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NM Administrative Rules (2021)

Rule/Regulation

State: New Mexico

Effective: January 01, 2022

Summary

The New Mexico Secretary of State has adopted permanent rules implementing the Revised Uniform Law on Notarial Acts (Senate Bill 12 of 2021) for notarial acts on paper and electronic records and those involving remotely located individuals (remote notarization).

Affects
Repeals Part 2 of, and adds Parts 3 and 4 to, Title 12, Chapter 9 of the New Mexico Administrative Rules.
Changes

Definitions

  1. Defines “certified tangible copy of an electronic record,” “county clerk duties,” “credential analysis,” “deputy county clerk,” “electronic record,” “identity credential,” “in-person electronic notarization,” “knowledge-based authentication,” “notary seal,” “remote online notarization (RON),” “remote online notarization system,” “remote online notarization system provider,” “tamper-evident,” “tangible copy,” and “tangible record.”

Notary Commission; Education and Examination

  1. Provides that an applicant for a Notary commission shall use the applicant’s name as it appears on the applicant’s state-issued identification.
  2. Requires an applicant to provide to the Secretary of State: (a) proof of having successfully completed an approved training course and passing the required examination; (b) a true and complete copy of a surety bond pursuant to NMSA 14-14A-20 Subsection D; (c) an executed oath of office notarized by a notarial officer using the prescribed form issued by the Secretary of State pursuant to NMSA Section 14-14A-20 Subsection C; and (d) a non-refundable application fee of $30.
  3. Requires the surety bond to contain the applicant’s notarized signature listed as the principal or sole applicant.
  4. Provides that the Secretary of State shall issue a Notary certificate of commission containing the Notary’s commission number and term expiration date to the applicant once the Secretary determines that: (a) the applicant has met the qualifications to be commissioned as a Notary; (b) the name on the bond, on the application, and the signatures on those documents are the same; and (c) the applicant has not previously had a Notary commission denied or revoked.
  5. Requires a Notary within 45 days of receiving the Notary commission and prior to the Notary performing his or her first notarial act, to provide a copy of the applicant’s official stamp to the Secretary of State, and further provides that failure to provide this information shall result in a referral to the State Ethics Commission.
  6. Clarifies that a notarial officer may apply and must receive approval before conducting remote online notarizations pursuant to NMAC 12.9.4.8.
  7. Requires a Notary to maintain the Notary’s current name, contact information, and signature and official stamp on file with the Secretary of State by submitting the form prescribed by the Secretary of State within 30 days of the change of information.
  8. Clarifies that when a Notary reports a change of name, an amended commission certificate will be issued upon notification of a name change and the Notary is required to obtain a new official stamp showing the updated information.
  9. Provides that upon the State Ethics Commission determining to deny, refuse to renew, revoke, suspend, or impose a condition on a Notary pursuant to NMSA Section 14-14A-22 Subsection A, the State Ethics Commission shall notify the Secretary of State in writing of the recommended action and reason for the determination.
  10. Provides that upon receipt of notification from the State Ethics Commission that a Notary’s commission has been suspended or revoked, the Secretary of State shall update the electronic database of Notaries Public maintained pursuant to NMSA 14-14A-23.
  11. Clarifies that a notarial officer who is not a Notary is not required to follow the application process for a Notary commission.
  12. Clarifies that if a notarial officer desires to be authorized to conduct remote online notarizations, the notarial officer must follow the application procedures pursuant to NMAC 12.9.4.8.
  13. Clarifies that the commission expiration date is December 31, 2021, for a notarial officer authorized to practice law in New Mexico who was commissioned under the previous Uniform Law on Notarial Acts.
  14. Requires the Secretary of State to provide regular training and administration of an examination for both traditional notarial acts and remote online notarizations pursuant to NMSA Section 14-14A-21 Subsection B.
  15. Clarifies that the training may be provided by the Secretary of State or through any third-party training vendor approved by the Secretary of State.
  16. Provides that the fee for providing the training and examination is not included in the application fee collected pursuant to NMAC 12.9.3.8.
  17. Provides that an applicant must provide proof of passing the required examination with a score of 80% or higher and clarifies that examination records maintained by third-party vendors, including the applicant’s score, must be retained for 5 years.
  18. Clarifies if the Secretary of State has a record that a Notary applying for renewal has previously passed the required examination, a Notary applying for renewal is not required to re-take the training and examination unless: (a) the applicant’s commission has expired for more than 1 year; or (b) there have been substantial changes to the statutes or rules pertaining to notarial procedures or remote online notarization, as determined by the Secretary, since the applicant’s last application date.

Remote Notarization Application

  1. Requires a notarial officer to apply to perform remote online notarizations on a form prescribed by the Secretary of State before performing remote online notarizations.
  2. Requires an applicant to provide to the Secretary of State: (a) the name of all remote online notarization systems approved for use by the Secretary the notarial officer intends to use; (b) a copy of any necessary instructions or techniques supplied by a remote online notarization system provider that allows the notarial officer’s signature and official stamp to be read and authenticated; (c) an explanation of the methods and technology by which the notarial officer will maintain and store the required journal, if applicable and audio-video recording; (d) proof of having successfully completed an approved training course and passing the required examination; and (e) a non-refundable application fee of $75.
  3. Clarifies that an individual applying for authorization to perform remote online notarizations must already be a current notarial officer pursuant to NMSA 14-14A-9 or 14-14A-20, or an individual may simultaneously apply to be commissioned as a Notary with authorization to perform remote online notarizations.
  4. Provides that the Secretary of State shall issue an approval authorizing the notarial officer to perform remote online notarizations when the Secretary of State determines that the applicant has met the qualifications.
  5. Within 45 days of receiving authorization to perform remote online notarizations from the Secretary of State, requires a notarial officer to provide a copy of the applicant’s official electronic stamp to the Secretary of State along with the form prescribed by the Secretary, requires the applicant’s official electronic stamp to be received by the Secretary of State prior to the notarial officer performing remote online notarizations, and provides that failure to provide this information will result in a referral to the State Ethics Commission.
  6. Clarifies that the expiration date for a Notary authorized to perform remote online notarizations is the commission expiration date established when an individual is commissioned as a Notary pursuant to NMSA 14-14A-20.
  7. Clarifies that if at any time a notarial officer authorized to perform remote online notarizations adopts a new remote online notarization system provider, the notarial officer must notify the Secretary of State of the new system and provider on a form prescribed by the Secretary.
  8. Clarifies that the renewal of the commission of a Notary who has previously been authorized to perform remote online notarizations constitutes renewal of the Notary’s qualification to perform remote online notarizations without the necessity to submit another application, and the renewal fees will be the same as that to renew a Notary commission unless the applicant’s commission has been expired for more than 1 year.
  9. Provides that if an applicant’s commission has been expired for more than 1 year, the applicant must complete the application for authorization to perform remote online notarizations and pay the required application fee as prescribed under NMAC 12.9.4.8
  10. Provides that if a notarial officer who is not commissioned as a Notary desires to be authorized to conduct remote online notarizations, the officer must follow the authorization application procedures pursuant to NMAC 12.9.4.8.
  11. Provides that upon approval by the Secretary of State to perform remote online notarizations, the notarial officer must comply with the administrative rules and all statutes applicable to a Notary performing remote online notarizations.
  12. Clarifies that a Notary with an appointment or renewal date prior to the effective date of the Revised Uniform Law on Notarial Acts who desires to be authorized to perform remote online notarizations must follow the application process prescribed by NMAC 12.9.4.8 Subsection B to apply to become authorized to perform remote online notarizations.

Standards and Procedures for All Notarial Acts

  1. For an acknowledgment as defined in NMSA 14-14A-2 Subsection A, requires the individual or representative to declare before a notarial officer that the individual is signing the record for the purpose stated in the record.
  2. For a verification on oath or affirmation as defined in NMSA 14-14A-2 Subsection O, requires the individual to declare before a notarial officer that the statement in the record is true.
  3. For a copy certification, permits a notarial officer to make or certify a copy of a record as a means of assuring the accuracy of the copy, or review the original record along with the copy so that the notarial officer can make a comparison as required by NMSA 14-14A-4 Subsection D.
  4. For witnessing or attesting a signature, requires the notarial officer to certify that the individual has the identity claimed and that the signature is that of the individual signing.
  5. Clarifies that witnessing or attesting a signature differs from an acknowledgment in that the record must be signed in the physical presence of the notarial officer and there is no declaration that the record is signed for the purposes stated in the record.
  6. Clarifies that witnessing or attesting a signature differs from a verification of oath and affirmation in that the individual is not declaring that a statement in the record is true.
  7. Requires a notarial officer to only notarize a record when the signer is either physically face to face or face to face online with the notarial officer.
  8. Requires a notarial officer to determine the signer’s identity from personal knowledge or satisfactory evidence pursuant to NMSA 14-14A-6 before performing a notarial act.
  9. When obtaining satisfactory evidence of the identity of the signer pursuant to NMSA 14-14A-6 Subsection B(1), requires a notarial officer to review the name, birth date, photo, or other available data elements on an identification document of the signer to determine the identity of the signer.
  10. Requires a notarial officer to only enter the actual date of a notarial act on a record and not an earlier or later date.
  11. Prohibits a notarial officer from sharing or publishing his or her official stamp.

Standards and Procedures for Notarial Acts on Paper Records

  1. Requires the individual for whom a notarial act is performed and the notarial officer to meet physically face-to-face, requires the notarial officer to determine whether the requirements of NMSA 14-14A-4 have been met, and requires the officer to verify the identity of the individual appearing before the officer in accordance with NMSA 14-14A-6.
  2. Requires a notarial officer to (a) ensure the individual uses permanent ink in a photo-reproducible color to sign the record; (b) ensure the notarial certificate meets the requirements of NMSA 14-14A- 14 Subsection C, sign the certificate using permanent ink and affix the official stamp to the record; and, (c) if the notarial officer is a Notary or otherwise required to keep a journal pursuant to NMSA 14-14A-18 Subsection E, chronicle or note the notarization in a paper or electronic journal in accordance with NMSA 14-14A-18.

Standards and Procedures for Notarial Acts on Electronic Records

  1. Requires the individual for whom a notarial act is performed and the notarial officer to meet physically face-to-face, requires the notarial officer to determine whether the requirements of NMSA 14-14A-4 have been met, and requires the officer to verify the identity of the individual appearing before the officer in accordance with NMSA 14-14A-6.
  2. For a notarial act on an electronic record, requires: (a) the individual to sign the electronic record using an electronic signature; (b) the notarial officer to ensure the notarial certificate meets the requirements of NMSA 14-14A-14 Subsection C; (c) the notarial officer to sign the notarial certificate with an electronic signature and affix the electronic seal, provided the electronic signature and seal have been previously provided to the Secretary of State; and (d) if the notarial officer is a Notary, or otherwise required to keep a journal pursuant to NMSA 14-14A-18 Subsection E, to chronicle or note the notarization in a paper or electronic journal in accordance with NMSA 14-14A-18.
  3. Clarifies that for an in-person notarization of an electronic record, the Notary shall follow the fee structure established pursuant to NMSA 14-14A-28 Subsection C.

Standards and Procedures for Remote Online Notarization

  1. Requires a notarial officer authorized to perform remote online notarizations to be physically located in New Mexico at the time the notarial act takes place.
  2. Authorizes a notarial officer authorized to perform remote online notarizations to perform authorized notarial acts relating to electronic records only if the individual personally appears before the notarial officer at the time of the notarization by means of communication technology.
  3. Authorizes a notarial officer authorized to perform remote online notarizations to make a reasonable determination regarding whether an individual is under duress or being coerced to complete a transaction by (a) observing the individual’s behavior for signs of being nervous, fearful, hesitant, distracted, distraught or uncomfortable, (b) observing the surroundings and watch the behavior of others in the room who seem to make the individual uncomfortable, (c) requesting to speak privately with the individual, and (d) asking direct questions such as “are you signing this record of your own free will?”
  4. Authorizes a notarial officer to refuse to perform a notarial act if the notarial officer has reasonable grounds to believe that the individual is acting under coercion or undue influence.
  5. Requires a notarial officer authorized to perform remote online notarizations to verify the identity of the individual at the start of an online notarial session by means of communication technology pursuant to NMSA 14-14A-6 or NMAC 12.9.4.11.
  6. Prohibits a notarial officer from basing identification merely on familiarity with a remotely located individual’s signature or an electronic verification process that authenticates the individual’s electronic signature without the individual personally before the notarial officer by two-way audio and video communication technology.
  7. Requires a notarial officer authorized to perform remote online notarizations to refuse to complete the notarial act if the officer: (a) is unable to verify the identity of the individual in compliance with the rules: (b) becomes aware that communication technology is not secure; (c) determines the signature of the individual cannot be attached to the electronic record; or (d) cannot attach the officer’s electronic stamp to the electronic record using technology that renders any subsequent change or modification to the record evident.
  8. Requires the notarial officer who performs a remote online notarization to complete and affix or attach the officer’s signature and official stamp to the electronic notarial certificate.
  9. Requires the electronic notarial certificate for a remote online notarization to meet the requirements of NMSA 14-14A-14 Subsection A.
  10. Provides that a credential analysis used to verify the identity of a remotely located individual must: (a) use automated software processes to aid the notarial officer in verifying the identity of each remotely located individual; (b) require the identity credential to pass an authenticity test, consistent with sound commercial practices that use 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; (c) 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 (d) enable the notarial officer to visually compare for consistency, the information and photograph on the identity credential and the remotely located individual appearing before the notarial officer in real-time through communication technology.
  11. Provides that a knowledge-based authentication used to verify the identity of a remotely located individual must: (a) have a minimum of 5 questions related to the individual’s personal history or identity formulated from public or private data sources; (b) have a minimum of 5 possible answer choices per question; (c) require an 80% pass rate; (d) take no longer 2 minutes to answer all questions; (e) not allow a third assessment for 24 hours if the remotely located individual fails 2 attempts; (f) replace a minimum of 40% of the prior question in the second assessment; and (g) not allow the notarial officer to see or record the questions or answers.
  12. Clarifies that a credible witness who is used to verify the identity of a remotely located individual may be remotely located if the notarial officer, credible witness, and remotely located individual can communicate simultaneously by using communication technology.
  13. Requires that the communication technology used for a remote online notarization must provide: (a) synchronous audio-video feeds of sufficient video resolution and audio clarity to enable the notarial officer and the remotely located individual to see and speak with each other; (b) a means for the notarial officer to reasonably confirm that a record before the notarial officer is the same record in which the remotely located individual made a statement or on which the remotely located individual executed a signature; and (c) accessibility accommodations to facilitate communication with a remotely located individual who has a vision, hearing, or speech impairment.
  14. Provides that communication technology used for a remote online notarization must provide reasonable security measures to prevent unauthorized access to the live transmission of the audiovisual feeds, the methods used to perform the identity proofing process, and the electronic record that is the subject of the notarial act.
  15. Requires a notarial officer authorized to perform remote online notarizations to stop and restart the remote online notarization process from the beginning if the: (a) remotely located individual or the remote notarial officer must exit the remote online notarization system before the completion of the notarial act; (b) audio or visual feed is interrupted or terminated; or (c) resolution or quality of the transmission becomes such that the remote notarial officer believes the process has been compromised and cannot be completed.
  16. Requires a notarial officer performing a remote online notarization to verify that each remote online notarization system provider has an active status with the Secretary of State before using that provider’s remote online notarization system to perform a remote notarization, and further requires this duty for each remote online notarization.
  17. Requires the retention of the audiovisual recording required under NMSA 14-14A Subsection C(4) on a computer, storage device, or online storage that protects the audiovisual recording against unauthorized access by password or cryptographic process.
  18. Requires the audiovisual recording to be created in an open file format and 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.
  19. Provides that on the death or adjudication of incompetency of a current or former notarial officer, the notarial officer's personal representative or guardian or any other person knowingly in possession of an audiovisual recording must: (a) comply with the retention requirements for audiovisual recordings; (b) transmit the recording to one or more repositories pursuant to NMAC 12.9.4.14 Subsection C; or (c) transmit the recording on a data storage device to the Secretary of State in an open file format that can be accessed and read by the Secretary of State.
  20. Authorizes a notarial officer, a guardian, conservator, or agent of a notarial officer, or a personal representative of a deceased notarial officer to, by written contract, engage a third person to act as a secure repository to provide the storage required by NMAC 12.9.4.14 Subsection C.
  21. Requires the contract with a secure repository to (a) enable the notarial officer, the guardian, conservator, or agent of the notarial officer, or the personal representative of the deceased notarial officer, to comply with the retention requirements of this section even if the contract is terminated; (b) enable the notarial officer to keep all audiovisual recordings under the sole control of the notarial officer and provide copies to any requesting person; or (c) provide that the information will be securely transferred to the notarial officer, the guardian, conservator, or agent of the notarial officer, or the personal representative of the deceased notarial officer if the contract is terminated.
  22. Requires an electronic certificate of a notarial act for a remote online notarization to clearly state that the remotely located individual signing the record appeared using communication technology and is met if the statement is substantially as follows: “This notarial act involved the use of communication technology.”
  23. Clarifies that a tangible copy of an electronic record certified as a true copy by a notarial officer is to be considered an original record.
  24. Requires a certified tangible copy of an electronic record to include a notarial certificate substantially in the short form provided in NMSA 14-14A-15 Subsection E.
  25. Clarifies that a Notary or notarial officer may charge the maximum fees pursuant to NMSA 14-14A-28 and a fee not to exceed $25.00 for each remote notarial act.

Official Stamp

  1. Clarifies that the official stamp of a commissioned Notary shall conform to the requirements pursuant to NMSA 14-14A-16 NMSA 1978 and include the words “Notary Public” and “State of New Mexico.”
  2. Clarifies that the official stamp of a notarial officer that is not a commissioned Notary shall conform to the requirements pursuant to Section 14-14A-16 NMSA 1978 and include the words “Notarial Officer” and “State of New Mexico.”
  3. Requires the official stamp to (a) be 10-point type; (b) if the stamp is affixed to a tangible record, be applied in permanent ink and shall be capable of being photocopied; and (c) not contain the New Mexico state seal.
  4. Provides that if the notarial officer is authorized to perform remote online notarizations, the official stamp shall also conform to the requirements set forth in NMAC 12.9.4.13.
  5. Within 6 months of the effective date of this rule, requires a Notary with a commission date prior to the effective date of this rule to upload a copy of the Notary’s official stamp that conforms to NMSA 14-14A-16 Subsection A and NMAC and 12.9.3.14.
  6. Within 6 months of the effective date of this rule, requires a notarial officer who is not a Notary to upload a copy of the notarial officer’s official stamp to the Secretary of State prior to the notarial officer’s initial notarial act.

Electronic Signature and Official Stamp

  1. Requires a notarial officer authorized to perform remote online notarizations to use the same electronic signature and electronic official stamp for all electronic notarial acts.
  2. Requires a copy of the official electronic stamp to be provided to the Secretary of State within 45 days of being authorized by the Secretary of State to perform remote online notarizations and prior to the first remote online notarization being performed.
  3. Requires a tamper-evident technology used to notarize electronic records or notarial acts for remotely located individuals to be capable of: (a) affixing or attaching the notarial officer’s electronic signature to the electronic record in a manner that is capable of independent verification and renders any subsequent change or modification to the electronic record evident; and (b) utilizing a valid digital certificate issued by a third-party provider that uses public key infrastructure (PKI) technology that is X.509 compliant or higher.
  4. Prohibits a notarial officer from performing a notarial act with respect to an electronic record if the officer’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.
  5. Requires the remote notarial officer’s electronic signature and official stamp to be retained under the notarial officer’s sole control and access.
  6. Prohibits a notarial officer’s employer from permitting the use of a notarial officer’s electronic signature or official stamp by anyone except the notarial officer.

Journal

  1. Provides that a Notary must maintain a journal to sequentially chronicle all notarial acts pursuant to NMSA 14-14A-18 NMSA.
  2. Requires a current or former Notary to store the journal in a secure location under the Notary’s sole control unless the current or former Notary transmits the journal to the Secretary of State or state records officer.
  3. Requires a notarial officer to provide a copy of a requested journal entry or audiovisual recording related to a specified notarial act to a member of the public upon request pursuant to NMSA 14-14A-29 and clarifies that the request must name the subject of the record and the date the notarial act was performed.
  4. Provides that if a current or former Notary transmits the journal to the state records officer, the Notary must notify the Secretary of State by submitting the prescribed form within 30 days.
  5. Authorizes a former employer to retain a copy of a Notary’s journal, but it shall be clearly marked as a copy.
  6. Provides that if a Notary’s journal is maintained in an electronic format, it must meet all the requirements of a tangible journal and be: (a) securely stored; (b) recoverable in the event of a software malfunction or computer crash; and (c) tamper-evident.
  7. Requires that entries from the electronic journal must be available to the public or the State Ethics Commission in a PDF format.
  8. Provides that if an electronic journal is turned over to the Secretary of State or the State Records officer, it must be transferred in PDF format.
  9. Provides that if a Notary’s journal is lost or stolen, the Notary shall promptly notify the Secretary of State utilizing a form prescribed by the Secretary of State.
  10. Requires a notarial officer authorized to perform remote online notarizations to adhere to the rule on journals pursuant to NMAC 12.9.3.16.
  11. In addition to the journal information required by NMSA 14-14A-18 Subsection C, requires the notarial officer to record the name of the remote online notarization system provider used for each remote online notarization.

Remote Online Notarization System Providers

  1. Requires a provider to apply on a form prescribed by the Secretary of State before the provider can provide its remote online notarization system to a notarial officer in New Mexico.
  2. Provides that upon being approved as a provider, the Secretary of State shall list the provider as active on the website of the Secretary of State.
  3. Provides that to be approved and maintain active status, a remote online notarization system provider must: (a) provide the ability for an individual receiving notarization services to print tangible copies of all records notarized for that individual executed on the system; (b) ensure that access to a notarial officer’s electronic signature and official stamp is limited solely to the notarial officer and protected by the use of a password or other secure means of authentication; (c) ensure that the communication technology provided by the remote notarization system provider complies with the requirements of NMAC 12.9.4.12; (d) provide for the credential analysis and knowledge-based authentication assessment requirements provided for in NMAC 12.9.4.11; (e) provide, or allow a notarial officer to provide, a public key certificate to satisfy the requirement of NMAC Section 12.9.4.13 Subsection B(2); and (f) provide a storage system that complies with NMAC 12.9.4.14.
  4. Authorizes the Secretary of State to request remote online notarization system providers to apply on an annual basis for a remote online notarization system provider to maintain active status.
  5. Requires a remote online notarization system provider that becomes aware of a security breach involving its data must comply with the requirements of the Data Breach Notification Act in NMSA 57-12C-1 to 57-12C-12 and submit notice to the Secretary of State.
  6. No later than 30 days before making any substantial changes or feature enhancements to the remote online notarization system that was previously approved by the Secretary of State, requires a provider to request approval from the Secretary of State and notify the New Mexico notarial officers using its system.
  7. No later than 30 days after any changes to the provider’s information on file with the Secretary of State, requires a provider to notify and update the information on a form prescribed by the Secretary of State.
  8. Authorizes any person to file a complaint with the Secretary of State against a remote online notarization system provider.
  9. Requires a complaint against a remote online notarization system provider to allege a specific violation of New Mexico’s Revised Uniform Law on Notarial Acts or the administrative rules implementing the Act.
  10. Authorizes the Secretary of State to terminate approval of a provider for any of the following reasons: (a) a violation of the Revised Uniform Law on Notarial Act or these rules that impacts the ability of the remote online notarization provider from providing a compliant remote online notarization system; (b) making representations that the Secretary of State endorses, recommends, or mandates use of any of the provider’s products, goods, or services; (c) if the provider sustains a security breach pursuant to NMSA 57-12C-2 Subsection D; and (d) failure to respond within 10 business days to the Secretary of State’s request for information or otherwise cooperate with an investigation, including providing the requested information.

Repealed Rules

  1. Repeals the definitions of “acknowledgment,” “affirmation,” “electronic,” “electronic document,” “electronically enabled notary public,” “electronic notary seal,” “electronic signature,” “electronic notarial certificate,” “jurat,” “Notary electronic signature,” “physical appearance,” and “unique to the notary public.”
  2. Repeals the prior rule providing that a Notary shall not perform an electronic notarial act if the document signer does not appear in person before the Notary at the time of notarization.
  3. Repeals the prior rule providing that under no circumstance shall a Notary base identification merely upon familiarity with a signer’s electronic signature or an electronic verification process that authenticates the signer’s electronic signature when the signer is not in the physical presence of the Notary.
  4. Repeals the prior rules, as specified, requiring a Notary to register to perform electronic notarial acts with the Secretary of State and including information, as specified, in the registration.
  5. Repeals the prior rule requiring a registrant to perform electronic notarial acts to submit proof of successful completion of a course of instruction on electronic notarization offered through an education provider approved by the United States Department of Education Accrediting Council for Continuing Education and Training (ACCET).
  6. Repeals the prior rule clarifying that an acknowledgment, jurat, and oath or affirmation may be performed as an electronic notarial act.
  7. Repeals the prior rule providing that when performing an electronic notarial act, a Notary shall apply an electronic signature, which shall be attached to or logically associated with the electronic document such that removal or alteration of such electronic signature is detectable and will render evidence of alteration of the document containing the notary certificate which may invalidate the electronic notarial act.
  8. Repeals the prior rule providing that when performing an electronic notarial act, a Notary must complete an electronic notarial certificate, which shall be attached to or logically associated with the electronic document such that removal or alteration of the electronic notarial certificate is detectable and will render evidence of alteration of the document containing the notary certificate which may invalidate the electronic notarial act.
  9. Repeals the prior rule providing that a Notary’s electronic signature and seal are reliable if they 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’s electronic notarial certificate are detectable and may invalidate the electronic notarial act.
  10. Repeals the prior rule providing that when performing an electronic notarial act, a Notary must apply an electronic seal, when required by law, which must be attached to or logically associated with the electronic document such that removal or alteration of such official electronic seal is detectable and will render evidence of alteration of the document containing the notary certificate which may invalidate the electronic notarial act.
  11. Repeals the prior rule providing that a Notary may charge $10 per acknowledgment, jurat, and oath or affirmation as an electronic notarial act.
  12. Repeals the prior rule prohibiting an employer shall not establish fees for electronic notarial services that are more than $10.
  13. Repeals the prior rule clarifying that when performing an electronic notarial act, a Notary may charge the maximum fee, charge less than the maximum fee, or waive the fee.
  14. Repeals the prior rule providing that within 5 days after the change of an electronically enabled Notary’s e-mail address, the notary must electronically transmit to the Secretary of State a notice of the change, signed with the Notary's official electronic signature.
  15. Repeals the prior rule providing that the liability, sanctions, and remedies for the improper performance of electronic notarial acts are the same as described in the New Mexico Notary Public Handbook.
  16. Repeals the prior rule providing that performing an electronic notarization without registering with the Secretary of State is subject to sanctions as described in the New Mexico Notary Public Handbook.

Analysis

The New Mexico Secretary of State has published permanent rules to implement the new Revised Uniform Law on Notarial Acts (see Senate Bill 12) enacted earlier this year. The new rules repeal and replace the existing administrative rules that were adopted in 2008 with a broad sweep of rules on the issuance of Notary commissions, completing education and testing, applying to perform remote online notarizations, and performing notarial acts on paper and electronic records, and for remotely located individuals.

Read the repeal of rule 12.9.2 (Performing Electronic Notarial Acts).

Read new rule 12.9.3 (Notarial Procedures).

Read new rule 12.9.4 (Remote Online Notarization Standards).

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