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OK Emergency Rules (2020)

Rule/Regulation

State: Oklahoma

Effective: January 01, 2020

Summary

The Oklahoma Secretary of State has published emergency rules for matters related to Notary commissions and remote online notarization.

Affects

Amends Sections 655:25-1-1.1, 655:25-1-2, 655:25-1-5, 655:25-3-1, 655:25-3-2, 655:25-3-3 of and creates new Sections 655:25-1-5.1, 655:25-1-8, 655:25-7-1, 655:25-7-2, 655:25-11-1 through 655:25-11-8 of the Oklahoma Administrative Rules.

Changes

Notary Commission

  1. Clarifies the Secretary of State’s website will contain the following forms: (a) Application for a Notary Public Commission; (b) Notarial Bond with Oath of Office and Loyalty Oath; and (c) Application for Remote Online Notarization Authorization.
  2. Clarifies that the Oklahoma Guidebook will no longer be available on the Secretary of State’s website.
  3. Provides that every application for a Notary commission must contain: (a) Former names if the applicant has been previously commissioned as an Oklahoma Notary under a different name; (b) A statement that the applicant has never been convicted of a felony; (c) A statement that the applicant is able to read and write in English; (d) A valid email address; (e) The signature of the applicant, which must match the printed name the applicant has selected to be a Notary; and (f) An application fee of $25 for a new commission and $20 for a renewal application.
  4. No longer requires the application for a Notary commission to indicate the applicant is a U.S. citizen.
  5. Clarifies that renewal applications must be filed and accepted prior to the expiration of the commission being renewed but will not be accepted earlier than 6 weeks prior to the expiration date of the current commission.
  6. No longer requires the application for a commission to contain a mailing address where the applicant’s commission is to be mailed.
  7. Clarifies that if an applicant does not have a street address for the applicant’s residence or employment address, a route number or directions to the Oklahoma residence or place of Oklahoma employment must be provided, and further clarifies that an exception to this requirement will be granted for individuals participating in the Address Confidentiality Program.
  8. Provides that prior to performing duties as a Notary and not more than 60 days after issuance of a commission, a Notary must file the following with the Secretary of State: (a) The Notary’s oath of office and loyalty oath; (b) The Notary’s official signature; (c) An impression of the Notary’s seal; (d) A $1,000 bond to be approved by the Secretary; (e) A filing fee of $10.
  9. Clarifies that the bond must be valid from the bond’s effective date until the expiration date of the Notary’s current commission.
  10. Provides that failure to file the bond will result in revocation of the Notary’s commission.
  11. Provides that a Notary commission may be revoked upon: (a) Conviction of any felony; and (b) Failure to comply with the requirement to file a bond within 60 days of issuance of the commission.
  12. Requires an Oklahoma Notary commission to be revoked by the Secretary of State: (a) Upon receipt of a final judgment from a district court in Oklahoma or its equivalent in a foreign jurisdiction against a Notary for performing a false or fraudulent notarial act; or (2) For a period of 8 years upon receipt of a final judgment against a Notary for a violation of 49 O.S., § 6(B) from a district court of Oklahoma or its equivalent from a foreign jurisdiction.
  13. Clarifies that upon revocation of a Notary’s commission, a notice of revocation will be sent to the address currently on file for the Notary.
  14. Provides that a Notary who resigns a commission must submit to the Secretary of State a written notice of resignation and the effective date of the resignation and requires the Notary to destroy their official seals.
  15. Provides that if a Notary dies during the term of commission, the Notary’s heirs or personal representative, as soon as reasonably practicable after death, must: (a) Destroy the official seal(s); and (b) Deliver a signed notice of the date of death to the Secretary of State.
  16. Requires a Notary within 30 days after the change of a Notary’s Oklahoma residence or employment address, if a non-resident, to submit to the Secretary of State written notification of the new address.
  17. Provides that if a Notary’s name changes in the middle of the commission term, the Notary may: (a) Continue to use the former name until the current commission expires; or (b) Apply for a new commission, obtain and file a new bond and seal, along with official signature and oaths, and pay applicable fees.

Notary Seal

  1. Clarifies that an official Notary seal may be an electronic seal as defined in 49 O.S., § 5 and OAC 655:25-1-8.
  2. Clarifies that upon the loss or theft of a seal (formerly within 10 days after), the Notary must submit to the Secretary of State a written notice of the loss or theft and the date the seal was first discovered missing and inform the appropriate law enforcement agency in the case of theft.
  3. Provides that after purchasing a new seal (formerly within 10 days after), the Notary must submit to the Secretary of State a written notice advising that a replacement seal has been purchased, the date of purchase, and, if applicable, the distinguishing character or symbol added.

Electronic Notarial Acts

  1. Provides that as authorized by 12A O.S., §15-111 (Oklahoma Uniform Electronic Transactions Act) an Oklahoma Notary may perform an electronic notarization.
  2. Requires an electronic notarization to meet all the requirements of a traditional notarization, including the requirement that the principal appear in person before the Notary.
  3. Requires that in an electronic notarization, the Notary’s electronic seal must reproduce the required elements of the Notary’s physical seal, as set forth in 49 O.S., §5.

Remote Online Notary Registration

  1. Authorizes a Notary to perform remote online notarizations during the term of the Notary’s commission if the Notary has registered in compliance with OAC 655:25-7-3(b) and received written authorization from the Secretary of State in accordance with OAC 655:25-7-3(f).
  2. Requires registration to perform remote online notarizations to be by written application to the Secretary of State that includes the following information: (a) The applicant’s full legal name; (b) The exact name under which the applicant is commissioned as a Notary, if different from the legal name; (c) The applicant’s Notary commission number; (d) A description of the technologies or devices that the applicant intends to use to perform remote online notarizations; (e) The name, address, and website URL of any vendors or other persons that will directly supply to the Notary the technologies that the Notary intends to use; and (f) A statement that the technologies identified in the application are compliant with 49 O.S., § 201 through 214 and with the emergency rules.
  3. Requires the application to register to perform remote online notarizations to be submitted electronically to the Secretary of State as provided by information posted on the Secretary’s website.
  4. Clarifies that if, during the term of a Notary’s commission, the Notary intends to use the technologies of another vendor or person than those identified to the Secretary in the registration application to perform remote online notarizations, then an additional application identifying such other vendors or other persons must be submitted to the Secretary of State.
  5. Establishes a $25 fee for the registration application to perform remote online notarizations.
  6. Provides that if the technology identified by the Notary in a registration application to perform remote online notarizations conforms to the standards adopted under the emergency rules and the Notary satisfies the requirements for registering to perform remote online notarizations, the Secretary of State shall approve the use of the technology and issue to the Notary written authorization to perform remote online notarizations during the term of the Notary’s commission.
  7. Authorizes the Secretary of State to disapprove the application and reject the Notary’s request for authorization to perform remote online notarizations for the following reasons: (a) The applicant is not currently commissioned as a Notary in the State of Oklahoma; (b) Any reason for which the Secretary of State may deny, refuse to renew or revoke a commission under 49 O.S., § 12(A); (c) The Notary ’s failure to comply with Title 49 of the Oklahoma Statutes or this Subchapter; (d) Any information required under OAC 655:25-7-3(b) is missing, inaccurate or incomplete; or (d) The technology identified by the Notary does not conform to the standards adopted under this Subchapter.
  8. Requires the Secretary of State to notify the applicant of approval or disapproval of the application to perform remote online notarizations within 30 days after receipt.
  9. Provides that if the Secretary of State disapproves an application to perform remote online notarizations, the Secretary must state the reasons for the disapproval.
  10. Clarifies that the renewal of the commission of a Notary who has previously received authorization to perform remote online notarizations does not constitute renewal of the authorization to perform remote online notarizations.
  11. Requires a Notary who wishes to perform remote online notarizations after renewal of a prior commission to submit another application for registration to perform remote online notarizations.
  12. Provides that a Notary’s authorization to perform remote online notarizations terminates if: (a) The Notary’s name changes during the term of the Notary’s commission; and (b) The Notary elects to use the Notary’s new name under a new commission.
  13. Clarifies that a Notary is not prohibited from receiving, installing, or using a hardware or software update to the technologies that the Notary identified in a registration application to perform remote online notarizations if the hardware or software update does not result in technologies that are materially different from the technologies that the Notary identified.

Standards for Remote Online Notarization

  1. Defines “communication technology,” “credential analysis,” “dynamic knowledge-based authentication,” “electronic,” “electronic record,” “electronic seal,” “electronic signature,” “identification credential,” “identity proofing,” “person,” “personal knowledge,” “principal,” “‘remote online notarization’ or ‘remote online notarial act,’” “remote presentation,” and “remotely located individual.”
  2. Provides that identity proofing for an online notarial act must: (a) Include remote presentation of an appropriate identification credential by the remotely located individual; (b) Include credential analysis of that credential by a service or process that analyzes the person’s identification credential; (c) bind the individual’s identity to the individual following a successful dynamic knowledge-based authentication assessment; and (d) Permit the Notary to visually compare the identification credential and the individual.
  3. Requires credential analysis used to identify a remotely located individual for an online notarization to: (a) Use public or private data sources to confirm the validity of the identification credential that is the subject of remote presentation by a remotely located individual; (b) Use automated software processes to aid the online Notary in verifying the identity of each remotely located individual; (c) Require that the identification credential pass an authenticity test, consistent with sound commercial practices that uses appropriate technologies to confirm the integrity of visual, physical, or cryptographic security features and to confirm that the identification credential is not fraudulent or inappropriately modified; (d) 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 identification credential details; and (e) Enable the online Notary to visually compare for consistency the information and photograph on the identification credential and the remotely located individual as viewed by the online Notary in real-time through communication technology.
  4. Requires dynamic knowledge-based authentication used to identify a remotely located individual for an online notarization to: (a) Require a minimum of 5 questions related to the individual’s personal history or identity formulated from public or private data sources; (b) Require each question to have a minimum of 5 possible answer choices; (c) Require at least 80% of the questions to be answered correctly; (d) Require all questions to be answered within 2 minutes; (e) If the remotely located individual fails the first attempt, allow the individual to attempt the authentication assessment 1 additional time within 24 hours; (f) During the second authentication assessment, replace a minimum of 40% of the prior questions; (g) If the remotely located individual fails the second authentication assessment, prohibit the individual from attempting identity authentication with the same online Notary within 24 hours of the second failed authentication assessment; and (h) Prohibit the Notary from seeing or recording the questions or answers.
  5. Clarifies that in addition to identity proofing, a Notary has satisfactory evidence of the identity of a remotely located individual if the Notary: (a) Has personal knowledge of the identity of the individual, or (b) If the individual is identified by oath or affirmation of a credible witness, whom the Notary personally knows and who can be a remotely located individual so long as the Notary, credible witness and principal can communicate by using communication technology.
  6. Requires the Notary to have personal knowledge of the credible witness or verify the identity of the witness by multi-factor authentication in accordance with OAC 655:25-11-5(a).
  7. Requires communication technology used by an online Notary in the performance of online notarizations to provide: (a) Synchronous audio-video feeds of sufficient video resolution and audio clarity to enable the Notary and remotely located individual to see and speak with each other; (b) A means for the Notary reasonably to confirm that a record before the Notary is the same record in which the remotely located individual made a statement or on which the remotely located individual executed a signature; (c) Reasonable security measures to prevent unauthorized access to the live transmission of the audio-visual feeds, the methods used to perform the identify verification process under OAC 655:25-11-5; and (d) reasonable certainty that the electronic record before the Notary is the same record in which the principal made a statement or on which the principal executed a signature.
  8. Clarifies that if a remotely located individual must exit the RON workflow, the individual must restart the identity verification process under OAC 655:25-11-5 from the beginning.

Certificate of Remote Online Notarial Act

  1. Requires the certificate of notarial act for a remote online notarization to indicate that the notarial act was a remote online notarial act performed by means of communication technology.
  2. Clarifies that the form of certificate for a remote online notarization satisfies the requirement of OAC 655:25-11-7(a) if it is in the form provided by applicable law and contains a statement substantially as follows: “This remote online notarization involved the use of communication technology.”
  3. Clarifies that the short form certificate provided in 49 O.S., § 119, or an acknowledgment form prescribed in 60 O.S., § 178.11, satisfies the requirement of OAC 655:25-11-7(a) if it is in substantially one of the forms provided in Appendix A the emergency rules.
  4. Provides short certificates of remote online notarial acts.

Electronic Notary Signature and Seal

  1. Requires the tamper-evident technology a Notary must select to perform remote online notarial acts to consist of a digital certificate complying with the X.509 standard adopted by the International Telecommunication Union on October 14, 2016, or similar industry-standard technology.
  2. Requires a Notary to attach or logically associate the Notary’s electronic signature and seal to an electronic record that is the subject of a notarial act by use of a digital certificate.
  3. Prohibits a Notary from performing an electronic notarization if the Notary’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.
  4. Requires a Notary to use the same unique electronic seal for all remote online notarizations.
  5. Requires an electronic seal affixed to an electronic record to be clear, legible and photographically reproducible.
  6. Clarifies that an electronic seal is not required to be within a minimum or maximum size when photographically reproduced on an electronic record.
  7. Requires an electronic seal used for remote online notarizations to substantially conform to the following design: a rectangular or circular seal with the Notary’s name exactly as indicated on the Notary’s commission, the words “State of Oklahoma” and “Notary Public”, the Notary’s commission number, and the date of expiration of the Notary’s commission.
  8. Requires a Notary’s electronic seal to remain within the exclusive control of the Notary, including control by means of use of a password or other secure method of authentication.
  9. Prohibits a Notary from allowing any other individual to use the Notary’s electronic seal to perform a notarial act.
  10. Prohibits a Notary from disclosing any access information used to affix the Notary’s electronic signature or electronic seal to electronic records, except: (a) When requested by the Secretary of State or a law enforcement officer; (b) When required by court order or subpoena; or (c) Pursuant to an agreement to facilitate notarial acts with a vendor or other technology provider identified in OAC 655:25-11-3.
  11. Requires a Notary to destroy or disable the Notary’s electronic seal, including any coding, disk, digital certificate, card, software, or password, that enables the Notary to attach or logically associate the Notary’s electronic seal to an electronic record upon resignation, revocation, or expiration of the Notary’s commission.
  12. Requires a Notary to immediately notify the Secretary of State and appropriate law enforcement agency on actual knowledge of the theft or vandalism of the Notary’s electronic signature, electronic seal or digital certificate.
  13. Requires a Notary to immediately notify the Secretary of State and appropriate law enforcement agency on actual knowledge of the unauthorized use by another person of the Notary’s electronic signature, electronic seal or digital certificate provider identified in OAC 655:25-11-3.

Records of Remote Online Notarial Acts

  1. Requires a Notary to retain an electronic journal and an audio-visual recording created under 49 O.S., § 206 in a computer or other electronic storage device that protects the journal and recording against unauthorized access by password or cryptographic process.
  2. Requires the recording of a remote online notarization to be created in an industry-standard audio-visual file format and to not include images of any electronic record on which the remotely located individual executed an electronic signature.
  3. Requires an electronic journal to be retained for at least 10 years after the last notarial act chronicled in the journal and an audio-visual recording to be retained for at least ten 10 years after the recording is made.
  4. Requires a Notary to take reasonable steps to ensure that a backup of the electronic journal and audio-visual recording exists and is secure from unauthorized use.
  5. Provides that on the death or adjudication of incompetency of a current or former Notary, the Notary’s personal representative or guardian or any other person knowingly in possession of an electronic journal or audio-visual recording must: (a) Comply with the retention requirements of OAC 655:25-7-8; (b) Transmit the journal and recording to one or more depositories under OAC 655:25-7-8(e); or (c) Transmit the journal and recording in an industry-standard readable data storage device to the Secretary of State.
  6. Authorizes a Notary, a guardian, conservator, or agent of a Notary, or a personal representative of a deceased Notary to, by written contract, engage a third person to act as a depository to provide the storage required by OAC 655:25-7-8(a).
  7. Requires the contract with a third person acting as a depository of storage of records to: (a) Enable the Notary, the guardian, conservator, or agent of the Notary, or the personal representative of the deceased Notary to comply with the retention requirements of OAC 655:25-7-8 even if the contract is terminated; or (b) Provide that the information will be transferred to the Notary, the guardian, conservator, or agent of the Notary, or the personal representative of the deceased Notary if the contract is terminated.
Analysis

The Oklahoma Secretary of State’s office has published emergency rules governing remote online notarial acts performed for remotely located individuals that took effect on January 1, 2020, the effective date of Senate Bill 915 which enacted remote online notarization provisions. The rules clarify procedures for applying for a Notary commission and other matters related to a Notary commission, and how a Notary notifies the Secretary of State that the Notary will be performing remote online notarial acts. The rules also outline technology requirements for executing an electronic signature and affixing an electronic seal, for the communication technology a Notary uses, and for the identity proofing process a Notary uses to verify the identity of remotely located individuals. The emergency rules require a Notary who performs remote online notarizations to keep a journal of notarial acts in electronic form and an audio-visual recording of each remote online notarial act. Finally, the emergency rules specify retention requirements for the audio-visual recordings.

Read the emergency rules.

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