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NE Administrative Rules (2017)

Rule/Regulation

State: Nebraska

Effective: July 01, 2017

Summary

New rules and regulations implementing Nebraska's Electronic Notary Public Act have been adopted by the Nebraska Secretary of State.

Affects

Adds Chapter 7 to Title 433 of the Nebraska Administrative Code.

Changes

Definitions

  1. Defines “Approved Electronic Notary Solution Provider” to mean a person or entity approved to provide an Electronic Notarization System by the Secretary pursuant to the Act.            
  2. Defines “Biometric Authentication” to mean proving the identity of a user by requiring verification of the user’s identity through technologies that require measurement and analysis of one or more human physiological or behavioral characteristics of the user in order to access and use an electronic notarization system, and clarifies that biometric authentication technologies include fingerprint scanning devices, retinal scanning devices, and handwriting analysis devices.
  3. Defines “Electronic Notarization System” to mean a set of applications, programs, hardware, software, or technology designed to enable a Notary to perform electronic notarizations.
  4. Defines “Independently Verifiable” to mean capable of government or third-party authentication of a notarial act, a Notary’s identity, and a Notary’s relevant authority.
  5. Defines “Password Authentication” to means requiring the user to enter a secret word, phrase, or symbol set in order to access and use an electronic notarization system.
  6. Defines “Token Authentication” to mean requiring use of a physical device in addition to a password or personal identification number (“PIN” number) in order to access and use an electronic notarization system, and clarifies that physical devices used in token authentication technologies include magnetic cards or “smart cards” and Universal Serial Bus (USB) memory sticks or “USB keys”.
  7. Defines “Under the exclusive control of the Notary public”, for the purposes of the Secretary’s interpretation of the requirements of Neb. Rev. Stat. § 64-310, to mean “under the Notary’s sole control” (see below).
  8. Defines “Under the Notary public’s sole control” to mean accessible by and attributable solely to the Notary to the exclusion of all other persons and entities, either through being in the direct physical custody of the Notary or through being secured with one or more biometric authentication, password authentication, token authentication, or other authentication technologies in an electronic notarization system provided by an approved electronic Notary solution provider approved pursuant to the Act and this Chapter (433 NSRR 7.002)

Registration

  1. Requires applicants or registration as an electronic Notary to provide all information required for registration pursuant to Neb. Rev. Stat. § 64-304;003.01.
  2. Requires applicants or registration as an electronic Notary to provide verification that the applicant holds a valid Nebraska Notary commission and continues to meet the qualifications to hold the Notary commission.
  3. Requires applicants or registration as an electronic Notary to provide verification that the applicant is in compliance with all provisions of Neb. Rev. Stat. §§ 64-101 through 64-118. 003.01.
  4. Requires applicants or registration as an electronic Notary to provide verification of the passage of the required course of instruction and examination as required pursuant to Neb. Rev. Stat. § 64-305.003.01.
  5. Requires applicants or registration as an electronic Notary to provide any other information requested by the Secretary to prove the qualifications of the applicant.
  6. Provides that a Notary applying to renew registration as an electronic Notary must indicate on the Notary renewal application that he or she is renewing registration as an electronic Notary and pay the fee for registration as an electronic Notary, in addition to the fee for renewal of his or her Notary.
  7. Provides that the Secretary of State will administer the training course and testing for applicants for electronic Notary registration.
  8. Provides that upon the Secretary's determination of a need for additional instructors, the Secretary may train certified Notary instructors who are also registered as electronic Notaries to administer the training course and testing for applicants for electronic Notary registration.

Physical Presence Requirement

  1. Requires an electronic Notary and principal signer of an electronic record requiring an electronic notarial to be in each other’s physical presence during the entire act, so that the principal and the electronic Notary public can see, hear, communicate with, and give identification documents to each other; and further clarifies that use of electronic devices such as telephones, computers, video cameras, or facsimile machines are not allowed.

Acknowledgments

  1. Requires each electronic signature requiring notarization and attestation in the form of an acknowledgment to be individually affixed to the electronic document by the principal signer and to be acknowledged separately by the principal signer, except in the following situations: (a) the notarized document is executed on behalf of any foreign or domestic corporation, non-profit corporation, professional corporation, limited liability company, unincorporated association or partnership, business trust, estate, partnership, trust; or the United States, any state, or any foreign government; and (b) the notarized document does not adversely affect the claim, right or obligation of another.

Electronic Notary Signature

  1. Requires an electronic Notary signature to be independently verifiable and unique to the electronic Notary public.
  2. Requires an electronic Notary signature to be retained under the electronic Notary’s sole control.
  3. Requires that when an electronic Notary performs an electronic notarization, the electronic signature used by the electronic Notary must be accessible by and attributable solely to the electronic Notary to the exclusion of all other persons and entities for the entire time necessary to perform the electronic notarization.
  4. Requires the electronic Notary signature to be attached or logically associated with the document, linking the data in such a manner that any subsequent alterations to the underlying document or electronic Notary certificate are observable through visual examination.
  5. Requires an image of the electronic Notary's handwritten signature to appear on any visual or printed representation of an electronic Notary certificate regardless of the technology being used to affix the electronic Notary's electronic signature.
  6. Requires access to electronic Notary signatures to be protected by the use of a password authentication, token authentication, biometric authentication, or other form of authentication approved by the Secretary according to Electronic Notary Public Act.

Electronic Notary Seal

  1. Requires an electronic Notary seal to be independently verifiable and unique to the electronic Notary public.
  2. Requires an electronic Notary seal to be retained under the electronic Notary’s sole control.
  3.  Requires that when an electronic Notary performs an electronic notarization, the electronic seal used by the electronic Notary must be accessible by and attributable solely to the electronic Notary to the exclusion of all other persons and entities for the entire time necessary to perform the electronic notarization.
  4. Requires the electronic Notary seal to be attached or logically associated with the document, linking the data in such a manner that any subsequent alterations to the underlying document or electronic Notary certificate are observable through visual examination.
  5. Requires an image of the electronic Notary's seal to appear on any visual or printed representation of an electronic Notary certificate regardless of the technology being used to affix the electronic Notary's electronic signature.
  6. Requires the perimeter of the electronic Notary seal to contain a border such that the physical appearance of the seal replicates the appearance of an inked seal on paper.
  7. Requires the electronic Notary seal to have, within its border, the electronic Notary’s name exactly as commissioned, the words “Electronic Notary Public”, the words “Nebraska” and the commission expiration date
  8. Prohibits the employer nor any of the employer's employees or agents to use or permit the use of an electronic Notary seal or signature by anyone other than the authorized electronic Notary to whom it is registered”
  9. Requires access to electronic Notary seals to be protected by the use of a password authentication, token authentication, biometric authentication, or other form of authentication approved by the Secretary according to Electronic Notary Public Act.

Journal of Electronic Notarial Acts

  1. Requires an electronic Notary to keep a journal of all electronic notarizations he or she performs and present this journal to the Secretary of State upon written request.

Solution Providers

  1. Requires any person or entity applying to the Secretary of State for designation as an approved electronic Notary solution provider to complete and submit an application to the Secretary for review and approval before authorizing any electronic Notary seals or electronic signatures to electronic Notaries.
  2. Provides that the application shall include the following information: (a)Hardware and software specifications and requirements for the provider's electronic notarization system, (b) a description of the type(s) of technology used in the provider's electronic notarization system, and (c) a demonstration of how the technology is used to perform an electronic notarization.
  3. Allows an electronic Notary solution provider to appeal the Secretary's rejection of the provider's application for designation as an approved electronic Notary solution provider as provided under the Nebraska Administrative Procedures Act.
  4. Requires each Electronic Notary applicant and each approved electronic Notary solution provider to provide a free and readily available viewer/reader so as to enable all parties relying on the electronically notarized record or document to view the electronic Notary signature and the electronic Notary seal without incurring any cost.
  5. Requires each Electronic Notary applicant and each approved electronic Notary solution provider to comply with the laws, policies, and rules that govern Nebraska Notaries.
  6. Requires each Electronic Notary applicant and approved electronic Notary solution provider to provide an electronic notarization system or solution that complies with the technical specifications of the rules and standards that govern electronic notarization processes and procedures in Nebraska.
  7. Requires each Electronic Notary applicant and approved electronic Notary solution provider to require the provider's principals or employees to take the mandatory electronic Notary education course and pass the required examination as is necessary to ensure the provider possesses sufficient familiarity with Nebraska's electronic Notary laws and requirements.
  8. Requires each approved electronic Notary solution provider to require Notaries to present the Electronic Notary Certificate to Perform Electronic Notary Acts prior to authorizing an electronic Notary seal and signature.
  9. Requires each approved electronic Notary solution provider to verify the authorization of a Nebraska Notary to perform electronic notarial acts by accessing Secretary's website and comparing the name and Notary commission expiration date with the information on the Electronic Notary Certificate to Perform Electronic notarial acts prior to authorizing an electronic Notary seal and signature.
  10. Requires each approved electronic Notary solution provider to provide prorated fees to align the usage and cost of the electronic Notary system or solution with the commission term limit of the electronic Notary purchasing the electronic Notary seal and signature.
  11. Requires each approved electronic Notary solution provider to suspend the use of any electronic notarization system or solution for any Notary whose commission has been revoked, suspended, or canceled by the Nebraska Secretary of State.
  12. Requires each approved electronic Notary solution provider to submit an exemplary of the electronic Notary signature and the electronic Notary seal to the Secretary for each electronic Notary public who subscribes to the provider’s electronic Notary solution.
  13. Requires an electronic Notary solution provider to notify the Secretary of State within 45 days of changes, modifications or updates to information previously submitted to the Secretary.
  14. Requires an electronic Notary solution provider to obtain approval of the Secretary of State before making available to Nebraska electronic Notaries any updates or subsequent versions of the provider's electronic notarization system.
Analysis

The Nebraska Secretary of State has published final rules and regulations implementing the Electronic Notary Public Act (LB 465 of 2016) that take effect on July 1, 2017. The rules and regulations define several terms, outline requirements for registration as an Electronic Notary, and state requirements for electronic Notary signatures and seals. The rules and regulations also require electronic Notaries to keep a journal of all electronic notarizations they perform. The rules favor the formal approval of electronic Notary system providers in a manner similar to Arkansas and Nebraska and provide rules for the approval of providers.

Read the rules and regulations.

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