WA Administrative Rules (2018) | NNA
Rule

WA Administrative Rules (2018)

Notary Law Update: WA Administrative Rules (2018)

State: Washington

Summary:

New administrative rules implement the Washington enactment of the Revised Uniform Law on Notarial Acts by adding provisions related to the notarization of electronic records and many other changes.

Effective:  July 01, 2018

Chapter: N/A

Affects:

Amends Sections 308-30-010, 308-30-020, 308-30-030, 308-30-040, 308-30-050, 308-30-060, 308-30-070, 308-30-080, 308-30-090, 308-30-100, 308-30-110; 308-30-110, 308-30-120, 308-30-130, 308-30-140, 308-30-150, 308-30-160, 308-30-170, 308-30-180, and 308-30-190; adds new Sections 308-30-200, 308-30-210, 308-30-220, 308-30-230, 308-30-240, 308-30-250, 308-30-260, 308-30-270, and 308-30-280; and repeals Sections 308-30-005 and 308-30-155 of the Washington Administrative Code.

Changes:

Definitions

  1. Defines “appear personally”, “capable of independent verification,” “commission,” “department,” “director,” “electronic journal”, “electronic notarial acts”, electronic notarial certificate,” “enroll,” “enrollment,” “principal,” “sole control,” tamper-evident technology,” “technology provider” and “venue.”

Notary Commission; Electronic Records Notary Public Endorsement

  1. Refers to a Notary "appointment" now as a "commission." 
  2. Requires an applicant for a Notary commission to provide both their legal and commission name and further requires that the commission name must contain their surname and at least the initials of the applicant’s first and middle name.
  3. Provides that an applicant for an electronic records Notary endorsement must complete an application form and pay the prescribed fee.
  4. Provides that an applicant may only apply for an electronic records Notary Public endorsement if (a) they currently hold an active Notary commission, or (b) they are applying for a Notary commission and an electronic records Notary Public endorsement simultaneously.
  5. Sets a fee of $15 for applying for and renewing an electronic records Notary Public endorsement. 
  6. Requires an individual applying for an electronic records Notary Public endorsement to inform the Department of Licensing within 30 days of applying of the tamper-evident technology provider that they have enrolled with before they perform their first electronic notarial act.
  7. Requires a Notary to reapply with the Department of Licensing for each commission term before performing notarial acts.
  8. Provides that if the Department of Licensing receives an incomplete or invalid application, the Department will hold the application for 30 calendar days to allow the applicant to cure any defects, after which period the application will be canceled and any application fees forfeited.
  9. Prohibits an applicant from performing any notarial acts before receiving a Notary commission.
  10. Prohibits a Notary from performing any electronic notarial acts before receiving an electronic records Notary Public endorsement.
  11. Allows the Department of Licensing to deny a commission or endorsement application if the applicant fails to comply with the administrative rules or does not meet the requirements for licensure.
  12. Clarifies that the term of a Notary commission expires on the expiration date of the Notary’s surety bond, no more than 4 years after their commission date.
  13. Provides that unless terminated pursuant to WAC 308-30-270, an electronic records Notary Public endorsement is valid from the date the endorsement is issued by the Department of Licensing and continues as long as the Notary’s current commission remains valid.
  14. Provides that a Notary may terminate his or her electronic records Notary Public endorsement by notifying the Department of Licensing of this intent in writing and disposing of all or any part of a tamper-evident technology in the Notary’s control whose purpose was to perform electronic notarizations.
  15. Clarifies that a Notary may terminate the electronic records notary public endorsement and maintain the underlying Notary commission.
  16. No longer requires a Notary who resigns, has his or her commission revoked, suspended or restricted, or whose commission expires, to submit his or her seal to the Department of Licensing, but instead requires the Notary to destroy the seal or stamping device.
  17. Clarifies specifically that Notaries must use a form for the purpose provided by the Department of Licensing and that a Notary who reports a change of name must use their existing official stamp until they receive a new commission certificate and stamp with the new information. 
  18. Clarifies that a Notary must report any change of information submitted a Notary's application for a commission or electronic records Notary endorsement within 15 days. 
  19. No longer requires a Notary who has been convicted of official misconduct or civil or criminal charges to notify the Department of Licensing within 30 days.
  20. No longer requires a Notary who fails to maintain the qualifications of a Notary throughout the term of commission to resign.
  21. Provides that the Department of Licensing may take action against the commission and/or endorsement of a Notary who fails to comply with the Washington rules as provided in RCW 42.45.210, 42.45.270 and RCW 18.235.
  22. Provides that any restriction, suspension, or revocation of a Notary’s commission will automatically have the same effect on any endorsement the Notary holds.

Official Stamp and Stamping Device; Electronic Official Stamp

  1. Provides that a Notary may procure an official seal or stamp only after receiving a certificate evidencing the Notary’s commission.
  2. No longer prohibits a vendor from providing a Notary official stamp without the Notary presenting a certificate of commission, but instead now requires a Notary to provide a copy of the certificate of commission to the vendor as part of procuring the stamp.
  3. Requires the Notary's commission number to be included in the official stamp. 
  4. Requires an official stamp affixed to a tangible record to be applied in permanent ink and requires it to be capable of being photocopied.
  5. Repeals the rule requiring the face of a Notary stamp to contain permanently affixed letters and numerals and shall not be preprinted.
  6. Clarifies that Notaries with a commission in force on July 1, 2018, may use their existing official stamp until their commission expires. 
  7. Requires a Notary to provide a vendor making the Notary's official stamp a certificate evidencing the Notary's commission obtained from the Department of Licensing. 
  8. Clarifies that a Notary must notify the Department of Licensing within 10 business days upon discovering the Notary's official stamp was lost or stolen, but no longer requires the notification to be by certified mail. 
  9. Clarifies that the Notary’s official stamp is the exclusive property of the Notary and must not be surrendered to an employer upon termination of employment, regardless of whether the employer paid for the Notary's seal, bond or commission fees.
  10. Prohibits a Notary from obtaining a replacement official seal or stamp until they have properly notified the Department of Licensing that the original was lost or stolen.
  11. Provides that if a lost or stolen official seal or stamp is found or recovered after a replacement has been obtained, the original seal or stamp must be destroyed.
  12. Permits an electronic stamp to be used to authenticate an electronic notarial act if the electronic notarial certificate conforms to the rules set forth in RCW 42.45.130 and 42.45.140.
  13. Requires a Notary’s electronic stamp to conform to RCW 42.45.150 and WAC 308-30-070.
  14. Provides that a Notary’s electronic stamp must be a digital image that appears in the likeness or representation of a traditional physical Notary official stamp meeting the requirements of RCW 42.45.150 and WAC 308-30-070.

Notarization of Electronic Records

  1. Lists the authorized notarial acts an electronic records Notary Public may perform.
  2. Requires a tamper-evident technology for performing electronic notarizations to require access to the system by a password or other secure means of authentication.
  3. Requires a tamper-evident technology for performing electronic notarizations to enable a Notary to affix the Notary’s electronic signature and seal or stamp in a manner that attributes such signature and seal or stamp to the Notary.
  4. Requires a Notary to use a tamper-evident technology that complies with WAC 308-30-130 to produce the Notary’s electronic signature in a manner that is capable of independent verification.
  5. Requires a Notary to take reasonable steps to ensure that no other individual may possess or access a tamper-evident technology used to produce the Notary’s electronic signature.
  6. Requires a Notary to keep in his or her sole control all or any part of a tamper-evident technology whose exclusive purpose is to perform electronic notarial acts.
  7. Prohibits the tamper-evident technology used to create a Notary electronic stamp from being used for any purpose other than performing electronic notarial acts under RCW 42.45 and WAC 308-30.
  8. Provides that only the Notary to whom the tamper-evident technology is registered may generate an official stamp.
  9. Requires a Notary to refuse to perform an electronic notarial act if the Notary has a reasonable belief that a tamper-evident technology does not meet the requirements of the Washington rules.
  10. Requires a Notary to refuse a request to use a tamper-evident technology that the Notary does not know how to operate.
  11. Requires an electronic notarial certificate to be completed at the time of notarization and in the physical presence of the principal.
  12. Requires a Notary to sign each electronic notarial certificate with an electronic signature that complies with WAC 308-30-170 and authenticate an electronic notarial act with an official stamp that complies with WAC 380-30-180.
  13. Provides rules for the electronic signature and electronic official stamp of an electronic records Notary. 

Electronic Notarization Technology Providers

  1. Requires a technology provider to enroll only Notaries who have been issued an electronic records Notary Public endorsement pursuant to WAC 308-30-030.
  2. Requires a technology provider to take reasonable steps to ensure that a Notary who has enrolled to use the technology has the knowledge to use it to perform electronic notarial acts in compliance with Washington rules.
  3. Requires a technology provider to provide prorated fees to align the usage and cost of the tamper-evident technology with the term limit of the electronic records Notary Public endorsement.
  4. Requires a technology provider to suspend the use of any tamper-evident technology for any Notary whose endorsement has been revoked, suspended, or canceled by the state of Washington or the Notary.

Notary Journal

  1. Clarifies that if a Notary performs notarial acts involving different statements or documents for the same individual on the same date, the Notary may record a single entry in the journal for all of the statements or documents.
  2. Provides that a single entry made by a Notary for all statements and documents notarized on a single date must include the number of statements or documents notarized and shall otherwise conform to RCW 42.45.180 and WAC 308-30.
  3. Clarifies that the fact that the Notary’s employer or contractor keeps a record of notarial acts shall not relieve the Notary of the duties to keep a journal required by WAC 308-30.
  4. Provides that a tangible journal must be a permanent, bound book with numbered pages and have the capacity to record for each notarial act (a) the information required by RCW 42.45.180(4); (b) a description of the Notary’s method of identifying the principal; and (c) the principal’s signature or the signature of an authorized party in compliance with RCW 42.45.070.
  5. Provides that if a Notary keeps an electronic journal pursuant to RCW 42.45.180(3), the electronic journal must (a) be maintained only in addition to the tangible journal; (b) have the capacity to record the information required for a tangible notarial journal; (b) enable access by a password or other secure means of authentication; (d) be tamper-evident; (e) create a duplicate record of the journal as a backup; and (f) be capable of providing tangible or electronic copies of any entry made in the journal.
  6. Clarifies that a Notary’s journal must not be surrendered to an employer upon demand or termination, whether the employer paid for the journal or the notary’s bond or application fees.
  7. Provides that 10 years after the performance of the last notarial act chronicled in a tangible journal, the journal is to be destroyed by shredding or other destruction that leaves any entry in the journal illegible.
  8. Provides that 10 years after the performance of the last notarial act chronicled in an electronic journal, the journal is to be destroyed by deleting any remaining records pertaining to the electronic journal and deleting any remaining tamper-evident technology in the Notary’s possession.
  9. Requires the personal representative or guardian of a Notary to follow RCW 42.45.180(6) related to the disposition of the Notary’s journals upon the death or adjudication of incompetency of the Notary.
  10. Clarifies that nothing in WAC 308-30-210 requires a Notary to dispose of their notarial journal or journals if doing so would be in conflict with the law of another jurisdiction that requires a Notary to keep their journal for a longer period of time.
  11. Requires a Notary or the Notary’s personal representative to provide access instructions to the Department of Licensing for any electronic journal maintained or stored by the Notary upon commission resignation, revocation, or expiration without renewal, or upon the death or adjudicated incompetence of the Notary.

Notary Fees

  1. Repeals the prior requirement in the Washington rules that Notaries keep and post a fee schedule or provide a schedule of fees to customers.
  2. Repeals the prior rule authorizing Notaries to charge $10 for noting a protest of a negotiable instrument.
  3. Prohibits a Notary from charging a fee to note a protest of a negotiable instrument.

Miscellaneous

  1. Repeals current rules on mailing address and satisfactory evidence of identity.
  2. Repeals rules related to the administration of brief adjudicative proceedings and hearings before the Department of Licensing.
Analysis:

The new Washington administrative rules predominantly, but not exclusively, pertain to how Notaries perform electronic notarizations in Washington state. There are performance standards for the systems Notaries use to notarize electronic records and rules for technology providers. Washington, however, did not elect to require formal approval of technology systems, a policy the NNA supports. The new rules also make a change to the Notary's official stamp by requiring the stamp to contain the Notary's commission ID number, but Notaries with existing commissions may use their current seals without the commission ID number until their commissions expire. There are new rules to implement Washington's journal law enacted as part of the Revised Uniform Law on Notarial Acts.

Read the text of the administrative rules.

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