on an electronic record.
  12. Clarifies that if a Notary elects not to use an official stamp when performing notarial acts with respect to electronic records, the certificate of the notarial act on the electronic record must: (a) Contain the name of the Notary as it appears on the Notary’s commission; (b) Indicate the title “Notary Public” for any notarial act with respect to electronic records; and (c) Indicate the Notary’s commission number and commission expiration date.
  13. Clarifies that if a Notary elects not to use an official stamp when performing online notarial acts, the certificate of the notarial act on the electronic record must: (a) Contain the name of the Notary as it appears on the Notary’s commission; (b) Indicate the title “Online Notary Public” for any notarial act with respect to a remotely located individual; and (c) Indicate the Notary’s commission number and commission expiration date.
  14. Provides that a Notary is responsible for the security of the Notary’s stamping device and may not allow another individual to use the device to perform a notarial act.
  15. Requires a Notary to take reasonable steps to maintain the security of the Notary signature and stamping device and to not disclose any access information used to affix the Notary’s electronic signature or official stamp to electronic records, 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 notarial acts with a vendor or other technology provider identified in 30 KAR 8:005, Section 5(g).
  16. Prohibits a Notary from allowing any other individual to alter or use the Notary’s electronic signature, Notary technology, official stamp or stamping device to perform a notarial act.
  17. Requires a Notary to destroy or disable the Notary’s Notary technology and electronic stamping device, including any coding, disk, digital certificate, card, software, or password, that enables the Notary to attach or logically associate the Notary’s electronic signature or official stamp to an electronic record upon resignation, revocation, or expiration of the Notary’s commission.
  18. Clarifies that a former Notary whose commission terminated for a reason other than revocation or denial of renewal is not required to destroy the Notary’s Notary technology or electronic stamping device if the former Notary is recommissioned as a Notary within thirty days after the termination of the Notary’s former commission.
  19. Requires a Notary to promptly notify the Secretary of State on actual knowledge of the theft or vandalism of the Notary’s Notary technology or electronic stamping device.
  20. Requires a Notary to promptly notify the Secretary of State on actual knowledge of the unauthorized use by another person of the Notary’s electronic signature, Notary technology or electronic stamping device.

Standards for Online Notarial Acts

  1. Authorizes a Notary to certify that a tangible copy of an electronic record is an accurate copy of the electronic record if the Notary has taken reasonable steps to confirm the accuracy of that certification.
  2. Requires an online Notary to be physically located in Kentucky at the time of the performance of an online notarization.
  3. Provides that identity proofing for an online notarial act must: (a) Include remote presentation of an appropriate identification by the remotely located individual; (b) Include credential analysis of that credential by a service or process that analyzes the person’s identity credential; (c) bind the individual’s identity to the individual following a successful dynamic knowledge-based authentication assessment; and (d) Permit the Notary to visually compare the identity credential and the individual.
  4. Provides that credential analysis used to identify a remotely located individual for an online notarization must: (a) Use public or private data sources to confirm the validity of the identity credential that is the subject of remote presentation by a remotely located individual; (b) Use automated software processes to aid the online Notary in verifying the identity of each remotely located individual; (c) Require that the identity credential pass an authenticity test, consistent with sound commercial practices that uses 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; (d) 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 details and identity credential details; and (e) Enable the online Notary to visually compare for consistency the information and photograph on the identity credential and the remotely located individual as viewed by the online Notary in real time through communication technology.
  5. Provides that dynamic knowledge-based authentication used to identify a remotely located individual for an online notarization must: (a) Require a minimum of 5 questions related to the individual’s personal history or identity formulated from public or private data sources; (b) Require each question to have a minimum of 5 possible answer choices; (c) Require at least 80% of the questions to be answered correctly; (d) Require all questions must be answered within 2 minutes; (e) If the remotely located individual fails the first attempt, allow the individual to attempt the authentication assessment 1 additional time within 24 hours; (f) During the second authentication assessment, require a minimum of 40% of the prior questions to be replaced; (g) If the remotely located individual fails the second authentication assessment, prohibit the individual from attempting identity authentication with the same online Notary within 24 hours of the second failed authentication assessment; and (h) Prohibit the online Notary from seeing or recording the questions or answers.
  6. Clarifies that in addition to identity proofing, an online Notary has satisfactory evidence of the identity of a remotely located individual if the online Notary: (a) Has personal knowledge of the identity of the individual, or (b) If the individual is identified by oath or affirmation of a credible witness, or (c) If the online Notary has reasonably verified the identity of the individual by use of a valid public key certificate.
  7. Requires a credible witness who identifies a remotely located individual for an online notarization to have personal knowledge of the remotely located individual.
  8. Provides that if the credible witness who identifies a remotely located individual for an online notarization is a remotely located individual, then the online Notary must reasonably verify the credible witness’s identity under Section 3 of the administrative regulations or have personal knowledge of the credible witness.
  9. Allows a credible witness to be a remotely located individual if the online Notary, credible witness, and individual whose statement or signature is the subject of the online notarization can communicate by using communication technology.
  10. Requires a public key certificate used by a Notary to identify a remotely located individual must: (a) Meet the requirements of a digital certificate, as that term is defined in 30 KAR 8:005 Section 1; (b) Comply with the X.509 standard adopted by the International Telecommunication Union or a similar industry-standard technology; and (c) Be issued by a technology provider or digital certificate service registered with the Secretary of State pursuant to Section 7 of the emergency regulations.
  11. Clarifies that a public key certificate used by a Notary to identify a remotely located individual is not valid for identity verification if the public key certificate has expired, has been revoked or terminated by the issuing or registering authority, is invalid, or is incapable of authentication.
  12. Provides that communication technology used by an online Notary in the performance of online notarizations must provide: (a) Synchronous audio-video feeds of sufficient video resolution and audio clarity to enable the online Notary and remotely located individual to see and speak with each other; (b) A means for the online Notary reasonably to confirm that a record before the online Notary is the same record in which the remotely located individual made a statement or on which the remotely located individual executed a signature; (c) Reasonable security measures to prevent unauthorized access to the live transmission of the audio-visual feeds, the methods used to perform the identify verification process under Sections 3 or 4 of this administrative regulation, as applicable; and the record in which the remotely located individual made a statement or on which the remotely located individual executed a signature.
  13. Clarifies that if a remotely located individual must exit the RON workflow, the individual must restart from the beginning the identity verification process under Sections 3 and 4 of the emergency regulations.

Notary Technology Vendors

  1. Requires Notary technology providers to register with the Secretary of State.
  2. Provides the informational requirements, as specified, each provider must include on the registration to the Secretary of State.
  3. Provides that complaints against a Notary technology provider may be registered with the Secretary of State.
  4. Provides that the Secretary of State may investigate a complaint against a Notary technology provider and provides the information which may be required for the investigation.
  5. Requires a Notary technology provider to cooperate fully with an investigation into a complaint against the provider and that failure to do so may result in revocation of the provider’s registration.
  6. Requires a Notary technology provider to respond to all requests for information from the Secretary of State within the time directed.
  7. Requires a Notary technology provider to take reasonable steps to ensure that a Notary or digital certificate holder is able to use the technology provided.
  8. Requires a Notary technology provider to suspend the use of any technology for any notary or digital certificate holder whose commission, registration, or digital certificate has expired, been revoked or been suspended.

Records and Record Retention Requirements

  1. Requires a Notary that is registered to perform notarial acts with respect to electronic records or notarial acts involving remotely located individuals using communication technology to maintain one or more journals in a permanent, tamper-evident electronic format to chronicle those notarizations.
  2. Requires a journal entry to be made contemporaneously with the performance of the notarial act and contain: (a) The date and time of the notarial act; (b) A brief description of the record, if any and the type of notarial act; (c) The full name and address of each individual for whom a notarial act is performed; (d) A statement of how identification was established and a description of any identification credential presented including the type of credential and dates of issuance and expiration of the credential; (e) The fee charged, if any; and (f) For a notarial act involving remotely located individuals using communication technology, an audio-visual recording (or a link thereto) of the performance of the notarial act that complies with KRS Chapter 423 and the emergency regulations.
  3. Requires a journal to be created and stored in a computer or other electronic storage device or process that protects the electronic journal and any audio-visual recording against unauthorized access by password or cryptographic process.
  4. Requires all notarial acts performed using communication technology to be electronically recorded.
  5. Requires the recording of an online notarization to contain a recitation that the Notary has informed the individuals participating in the notarial act that it will be electronically recorded.
  6. Requires a recording of an online notarization to be created in an industry-standard audio-visual file format and must not include images of any record in which a remotely located individual made a statement or on which the remotely located individual executed a signature.
  7. Requires an electronic journal to be retained for at least 10 years after the last notarial act chronicled in the journal and an audio-visual recording to be retained for at least 10 years after the recording is made.
  8. Prohibits a journal entry from recording an identification number assigned to an individual by a governmental agency or any biometric identifier.
  9. Requires a Notary to take reasonable steps to ensure that a backup of the journal and audio-visual recording exists and is secure from unauthorized use.
  10. Provides that on the death or adjudication of incompetency of a current or former Notary that is registered to perform notarial acts with respect to electronic records or notarial acts involving remotely located individuals, the online Notary’s personal representative or guardian or any other person knowingly in possession of a journal or audio-visual recording must: (a) Comply with the retention requirements of the emergency rules; (b) Transmit the journal and recording to one or more repositories as specified in the emergency regulations; or (c) Transmit the journal and recording in an industry-standard readable data storage device to the Notary’s technology provider.
  11. Allows a Notary that is registered to perform notarial acts with respect to electronic records or notarial acts involving remotely located individuals, a guardian, conservator, or agent a Notary, or a personal representative of a deceased online Notary to, by written contract, engage a third person to act as a repository to provide the storage required by the emergency regulations.
  12. Clarifies that a third person under contract under Section 6 of the emergency regulations will be deemed a repository or custodian under KRS 423.380 (8) or KRS 423.455(5), as applicable.
  13. Requires the contract for a third-party repository to: (a) Enable the registered Notary, the guardian, conservator, or agent of the registered Notary, or the personal representative of the deceased registered Notary to comply with the retention requirements of the emergency regulations even if the contract is terminated; or (b) Provide that the information will be transferred to the registered Notary, the guardian, conservator, or agent of the registered Notary, or the personal representative of the deceased registered Notary if the contract is terminated.
  14. Provides that a Notary is responsible for the security of the Notary’s journal and may not allow another individual to use the journal to perform a notarial act.
  15. Requires a Notary to take reasonable steps to maintain the security of the journal and not allow access to the Notary’s journal, 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 notarial acts with a vendor or other technology provider identified in 30 KAR 8:005, Section 5.
  16. Requires a Notary to promptly notify the Secretary of State of a lost or stolen journal upon discovering the journal is lost or stolen.
  17. Provides that upon the revocation, resignation, termination or suspension of the commission of the Notary or the revocation, resignation, termination or suspension of the registration of the Notary to perform notarial acts with respect to electronic records and notarial acts involving remotely located individuals using communication technology, the Notary must retain the journal in accordance with the provisions of the emergency regulations.

Complaints and Administrative Action Against a Notary

  1. Provides that failure to comply with a provision of KRS 423.395 may result in the denial, refusal to renew, revocation, suspension or conditioning of a Notary commission and may result in disciplinary action.
  2. Provides that denial, refusal to renew, revocation, suspension or conditioning of a Notary commission will result upon notification to the Secretary of State of: (a) A conviction of felony or crime involving fraud, dishonesty or deceit; (b) A finding against, or admission of liability by, the Notary in any legal proceeding or disciplinary action alleging fraud, dishonesty or deceit by the Notary; or (c) A judicial determination of liability in a suit for fraud, misrepresentation or for failure to discharge the duties of a Notary.
  3. Requires a Notary to promptly notify the Secretary of State, in writing, of a conviction, finding, admission of liability, or judicial determination of liability as defined in Section 7 of the emergency regulations.
  4. Allows any person who knows a Notary has been convicted of felony or crime involving fraud, dishonesty or deceit or that there has been a finding against, or admission of liability by, a Notary in any legal proceeding or disciplinary action alleging fraud, dishonesty or deceit by the Notary may file a complaint against the Notary with the Secretary of State.
  5. Requires a complaint against a Notary to be in writing, dated, and signed by the person making the complaint.
  6. Provides that a complaint against a Notary that does not comply with the requirements of Section 7 of the emergency regulations will not be filed, responded to or acted upon by the Secretary of State.
  7. Provides that any condition, restriction, suspension or revocation of a Notary commission will automatically have the same effect on the electronic or online registration the Notary holds.
Analysis:

The Kentucky Secretary of State’s office has published temporary rules governing notarial acts performed for remotely located individuals that took effect on January 1, 2020, the effective date of Senate Bill 114 which enacted wide-sweeping notarization and remote online notarization provisions. The rules clarify procedures for applying for a Notary commission and how a Notary notifies the Secretary of State that the Notary will be performing notarial acts with respect to electronic records and for remotely located individuals. The rules also outline technology requirements for executing an electronic signature and affixing an electronic seal, for the communication technology a Notary uses, and for the identity proofing process a Notary uses to verify the identity of remotely located individuals. The emergency rules require a Notary who performs remote online notarizations to keep a journal of notarial acts in electronic form and require a Notary to keep audio-visual recordings of each notarial act performed for a remotely located individual. Finally, the emergency rules specify retention requirements for the audio-visual recordings.

To read the emergency regulations, click the PDF download link below.

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