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Rule

KY Administrative Regulations (2020)

Notary Law Update: KY Administrative Regulations (2020)

State: Kentucky

Summary:

The Kentucky Secretary of State has adopted permanent regulations to implement KRS 423.300 to 423.455 and to establish forms and procedures applicable to the registration of Notaries.

Signed:  August 20, 2020

Effective:  August 20, 2020

Chapter: N/A

Affects:
Adds Chapter 8:005 to Title 30 of the Kentucky Administrative Regulations.Changes:

Definitions

  1. Defines “digital certificate,” “electronic record,” “Notary technology,” “online notary public,” and “tangible record.”

Notary Commission

  1. Requires individuals who apply for a Notary commission to use a form or electronic portal provided by the Secretary.
  2. Prescribes the information, as specified, 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, as specified, 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 and clarifies that a notification of termination of a Notary commission automatically terminates any registration (to perform electronic or online notarial acts).
  7. Requires a Notary to notify the Secretary of State if there is a change of any of the following information on a form or an electronic portal the Secretary provides within 10 days of the change: (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.

Registration to Perform Notarial Acts on Electronic Records and Electronic Notarizations

  1. Specifies the personal information an applicant to perform notarial acts with respect to electronic records and electronic notarizations must provide to register to perform these acts.
  2. 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.
  3. Requires a registrant to submit a copy of the registrant’s electronic signature, digital certificate, official stamp, if any, along with any instructions or techniques supplied by a vendor or Notary that allows the signature and stamp to be read or authenticated in PDF format.
  4. Requires a registrant to submit an explanation of the methods or technology by which the registrant will maintain and store the journal required by KRS 423.380.
  5. Requires a registrant to submit the registration form electronically to the Secretary of State as provided by information posted on the Secretary’s website.
  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.

Clarifies that termination of electronic registration does not terminate a Notary’s commission.

  1. 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.
  2. 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 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 electronic 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 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. 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.
  14. 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(6)(a).
  15. 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.
  16. 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.
  17. 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 30 days after the termination of the Notary’s former commission.
  18. 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.
  19. 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 Electronic Notarizations

  1. Clarifies that an online Notary Public must comply with the registration requirements in Section three of the regulations and the standards for notarial acts with respect to electronic records in Section 4 of the regulations.
  2. 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.
  3. Requires an online Notary to be physically located in Kentucky at the time of the performance of an electronic notarization.
  4. Provides that an online Notary Public has satisfactory evidence of the identity of a remotely located individual if the online Notary Public has personal knowledge of the individual and that if an online Notary does not have personal knowledge of the individual, the identity of the remotely located individual must be established by two forms of identity proofing.
  5. Provides that identity proofing for an online notarial act must: (a) Include remote presentation of an appropriate government-issued identification card that contains a signature and photograph by the remotely located individual; (b) Include credential analysis of that identification card 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.
  6. 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) At a minimum use automated software processes to aid the online Notary in verifying the identity of each remotely located individual; (c) At a minimum 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) At a minimum 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) At a minimum 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.
  7. 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.
  8. 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 the regulations.
  9. 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.
  10. 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 audio-visual feeds, the methods used to perform the identity verification process under the regulation; and the record in which the remotely located individual made a statement or on which the remotely located individual executed a signature.
  11. Clarifies that if a remotely located individual must exit the RON workflow, the individual must restart from the beginning the identity verification process as prescribed under the 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.

Journals, Audio-Visual Recordings and Record Retention Requirements

  1. Requires a Notary that is registered to perform notarial acts with respect to electronic records or electronic notarizations 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 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 audio-visual recording to contain a recitation that the Notary has informed the individuals participating in the notarial act that it will be electronically recorded.
  6. Requires an audio-visual recording 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 electronic notarizations, 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 electronic notarizations, 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 regulations.
  12. Clarifies that a third person under contract 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 regulations.

Standards for Use of Communication Technology with Respect to Notarial Acts on Tangible Records

  1. Requires a Notary to, prior to the initial use of communication technology in the performance of notarial acts with respect to tangible records, notify the Secretary of State in writing by email or regular U.S. mail.
  2. Requires the notice to identify the communication technology the Notary has selected that is capable of creating an audio-visual recording of the performance of the notarial act.
  3. Provides that a Notary has satisfactory evidence of the identity of a remotely located individual for a notarial act using communication technology on a tangible record if: (a) The Notary has personal knowledge of the identity of the remotely located individual; (b) The remotely located individual is identified by oath or affirmation of a credible witness appearing in person or by means of communication technology before the Notary; or (c) The Notary is reasonably able to identify the remotely located individual by at least two (2) different types of identity-proofing processes or services as provided in the administrative regulations.
  4. Requires a Notary who performs notarial act with respect to tangible records to create and maintain for a period of not less than ten (10) years, an audio-visual recording of the performance of the notarial act.
  5. Requires a certificate executed by a Notary for the performance of a notarial act using communication
  6. technology with respect to tangible records to contain the statement, “This notarial act involved the use of communication technology.”

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, but will not invalidate a notarial act performed by a Notary.
  2. Provides that denial, refusal to renew, revocation, suspension or conditioning of a Notary commission shall 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 8 of the regulations.
  4. Allows any person who knows of a violation to 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 8 of the 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.
  8. Provides that the Secretary of State shall review any complaint filed against a Notary to determine whether the allegations in the complaint would establish a violation and any appropriate disciplinary action.
  9. Provides that any appropriate disciplinary action will be informed by the following factors: (a) Nature and severity of the act, violation, or crime committed; (b) Number and variety of current violations; (c) Evidence pertaining to the requisite honesty, credibility, truthfulness, and integrity of the Notary; (d) Actual or potential harm to the general public, group, individual or customer; (e) History of complaints; and (f) Prior disciplinary record or warning.
  10. Provides that the Secretary of State shall inform the Notary of any disciplinary action by mailing a notice of disciplinary action to the home address of the Notary on file.
  11. Provides that the notice of disciplinary action shall inform the Notary of the basis for the disciplinary action and the right to a hearing.
  12. Requires the Secretary of State to certify any disciplinary action to the clerk of the county in which the Notary received his or her commission.
Analysis:

In this lengthy administration regulation, the Kentucky Secretary of State finalizes regulations the Secretary began in early January when emergency regulations were issued to implement Kentucky’s new Notary statute that took effect on January 1, 2020. These final regulations contain many of the provisions of the prior emergency rules. The regulations cover rules for applying for a Notary commission and registering to perform notarial acts on electronic records as well as “electronic notarizations” (Kentucky’s term for remote online notarizations used in other jurisdictions), standards for performing these notarizations, journal and audio-visual recording and retention requirements, and procedures related to complaints and discipline of Notaries Public.

To read the administrative regulations, click Download PDF below. See pages 35-41.

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