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LA Administrative Rules (2022)

Rule/Regulation

State: Louisiana
Signed: January 20, 2022

Effective: January 20, 2022
Chapter: N/A

Summary

Administrative rules from the Secretary of State implement Louisiana’s remote online notarization statute which takes effect February 1, 2022.

Affects
Adds Section 144 to Title 46, Part XLVI, Chapter 1 of the Louisiana Administrative Code.

Changes

Authorization to Perform Remote Online Notarization

  1. Provides that a Notary who has been duly appointed and commissioned as provided for under R.S. 35:191, who currently holds a valid commission as provided by R.S. 35:191(A)(3), and whose authority to exercise the functions of a Notary is not suspended may be authorized by the Secretary of State to perform remote online notarization.
  2. Provides that a Notary who seeks authorization to perform remote online notarizations must satisfy the following requirements: (a) submit an application using the form provided by the Secretary of State for authorization to perform remote online notarization during the term of that Notary’s commission, (b) successfully complete an education program provided by the Secretary of State covering the statutes and rules governing the remote online notarization, and (c) pay a one-time fee of $100 to the Secretary of State upon filing the application for authorization to perform remote online notarization.
  3. Clarifies that a Notary authorized to perform remote online notarization may do so for as long as (a) the Notary maintains a valid notarial commission as provided by R.S. 35:191(A)(3), (b) the authority of the Notary to perform notarial functions is not suspended, and (c) the authority of the Notary to perform remote online notarization has not suspended or revoked.

Identity Proofing Requirements

  1. Clarifies that identity proofing must be performed through either of the following: (a) dynamic knowledge-based authentication or (b) analysis of biometric data, including facial recognition, voiceprint analysis, or fingerprint analysis.
  2. Provides that dynamic knowledge-based authentication must: (a) consist of five questions related to the personal history or identity of the party or witness, formulated from public or proprietary data sources, (b) contain a minimum of five possible answer choices per question, (c) be answered within two minutes, and (d) following a failed attempt by a party or witness, be administered no more than once within a 24-hour period.
  3. Clarifies that the second administration of a dynamic knowledge-based authentication may consist of no more than 40 percent of the questions presented during the first administration.
  4. Clarifies that credential analysis must ensure that the credential is unexpired, government-issued identification credential that contains the photograph and signature of the party or witness whose identity is being verified by a process that uses automated software processes to aid the Notary in verifying the identity of a party or any witness.
  5. Clarifies that credential analysis must ensure the credential passes an authenticity test consistent with sound commercial practices.
  6. Provides that credential analysis must: (a) confirm the integrity of visual, physical, or cryptographic security features, (b) confirm that the credential is not fraudulent or modified in a manner not authorized by the issuing authority, (c) confirm the validity of personal information set forth on the credential when the issuing authority provides access to the information, (d) provide the output of the authenticity test to the Notary, (e) enable the Notary to visually compare the information and photo presented on the credential itself and the party or witness as viewed by the Notary through substantially simultaneous audio-visual transmission, and (f) enable the Notary to determine that the party or witness is in possession of the credential at the time of their remote online notarization.

Communication Technology Requirements

  1. Clarifies that communication technology systems must: (a) provide sufficient video resolution and audio clarity to enable the Notary, the party, and any witness to engage in substantially simultaneous communication by sight and sound, (b) provide sufficient captured-image resolution for credential analysis to be performed in accordance with Part D.2, (c) include a communication encryption protocol and means of authentication that reasonably ensures that only the parties, participating witnesses, and Notary have access to the audio-video communication, (d) ensure that the electronic record that is presented for remote online notarization is the same record electronically signed by the party, and (e) create and store or transmit securely to be stored an electronic recording of the audio-video communication, keeping confidential the questions asked as part of any identity-proofing process and the means and methods used to generate the credential analysis output
  2. Requires communication technology to prevent unauthorized access to (a) the live transmission of the audio-video communication, (b) any recording of the audio-video communication being stored or being transmitted by the communication technology, (c) the verification methods and credentials used to verify the indemnity of the party, and (d) the instrument presented for electronic notarization.
  3. Requires communication technology to also provide (a) for the Notary to maintain in the Notary’s records a copy of the remote online notarial act, (b) the Notary a method of generating a paper copy of the remote notarial act, (c) the Notary with a detailed audit record of the remote online notarization, (c) a means by which the Notary is able to add a statement to any document being notarized that the act is a remote notarial act, (d) a means by which the Notary is able to attach the Notary’s electronic signature and insert the Notary’s identifying information into the remote online notarial act, (e) a means by which each party and each witness can attach such person’s electronic signature, and (f) a means by which the Notary can digitally sign the remote online notarial act in a manner that renders any subsequent change or modification of the remote online notarial act to be evident. 

Other Requirements

  1. Requires the Secretary of State to maintain a registry of identity-proofing, credential-analysis, and communication providers who have certified by affidavit that their technologies meet the minimum requirements set forth in Parts C and D of the new rules.
Analysis

The Louisiana Secretary of State has adopted rules to implement Act No. 254 of 2020 (House Bill 274), which enacted remote online notarization for Louisiana Notaries. The bill had a delayed effective date of February 1, 2022. During this time the Secretary published proposed rules and the final rules were adopted as published.

Read the text of the new administrative rules (see pages 74-75).

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