NM Administrative Rule

Rule/Regulation

State: New Mexico
Signed: May 30, 2008

Effective: May 30, 2008
Chapter: N/A

Summary

New Mexico joins Arizona, Colorado, Kansas and North Carolina in issuing specific Administrative Rules for electronic notarization. New Mexico’s rules are a blend of provisions from Article III of the NNA’s Model Notary Act combined with the National E-Notarization Standards adopted by the National Association of Secretaries of State.

Affects

Creates new Sections 12.9.2.1 through 12.9.2.15 in the New Mexico Administrative Code

Changes

Provides definitions of “electronic,” “electronic document,” “electronic notarial act,” “electronically enabled notary public,” “‘electronic notary seal,’ and ‘official electronic seal,’” “electronic signature,” “electronic notarial certificate,” “notary electronic signature,” “‘physical appearance’ and ‘appears before the notary,’” “‘unique to the notary public’ and ‘under the sole control,’” “acknowledgment,” “affirmation” and “jurat.”
Requires a signer to be in the physical presence of a Notary for an electronic notarization and precludes familiarity with a person’s electronic signature as constituting a personal appearance before the Notary.
Clarifies that the methods for identifying signers for a paper notarization are the same as for an electronic notarization.
Requires a Notary to register the capability of performing electronic notarial acts with the Secretary of State before performing electronic notarizations by providing on a form prescribed by the Secretary: (a) the applicant’s commissioned name as a Notary; (b) the applicant’s commission expiration date and signature; (c) completion of a course of instruction on electronic notarization offered by an educational provider accredited by the Accrediting Council of Continuing Education and Training (ACCET) (Note: the NNA is currently accredited by the ACCET); (d) the applicant’s e-mail address; (e) a description of the technology or technologies to be used in attaching an electronic notarial certificate to an electronic document; (f) a description of the technology or technologies to be used in attaching the Notary’s electronic signature to the electronic document; (g) an exemplar of the Notary’s electronic signature and seal, including any instructions or techniques that allow the electronic signature or seal to be read; (h) the name, address and phone number of the vendor issuing the electronic Notary seal, who must be registered to transact business in the state of New Mexico; and (i) the starting and expiration dates of any device used to create an electronic signature, and any revocations, annulment, or other premature termination of any registered device that was due to misuse or compromise of the device, including all relevant information explained in detail.
Specifies the authorized electronic notarial acts that electronic Notaries may perform, including acknowledgments, jurats and oaths and affirmations. (Note: A “signature witnessing,” which is an authorized “paper” notarial act, is not specifically listed as an official type of electronic notarial act.)
Stipulates that when performing an electronic notarization, a Notary must: (a) attach or logically associate an electronic signature with an electronic document in such a manner that removal or alteration of the electronic signature is detectable and will produce evidence of such alteration; (b) attach or logically associate an electronic Notary seal with an electronic document in such a manner that removal or alteration of the electronic signature is detectable and will produce evidence of such alteration; and (c) complete and attach or logically associate an electronic notarial certificate with an electronic document in such a manner that removal or alteration of the electronic signature is detectable and will produce evidence of such alteration.
States that the “the notary public’s electronic signature and with (sic) the electronic notary seal shall be used only for the purpose of performing electronic notarial acts.”
Clarifies that an electronic Notary shall use an electronic Notary seal when required by law, but that an electronic image of a seal need not accompany an electronic signature.
Provides that a Notary’s electronic signature and electronic seal are reliable if the signature and seal are: (a) unique to the Notary; (b) capable of independent verification; (c) retained under the Notary’s sole control; (d) attached to or logically associated with the electronic document; and (e) linked to the data in such a manner that any subsequent alterations to the underlying document or electronic notarial certificate produce evidence of the change.
Prescribes that for taking an electronic acknowledgment, administering an oath or affirmation or performing an electronic jurat the Notary may charge a maximum fee of $10, charge less than the maximum fee or waive the fee.
Prohibits a Notary’s employer from establishing fees for electronic notarial acts that are in excess of the maximum fee allowed by rule.
Requires an electronic Notary whose e-mail address has changed to electronically transmit a notice of the change signed with the Notary’s official electronic signature to the Secretary of State within five days of the change.
Applies the same penalties for improper performance of paper-based notarial acts as described in the New Mexico Notary Handbook to electronic notarizations.
States that performing an electronic notarization without registering with the Secretary of State is subject to penalties as described in the New Mexico Notary Handbook.

Analysis

New Mexico joins Arizona, Colorado, Kansas and North Carolina in issuing specific Administrative Rules for electronic notarization. New Mexico's rules are a blend of provisions from Article III of the NNA's Model Notary Act combined with the National E-Notarization Standards adopted by the National Association of Secretaries of State. The statutory authority for the new Administrative Rules was conferred by New Mexico's enactment of the Uniform Real Property Electronic Recording Act, which included a provision that gave the Secretary of State authority to publish rules for electronic notarization.

Curiously, the Rules require a Notary who desires to perform electronic notarizations to successfully complete an educational course, when to become a paper-based Notary one is not required to complete a course. As an accredited course provider of the Accrediting Council of Continuing Education and Training (ACCET), the NNA is well-positioned to provide this educational course to New Mexico Notaries, and the NNA's Electronic Notary Seal meets or exceeds all applicable requirements for an electronic seal.

Read New Mexico Administrative Code Title 12 Chapter 9 Part 2.