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Law

UT House Bill 52

Notary Law Update: UT House Bill 52

State: Utah

Summary:

House Bill 52 allows Notaries to perform remote notarizations, requires Notaries to undergo a background check when applying for a commission, and makes other changes.

Signed:  March 25, 2019

Effective:  November 01, 2019

Chapter: TBD

Affects:

Amends Sections 46-1-1, 46-1-2, 46-1-3, 46-1-4, 46-1-6, 46-1-6.5, 46-1-10, 46-1-12, 46-1-13, 46-1-14, 46-1-15, 46-1-16, 46-1-17, 46-1-18, and 46-1-21 of and adds Sections 46-1-3.5, 46-1-3.6, 46-1-3.7 to the Utah Code Annotated.   

Changes:

Definitions

  1. Defines “before me,” “electronic recording,” “electronic seal,” “in the presence of the Notary,” “Notary,” “official seal,” “remote notarization” and “remote Notary.”
  2. Defines "remote notarization" as a notarial act performed by a remote Notary for an individual who is not in the physical presence of the remote Notary at the time the remote Notary performs the notarial act.
  3. Defines "remote Notary" as a Notary that holds an active remote Notary certification under UCA 46-1-3.5.
  4. Defines "satisfactory evidence of identity" for both an in-person and remote notarization, as identification of an individual based on (a) subject to UCA 46-1-2(19)(b), valid personal identification with the individual's photograph, signature, and physical description that the United States government, any state within the United States, or a foreign government issues; (b) subject to UCA 46-1-2(19)(b), a valid passport that any nation issues; or (c) the oath or affirmation of a credible person who is personally known to the Notary and who personally knows the individual.
  5. Defines "satisfactory evidence of identity" for a remote notarization only, as a third party's affirmation of an individual's identity in accordance with rules made under UCA 46-1-3.7 by means of: (a) dynamic knowledge-based authentication, which may include requiring the individual to answer questions about the individual's personal information obtained from public or proprietary data sources; or (b) analysis of the individual's biometric data, which may include facial recognition, voiceprint analysis, or fingerprint analysis.
  6. Provides that "satisfactory evidence of identity," for a remote notarization, requires the identification described in UCA 46-1-2(19)(a)(i)(A) or passport described in UCA 46-1-2(19)(a)(i)(B) to be verified through public or proprietary data sources in accordance with rules made under UCA 46-1-3.7.

Notary Commission

  1. Requires an applicant for a Notary commission to submit to a background check.
  2. Requires the Lieutenant Governor to request the Department of Human Resource Management to perform a criminal background check under UCA 53-10-108(16) on each individual who submits an application for a Notary commission.
  3. Requires the Lieutenant Governor to require an individual who submits an application for a Notary commission to provide a signed waiver on a form provided by the Lieutenant Governor that complies with UCA 53-10-108(4).
  4. Requires the Lieutenant Governor to provide the Department of Human Resource Management the personal identifying information of each individual who submits an application for a Notary commission.
  5. Requires the Department of Human Resource Management to: (a) perform a criminal background check under UCA 53-10-108(16) on each individual who applies for a Notary commission and (b) provide to the Lieutenant Governor all information that pertains to the individual described that the Department identifies or receives as a result of the background check.
  6. Clarifies that an individual appointed as a Notary may not perform a notarial act for another individual who is outside of Utah except when performing a remote notarization.

Registration as a Remote Notary

  1. Provides that an individual commissioned as a Notary or an individual applying to be commissioned as a Notary may apply for a remote Notary certification.
  2. Requires the Lieutenant Governor to certify an individual to perform remote notarizations as a remote Notary if the individual: (a) complies with UCA 46-1-3 to become a commissioned Notary; (b) submits to the Lieutenant Governor, on a form created by the Lieutenant Governor, a correctly completed application for a remote Notary certification; and (c) pays the application fee established by the Lieutenant Governor.
  3. Requires the Lieutenant Governor to ensure that the application for remote Notary certification requires an applicant to: (a) list the applicant's name as it appears or will appear on the applicant's notarial commission; (b) agree to comply with the Utah’s remote notarization statutes and rules that relate to a remote notarization; and (c) provide the applicant's email address.
  4. Requires a remote Notary to have a separate $5,000 bond approved by the Lieutenant Governor that a licensed surety executes for a term that begins on the certification's effective date and ends on the remote Notary's commission's expiration date; and conditions payment of bond funds to any person upon the remote Notary's misconduct while acting in the scope of the remote Notary's commission.

Remote Notarization Procedures

  1. Provides that a remote Notary who performs a remote notarization for an individual that is not personally known to the remote Notary shall, at the time the remote Notary performs the remote notarization, establish satisfactory evidence of identity for the individual by: (a) communicating with the individual using an electronic device or process that allows the individual and remote Notary to communicate with one another simultaneously by sight and sound, and complies with rules made by the Lieutenant Governor; (b) requiring the individual to transmit to the remote Notary an image of a form of identification described in UCA 46-1-2(17)(a)(i)(A) or passport described in UCA 46-1-2(17)(a)(i)(B) that is of sufficient quality for the remote Notary to establish satisfactory evidence of identity.
  2. Requires a remote Notary to create an audio and video recording of the performance of each remote notarization and store the recording in accordance with UCA 46-1-14 and 46-1-15.
  3. Requires a remote Notary to take reasonable steps, consistent with industry standards, to ensure that any non-public data transmitted or stored in connection with a remote notarization performed by the remote Notary is secure from unauthorized interception or disclosure.
  4. Provides that notwithstanding any other provision of law, a remote notarization performed under Utah’s remote notarization statutes satisfies any provision of state law that requires an individual to personally appear before, or be in the presence of, a Notary at the time the Notary performs a notarial act.
  5. Requires a remote Notary to ensure the notarial certificate that is used for a remote notarization includes a statement that the remote Notary performed the notarization remotely.

Fees

  1. Raises the fees a Notary may charge for (a) performing an acknowledgment from $5 to $10 per signature; (b) certifying a copy from $5 to $10 per page certified; (c) executing a jurat from $5 to $10 per signature; (d) administering an oath or affirmation from $5 to $10; and (e) for witnessing a signature $10.
  2. Allows a Notary to charge $25 for a remote notarization.
  3. Raises the fee a Notary may charge per individual for each set of forms relating to that individual's immigration status from $5 to $10.

Electronic Journal

  1. Requires a remote Notary to keep an electronic journal, including an audio and video recording, of each notarization the remote Notary performs with the entries specified in UCA 46-1-14(1).
  2. Requires a journal entry to contain the type, title, or description of the document, electronic record or proceeding that is the subject of the notarial act.
  3. Requires a journal entry for a remote notarization to include a description of the dynamic knowledge-based authentication or biometric data analysis that was used to provide satisfactory evidence of identity.
  4. Requires a remote Notary to include with the journal a copy of the electronic recording of the remote notarization.
  5. Clarifies that the electronic recording is not a public record and is not a part of the Notary's journal.
  6. Allows a Notary to maintain or designate a custodian to keep the remote Notary's electronic journal and recordings of remote notarization for 5 years that is : (a) the remote Notary’s employer or (b) an electronic repository that grants the remote Notary sole access to the electronic journal and electronic recording and does not allow the person who operates the electronic repository or any other person to access the journal, information in the journal, or the electronic recording for any purpose.
  7. Requires a remote Notary who designates a custodian to execute an agreement with the custodian that requires the custodian to comply with the safety and security requirements of Utah’s Notary statutes with regard to the electronic journal, the information in the electronic journal, and the electronic recording.
  8. Requires a remote Notary to maintain or ensure that a person that the Notary designates as a custodian under UCA 46-1-15(2)(b)(i) maintains, for a period of five years, the information described in UCA 46-1-14(1) and (3) for each remote notarization the Notary performs.
  9. Provides that an electronic repository described may access an electronic journal, information contained in an electronic journal, and the electronic recording: (a) for a purpose solely related to completing, in accordance with Utah’s Notary statutes, the notarization for which the journal or information in the journal is accessed; (b) for a purpose solely related to complying with the requirements to retain and store records under Utah’s Notary statutes; or (c) if required under a court order.

Seal, Electronic Seal and Electronic Signature

  1. Requires a remote Notary to keep an electronic seal and electronic signature that is the exclusive property of the remote Notary.
  2. Allows a remote Notary to allow a person that provides an electronic seal to the remote Notary under UCA 46-1-17 to act as guardian over the electronic seal.
  3. Provides that except as provided in UCA 46-1-16(2)(d)(iii), a guardian of the remote Notary’s electronic seal must store the seal in a secure manner that prevents any person from: (a) accessing the seal, other than the guardian and the remote Notary named on the seal; or (b) using the seal to perform a notarization, other than the remote Notary named on the seal.
  4. Authorizes a guardian of a Notary’s electronic seal to access and use the seal of the Notary: (a) for a purpose solely related to completing, in accordance with Utah’s Notary statutes, the notarization, by the Notary, for which the seal is accessed or used; (b) for a purpose solely related to complying with the requirements to obtain, store, and protect the seal under this chapter; or (c) if required under a court order.
  5. Requires an official seal used for a remote notarization to be rendered in black but continues to require an official seal used for an in-person notarization to be in purple ink.
  6. Requires a remote Notary to attach the remote Notary's electronic signature and electronic seal to an electronic notarial certificate in a manner that makes evident any subsequent change or modification to the notarial certificate or any electronic record, that is a part of the notarization, to which the notarial certificate is attached.
  7. Allows a guardian to store the electronic seal in a secure manner that prevents improper accessing and use of the e-seal, and allows the guardian to use the e-seal for a purpose solely related to completing a notarization, for a purpose related to complying with the requirements to obtain, store and protect the seal, and if required under a court order.
  8. Exempts a notarial certificate that is completed as a part of a remote notarization from the provision that allows a notarial certificate on an annexation, subdivision, or other map or plat to be considered complete without the imprint of the Notary’s official seal if the Notary adds to the notarial certificate certain information, as prescribed, in permanent ink.

Other Provisions

  1. Requires a Notary upon commission resignation, expiration or revocation to (a) destroy the Notary's official seal and certificate; and (b) if the Notary is a remote Notary, destroy any coding, disk, certificate, card, software, or password that enables the remote Notary to affix the remote Notary's electronic signature or electronic seal to a notarial certificate.
  2. Requires a former remote Notary to certify to the Lieutenant Governor in writing that the former remote Notary has destroyed any coding, disk, certificate, card, software, or password that enables the remote Notary to affix the remote Notary's electronic signature or electronic seal to a notarial certificate within 10 days after the day on which the Notary resigns or the Notary's commission expires or is revoked.
  3. Provides that a person who, without authorization, knowingly obtains, conceals, damages, or destroys the certificate, disk, coding, card, program, software, or hardware enabling a remote Notary to affix an official electronic signature or electronic seal to an electronic record is guilty of a class B misdemeanor.
  4. Requires a remote Notary to immediately notify the Lieutenant Governor if the Notary becomes aware that the Notary's electronic signature, electronic seal, electronic journal, or information from the journal has been lost, stolen, or used unlawfully.
  5. Prohibits an individual from creating, obtaining, or possessing an electronic seal unless the individual is a remote Notary except if the person is a business that creates, obtains, or possesses an electronic seal for the sole purpose of providing the seal to a certified remote Notary.
  6. Clarifies that a person who provides, creates, obtains, or possesses an official seal in violation of UCA 46-1-17 is guilty of a class B misdemeanor.
  7. Makes technical and conforming changes.

Rules

  1. Authorizes the director of elections in the Office of the Lieutenant Governor to rules in accordance with the Utah Administrative Rulemaking Act regarding: (a) electronic software and hardware that a remote Notary may use to perform a remote notarization; and keep an electronic journal under UCA 46-1-13; (b) public and proprietary data sources that a remote Notary may use to establish satisfactory evidence of identity under UCA 46-1-2(17)(b); (c) dynamic knowledge-based authentication or biometric data analysis that a remote Notary may use to establish satisfactory evidence of identity under UCA 46-1-2(17)(a)(ii); (d) electronic seals a remote Notary may use to complete an electronic notarial certificate.
  2. Requires the director of elections in the Office of the Lieutenant Governor to review and consider standards recommended by one or more national organizations that address the governance or operation of Notaries
Analysis:

Utah becomes the latest state to enact remote notarization provisions. Notaries wanting to perform remote notarizations must apply for a remote Notary "certification," obtain a separate $5,000 bond, and perform remote notarizations in compliance with the new rules. Like most other states, Utah requires a remote Notary to keep an electronic journal of each remote notarization and make a recording of the remote notarization event. A remote Notary may designate a custodian of the remote Notary's records. Typically, a remote notarization platform through which remote notarizations are performed have the capability to store the records and recordings of remote notarial acts, although the remote Notary may also designate the Notary's employer as the custodian as well. A remote Notary must protect the information he or she collects in the electronic journal and recording. Also consistent with other states, Utah defines the methods by which a remote Notary must identify a principal signer who appears using communication technology. 

House Bill 52 also now requires applicants for a Notary commission to undergo a backgrounds screening as part of the commissioning process. 

Read the bill text.

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