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WA Administrative Rules (2021)

Rule/Regulation

State: Washington
Signed: February 11, 2021

Effective: March 14, 2021
Chapter: N/A

Summary

The Washington Department of Licensing has adopted permanent administrative rules to implement its remote online notarization statutes.

Affects

Amends Sections 308-30-020, 308-30-030, 308-30-040, 308-30-050, 308-30-200, 308-30-220, and 308-30-270 of and adds Sections 308-30-290, 308-30-300, 308-30-310, 308-30-330 to the Washington Administrative Code.

Changes

Definitions

  1. Defines "appear personally" to mean: (a) being in the same physical location as another individual and close enough to see, hear, communicate with, and exchange tangible identification credentials with that individual; or (b) for remote notarial acts, being in a different physical location from another individual but able to see, hear, and communicate with that individual by means of communication technology.
  2. Defines "remote notarial act" as a notarization that is performed using audio-video technology that meets the requirements in WAC 308-30-310 that allows for direct interaction between the Notary and the individuals that are remotely located.

Remote Notary Public Endorsement

  1. Provides that to apply for a remote Notary endorsement, an electronic records Notary Public shall submit a remote Notary endorsement application on forms provided by the Department of Licensing.
  2. Provides that an applicant may only apply for a remote Notary endorsement if: (a) They currently hold an active Notary commission with an electronic records Notary endorsement; (b) They currently hold an active Notary commission, and are applying for an electronic records Notary endorsement and a remote Notary endorsement simultaneously; or (c) They are applying for a Notary commission, an electronic records Notary endorsement, and a remote notarial acts endorsement simultaneously.
  3. Clarifies that a Notary may elect not to apply for an electronic records Notary endorsement or a remote Notary endorsement.
  4. Provides that upon an applicant's fulfillment of the requirements for a Notary commission and/or an electronic records Notary endorsement, and/or a remote Notary endorsement, the Department of Licensing shall approve the application and issue the Notary commission and/or any appropriate endorsements.
  5. Provides that an applicant may not perform any notarial acts on a tangible or electronic record before receiving a Notary commission and the appropriate endorsement from the Department of Licensing.
  6. Clarifies that unless terminated pursuant to WAC 308-30-270, the remote Notary endorsement are 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.
  7. Provides that a Notary may terminate their remote Notary 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.
  8. Clarifies that a Notary may terminate the remote Notary endorsement and maintain the underlying Notary commission.
  9.  Prescribes notarial certificate forms for remote online notarization.

Remote Notarial Acts

  1. Clarifies that for every remote notarial act, a Notary shall complete an electronic notarial certificate that complies with the requirements of these rules, RCW 42.45.130 and 42.45.140.
  2. Provides that notwithstanding the maximum fees set forth in WAC 308-30-220(1) and the prohibition set forth in WAC 308-30-220(3), a Notary may charge a maximum fee of $25 to perform a remote notarial act.
  3. Provides that a Notary who has received both an electronic records Notary endorsement and a remote notarial acts endorsement from the department may perform the following remote notarial acts: (a) taking an acknowledgment; (b) taking a verification on oath or affirmation; (c) witnessing or attesting a signature; (d) certifying or attesting a copy; (e) certifying that an event has occurred or an act has been performed; and (f) noting a protest of a negotiable instrument, if the Notary is acting under the authority of an attorney who is licensed to practice law in Washington or another state, or acting under the authority of a financial institution regulated by Washington, another state, or the federal government.
  4. Provides that in performing remote notarial acts, a Notary shall comply with all requirements for electronic notarial acts under WAC 308-30.
  5. Provides standards for identifying remotely located individuals who are not personally known to the Notary or identified by a credible witness.

Records of Remote Notarial Acts

  1. Clarifies that a tangible journal must have the capacity to record the principal's signature, or the signature of an authorized party in compliance with RCW 42.45.070, or a notation in the journal that the notarial act was performed via remote notarization.
  2. Provides that a Notary performing remote notarization must maintain a tangible Notary journal as required in RCW 42.45.180 and WAC 308-30-190, WAC 308-30-200, and WAC 308-30-210.
  3. Clarifies that Notaries performing remote notarization are not required to collect and maintain the signatures of the signers in the journal when those notarizations were performed remotely.
  4. Clarifies that Notaries must note in their tangible Notary log that a notarization was performed remotely.
  5. Requires Notaries to retain any audio-visual recording in a computer or other electronic storage device that protects the recording against unauthorized access by password or other secure means of authentication.
  6. Requires recordings for a RON to be created in an industry-standard audio-visual file format and must not include images of any electronic record that was the subject of the remote notarial act.
  7. Requires recordings for a RON to be retained for at least ten years after the recording is made.
  8. Requires a Notary to take reasonable steps to ensure that a backup of the audio-visual recording exists and is secure from unauthorized use.
  9. Clarifies that the fact that the Notary's employer, contractor, or repository keeps or stores any audio-visual recordings shall not relieve the Notary of the duties required by the rules.
  10. Requires the personal representative or guardian of a Notary to follow RCW 42.45.280(6) related to the disposition of the Notary's audio-visual recordings upon the death or adjudication of incompetency of the Notary.
  11. Requires a Notary, or the Notary's personal representative or guardian, to provide access instructions to the Department of Licensing for any audio-visual recordings maintained or stored by the Notary, upon commission resignation, revocation, or expiration without renewal, or upon the death of adjudication of incompetency of the Notary.
  12. Authorizes a Notary, or the Notary's personal representative or guardian, to by written contract engage a third party to act as a repository to provide the storage for recordings.
  13. Clarifies that a third party under contract under WAC 308-30-330 shall be deemed a repository under RCW 42.45.280(6).
  14. Requires that any contract with a repository must: (a) enable the Notary, or the Notary's personal representative or guardian, to comply with the retention requirements of WAC 308-30-330 even if the contract is terminated; or (b) provide that the information will be transferred to the Notary, or to the Notary's personal representative or guardian, if the contract is terminated.

Identification of Remotely Located Individuals

  1. Provides that credential analysis must use public or private data sources to confirm the validity of the identification credential presented by a remotely located individual and shall, at a minimum: (a) use automated software processes to aid the Notary in verifying the identity of each remotely located individual; (b) require the identification credential to pass an authenticity test, consistent with sound commercial practices, that uses appropriate technologies to confirm the integrity of visual, physical, or cryptographic security features and to confirm that the identification credential is not fraudulent or inappropriately modified; (c) use information held or published by the issuing source or an authoritative source, as available and consistent with sound commercial practices, to confirm the validity of personal details and identification credential details; and (d) enable the Notary visually to compare for consistency the information and photograph on the identification credential and the remotely located individual as viewed by the Notary in real time through communication technology.
  2. Requires a dynamic knowledge-based authentication assessment to meet the following requirements: (a) the remotely located individual must answer a quiz consisting of a minimum of five questions related to the individual's personal history or identity formulated from public or private data sources; (b) each question must have a minimum of five possible answer choices; (c) at least 80% of the questions must be answered correctly; (d) all questions must be answered within two minutes; (e) if the remotely located individual fails the first attempt, the individual may retake the quiz one time within 24 hours; (f) during a retake of the quiz, a minimum of forty percent of the prior questions must be replaced; (g) if the remotely located individual fails the second attempt, the individual is not allowed to retry with the same online Notary within 24 hours of the second failed attempt; and (h) the Notary must not be able to see or record the questions or answers.
  3. Allows a credible witness used to identify a remotely located individual to be outside the physical presence of the Notary or remotely located individual if the Notary, credible witness, and remotely located individual can communicate by using communication technology.
  4. Provides that if a remotely located individual must exit the workflow, the individual must restart the identify verification process required under WAC 308-30-300 from the beginning.

Communication Technology Requirements

  1. Requires communication technology for a RON to provide for synchronous audio-visual feeds of sufficient audio clarity and video resolution to enable the Notary and remotely located individual to see and speak with each other.
  2. Requires communication technology for a RON to provide a means for the Notary reasonably to confirm that an electronic record before the Notary is the same record in which the remotely located individual made a statement or on which the remotely located individual executed a signature.
  3. Requires communication technology for a RON to provide reasonable security measures to prevent unauthorized access to: (a) the live transmission of the audio-visual feeds; (b) the methods used to perform identity verification; and (c) the electronic record that is the subject of the remote notarial act.
Analysis

After having adopted emergency rules for remote online notarization that were effective throughout the duration of the COVID-19 pandemic, the Washington Department of Licensing has finalized and adopted permanent rules for performing remote online notarizations going forward. The rules provide provisions and standards for recording RONs in the Notary’s journal, keeping recordings of RONs, registering for a remote online Notary endorsement with the Department, fees for RONs, and other matters.

Read the adopted administrative rules.

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