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NV Temporary Regulations (2018)

Rule/Regulation

State: Nevada
Signed: December 14, 2018

Effective: December 14, 2018

Summary

Temporary regulations adopted by the Nevada Secretary of State implement the Electronic Notarization Enabling Act and make other changes.

Affects

Adds new as yet uncodified sections to and amends Sections 240.00, 240.210, 240.250, and 240.270 of the Nevada Administrative Code.

Changes

Definitions

  1. Defines “principal,” “electronic notarial certificate,” electronic notarization solution,” “exclusive control,” identity proofing,” “outside the United States,” “real time,” “session,” “solution provider,” tamper-evident,” and “credential.”

Electronic Notary Registration

  1. Provides that in addition to the provisions of NRS 240.192, a registration as an electronic Notary must include: (a) the Notary Public’s commission number; (b) the name of the solution provider(s) whose platform or product the Notary Public intends to use to perform electronic notarization; (c) a copy of the Notary Public’s electronic seal and electronic signature which is an exact representation of the signature on file with the Secretary of State; and (d) a statement certifying that the Notary will comply with the provisions of the temporary rules and NRS Chapter 240.
  2. Provides that an registrant who is required pursuant to NRS 240.1943 to enroll in and successfully complete a course of study for the mandatory training of electronic Notaries must include with his or her registration a certificate of successful completion of such a course, and further provides that a certificate of successful completion for the mandatory training is valid for 90 days after the date of its issuance.
  3. Provides that the Secretary of State may authorize the provision of a course of study for the mandatory training of electronic Notaries public by a qualified third party subject to the terms and conditions established by the Secretary of State or a designee of the Secretary of State.
  4. Requires a registrant to certify that he or she will comply with the provisions of the temporary regulations and NRS Chapter 240.
  5. Requires a registrant to provide the electronic signature required by NRS 240.192(2)(c) in a file format that can be read without the need for additional software and that can be compared to the exemplar of the electronic Notary’s holographic (handwritten) signature on file with the Secretary of State for authentication purposes.
  6. Clarifies that all requirements for registration as required the temporary regulations and NRS Chapter 240 must be completed or the registration may be denied.
  7. Clarifies that the fee required to be paid to the Secretary of State at the time the registration as an electronic Notary is not refundable.
  8. Clarifies that a Notary whose registration as an electronic Notary has been approved by the Secretary of State will retain the commission number related to the Notary’s underlying commission.
  9. Clarifies that the effective date of registration is the date all requirements have been met and confirmed by the Secretary of State and the registration is entered into the Secretary of State’s processing system.
  10. Provides that cancellation of a registration pursuant to NRS 240.203 is effective upon receipt by the Secretary of State of the notice requesting cancellation from the electronic Notary or the electronic Notary’s executor or authorized representative, as appropriate.
  11. Provides that electronic notarization, including notarization using audio-video communication may only be performed by an electronic Notary Public registered with and approved by the Secretary of State to perform such notarization. 
  12. Clarifies that a Notary providing electronic Notary services without Secretary of State approval of registration as an electronic Notary is subject to suspension or termination of his or her Notary commission and other penalties as prescribed by the temporary rules and NRS Chapter 240.
  13. Provides that a registration must be accompanied by the fee provided by NRS 240.192(l)(c) and must be paid by (a) credit card; (b) debit card; (c) trust account established with the Secretary of State; or (d) any other payment method utilized by the Secretary of State for the provision of online services.
  14. Provides that if the payment method which is used to pay the fee for registration is subsequently dishonored by a bank due to challenge or any other reason, the Secretary of State may immediately and without a hearing revoke the registration.

Standards for Online Electronic Notarial Acts

  1. Requires an electronic Notary performing an electronic notarial act using audio-video communication to be able to (a) identify the principal using multi-factor identification as prescribed by this Chapter and NRS Chapter 240 and (b) identify the document as the same document in which the principal executed the signature.
  2. Requires an electronic Notary to take reasonable steps to (a) ensure the integrity, security and authenticity of electronic notarizations; (b) maintain a secure backup of the electronic journal; (c) maintain a secure backup of the recording, if the electronic notarial act is performed using audio-video communication; and (d) ensure that any audio-video communication for the purpose of an electronic notarial act using audio-video communication is secure from unauthorized access or interception.
  3. Clarifies that the temporary regulations do not require a principal to participate in an electronic notarial act using audio-video communication.
  4. Clarifies that the temporary regulations do not require an electronic Notary to perform an electronic notarial act using audio-video communication.
  5. Provides that if the principal or electronic Notary must exit the audio-video communication session, the audio-video communication link is broken, or the resolution or quality of the transmission becomes such that the electronic Notary believes the process has been compromised and cannot be completed, the identity authentication process and any incomplete electronic notarial acts must be started from the beginning.

Standards for Identity Proofing and Credential Analysis

  1. Requires credential analysis to be provided by a reputable third-party vendor or software tool that can demonstrate proven credential analysis processes.
  2. Requires a third-party credential analysis solution to make a credential pass an authenticity test, consistent with sound commercial practices that (a) uses appropriate technologies to confirm the integrity of visual, physical or cryptographic security features; (b) uses appropriate technologies to confirm that the credential is not fraudulent or inappropriately modified; and (c) uses information held or published by the issuing source or authoritative source(s), as available, to confirm the validity of credential details.
  3. Requires a third-party credential analysis solution to provide the output of the credential authenticity test to the electronic Notary.
  4. Requires the credential analysis procedure to enable the electronic Notary to visually compare for consistency the information and photograph on the presented credential image the principal as viewed by the electronic Notary in real-time through audio-video communication.
  5. Provides that if an electronic Notary is unable to validate a presented credential or to match the principal’s physical features with the credential, the electronic Notary must not complete the electronic notarial act and prohibits any further attempt by the electronic Notary or solution provider to use that credential for completing the notarial act using audio-video communication.
  6. Requires a dynamic knowledge-based authentication procedure to meet the following requirements: (a) an assessment must contain 5 questions drawn from public or private data sources: (b) each question must contain a minimum of 5 possible answer choices; (c) the principal must answer 80% of the questions correctly answered within 2 minutes; (d) if the principal fails the first assessment, the principal may make an additional 2 attempts with the same electronic Notary within a 48-hour period; (e) each retake assessment taken within the 48-hour period must replace 40% (2) of the prior questions; (f) the system must confirm affirmatively that that the principal has or has not correctly answered the questions; and (g) the system must keep the questions and responses confidential.
  7. Provides that an electronic Notary may satisfy NRS 240.1997(l)(b)(3) by utilizing a solution provider approved by the Secretary of State to verify the identity of the principal for whom an electronic notarial act by audio-video communication is performed and requires the solution to meet or exceed the accuracy of identity verifications conducted through a dynamic knowledge-based authentication assessment.
  8. Provides that solution provider’s application to provide identity proofing may be made by a written request to the Secretary of State, the application must identify the identity proofing method used by a solution provider and include sufficient evidence to demonstrate that the method meets the requirements of section 38 of the regulations, and the Secretary of State may approve, reject, or request additional information on the application.

Electronic Notary Seal and Official Signature

  1. Requires the electronic seal used by an electronic Notary to include information required in NRS 240.040 and generally conform to the size and other requirements of a seal used by a traditional Notary except: (a) that once the electronic seal, electronic signature and electronic notarial certificate are affixed and the electronic notarial act is complete, the document is rendered tamper-evident; and (b) if the electronic notarial act is performed by audio-video communication, a statement that the electronic notarial act was performed by means of audio-video communication substantially conforming to “Notarial act performed by audio-video communication” must appear adjacent to the stamp or in the notarial certificate.
  2. Clarifies that a Notary may use his or her given name, a short or familiar form of his or her given name or the first initial of his or her given name, followed by the Notary’s surname, as his or her official signature which must be consistent with the original signature on the application for appointment as a Notary.

Records of Online Electronic Notarial Acts

  1. Prohibits an electronic journal from containing any personal identifying information that would not be otherwise required pursuant to the Electronic Notarization Enabling Act.
  2. Prohibits the electronic journal from including the recording of the notarial act if the act is performed by audio-video communication.
  3. Provides that an electronic journal may not allow a record to be deleted or altered in content or sequence by the electronic Notary or any other person after the journal entry is recorded but clarifies that this does not preclude a solution provider from providing technical services or maintenance with respect to an electronic journal.
  4. Requires the electronic journal to be open to lawful inspection.
  5. Requires the electronic journal to be securely backed up.
  6. Requires the recording of an electronic notarial act pursuant and any personal identifying information disclosed during the performance of an electronic notarial act using audio-video communication to be protected from unauthorized access.
  7. Clarifies that the recording of an electronic notarial act is available (a) to the principal for whom the electronic notarial act was performed; (b) to the Secretary of State’s Office; (c) to law enforcement or state, federal or local agencies in the course of an enforcement action or otherwise in accordance with duties set forth by law; (d) pursuant to subpoena or court order; and (e) to the electronic Notary that performed the electronic notarial act using audio-video communications for the purposes of (a)-(d) above; and (f) to other parties in accordance with permission granted by the parties to the transaction.
  8. Provides that an employer of an electronic Notary or a solution provider is authorized to access the electronic seal, electronic signature, solution or recording of the notarial act using audio-video communication for all authorized purposes and to ensure compliance with law
  9. Clarifies that a Notary is responsible for maintaining accurate and reliable notarial records.
  10. Allows an electronic Notary may use a solution provider for the storage of the electronic journal and the recording of an electronic notarial act using audio-video communication if the solution provider (a) has registered with the Secretary of State; (b) demonstrates the capability of providing the service; (c) allows the electronic Notary sole control of the electronic journal and the recording of the electronic notarial act using audio-video communication, subject to the authorized access granted by the Notary; and (d) provides access to the electronic journal and the recording of the electronic notarial act using audio-video communication pursuant to the temporary regulations.

Prohibited Acts

  1. Prohibits an electronic Notary from (a) performing an electronic notarial act using audio-video communication while the electronic Notary is outside Nevada; (b) failing to record and/or properly store the recording of the electronic notarial act performed using audio-video communication; (c) using an invalid electronic seal or digital certificate in the performance of an electronic notarial act; (d) failing to report a change in electronic seal or digital certificate; (e) using the electronic Notary’s electronic signature and electronic seal together, or the electronic seal, except in the performance of an electronic notarial act; (f) allowing unauthorized access to the electronic Notary journal, electronic signature, digital certificate or the solution used to perform electronic notarial acts; or (g) violating any other requirement of the temporary regulations and NRS Chapter 240 pertaining to the performance of an electronic notarial act.
  2. Clarifies that the penalties, prohibitions, liabilities, sanctions, and remedies for the improper performance of electronic notarial acts are the same as provided by law for the improper performance of non-electronic notarial acts.

Solution Providers

  1. Provides the information and requirements for registration of solution providers and solutions, as specified.
  2. Requires a solution provider to maintain a current Nevada business license at all times that an electronic Notary is utilizing its solution.
  3. Requires a solution provider to take reasonable steps to ensure that an electronic Notary using its solution has complied with Nevada law pertaining to the registration, training and other requirements pertaining to Notaries Public.
  4. Requires an electronic notarization solution must be approved by the Secretary of State prior to use.
  5. Requires an electronic notarization solution to provide secure access to the solution by password or other secure means identifying the electronic Notary.
  6. Requires an electronic notarization solution to verify from the Secretary of State’s Notary registry, if the registry is available, each time an electronic Notary logs into the solution to ensure that the electronic Notary is in active status before performing an electronic notarization, and to prohibit the start or completion of the act if the Notary’s active status cannot be verified.
  7. Requires an electronic notarization solution to provide for the uninterrupted, continuous, simultaneous audio-video communication between the electronic Notary and principal; provide for high-quality video resolution and audio quality to ensure that the electronic Notary and the principal can see, hear and communicate with each other in real time and that will allow the electronic Notary to match the principal with the credential; and provide for a secure communication link that ensures that only the parties to the electronic notarial act and those mutually agreed upon by the parties to the transaction are part of the audio-video communication.
  8. Requires an electronic notarization solution to provide an electronic Notary journal that complies with the provisions of the temporary regulations and NRS Chapter 240 for an electronic Notary to document electronic notarial acts.
  9. Requires an electronic notarization solution to provide for the recording of the electronic notarial act in compliance with sections 45-48 of the temporary regulations in sufficient quality to ensure the verification of the electronic notarial act.
  10. Requires an electronic notarization solution to provide confirmation that the electronic document presented is the same electronic document notarized.
  11. Requires an electronic notarization solution to allow for the affixation of the notarial wording and electronic Notary seal as required by the temporary regulations and NRS Chapter 240.
  12. Requires an electronic notarization solution to allow for viewing of the electronic Notary seal and signature by a person viewing the electronic document.
  13. Requires an electronic notarization solution to provide a method of determining if the electronic document has been altered after the electronic notarial seal has been affixed and the electronic notarial act has been completed.
  14. Requires an electronic notarization solution to prevent unauthorized access to the transmission between the electronic Notary and the principal; the recording of the electronic notarial act by audio-video communication; any personal identifying information (PII) used in credential analysis and identity proofing or other part of the audio-video communication, including but not limited to, methods of credential analysis and the output and the credentials offered to the electronic Notary; knowledge-based authentication questions and answers, birthdate, and social security numbers; and the electronic document that is being notarized.
  15. Requires an electronic notarization solution to provide a method of generating a paper copy of the document including the notarial certificate, signature and seal and any other document associated with the execution of the notarial act.
  16. Requires solution providers to immediately notify the Secretary of State and all Notaries using its solution upon material change of their solution.

Complaints

  1. Provides that a person filing a complaint against a Notary must include in the complaint whether the notarial act was performed using audio-video communication.
Analysis
On December 14, 2018, the Nevada Secretary of State filed temporary regulations to implement the Electronic Notarization Enabling Act. The Act includes provisions for “traditional” electronic notarizations performed in the presence of the Notary and online electronic notarial acts. The regulations are temporary in duration and expire on November 1, 2019. Why did the Secretary issue temporary regulations? In Nevada, temporary regulations are adopted if an agency wishes to promulgate a regulation between August 1 of an even-numbered year and July 1 of the succeeding odd-numbered year. Temporary regulations proposed during this time may be adopted without first submitting it to the Legislative Counsel for review. If the Secretary wishes the temporary regulations to become permanent, it must anticipate the expiration date and submit the regulations to the Legislative Counsel in time enough to permit its review.


To read the temporary regulations, Click Download PDF, below.

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