SECURE Notarization Act of 2022

IIB 117TH CONGRESS 2D SESSION H. R. 3962 IN THE SENATE OF THE UNITED STATES JULY 28, 2022 Received; read twice and referred to the Committee on the Judiciary AN ACT To authorize notaries public to perform, and to establish minimum standards for, electronic notarizations and re- mote notarizations that occur in or affect interstate com- merce, to require any Federal court to recognize notarizations performed by a notarial officer of any State, to require any State to recognize notarizations performed by a notarial officer of any other State when the notarization was performed under or relates to a public Act, record, or judicial proceeding of the notarial officer’s State or when the notarization occurs in or affects interstate commerce, and for other purposes. VerDate Sep 11 2014 03:58 Jul 29, 2022 Jkt 029200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6652 E:\BILLS\H3962.RFS H3962 pbinns on DSKJLVW7X2PROD with $$_JOB 2 HR 3962 RFS Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Securing and Enabling 4 Commerce Using Remote and Electronic Notarization Act 5 of 2022’’ or the ‘‘SECURE Notarization Act of 2022’’. 6 SEC. 2. DEFINITIONS. 7 In this Act: 8 (1) COMMUNICATION TECHNOLOGY.—The term 9 ‘‘communication technology’’, with respect to a nota- 10 rization, means an electronic device or process that 11 allows the notary public performing the notarization, 12 a remotely located individual, and (if applicable) a 13 credible witness to communicate with each other si- 14 multaneously by sight and sound during the notari- 15 zation. 16 (2) ELECTRONIC; ELECTRONIC RECORD; ELEC- 17 TRONIC SIGNATURE; INFORMATION; PERSON; 18 RECORD.—The terms ‘‘electronic’’, ‘‘electronic 19 record’’, ‘‘electronic signature’’, ‘‘information’’, ‘‘per- 20 son’’, and ‘‘record’’ have the meanings given those 21 terms in section 106 of the Electronic Signatures in 22 Global and National Commerce Act (15 U.S.C. 23 7006). 24 VerDate Sep 11 2014 03:58 Jul 29, 2022 Jkt 029200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H3962.RFS H3962 pbinns on DSKJLVW7X2PROD with $$_JOB 3 HR 3962 RFS (3) LAW.—The term ‘‘law’’ includes any stat- 1 ute, regulation, rule, or rule of law. 2 (4) NOTARIAL OFFICER.—The term ‘‘notarial 3 officer’’ means— 4 (A) a notary public; or 5 (B) any other individual authorized to per- 6 form a notarization under the laws of a State 7 without a commission or appointment as a no- 8 tary public. 9 (5) NOTARIAL OFFICER’S STATE; NOTARY PUB- 10 LIC’S STATE.—The term ‘‘notarial officer’s State’’ or 11 ‘‘notary public’s State’’ means the State in which a 12 notarial officer, or a notary public, as applicable, is 13 authorized to perform a notarization. 14 (6) NOTARIZATION.—The term ‘‘notariza- 15 tion’’— 16 (A) means any act that a notarial officer 17 may perform under— 18 (i) Federal law, including this Act; or 19 (ii) the laws of the notarial officer’s 20 State; and 21 (B) includes any act described in subpara- 22 graph (A) and performed by a notarial officer— 23 (i) with respect to— 24 (I) a tangible record; or 25 VerDate Sep 11 2014 03:58 Jul 29, 2022 Jkt 029200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H3962.RFS H3962 pbinns on DSKJLVW7X2PROD with $$_JOB 4 HR 3962 RFS (II) an electronic record; and 1 (ii) for— 2 (I) an individual in the physical 3 presence of the notarial officer; or 4 (II) a remotely located individual. 5 (7) NOTARY PUBLIC.—The term ‘‘notary pub- 6 lic’’ means an individual commissioned or appointed 7 as a notary public to perform a notarization under 8 the laws of a State. 9 (8) PERSONAL KNOWLEDGE.—The term ‘‘per- 10 sonal knowledge’’, with respect to the identity of an 11 individual, means knowledge of the identity of the 12 individual through dealings sufficient to provide rea- 13 sonable certainty that the individual has the identity 14 claimed. 15 (9) REMOTELY LOCATED INDIVIDUAL.—The 16 term ‘‘remotely located individual’’, with respect to 17 a notarization, means an individual who is not in the 18 physical presence of the notarial officer performing 19 the notarization. 20 (10) REQUIREMENT.—The term ‘‘requirement’’ 21 includes a duty, a standard of care, and a prohibi- 22 tion. 23 (11) SIGNATURE.—The term ‘‘signature’’ 24 means— 25 VerDate Sep 11 2014 03:58 Jul 29, 2022 Jkt 029200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H3962.RFS H3962 pbinns on DSKJLVW7X2PROD with $$_JOB 5 HR 3962 RFS (A) an electronic signature; or 1 (B) a tangible symbol executed or adopted 2 by a person and evidencing the present intent 3 to authenticate or adopt a record. 4 (12) SIMULTANEOUSLY.—The term ‘‘simulta- 5 neously’’, with respect to a communication between 6 parties— 7 (A) means that each party communicates 8 substantially simultaneously and without unrea- 9 sonable interruption or disconnection; and 10 (B) includes any reasonably short delay 11 that is inherent in, or common with respect to, 12 the method used for the communication. 13 (13) STATE.—The term ‘‘State’’— 14 (A) means— 15 (i) any State of the United States; 16 (ii) the District of Columbia; 17 (iii) the Commonwealth of Puerto 18 Rico; 19 (iv) any territory or possession of the 20 United States; and 21 (v) any federally recognized Indian 22 Tribe; and 23 (B) includes any executive, legislative, or 24 judicial agency, court, department, board, of- 25 VerDate Sep 11 2014 03:58 Jul 29, 2022 Jkt 029200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H3962.RFS H3962 pbinns on DSKJLVW7X2PROD with $$_JOB 6 HR 3962 RFS fice, clerk, recorder, register, registrar, commis- 1 sion, authority, institution, instrumentality, 2 county, municipality, or other political subdivi- 3 sion of an entity described in any of clauses (i) 4 through (v) of subparagraph (A). 5 SEC. 3. AUTHORIZATION TO PERFORM AND MINIMUM 6 STANDARDS FOR ELECTRONIC NOTARIZA- 7 TION. 8 (a) AUTHORIZATION.—Unless prohibited under sec- 9 tion 10, and subject to subsection (b), a notary public may 10 perform a notarization that occurs in or affects interstate 11 commerce with respect to an electronic record. 12 (b) REQUIREMENTS OF ELECTRONIC NOTARIZA- 13 TION.—If a notary public performs a notarization under 14 subsection (a), the following requirements shall apply with 15 respect to the notarization: 16 (1) The electronic signature of the notary pub- 17 lic, and all other information required to be included 18 under other applicable law, shall be attached to or 19 logically associated with the electronic record. 20 (2) The electronic signature and other informa- 21 tion described in paragraph (1) shall be bound to 22 the electronic record in a manner that renders any 23 subsequent change or modification to the electronic 24 record evident. 25 VerDate Sep 11 2014 03:58 Jul 29, 2022 Jkt 029200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H3962.RFS H3962 pbinns on DSKJLVW7X2PROD with $$_JOB 7 HR 3962 RFS SEC. 4. AUTHORIZATION TO PERFORM AND MINIMUM 1 STANDARDS FOR REMOTE NOTARIZATION. 2 (a) AUTHORIZATION.—Unless prohibited under sec- 3 tion 10, and subject to subsection (b), a notary public may 4 perform a notarization that occurs in or affects interstate 5 commerce for a remotely located individual. 6 (b) REQUIREMENTS OF REMOTE NOTARIZATION.—If 7 a notary public performs a notarization under subsection 8 (a), the following requirements shall apply with respect to 9 the notarization: 10 (1) The remotely located individual shall appear 11 personally before the notary public at the time of the 12 notarization by using communication technology. 13 (2) The notary public shall— 14 (A) reasonably identify the remotely lo- 15 cated individual— 16 (i) through personal knowledge of the 17 identity of the remotely located individual; 18 or 19 (ii) by obtaining satisfactory evidence 20 of the identity of the remotely located indi- 21 vidual by— 22 (I) using not fewer than 2 dis- 23 tinct types of processes or services 24 through which a third person provides 25 a means to verify the identity of the 26 VerDate Sep 11 2014 03:58 Jul 29, 2022 Jkt 029200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H3962.RFS H3962 pbinns on DSKJLVW7X2PROD with $$_JOB 8 HR 3962 RFS remotely located individual through a 1 review of public or private data 2 sources; or 3 (II) oath or affirmation of a 4 credible witness who— 5 (aa)(AA) is in the physical 6 presence of the notary public or 7 the remotely located individual; 8 or 9 (BB) appears personally be- 10 fore the notary public and the re- 11 motely located individual by 12 using communication technology; 13 (bb) has personal knowledge 14 of the identity of the remotely lo- 15 cated individual; and 16 (cc) has been identified by 17 the notary public in the same 18 manner as specified for identi- 19 fication of a remotely located in- 20 dividual under clause (i) or sub- 21 clause (I) of this clause; 22 (B) either directly or through an agent— 23 VerDate Sep 11 2014 03:58 Jul 29, 2022 Jkt 029200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H3962.RFS H3962 pbinns on DSKJLVW7X2PROD with $$_JOB 9 HR 3962 RFS (i) create an audio and visual record- 1 ing of the performance of the notarization; 2 and 3 (ii) notwithstanding any resignation 4 from, or revocation, suspension, or termi- 5 nation of, the notary public’s commission 6 or appointment, retain the recording cre- 7 ated under clause (i) as a notarial 8 record— 9 (I) for a period of not less 10 than— 11 (aa) if an applicable law of 12 the notary public’s State specifies 13 a period of retention, the greater 14 of— 15 (AA) that specified pe- 16 riod; or 17 (BB) 5 years after the 18 date on which the recording 19 is created; or 20 (bb) if no applicable law of 21 the notary public’s State specifies 22 a period of retention, 10 years 23 after the date on which the re- 24 cording is created; and 25 VerDate Sep 11 2014 03:58 Jul 29, 2022 Jkt 029200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H3962.RFS H3962 pbinns on DSKJLVW7X2PROD with $$_JOB 10 HR 3962 RFS (II) if any applicable law of the 1 notary public’s State governs the con- 2 tent, manner or place of retention, se- 3 curity, use, effect, or disclosure of the 4 recording or any information con- 5 tained in the recording, in accordance 6 with that law; and 7 (C) if the notarization is performed with 8 respect to a tangible or electronic record, take 9 reasonable steps to confirm that the record be- 10 fore the notary public is the same record with 11 respect to which the remotely located individual 12 made a statement or on which the individual ex- 13 ecuted a signature. 14 (3) If a guardian, conservator, executor, per- 15 sonal representative, administrator, or similar fidu- 16 ciary or successor is appointed for or on behalf of 17 a notary public or a deceased notary public under 18 applicable law, that person shall retain the recording 19 under paragraph (2)(B)(ii), unless— 20 (A) another person is obligated to retain 21 the recording under applicable law of the notary 22 public’s State; or 23 (B)(i) under applicable law of the notary 24 public’s State, that person may transmit the re- 25 VerDate Sep 11 2014 03:58 Jul 29, 2022 Jkt 029200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H3962.RFS H3962 pbinns on DSKJLVW7X2PROD with $$_JOB 11 HR 3962 RFS cording to an office, archive, or repository ap- 1 proved or designated by the State; and 2 (ii) that person transmits the recording to 3 the office, archive, or repository described in 4 clause (i) in accordance with applicable law of 5 the notary public’s State. 6 (4) If the remotely located individual is phys- 7 ically located outside the geographic boundaries of a 8 State, or is otherwise physically located in a location 9 that is not subject to the jurisdiction of the United 10 States, at the time of the notarization— 11 (A) the record shall— 12 (i) be intended for filing with, or re- 13 late to a matter before, a court, govern- 14 mental entity, public official, or other enti- 15 ty that is subject to the jurisdiction of the 16 United States; or 17 (ii) involve property located in the ter- 18 ritorial jurisdiction of the United States or 19 a transaction substantially connected to 20 the United States; and 21 (B) the act of making the statement or 22 signing the record may not be prohibited by a 23 law of the jurisdiction in which the individual is 24 physically located. 25 VerDate Sep 11 2014 03:58 Jul 29, 2022 Jkt 029200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\H3962.RFS H3962 pbinns on DSKJLVW7X2PROD with $$_JOB 12 HR 3962 RFS (c) PERSONAL APPEARANCE SATISFIED.—If a State 1 or Federal law requires an individual to appear personally 2 before or be in the physical presence of a notary public 3 at the time of a notarization, that requirement shall be 4 considered to be satisfied if— 5 (1) the individual— 6 (A) is a remotely located individual; and 7 (B) appears personally before the notary 8 public at the time of the notarization by using 9 communication technology; and 10 (2)(A) the notarization was performed under or 11 relates to a public act, record, or judicial proceeding 12 of the notary public’s State; or 13 (B) the notarization occurs in or affects inter- 14 state commerce. 15 SEC. 5. RECOGNITION OF NOTARIZATIONS IN FEDERAL 16 COURT. 17 (a) RECOGNITION OF VALIDITY.—Each court of the 18 United States shall recognize as valid under the State or 19 Federal law applicable in a judicial proceeding before the 20 court any notarization performed by a notarial officer of 21 any State if the notarization is valid under the laws of 22 the notarial officer’s State or under this Act. 23 (b) LEGAL EFFECT OF RECOGNIZED NOTARIZA- 24 TION.—A notarization recognized under subsection (a) 25 VerDate Sep 11 2014 03:58 Jul 29, 2022 Jkt 029200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\H3962.RFS H3962 pbinns on DSKJLVW7X2PROD with $$_JOB 13 HR 3962 RFS shall have the same effect under the State or Federal law 1 applicable in the applicable judicial proceeding as if that 2 notarization was validly performed— 3 (1)(A) by a notarial officer of the State, the law 4 of which is applicable in the proceeding; or 5 (B) under this Act or other Federal law; and 6 (2) without regard to whether the notarization 7 was performed— 8 (A) with respect to— 9 (i) a tangible record; or 10 (ii) an electronic record; or 11 (B) for— 12 (i) an individual in the physical pres- 13 ence of the notarial officer; or 14 (ii) a remotely located individual. 15 (c) PRESUMPTION OF GENUINENESS.—In a deter- 16 mination of the validity of a notarization for the purposes 17 of subsection (a), the signature and title of an individual 18 performing the notarization shall be pr [Text truncated for display. Full text available on Congress.gov.]