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KS Temporary Regulations (2022)

Rule/Regulation

State: Kansas
Signed: July 07, 2022

Effective: June 30, 2022
Chapter: N/A

Summary
The Kansas Secretary of State has adopted temporary regulations to implement the Revised Uniform Law on Notarial Acts.
Affects

Adds Sections 7-43-7 through 7-43-24 to and repeals Sections 7-43-1 through 7-43-7 of the Kansas Administrative Regulations

Changes

Notary Commission Renewal

  1. Provides that a Notary commission and any notification to perform notarial acts on electronic records or for remotely located individuals may be renewed in the manner and on the form used for the initial application for a commission and notification.
  2. Provides that any application for renewal of a Notary commission may be submitted to the Secretary of State no sooner than 90 days before the expiration of the Notary's commission.
  3. Provides that when renewing a Notary commission, the Notary must also submit a notification and the appropriate fee if the Notary intends to continue performing notarial acts on electronic records or for remotely located individuals.

Surety Bond

  1. Requires each surety bond to be a commercial surety bond from an insurance company licensed to do business in Kansas. The surety bond shall be written for a term of four years, covering the dates of the Notary's commission.

Official Stamp on Tangible Records

  1. Requires each Notary's stamping device to be retained under the Notary's sole control.
  2. Provides that a Notary who obtains a new stamping device for use on a tangible record must destroy or render unusable any previous stamping device, if the previous stamping device will no longer be used.
  3. Provides that when replacing a stamping device that has been lost or stolen, the Notary must use a different style of official stamp to ensure that the new official stamp looks different from the prior official stamp.
  4. Provides that in addition to the requirements of state law, each Notary's official stamp for a tangible record must provide a space for the Notary to record the Notary's commission expiration date.

Official Stamp on Electronic Records

  1. Clarifies that an official stamp shall not be required to be within a minimum or maximum size when photographically reproduced on an electronic record.
  2. Requires each official stamp used on an electronic record to include the following: (a) the Notary's name exactly as indicated on the Notary's commission; (b) the words "State of Kansas" and "Notary Public"; (c) the Notary's commission number; and (d) the date of expiration of the Notary's commission.
  3. Requires each electronic stamping device to be retained under the Notary's sole control and be secured by the Notary by means of a password or other secure method of authentication.
  4. Prohibits a Notary from disclosing any access information used to affix the Notary's electronic signature or official stamp to electronic records, except when required by a court order or subpoena.
  5. Requires a Notary to promptly notify the Secretary of State on actual knowledge of the theft, vandalism, or unauthorized use by another person of the Notary's stamping device.

Notarial Certificates

  1. Provides short-form certificates for a notarial act, as specified.
  2. Provides that on a tangible record, a Notary must affix the notarial certificate directly on the record to be notarized, except that if a notarial certificate cannot be affixed to a record to be notarized because the record lacks adequate space for a notarial certificate, the Notary Must affix a notarial certificate to a separate page and attach the record to the notarial certificate by staple or other secure method so that the removal of the record or the addition of a record is discernible.
  3. Requires each attachment to include a description of the document to which it is attached.
  4. Requires that when performing a notarial act for a remotely located individual, the Notary shall electronically attach a notarial certificate to the document being notarized.
  5. Requires each notarial certificate for a notarial act for a remotely located individual to meet the following requirements: (a) State the name of the remotely located individual; (b) Provide the date the notarial act occurred; (c) Identify the state and county in which the notarial act was performed; (d) Include a description of the type of notarial act performed, which shall be sufficient if the description is substantially similar to a short form specified in K.A.R. 7-43-17; (e) Include a statement regarding the use of communication technology as specified in K.A.R. 7-43-17; and (f) Contain the Notary's official stamp that is attached to the record and signed by the Notary with the Notary's digital certificate.
  6. Requires a Notary to attach that individual's electronic signature to the notarial certificate on an electronic record in a manner that is capable of independent verification and renders any subsequent change or modification to the electronic record tamper-evident.
  7. Requires on each electronic record a Notary must attach or logically associate the Notary's electronic signature by use of a digital certificate to a notarial certificate that is affixed to or logically associated with the electronic record that is the subject of a notarial act.
  8. Requires a digital certificate to have tamper-evident technology meeting the following requirements: (a) The name on the electronic official stamp shall match the name, as stated on the application, under which the Notary is commissioned and performs all remote notarial acts. (b) The technology used to attach an electronic signature to a document shall allow the Notary's electronic to be attributed or uniquely linked to the Notary; be capable of independent verification; be retained under the Notary's exclusive control by use of passphrase protection; and be attached to or logically associated with the electronic document to which it relates in such a manner that any subsequent change of the electronic document is detectable.
  9. This regulation prohibits a Notary from performing a notarial act with respect to an electronic record if the 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.
  10. This regulation permits a Notary to attach an official stamp to a notarial certificate that is affixed to or logically associated with the electronic record.

Journal; Recordings; Record Retention and Repositories

  1. Requires a Notary to retain the Notary's Notary journal records under the Notary's sole control.
  2. requires a Notary's records to be capable of being reproduced in a tangible medium when requested.
  3. Clarifies that a journal shall be retained for at least 10 years after the last notarial act chronicled in the journal.
  4. Requires a Notary who performs a notarial act for a remotely located individual to maintain an audiovisual recording of all notarial acts in addition to a journal of notarial acts that contains the entries required under K.S.A. 53-5a20(c), and amendments thereto.
  5. Clarifies that each audiovisual recording shall be retained for at least 10 years after the recording is made.
  6. Requires a Notary who maintains a Notary journal in an electronic format to meet the following requirements: (a) Retain the journal and any audiovisual recordings in a way that protects the journal and recordings against unauthorized access by means of a password or other secure means; and (b) Take reasonable steps to ensure that a backup of the journal and audiovisual recordings exists and is secure from unauthorized use.
  7. Clarifies that on the death or adjudication of incompetency of a current or former Notary, the Notary's personal representative or guardian or any other person knowingly in possession of a journal or an audiovisual recording shall perform one of the following: (a) Comply with the retention requirements of this regulation; (b) Transmit each journal and audiovisual recording to one or more repositories under subsection (d); or (c) Transmit each journal and audiovisual recording in an industry-standard readable data storage device to the Secretary of State.
  8. Provides that a Notary, a guardian, conservator, or agent of a Notary, or a personal representative of a deceased Notary may, by written contract, engage a third party to act as a repository to provide the storage required by this regulation if a third party has verified to the Secretary of State under penalty of perjury that the party meets the requirements specified in this regulation.
  9. Requires the contract of a repository must meet either of the following requirements: (a) Enable the Notary, the guardian, conservator, or agent of the Notary, or the personal representative of the deceased Notary to comply with the retention requirements of this regulation even if the contract is terminated; or (b) Provide that the information will be transferred to the Notary, the guardian, conservator, or agent of the Notary, the personal representative of the deceased Notary, or the Secretary of State if the contract is terminated.

Notary Fees

  1. Clarifies that any Notary may charge a fee for performing a notarial act with respect to a tangible record or an electronic record or a notarial act for a remotely located individual.
  2. Provides that if a Notary charges a fee, the Notary must ensure that all the following requirements are met: (a) The fee must be disclosed to the signer and agreed to by the signer before the notarial act is performed. (b) The fee must be collected when the notarial act is performed (c) The fee must be recorded in the Notary's journal.
  3. Requires a Notary to disclose to the signer that the fee for a notarial act is permitted but is not required by state law or regulation.

Notification of Performing Notarial Acts on Electronic Records or for Remotely Located Individuals

  1. Authorizes to notify the Secretary of State that he or she will be performing notarial acts on electronic records or involving remotely located individuals.
  2. Authorizes an applicant for a Notary commission to to notify the Secretary of State that he or she will be performing notarial acts on electronic records or involving remotely located individuals at the same time.
  3. Authorizes a Notary to terminate the authorization at any time during the Notary's commission by submitting to the Secretary of State a form prescribed by the Secretary.
  4. Clarifies that each Notary may take the examination to qualify to perform notarial acts on electronic records or involving remotely located individuals as many times as necessary to achieve a passing score.
  5. Requires each Notary to provide the Secretary of State with proof of successful completion of the examination as part of the notification to perform notarial acts on electronic records or for remotely located individuals.
  6. Provides that the fee to notify the Secretary of State that the Notary will be performing notarial acts on electronic records or for remotely located individuals is $20.
  7. Requires a Notary, upon resignation or revocation of the Notary's commission, to request the provider of the Notary's digital certificate to revoke the digital certificate and provide evidence of the revocation to the Secretary of State.

Identification of Remotely Located Individuals

  1. Requires a Notary to use a multifactor authentication procedure, as specified in the rules, if the Notary does not have personal knowledge of the individual.
  2. Requires one factor of the multifactor authentication procedure to: (a) Analyze the identification credential presented by the remotely located individual against trusted third-person data sources using a process that (b) Use public or private data sources to confirm the validity of the identification credential, (c) Use automated software processes to aid the Notary in verifying the identity of each remotely located individual, (d) Require that the identification credential pass an authenticity test, consistent with sound commercial practices that use appropriate technologies to confirm the integrity of visual, physical, or cryptographic security features; (e) Confirm that the identification credential is not fraudulent or inappropriately modified; and provide the results of the authenticity test to the Notary; and (f) 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 identification credential details.
  3. Requires one factor of the multifactor authentication procedure to verify the remotely located individual's identity by requiring the individual to answer a quiz consisting of at least five questions related to the individual's personal history or identity and formulated from public or private data sources.
  4. Requires the quiz used for the multifactor authentication procedure to: (a) Have at least five possible answer choices; (b) Require at least 80 percent of the questions to be answered correctly; and (c) Require all questions to be answered within two minutes.
  5. Provides that if the remotely located individual fails to answer at least 80 percent of the questions correctly on the first attempt at the quiz, the individual may retake the quiz one time within 24 hours, with at least 40 percent of the prior questions replaced.
  6. Provides that if the remotely located individual fails the second attempt, the individual shall not be allowed to retake the quiz with the same Notary within 24 hours of the second failed attempt.
  7. Requires that the Notary shall not be able to see or record the questions or answers, but that the results indicating passage or failure of the quiz must be provided to the Notary.
  8. Requires after obtaining satisfactory evidence of the identity of the remotely located individual using a multifactor authentication process, the remotely located individual must visually compare for consistency the information and photo presented on the identification credential itself and the individual as viewed by the Notary in real time through communication technology, and the image resolution of the communication technology being used shall be sufficient to enable visual inspection by the Notary, including legible text and the clarity of identification credential features.
  9. Authorizes a Notary to obtain satisfactory evidence of the identity of a remotely located individual by oath or affirmation of a credible witness by means of one of the following: (b) Having personal knowledge of the identity of the credible witness; (b) The witness presenting an identification credential to the Notary, as required by K.S.A. 53-5a07(b)(2) and amendments thereto, if the credible witness is in the same location as the Notary; or (c) Utilizing the multifactor authentication procedure required by this regulation for verifying the identity of a remotely located individual and visually inspecting the identification credential presented by the witness if the witness is not in the same location as the Notary.
  10. Provides that if the remotely located individual must exit the notarization session at any point, the Notary must reverify the identity of the remotely located individual as required by the regulation.

Standards for Remote Notarial Acts

  1. This regulation prohibits a Notary from performing a notarial act for a remotely located individual if the Notary is not physically located in Kansas at the time of the notarization.
  2. Requires the audiovisual recording of a remote notarial act to include the following, at a minimum: (a) Confirmation by the Notary that the individual has successfully completed identity proofing and credential analysis; (b) Visual confirmation of the identity of the individual through visual inspection of the credential used during credential analysis; and (c) The actual notarial act performed.
  3. Requires the communication technology standards for notarial acts performed for remotely located individuals shall meet the following requirements, and the provider must submit evidence of compliance to the Secretary of State under penalty of perjury: (a) Provide for continuous, synchronous audiovisual feeds of sufficient video resolution and audio clarity to enable the Notary and the remotely located individual to see and speak with each other; (b) Provide a means for the Notary reasonably to confirm that the electronic record before the 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) Utilize a means of authentication that reasonably ensures that only the proper parties have access to the audiovisual recording; (d) Be capable of securely creating and storing or transmitting securely to be stored the recording of the audiovisual communication; (e) Keep confidential the questions asked as part of any identity proofing quiz and the means and methods used to generate the results of the credential analysis; and (f) Provide reasonable security measures to prevent unauthorized access.
  4. Provides that the reasonable security measures to prevent unauthorized access must include: (b) The live transmission of the audiovisual communication; (b) The recording of the audiovisual communication; and (c) The electronic records presented for electronic notarization.
  5. Clarifies that the Notary shall not be prohibited from receiving, installing, or using a hardware or software update to the technologies that the Notary identified in a notification form to perform notarial acts for remotely located individuals if the hardware or software update is not materially different from the technologies that the Notary identified on the notification form to perform notarial acts for remotely located individuals; provided, however, if the provider of the technology notifies the Notary that the hardware or software update is materially different, the Notary shall notify the Secretary of State of the updated technology.
  6. Clarifies that communication technology that is verified by the provider of the communication technology under penalty of perjury as meeting the requirements in this regulation must be approved by the Secretary of State.

Communication Technology Providers

  1. This rule clarifies that any Notary authorized to perform notarial acts for remotely located individuals may use a provider of communication technology and identity proofing if the provider has submitted evidence under penalty of perjury to the Secretary of State and to the Notary that the provider meets the requirements in K.A.R. 7-43-18 and 7-43-19(b), in addition to the following: (a) Allowing the Notary sole control of the recording of the notarial act using audiovisual communication, subject to the authorized access granted by the Notary; and (b) Providing the Notary with access to the recording of the notarial act using audiovisual communication technology.
  2. Requires a provider to make and retain a secure backup of any record that is related to a notarial act for a remotely located individual.
  3. Clarifies that if the provider of communication technology and the provider of the backup are the same entity and the provider ceases business operations, the provider shall notify the Notary in advance of the cessation of business operations and, at the Notary's request, shall release any record related to a notarial act performed for a remotely located individual by the Notary.
  4. Clarifies that if the provider of communication technology and the provider of the backup are separate entities, the provider of communication technology shall sign an agreement with the provider of the backup that includes both of the following requirements: (a) If the provider of communication technology or the provider of the backup ceases business operations, the entity ceasing business operations shall notify the other entity and the Notary in advance of the cessation of business operations. (b) At the Notary's request, the provider of the backup shall release to the Notary any record related to a notarial act for a remotely located individual performed by the Notary.
  5. Requires a provider of communication technology to protect from unauthorized access the audiovisual recording of each notarial act and any "personal information," as defined in K.S.A. 50-7a01 and amendments thereto, disclosed during the performance of a notarial act using communication technology.
  6. Requires the audiovisual recording must be created in an industry-standard file format and shall not include images of any electronic record on which the remotely located individual made a statement or on which the remotely located individual executed a signature.
  7. Requires a Notary to take reasonable steps to ensure that the communication technology used to perform a notarial act for a remotely located individual is secure from unauthorized interception.
  8. Authorizes a provider of communication technology to provide a hardware or software update to the technologies that the Notary identified in the notification form to perform notarial acts for remotely located individuals if the hardware or software update is not materially different from the technologies that the Notary identified on the notification form to perform notarial acts for remotely located individuals.
  9. Requires a provider of communication technology to offer an assurance to the Notary that the update does not represent a material difference from the technology that the Notary identified on the notification form provided to the Secretary of State.
  10. Clarifies that if the provider of the technology notifies the Notary that the hardware or software update is materially different from the hardware or software identified on the notification form to perform notarial acts for remotely located individuals provided to the Secretary of State, the Notary shall update the technology information with the Secretary.

Alleged Complaints and Errors by Notaries Public

  1. Authorizes any person to file a complaint, in writing, against a Notary with the Secretary of State.
  2. Requires each filed written complaint must be reviewed by the Secretary of State to determine the validity of the complaint.
  3. Provides that if the Secretary of State determines a complaint to be valid, written notification outlining the complaint and providing the Notary with 30 days from the date of the notification to respond shall be provided by the Secretary to the Notary.
  4. Provides that if the Secretary of State identifies an error in a notarization submitted to the Secretary's office, written notification outlining the error and providing the Notary with 30 days from the date of the notification to respond must be provided by the Secretary to the Notary.
  5. Provides that each response provided by a Notary must be reviewed by the Secretary of State before any action is taken regarding the Notary's commission.
  6. Provides that written notification must be provided by the Secretary of State to the Notary, stating any action taken regarding the Notary's commission as the result of a complaint received or error identified by the Secretary.
  7. Provides that if the Secretary of State suspends a Notary's commission, the Notary must, within 30 days before the end of the suspension, notify the Secretary of any changes to the Notary's commission that occurred during the suspension period, and that failure to comply with this requirement may result in revocation of the Notary's commission.

Other Provisions

  1. Repeals KAR 7-43-1, 7-43-2, 7-43-3, 7-43-4, 7-43-5, and 7-43-6.
  2. Defines “digital certificate,” “notarial certificate,” and “Secretary.”
Analysis

The Kansas Revised Uniform Law on Notarial Acts (RULONA), which took effect on January 1, 2022 through the enactment of Chapter 64 of 2021 (Senate Bill 106), required the Secretary of State to adopt regulations to implement the Act. The Secretary’s office has thus adopted temporary rules that will be in effect through October 28, 2022, at which time it is expected that permanent regulations based on the same temporary regulations will replace them. Like many states that have adopted rules to implement the RULONA, Kansas’s regulations relate primarily to the performance of notarial acts for remotely located individuals, but they also touch on other matters such as the official stamp, notarial certificates, and the complaint process.

Read the temporary regulations.

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