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OR Temporary Rules (2020-2021)

Rule/Regulation

State: Oregon

Effective: July 01, 2020

Summary

The Oregon Secretary of State has adopted temporary rules for remote notarization. On February 18, 2021, the Secretary adopted a permanent administrative order with a few new changes to the rules.

Affects

Amends Sections 160-100-0000, 160-100-0110, 160-100-0125, 160-100-0140, and 160-100-0400 of, and adds Sections 160-100-0145, 160-100-0800 and 160-100-0850 to the Oregon Administrative Code.

The February 18, 2021, changes amend Sections 160-100-0000, 160-100-0140, 160-100-0210, and 160-100-0400 of, and add Sections 160-100-0146, 160-100-0215, 160-100-0805, and 160-100-0855 to the Oregon Administrative Code. The Secretary also suspended Sections 160-100-1200, 160-100-1210, 160-100-1220, and 160-100-1230, and 160-100-1240.

Changes

Definitions

  1. Defines “remote online notarization” and “tamper-evident”.

Notification

  1. Provides that once a Notary Public’s notification that the Notary will be performing notarial acts with respect to electronic records has been received and approved by the Secretary of State, a confirmation will be sent to the Notary to verify approval.
  2. Requires a Notary to complete the required remote online notarization training course on the Secretary’s website before notifying the Secretary that the Notary will be performing notarial acts for remotely located individuals.
  3. Provides for the informational requirements, as specified, that must be included in a notification to be approved to perform remote online notarizations.

Identity Proofing Standards

  1. Provides that the requirement for at least two different types of identity proofing under ORS 194.240 is satisfied if the Notary public identifies a remotely located individual in accordance with the identity proofing standards.
  2. Requires credential analysis to be provided by a reputable third-party vendor or software tool that can demonstrate proven credential analysis processes and employ technology that provides the following: (a) linking the signer’s identity to the signer following successful knowledge-based authentication, or biometric data; and  (b) human visual comparison between the signer and the signer's identification presented to the Notary.
  3. Requires online notarization providers to use an automated software process to aid the Notary in verifying each signer's identity.
  4. Requires online notarization providers to use an authenticity test that (a) uses appropriate technologies to confirm the integrity of visual, physical or cryptographic security features; (b) uses appropriate technologies to confirm that the identification is not fraudulent or inappropriately modified; (c) uses information held or published by the issuing source or authoritative source, as available, to confirm the validity of the identification details; and, (d) provides the result of the authenticity test to the Notary.
  5. Requires the identification analysis procedure to enable the Notary to visually compare the following for consistency: (a) the information and photo on the identification image presented; and (b) the signer as viewed by the Notary in real time through the audio/video system.
  6. Provides that if the Notary is unable to validate the identification of the signer, or to match the signer's physical features with the credential, the Notary shall not complete the notarial act and no further attempt may be made by the Notary or the solution provider to complete the notarial act using audio-video communication using that credential.
  7. Requires the identification presented to the Notary for a remote online notarization to meet the requirements of ORS 194.240
  8. Requires an image of the identification to be captured and confirm that: (a) the signer is in possession of the identification at the time of the notarial act; (b) the images submitted for credential analysis have not been manipulated; and (c) the images match the identification in the signer's possession.
  9. Requires the resolution of the captured image to be sufficient for the issuing source or authoritative source to perform credential analysis.
  10. Requires the resolution of the image to be sufficient to enable visual inspection by the Notary, including legible text and clarity of photographs, barcodes, and other identification features.
  11. Requires all images of identification necessary to perform visual inspection and credential analysis to be captured.
  12. Requires knowledge-based authentication procedure to contain 5 multiple choice questions, drawn from public or private data sources and a minimum of 5 possible answer choices per question, and require that 80% of the questions are correctly answered within 2 minutes by the signer.
  13. Provides that if a signer fails their first quiz, they may attempt up to two additional quizzes within 48 hours from the first failure.
  14. Provides that during any quiz retake, a minimum of 40% (2) of the prior questions must be replaced.
  15. Provides that if biometric sensing technologies are used for remote online notarization in the areas of authentication, credential analysis, and identity proofing, verification may include facial, voice, and fingerprint recognition.
  16. Provides that if a signer exits the identification process during the notarial act, they must restart the credential analysis and authentication workflow from the beginning.

Technology Requirements

  1. Provides that actions completed as part of a remote online notarization act may be recorded in an electronic Notary journal provided by the vendor but that each entry in the electronic journal must meet the requirements under ORS 194.300.
  2. Requires each document completed as part of a remote notarization to be electronically signed and rendered tamper evident.
  3. Requires the method of remote online notarization to ensure privacy and data security.
  4. Requires the method of remote online notarization to ensure all applicable consumer data, privacy and information security laws are satisfied through their information security programs.
  5. Requires records of a remote online notarization must be retained in a safe and secure manner for 10 years following the date of the notarization and be available to the Secretary of State upon request.
  6. Provides a remote online notarization operating model should (a) consist of reliable, continuous, synchronous audio and video feeds with clarity such that all participants can be clearly seen and understood; (b) ensure the audio and video are adequate for communication and ability to terminate the session if adequate conditions are not met.
  7. Requires the audio/video recording made by the system to (a) include the person-to person interaction required as part of the notarial act, (b) be logically associated to the electronic Notary journal, and (c) be capable of being viewed and heard using broadly available audio/video players.
  8. Prohibits the transaction documents executed in the remote online notarization act from being recorded as part of the video recording.
  9. Provides that notarizations in compliance with the audio and video quality requirements for remote online notarization must satisfy the personal appearance requirements under ORS 194.235.

Other Provisions

  1. Clarifies that a Notary performing a remote online notarization shall not charge, attempt to charge, or receive a Notary fee that is more than $25 per notarial act.
  2. Makes technical, non-substantive changes.

February 18, 2021 Changes

  1. Defines "remote online notarization vendor."
  2. Clarifies that the official stamp of a Notary is an official notarial seal for all purposes under the law of Oregon.
  3. Modifies #6 under "Identity Proofing," above by removing the clause stating that no further attempt may be made by the Notary or the solution provider to complete the notarial act using audio-video communication using that credential.
  4. Clarifies that a Notary must submit their electronic official stamp and signature to the Secretary as generated by the remote online notarization platform they are using.
  5. Makes technical, non-substantive changes.
Analysis

To support the enactment of House Bill 4212, the Oregon Secretary of State has published temporary administrative rules to implement the provisions for notarizations for remotely located individuals. The rules themselves are consistent with other U.S. jurisdictions that have enacted similar laws. Identity proofing using credential analysis and knowledge-based authentication must comply with the standards in the temporary rules. The audio-visual communication technology must include reliable, continuous, synchronous audio and video feeds with clarity such that all participants can be clearly seen and understood and allow the Notary to terminate the session if it is not. The technology must ensure the privacy of the participants and not allow the transactional documents of the remote notarization to be caught on camera.

While the remote notarization provisions of HB 4212 are scheduled to be repealed on June 30, 2021, the temporary rules are effective only until December 27, 2020. The Febuary 18, 2021, changes noted above include the suspensions of several prior temporary rules (160-100-1200, 160-100-1210, 160-100-1220, and 160-100-1230, and 160-100-1240), which were replaced by permanent rules containing virtually the same substance as those replaced.

Read the temporary administrative rules.

Read the February 18, 2021 rules.

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