Securing and Enabling Commerce Using Remote and Electronic Notarization Act of 2020
This bill allows a notary public commissioned under state law to remotely notarize electronic records and requires recognition of notarizations performed under the laws of other states.
Under the bill, a notary public may remotely notarize electronic records occurring in or affecting interstate commerce if (1) the individual and the notary public are able to electronically communicate by sight and sound simultaneously (i.e., by video chat); (2) the notary verifies the individual's identity and records the notarization; and (3) the notarization complies with other requirements, such as those relating to the attachment of a stamp or seal to the electronic record.
Additionally, the bill allows a notary public to remotely notarize electronic records involving an individual located outside of the United States, subject to certain requirements.
The bill also requires U.S. courts and states to recognize notarizations, including remote notarizations of electronic records, that occur in or affect interstate commerce and are performed by a notary public commissioned under the laws of other states.
[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[H.R. 6364 Introduced in House (IH)]
<DOC>
116th CONGRESS
2d Session
H. R. 6364
To authorize and establish minimum standards for electronic and remote
notarizations that occur in or affect interstate commerce, to require
any Federal court located in a State to recognize notarizations
performed by a notary public commissioned by another State when the
notarization occurs in or affects interstate commerce, and to require
any State to recognize notarizations performed by a notary public
commissioned by another State when the notarization occurs in or
affects interstate commerce or when the notarization was performed
under or relates to a public act, record, or judicial proceeding of the
State in which the notary public was commissioned.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
March 23, 2020
Mr. Reschenthaler (for himself and Ms. Dean) introduced the following
bill; which was referred to the Committee on Energy and Commerce, and
in addition to the Committee on the Judiciary, for a period to be
subsequently determined by the Speaker, in each case for consideration
of such provisions as fall within the jurisdiction of the committee
concerned
_______________________________________________________________________
A BILL
To authorize and establish minimum standards for electronic and remote
notarizations that occur in or affect interstate commerce, to require
any Federal court located in a State to recognize notarizations
performed by a notary public commissioned by another State when the
notarization occurs in or affects interstate commerce, and to require
any State to recognize notarizations performed by a notary public
commissioned by another State when the notarization occurs in or
affects interstate commerce or when the notarization was performed
under or relates to a public act, record, or judicial proceeding of the
State in which the notary public was commissioned.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Securing and Enabling Commerce Using
Remote and Electronic Notarization Act of 2020''.
SEC. 2. DEFINITIONS.
In this Act:
(1) Commissioned.--The term ``commissioned'', with respect
to a notary public, includes a notary public who is appointed
and licensed.
(2) Electronic; electronic record; electronic signature;
information; person; record.--The terms ``electronic'',
``electronic record'', ``electronic signature'',
``information'', ``person'', and ``record'' have the meanings
given those terms in section 106 of the Electronic Signatures
in Global and National Commerce Act (15 U.S.C. 7006).
(3) Law.--The term ``law'' includes any statute,
regulation, or rule.
(4) Notarization.--The term ``notarization'' includes any
act--
(A) that a notary public may perform under Federal
law, including this Act, or under the laws of the State
in which the notary public is commissioned, without
regard to whether the notary public performs the act--
(i) with respect to a tangible or
electronic record; or
(ii) in an individual, official, or
representative capacity; and
(B) in which an individual making a statement or
executing a record is not in the physical presence of a
notary public but is able to communicate with the
notary public simultaneously by sight and sound through
an electronic device or process at the time of the act.
(5) Requirement.--The term ``requirement'' includes a duty,
a standard of care, and a prohibition.
(6) Simultaneously.--The term ``simultaneously'', with
respect to a communication between parties--
(A) means that each party communicates
substantially simultaneously and without unreasonable
interruption or disconnection; and
(B) includes a reasonably short delay that is
inherent in, or common with respect to, the method used
for the communication.
(7) Stamp or seal of office.--The term ``stamp or seal of
office'' means an image that--
(A) contains information as specified under the law
of the State in which a notary public is commissioned;
(B) a notary public uses to authenticate the
notarization of a record; and
(C) may consist of--
(i) a physical image or impression affixed
to or embossed on a tangible record; or
(ii) an electronic image attached to, or
logically associated with, an electronic
record.
(8) State.--The term ``State''--
(A) means--
(i) any State of the United States;
(ii) the District of Columbia;
(iii) the Commonwealth of Puerto Rico;
(iv) any territory or possession of the
United States; and
(v) any federally recognized Indian tribe;
and
(B) includes any executive, legislative, or
judicial agency, court, department, board, office,
clerk, recorder, register, commission, authority,
institution, instrumentality, county, municipality, or
other political subdivision of an entity described in
any of clauses (i) through (v) of subparagraph (A).
SEC. 3. AUTHORIZATION TO PERFORM AND MINIMUM STANDARDS FOR ELECTRONIC
NOTARIZATION.
A notary public commissioned under the laws of a State may perform
a notarization that occurs in or affects interstate commerce with
respect to an electronic record, if--
(1)(A) a stamp or seal of office is attached to or
logically associated with the electronic record; or
(B) the electronic signature of the notary public, and all
other information required to be included under other
applicable law, is attached to or logically associated with the
signature or record; and
(2) the stamp or seal of office, electronic signature, or
other information described in paragraph (1) is securely bound
to the electronic record in a manner that is capable of
independent verification and renders any subsequent change or
modification to the electronic record evident.
SEC. 4. AUTHORIZATION TO PERFORM AND MINIMUM STANDARDS FOR REMOTE
NOTARIZATION.
(a) Requirements of Remote Notarization.--A notary public
commissioned under the laws of a State may perform a notarization that
occurs in or affects interstate commerce for an individual not in the
physical presence of the notary public, if--
(1) the individual and the notary public are able to
communicate simultaneously by sight and sound through an
electronic device or process at the time of the notarization;
(2) the notary public--
(A) has reasonably identified the individual
through--
(i) personal knowledge of the individual;
(ii) not fewer than 2 distinct types of
processes or services through which a third
person provides a means to verify the identity
of the individual through a review of public or
private data sources; or
(iii) oath or affirmation of a credible
witness who--
(I)(aa) is in the physical presence
of the notary public or the individual;
or
(bb) is able to communicate with
the notary public and the individual
simultaneously by sight and sound
through an electronic device or process
at the time of the notarization;
(II) has personal knowledge of the
individual; and
(III) has been reasonably
identified by the notary public under
clause (i) or (ii); and
(B) either directly or through an agent--
(i) creates an audio and visual recording
of the performance of the notarization; and
(ii) retains the recording created under
clause (i)--
(I) as a notarial record during the
term of the notary public's office,
including renewals of that term, unless
a law of the State requires a different
period of retention; and
(II) if any laws of the State
govern the content, retention,
security, use, effect, and disclosure
of that recording and any information
contained in the recording, in
accordance with those laws; and
(3) with respect to an individual physically located
outside the geographic boundaries of a State or other location
subject to the jurisdiction of the United States at the time of
the notarization--
(A) the record--
(i) is intended for filing with, or relates
to a matter before, a court, governmental
entity, public official, or other entity
subject to the jurisdiction of the United
States; or
(ii) involves property located in the
territorial jurisdiction of the United States
or a transaction substantially connected to the
United States; and
(B) the notary public has no actual knowledge that
the act of making the statement or signing the record
is prohibited by the laws of the jurisdiction in which
the individual is physically located.
(b) Personal Appearance Satisfied.--If a State or Federal law
requires an individual to appear personally before or be in the
physical presence of a notary public at the time of a notarization that
occurs in or affects interstate commerce, that requirement is satisfied
if the individual and the notary public are not in the physical
presence of each other but can communicate simultaneously by sight and
sound through an electronic device or process at the time of the
notarization.
SEC. 5. RECOGNITION OF NOTARIZATIONS IN FEDERAL COURT.
Each court of the United States shall recognize any notarization
performed by a notary public commissioned under the laws of a State
other than the State in which the court is located if--
(1) the notarization occurs in or affects interstate
commerce; and
(2)(A) a stamp or seal of office is affixed or embossed on
a tangible record; or
(B) in the case of an electronic record--
(i) a stamp or seal of office is attached to or
logically associated with the electronic record; or
(ii) the electronic signature of the notary public,
and all other information required to be included under
other applicable law, is attached to or logically
associated with the electronic record.
SEC. 6. RECOGNITION BY STATE OF NOTARIZATIONS PERFORMED UNDER AUTHORITY
OF ANOTHER STATE.
Each State shall recognize as having the same effect under the laws
of that State as if performed by a notary public of that State any
notarization performed by a notary public commissioned under the laws
of any other State if--
(1)(A) the notarization was performed under or relates to a
public act, record, or judicial proceeding of the State in
which the notary public is commissioned; or
(B) the notarization occurs in or affects interstate
commerce; and
(2)(A) a stamp or seal of office is affixed or embossed on
a tangible record; or
(B) in the case of an electronic record--
(i) a stamp or seal of office is attached to or
logically associated with the electronic record; or
(ii) the electronic signature of the notary public,
and all other information required to be included by
other applicable law, is attached to or logically
associated with the electronic record.
SEC. 7. ELECTRONIC AND REMOTE NOTARIZATION NOT REQUIRED.
Nothing in this Act may be construed to require a notary public
commissioned under the laws of a State to perform a notarization--
(1) with respect to an electronic record;
(2) for an individual not in the physical presence of the
notary public; or
(3) using a technology that the notary public has not
selected.
SEC. 8. RIGHTS OF AGGRIEVED PERSONS NOT AFFECTED; STATE LAWS ON THE
PRACTICE OF LAW NOT AFFECTED.
(a) In General.--The validity and recognition of a notarization
under this Act may not be construed to prevent an aggrieved person from
seeking to invalidate a record or transaction that is the subject of a
notarization or from seeking other remedies based on State or Federal
law other than this Act for any reason not addressed in this Act,
including on the basis--
(1) that a person did not, with present intent to
authenticate or adopt a record--
(A) execute or adopt on the record a tangible
symbol; or
(B) attach to or logically associate with the
record an electronic signature;
(2) that an individual was incompetent, lacked authority or
capacity to execute the record, or did not knowingly and
voluntarily execute a record; or
(3) of fraud, forgery, mistake, misrepresentation,
impersonation, duress, undue influence, or other invalidating
cause.
(b) Rule of Construction.--Nothing in this Act may be construed to
affect a State law governing, authorizing, or prohibiting the practice
of law.
SEC. 9. EXCEPTION TO PREEMPTION.
A State law shall not be affected by a provision of section 3 or 4
of this Act to the extent that the law--
(1) constitutes an enactment or adoption of the Revised
Uniform Law on Notarial Acts, as approved and recommended for
enactment in all States by the National Conference of
Commissioners on Uniform State Laws in 2018, except that a
modification to such Act enacted by a State shall be preempted
to the extent the modification is inconsistent with this Act or
would not be permitted under paragraph (2); or
(2) specifies additional or alternative procedures or
requirements for the performance of notarizations with respect
to electronic records or for individuals not in the physical
presence of a notary public at the time of the notarization, if
those additional or alternative procedures or requirements--
(A) are consistent with this Act; and
(B) do not accord greater legal effect to the
implementation or application of a specific technology
or technical specification for performing those
notarizations.
SEC. 10. VALIDITY OF NOTARIZATIONS; STANDARD OF CARE; SPECIAL NOTARIAL
COMMISSIONS; SAVINGS CLAUSE.
(a) Validity Not Affected.--The failure of a notary public to meet
a requirement specified in this Act shall not invalidate or impair the
recognition of a notarization performed by the notary public.
(b) Rule of Construction.--This Act may not be construed to create
a public or private cause of action or remedy.
(c) State Standards of Care; Authority of State Commissioning
Officials.--Nothing in this Act may be construed to prevent a State, or
a commissioning official of a State, from--
(1) adopting a requirement in this Act as a duty or
standard of care under the laws of that State or sanctioning a
notary public for breach of such a duty or standard of care;
(2) establishing requirements and qualifications for
denying, refusing to renew, revoking, suspending, or imposing a
condition on a commission as a notary public; or
(3) creating or designating a class or type of commission,
or requiring an endorsement or other authorization to be
received by a notary public, as a condition on the authority to
perform notarial acts with respect to electronic records or for
individuals not in the physical presence of the notary public.
(d) Special Commissions Created by a State.--A notary public
commissioned under the laws of a State may not perform a notarization
under section 3 or 4 of this Act if--
(1) the State has enacted a law that creates or designates
a class or type of commission, or requires an endorsement or
other authorization to be received by a notary public, as a
condition on the authority to perform notarial acts with
respect to electronic records or for individuals not in the
physical presence of the notary public; and
(2) the commission of the notary public is not of the class
or type or the notary public has not received the endorsement
or other authorization.
(e) Savings Clause.--This Act shall not affect the validity of a
notarization performed before the date of enactment of this Act.
SEC. 11. SEVERABILITY.
If any provision of this Act or the application of such a provision
to any person or circumstance is held to be invalid or
unconstitutional, the remainder of this Act and the application of the
provisions of this Act to other persons or circumstances shall not be
affected by that holding.
<all>
Introduced in House
Introduced in House
Referred to the Committee on Energy and Commerce, and in addition to the Committee on the Judiciary, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned.
Referred to the Committee on Energy and Commerce, and in addition to the Committee on the Judiciary, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned.
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