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OR Administrative Rules (2013)

Rule/Regulation

State: Oregon

Effective: September 01, 2013

Summary

Under the Revised Uniform Law on Notarial Acts (RULONA) enacted by chapter 219, Oregon Laws 2013, the Oregon Secretary of State is authorized to publish administrative rules to implement the RULONA covering any provision in the RULONA, including electronic notarization. Administrative rules carry the force of law, except they do not have to be enacted by the Oregon legislature. Following a public comment period, the Oregon Secretary of State published its permanent rules to implement the RULONA on September 1, 2013.

Affects

Amends Oregon Administrative Rules Chapter 160, Division 100.

Changes

Definitions

  1. Deletes prior definitions of “‘File,’ ‘Filed’ and ‘Deliver,’” “Notarial Record,” “Notary Fee,” “‘Official Seal’ or ‘Official Notary Seal,’” and “Official Seal Embosser” and defines “Public Records Address,” “Days,” “Electronic notarial signature,” “Notary,” “Oath of Office,” “Official Misconduct,” “‘Official Stamp’ or ‘Official Notary Stamp,’” “Record,” “Secretary of State,” and “Venue.”

Satisfactory Evidence of Identity

  1. Provides that the following temporary forms of the Oregon driver’s license (ODL) or identification card (OIC) are considered equivalent to the Oregon driver’s license in the following manner: (a) an instruction permit; (b) a provisional driver’s license; (c) a “hole-punched” ODL or OIC shall not be sufficient in itself, but may be used in conjunction with the interim driver’s license or identification card to establish identity; (d) an interim driver’s license or identification card, which is good for no more than 30 days, is given to those awaiting the processing and arrival of their permanent ODL or OIC card, and may be used by itself or in addition to the hole-punched driver’s license or identification card; provided, however, that the interim driver’s license or identification card may only be so used while it is unexpired; (e) a limited term driver’s license or identification card, given to people temporarily in the United States, is noted by the words “Limited Term” in the bottom right corner of the ID and an expiration date between 1-8 years after the issuance date; provided, however, that a limited Term ID will be satisfactory evidence in the same way as a permanent ODL or OIC.

Notary Name and Signature

  1. Clarifies that whenever chapter 219, Oregon Laws 2013, and the Oregon Administrative Rules refer to the name of a Notary, the name is the legal name of the Notary as it appears on the Notary’s current oath of office.
  2. Clarifies that the Notary’s legal name appearing on the current oath of office must be proven with satisfactory evidence pursuant to section 6(2), chapter 219, Oregon Laws 2013, and shall consist of the applicant’s first personal name (first name), additional name(s) (middle name) and surname (family or last name).
  3. Clarifies that whenever chapter 219, Oregon Laws 2013, and the Oregon Administrative Rules require or permit a Notary to sign his or her name, the Notary shall use the signature that is evidenced on the Notary’s current oath of office, or, for electronic records, the electronic signature on file with the Secretary of State.
  4. Clarifies that the Notary’s legal signature must be proven with satisfactory evidence pursuant to section 6(2), chapter 219, Oregon Laws 2013.
  5. Requires a Notary to notify the Secretary of State of any information on file with the Secretary, including the Notary’s legal name, official signature, public records address, electronic notarization technology, state of residency and place of employment or practice, if not an Oregon resident, within 30 days.
  6. Requires a Notary to submit a notarized statement evidencing the change of a Notary’s legal name or legal signature on file with the Secretary of State.

Official Stamp; Stamping Device

  1. Requires the words “Official Stamp” to appear on the Notary’s stamping device.
  2. Requires the month of the Notary’s commission expiration date to be spelled out.
  3. No longer requires an imprint of the Notary’s stamp on a tangible record to be made in black ink, but clarifies that the imprint must be capable of being photocopied or reproduced.
  4. Requires the official Notary stamp to include the following elements on an electronic record: (1) the Notary’s printed name; (2) the words, “Notary Public – Oregon”; (3) the words, “Commission No.” immediately followed by the Notary’s commission number; (4) The words, “My Commission Expires”, immediately followed by the notary’s commission expiration date, expressed in terms of the month (spelled out), two-digit date, and complete year.
  5. Requires a Notary to imprint the Notary’s official stamp on a notarial certificate of a tangible record at the time of notarization.
  6. Requires a Notary to attach or logically associate an electronic image of the Notary’s official stamp on the electronic record.
  7. Clarifies that a Notary may use one additional imprint of the Notary’s official stamp to mark for identification a tangible record and a notarial certificate attached as a separate piece of paper to the tangible record. (Previously, the rule allowed a Notary to use an additional imprint.)
  8. Clarifies that the Notary’s stamping device does not include a seal embosser or crimper.
  9. No longer requires a Notary to file an imprint of the Notary’s official stamp on a COA or duplicate COA with the Secretary of State’s office within 10 days of obtaining a stamping device.
  10. Clarifies that upon acceptance of the Notary’s oath of office, the Secretary of State will email a PDF version of the COA to present to a vendor for the manufacture of a stamping device for tangible and electronic records.
  11. Requires a Notary to keep the COA secure from access by non-authorized persons, except when presented to a seal vendor.
  12. Clarifies that if a Notary’s COA is lost, misplaced, destroyed or otherwise unavailable, the Notary may (no longer “shall”) file with the Secretary of State a written request, under oath or affirmation, for a replacement.
  13. For a lost or misplaced COA, no longer requires the written request for a replacement COA to include a statement that if the Notary reacquires possession of the lost or misplaced COA, the Notary shall file it with the Secretary of State within 10 days of the Notary reacquiring it.
  14. No longer requires a Notary to personally deliver or mail to the Secretary of State a written statement, under oath or affirmation, within 10 days, that the Notary’s stamping device was destroyed, broken, damaged or otherwise unworkable, but still requires the notification to be sent for a stamping device that is lost, misplaced, stolen, or otherwise unavailable.
  15. No longer requires a Notary to return to a lost or misplaced stamping device to the Secretary of State when the stamping device is lost or misplaced and subsequently reacquired, but still requires the Notary to file a written explanation.
  16. Repeals the former rule requiring a Notary who wants to obtain a concurrent official stamp to formally apply to obtain a duplicate COA to obtain a concurrent Notary stamp. (Note: the effect of the rule according to the Secretary of State’s office is not to disallow, but rather to allow, an Oregon Notary to obtain more than one stamping device with a COA.)
  17. Repeals the prior rules stating the format and elements of the adjunct seal embosser.
  18. Repeals the prior rule requiring an embosser to be placed on a notarial certificate and prohibiting against using the embosser for purposes other than performing a notarial act and allowing any other person to use the seal embosser.

Journal of Notarial Acts

  1. Requires a Notary to record on the inside of the front cover of the journal the earliest date the journal may be destroyed, which is now ten (10) years from the date of the last entry chronicled, instead of seven (7) previously.
  2. Repeals the prior rule prohibiting a Notary from using more than one journal at a time.
  3. Clarifies that the required entries for the journal apply to electronic as well as to paper journals.
  4. Requires the signature of the signer in the electronic journal to be (a) attached to or logically associated with the electronic journal and (b) linked to the data in such a manner that any subsequent alterations to the electronic notarial journal entry are detectable and may invalidate the electronic notarial journal entry.
  5. Requires entries in the electronic journal to be available to the Secretary of State upon demand in PDF format.
  6. Requires that if the electronic journal is to be submitted under the Oregon Administrative Rules, it must be as a single PDF file.
  7. Permits, but does not require, a Notary whose notarial journal is lost, misplaced, destroyed or otherwise unusable to file a written notice, under oath or affirmation, with the Secretary of State containing the following: (a) a statement of whether the notarial journal is lost, misplaced, destroyed or in some other manner made unusable; (b) an explanation of how the notarial journal became unusable; (c) the date the Notary discovered that the notarial journal was unusable; and (d) a statement that the notary public does not possess the notarial journal and does not know who possesses it or where it is located.

Disposition of Stamping Device and Journal

  1. Provides that a Notary whose commission is suspended must arrange for the storage of notarial records, except for records of protests, in any form and at any location; and further
  2. provides that the reproduction of the records must be readable, the Notary must be able to obtain possession of such records within 15 days of receipt of a request for such records, and that the Notary must store all records for a period of 10 years after the date of the last act chronicled in the journal and authorizes the former Notary to destroy the records after 10 years.
  3. Repeals prior rules related to the disposition of notarial records due to expiration of a commission when the Notary has filed an application for a new commission within 30 days of the expiration date.
  4. Requires a Notary who has resigned to store all records for a period of 10 years after the date of the last act chronicled in the journal and authorizes the former Notary to destroy the records after 10 years.
  5. No longer requires a Notary who has resigned to file a written statement with the Secretary of State regarding the resignation and stating the exact location where the Notary’s records are stored.
  6. No longer requires a Notary who has resigned to surrender his or her Notary stamping device to the Secretary of State.
  7. No longer requires a Notary whose commission has been revoked to file a written statement with the Secretary of State regarding the revocation, but continues to require the former Notary to file his or her notarial records and stamping device with the Secretary within 30 days of revocation.
  8. Requires the Notary’s personal representative, guardian, conservator or trustee, in the event of termination of the Notary’s commission due to the adjudication of incompetency, to file the Notary’s notarial records with the Secretary of State in the same manner as for a Notary whose commission has terminated due to death; but no longer requires records to be filed within 30 days of the date of adjudication of incompetency or death as the prior rule required.
  9. Permits, but does not require, the Notary’s personal representative, guardian, conservator or trustee, in the event of termination of the Notary’s commission due to the adjudication of incompetency or death, to file a written statement with the Secretary of State; and provides the information to be included in the statement.
  10. No longer requires the Notary’s personal representative, guardian, conservator or trustee, in the event of termination of the Notary’s commission due to death, to file the Notary’s stamping device with the Secretary; but now requires the Notary’s personal representative, guardian, conservator or trustee to destroy the stamping device whether as a result of the Notary’s death or adjudication of incompetency.
  11. Requires an employer with whom an employee-Notary’s notarial records are stored following termination of employment, to retain the records for a period of 10 years after the date of the last act chronicled in the journal and authorizes the employer to destroy the records after 10 years.

Notarial Acts on Electronic Records

  1. Requires a Notary who wishes to perform electronic notarizations to file the following information with the Secretary of State: (a) the Notary’s commission name; (b) The Notary’s commission number; (c) The Notary’s public records address; (d) the Notary’s email address; (e) the name, address and website of the technology vendor; (f) a statement under penalty of perjury that the method of electronic notarization meets the July 13, 2011 National Electronic Notarization Standards adopted by the National Association of Secretaries of State; provided, however, that for the purposes of this statement, the Notary may rely on a vendor’s declaration that the technology does meet these standards; and (g) a generic exemplar (not an actual notarized private record) in PDF format of a notarized record that includes the Notary’s official stamp, the electronic notarial signature, and the electronic notarial certificate.
  2. Requires the notification to be emailed to the Secretary of State using the form provided by the Secretary.
  3. Requires a Notary, in addition to any other technologies used in attaching the electronic notarial signature, to include a graphic reproduction of the Notary’s handwritten signature on file with the Secretary of State on each electronically notarized record.
  4. Requires the Notary, in addition to any other technologies and information, to logically associate the Notary’s official stamp, as evidenced by an official Certificate of Authorization issued by the Secretary of State, with the notarial certificate and underlying electronic record.

Administrative Fees; Fees for Notarial Acts

  1. Repeals the prior fee of $10 for each duplicate Notary commission.
  2. Repeals the prior fee of $10 for each duplicate Certification of Authorization (COA).
  3. Repeals the prior fee of $10 to process a request to change the Notary’s name on the Notary’s commission.
  4. Clarifies that the list of fees a Notary must display or present to a customer if the Notary charges a fee must be in English.

Misconduct and Penalties

  1. Repeals the prior rule requiring a Notary who has been convicted of any felony or lesser offense incompatible with the duties of a Notary to file a written statement with the Secretary of State within 30 days of the conviction.
  2. Provides that the Secretary of State shall conduct an investigation upon notification that a Notary has been convicted of any felony or lesser offense incompatible with the duties of a Notary.
  3. Repeals the prior rule penalizing a person in the business of providing Notary stamps with an official warning for providing a stamp to a person who did not present a Certificate of Authorization.
  4. Amends the prior rule penalizing a person for performing notarial acts within Oregon without a Notary commission by applying it also to persons performing notarial acts who were not otherwise authorized by statute; and clarifies that the penalty for a first offense is refusal to commission or a Class B misdemeanor, or both.
  5. Changes the offense of a Notary performing a notarial act using a new name different than the name as it appeared on the Notary’s commission to using a name other than the current commission name on file with the Secretary of State.
  6. Repeals the prior rule penalizing a Notary or Notary applicant who was convicted of a felony, or of a lesser offense incompatible with the duties of a Notary.
  7. Adds the offense of a Notary or Notary applicant who was convicted of a felony, or of any crime involving fraud, dishonesty or deceit, and states that the penalty for a first-time offense is revocation of commission or refusal to issue commission.
  8. Adds the offense of a Notary who was judicially determined to be liable for damages in a suit for fraud or misrepresentation or in a suit for failing to discharge fully and faithfully the duties as a Notary and states that the penalty for a first-time offense is revocation of commission.
  9. Changes the offense of a Notary notarizing a document in which the Notary signed or was named other than as a Notary to notarizing a record in which the Notary or the Notary’s spouse is a party and states that the penalty for a first-time offense is an official warning.
  10. Adds the offense of a Notary notarizing a record in which the Notary or the Notary’s spouse has a direct beneficial interest and states that the penalty for a first-time offense is an official warning.
  11. Amends the offense of a Notary who is not an attorney and who advertised in a language other than English and did not include the prescribed notice by modifying the wording of the prescribed notice to conform to the new statute.
  12. Amends the offense of a Notary using the term “notario publico” or “notario” to clarify that this applies only to Notaries who are not attorneys.
  13. Clarifies that the offense of a Notary failing to notify the Secretary of State within 10 days of a lost, misplaced, destroyed, broken, damaged or otherwise unworkable stamp, now only applies to stamping devices that are lost, misplaced or stolen.
  14. Clarifies that the offense of a Notary failing to file a written statement of a lost or misplaced stamp within 10 days, now applies to stamping devices that are also stolen and retains the same first-time penalty.
  15. Clarifies that the offense of a Notary whose commission was terminated because of resignation, did not arrange for the storage of his or her records and did not file a statement or the Notary’s seal and embosser, if any, with the Secretary of State, now only applies if the Notary did not arrange for the storage of records.
  16. Adds the offense of a Notary whose commission was terminated due to resignation, did not destroy the Notary’s stamping device and states the first-time penalty is an official warning.
  17. Adds the offense of a Notary whose commission was terminated due to expiration, did not destroy the Notary’s stamping device and states the first-time penalty is an official warning.
  18. Repeals the prior offense of a Notary whose commission was terminated due to expiration and who filed for a new commission within 30 days after the date of termination but was not issued a new commission within 90 days, failing to dispose of the Notary’s records according to the former rule.
  19. Clarifies that the offense of a Notary, whose commission was terminated due to revocation, did not file notarial records, a statement or the Notary’s stamp or embosser, if any, now applies only if the Notary did not file his or her records with the Secretary of State. In addition, a separate offense has been created for a Notary, who under the same circumstances, failed to file his or her stamping device with the Secretary. The penalty for a first-time offense is $500.
  20. Repeals the offense of a Notary, whose commission was terminated because of expiration, resignation or revocation, failing to file with the Secretary of State the written statement required under the former rules within 30 days of the date of termination.
  21. Amends the offense of a Notary failing to determine from satisfactory evidence as defined in the statute that a copy of a document was a complete and correct transcription of the document presented by removing “satisfactory evidence.” The penalty for a first-time offense remains the same.
  22. Adds the offense of a Notary failing to require the physical presence of the signer at the time of notarization of a signature executed on a record and states that a first-time offense is suspension of the commission for 30 days and/or a $500 civil penalty.
  23. Breaks into separate offenses a Notary failing to evidence a notarial act by completing a certificate of a notarial act and a Notary failing to include in the certificate of a notarial act the elements prescribed in section 14, chapter 219, Oregon Laws, 2013. Both contain the first-time penalty of an official warning.
  24. Changes the first-time penalty for the offense of a Notary executing a notarial certificate that contained a statement known to the Notary to be false from a $500 civil penalty to revocation of the commission or refusal to issue a commission.
  25. Adds the offense of a Notary, through error or negligence, executing a notarial certificate that contained false information and states that the first-time penalty is an official warning.
  26. Changes the offense of a Notary using an official seal or seal embosser that did not conform to statute to using a stamping device that did not conform to statute, and keeps the same first-time penalty.
  27. Changes the offense of a Notary using the official seal or seal embosser but placed the seal or embossment over a signature on a document or notarial certificate or over any writing in a notarial certificate, to using the stamping device improperly for these purposes, and keeps the same first-time penalty.
  28. Changes the offense of a Notary using the official seal or embosser for a purpose other than to perform a notarial act to using the stamping device for a purpose other than to perform a notarial act, and keeps the same first-time penalty.
  29. Changes the offense of a Notary allowing another person to use the Notary’s official seal or seal embosser to allowing another person to use the Notary’s stamping device, and retains the same first-time penalty.
  30. Changes the offense of a Notary allowing another person to use the Notary’s official seal or seal embosser or an object in lieu of the Notary’s seal or seal embosser to allowing another person to use the Notary’s stamping device or an object in lieu of the Notary’s stamping device, and retains the same first-time penalty.
  31. Repeals the prior rule stating the offense of a Notary using the Notary’s official seal or official seal embosser to perform a notarial act but did not place an imprint of the seal or seal embosser on a notarial certificate.
  32. Repeals the prior rule stating the offense of a Notary, who received the Notary’s official seal from a vendor of official seals, did not file with the Secretary of State an imprint of the Notary’s official seal and other information required by rule within ten days after the date the Notary received the official seal from the vendor.
  33. Repeals the prior rule stating the offense of a Notary, whose Certificate of Authorization was lost, misplaced, destroyed or otherwise unusable, did not file with the Secretary of State a written statement, under oath or affirmation within ten days after the date the Notary discovered that the COA was lost, misplaced, destroyed or otherwise unusable.
  34. Repeals the prior rule stating the offense of a Notary, whose Certificate of Authorization was lost, misplaced, destroyed or otherwise unusable, did not file with the Secretary of State a written statement containing the information a written statement containing the information required by the former rule.
  35. Repeals the prior rule stating the offense of a Notary, who was issued a duplicate Certificate of Authorization, for failing to file with the Secretary of State an imprint of the Notary’s seal and duplicate COA within ten days after the notary public received the completed duplicate COA from a vendor of official seals.
  36. Repeals the prior rule stating the offense of a Notary, who subsequently reacquired possession of a lost, misplaced, destroyed or otherwise unusable Certificate of Authorization, for failing to file with the Secretary of State a written statement of explanation within ten days after the date the Notary reacquired possession of the unusable COA.
  37. Adds the offense of a Notary failing to enter in a journal the information about each notarial act required by statute and states that a first-time offense is an official warning.
  38. Changes the offense of a Notary not determining or (sic) from satisfactory knowledge as defined under statute, the identity of the negotiable instrument, that presentment was required and made, or that presentment was excused and not made and the reason why presentment was excused, that the instrument was dishonored by nonacceptance or nonpayment, or all or any combination of the above by removing “or from satisfactory evidence…”
  39. Amends the rule stating the offense of a Notary issuing a certificate of dishonor of a negotiable instrument (also known as a protest) that was owned or held for collection by a corporation of which the Notary was a shareholder, director, officer or employee of a corporation at the time of the notarization when the Notary was a party to the negotiable instrument in an individual capacity, to a Notary issuing a certificate of dishonor of a negotiable instrument that was owned or held for collection by a financial institution, trust company or investment company when the Notary was a party to the commercial paper in an individual capacity.
  40. Changes the first-time penalty for the offense of a Notary engaging in any other act or omission involving any act prohibited or mandated by chapter 219, Oregon Laws 2013, or any rule adopted by the Secretary of State, or any other law governing notarization from a $500 civil penalty to an official warning.
Analysis
Earlier this year we reported on the enactment of the Revised Uniform Law on Notarial Acts (RULONA) in Oregon. Under the RULONA, the Secretary of State is authorized to publish administrative rules to implement the new law. Previous Oregon statute repealed under the RULONA gave the Secretary the authority to publish rules, and the Secretary did so. Administrative rules carry the force of law, but differ from a statute like the RULONA in that rules are published by a government agency and not enacted by the legislature. In theory, administrative rules are easier to change. For example, a few states have their laws regulating how much a Notary may charge for notarial acts in an administrative rule, and not a statute, precisely for the reason that it is easier to raise fees later in a revised rule than having to go back to the legislature to do it. The Secretary published final permanent rules implementing the RULONA on September 1, 2013. Oregon’s administrative rules are lengthy and quite specific, especially in categorizing and providing first-time penalties for no fewer than 67 offenses constituting official misconduct. We have listed 91 changes to the former rules in this New Law Alert. Some rules are entirely new, several former rules have been repealed, and a number of rules carried over have been amended — in some cases slightly and in others, more substantively. Notably, there are new rules governing electronic notarization and providing that certain forms of the temporary Oregon driver’s license or identification card have the same status as the permanent driver’s license or identification card. The identification provisions are unique to Oregon; no other state has gone on the record stating that temporary forms of driver’s licenses and identification cards may be presented to a Notary.
 
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