DC Administrative Rules (2022)

Rule/Regulation

State: Washington DC

Effective: October 21, 2022

Summary
The District of Columbia has adopted rules affecting Notary commissions, Notary seals, notarial acts, and in-person electronic notarization.

Affects
Amends DC Municipal Regulations Title 17, Chapter 24, Sections 2400-2427, 2499.

Changes

Definitions

Defines “acknowledgment,” “act,” District of Columbia government Notary,” “electronic,” “electronic notary,” “in a representative capacity,” “notarial act,” “notarial sealer,” “notary public,” “official seal,” “ONCA,” “person,” “record,” “secretary,” “sign,” “signature,” “state,” “tamper-evident technologies,” and “verification on oath or affirmation.
Removes the definitions of “business notary” and “residential notary.”

Notary Commission

No longer states that new appointments of Notaries shall be made to serve the needs and convenience of members of the public, the bar, financial institutions, and other fiduciary bodies, but instead states that any applicant who meets the requirements for a commission or endorsement as an Electronic Notary shall be granted a commission or endorsement.
No longer requires applicants for a Notary commission to inform ONCA of the hours they will perform notarizations.
No longer requires applicants for a Notary commission and employers of applicants to submit a letter requesting a commission, dual commission, or otherwise.
Requires an applicant for a commission to indicate, on a form provided by ONCA, the language(s) of records in which the applicant intends to perform notarial acts even though the applicant must be required to read and write English on any record the applicant notarizes as a Notary.
Clarifies that a Notary’s commission begins on (a) the first day of a month and ends on the last day of the prior month, except that a commission starting at the beginning of January will start on January 2 and end on January 1, or (b) the fifteenth day of a month and ends on the fourteenth day of that month.
Repeals the prior rule requiring that Notaries display a sign.
Clarifies that a surety or entity that provides the $2,000 bond must be licensed to do business in D.C.
Requires the bond to be in the form prescribed by ONCA.
Requires a surety to notify ONCA not later than 30 days after making a payment to a claimant on the bond.
Clarifies that a Notary who is not otherwise authorized to perform notarial acts under the Act, or under state or federal law, must reapply with ONCA for each commission term before performing notarial acts.
Clarifies that an applicant for a new or renewal Notary commission shall not perform notarial acts before taking the oath of office.
No longer has the provision stating a business notary who is no longer employed by that business may take his or her commission with him or her upon the approval of the business, provided, however, if the business does not consent to the continuation of the commission, the commission will be terminated.

Changes of Status

Requires a Notary to report a change to any of the information submitted on a Notary's commission application to ONCA in writing, or by email to notary@dc.gov, within 15 business days.
No longer requires a Notary who changes a place of business to provide a letter from the new employer providing the name, physical address, and phone number of the new place of employment.
Authorizes a Notary to terminate their commission or Electronic Notary endorsement by notifying ONCA of this intent in writing, or by email to notary@dc.gov.
Provides that a Notary who has notified ONCA to terminate the Notary’s Electronic Notary endorsement must dispose of all or any part of a tamper-evident technology in the notary's control whose purpose was to perform electronic notarizations.
Clarifies that a Notary may terminate the Electronic Notary Endorsement but still maintain the Notary’s commission.
Provides that a Notary whose commission is terminated or expired, either by the Notary or ONCA must disable their official seal by destroying, defacing, damaging, or securing the device against use.
Clarifies that any restriction, suspension, or revocation of a Notary’s commission will automatically have the same effect on any Electronic Notary endorsement the Notary holds.

Notarial Acts and Fees

Clarifies that the statutory requirements which apply to taking acknowledgments and verifications on oath or affirmation, performing copy certifications, and noting protests apply to all District notarial officers, including Notaries, except for Notaries acting pursuant to a commission from the federal government.
Provides that a notarial officer other than a Notary acting pursuant to a commission from the federal government who certifies or attests a copy of a record or item that was copied must determine that the copy is a full, true, and accurate transcription or reproduction of the record or item.
Clarifies that the authorization to refuse to perform a notarial act under DC Code 1231.07 applies to District Notaries Public, and not notarial officers with a commission from the federal government.
Clarifies that nothing in the rules may be construed to require a Notary to charge a fee.
Repeals the prior rule stating that any Notary who takes a higher fee than the rules allow must pay a fine of $100 but prohibits a Notary from charging a higher fee than permitted in the rules.
Authorizes a Notary, including an Electronic Notary, to, in addition to the fees described in Subsection 2420.1, charge the actual costs of copying any instrument or record, and prohibits the Notary from charging any other additional fees when performing the notarial act in the Notary's place of business or residence.
No longer contains the rule that requires a Notary to provide a certified copy of any record in the Notary’s office to any person upon payment of the fees incurred.
Authorizes a Notary, including an Electronic Notary, to charge a travel fee when traveling to perform a notarial act if: (a) the Notary and the individual requesting the notarial act agree upon the travel fee in advance of the travel; (b) the Notary explains to the individual requesting the notarial act that the travel fee is in addition to the notarial fee in Subsection 2420.1 and is not required by law; (c) the fee is for travel to a place that is not the usual place where the Notary performs notarial acts; and (d) the fee does not exceed the actual and reasonable expense of traveling to the place where the notarial act is to be performed.
Provides that except as otherwise authorized by law, a Notary shall, upon the request of a person who has provided the notary public with original records, return those records to the person.

Journal of Notarial Acts

Authorizes a Notary to maintain a separate journal for tangible records.
Authorizes the journal to be kept in tangible or electronic format.
Requires a tangible journal to be a permanent, bound book with numbered pages and have the capacity to record each notarial act.
Requires an electronic journal to (a) be protected with technology designed to allow a person inspecting the journal to determine whether there has been any tampering with its integrity, (b) be capable of recording the same information required for a tangible notarial journal; (c) enable access by a password or other secure means of authentication; (d) be capable of creating a duplicate record of the journal as a backup; and (e) be capable of providing tangible or electronic copies of any entry made in the journal.
No longer prohibits electronic signatures to be recorded in the journal.
Requires a Notary to record in the journal the time of the notarial act, but all other information that must be recorded in the journal remains the same.
Provides if a Notary's journal is lost or stolen, the notary shall notify ONCA within 10 business days of discovering the journal was lost or stolen and requires the Notary to purchase a new journal within 15 days of discovering the journal was lost or stolen.
Provides if the Notary or an Electronic Notary terminates his or her commission or endorsement, or that commission or endorsement is revoked or suspended, the Notary or Electronic Notary must transmit the journal to ONCA.
Provides that if the notary or electronic notary dies or is adjudicated incompetent, the notary's or electronic notary's personal representative or guardian or any other person knowingly in possession of the journal shall transmit it to ONCA.
Requires the personal representative or guardian of a Notary to, if the notary dies or is adjudicated incompetent, follow Section 2417.1(f) related to the disposition of the Notary's journals.
Provides that if a Notary or Electronic Notary terminates his or her commission, the Notary's commission or endorsement is revoked or expires without renewal, or the Notary or Electronic Notary dies or is adjudicated incompetent, the Notary or the Notary's or Electronic Notary's personal representative must provide access instructions to ONCA for any electronic journal maintained or stored by the Notary or Electronic Notary.

Notary Seal and Signature

Requires the Notary seal to be applied in permanent ink and capable of being photocopied.
Repeals the prior rule requiring the informational elements in the seal to be in exact order, except the name of the Notary which must be at the top of the seal.
Prohibits the seal from containing the District of Columbia corporate seal.
Repeals the prior rule expressly requiring the Notary use a seal inker, but still requires the seal to be photographically reproducible.
Clarifies that a Notary with a commission that was in effect on December 4, 2018, may continue to use their official seal until their commission expires.
No longer provides that in the case that the document being notarized is made of a non-porous material, such as Mylar or a similar material to which standard ink will not adhere, an embossed seal must be used alone or in conjunction with a non-porous, permanent ink that dries through evaporation and does not smear.
Repeals the previous seal grandfather clause relating to commissions issued prior to December 15, 2010.
Provides that a Notary may procure a seal only after receiving the appointment notice from ONCA and further provides that the Notary must provide this notice to a seal vendor when procuring the seal.
Requires a Notary or Electronic Notary to notify ONCA in writing or by email to notary@dc.gov within 10 business days of discovering the official seal or Electronic Notary seal is lost or stolen.
Prohibits a Notary or Electronic Notary from obtaining a replacement seal until they have properly notified ONCA of the lost or stolen seal.
Requires any replacement seal to contain some variance from the original seal and further requires the Notary or Electronic Notary to provide ONCA with an impression of the new seal.
Provides that a Notary who finds a Notary seal or electronic seal previously reported as lost or stolen must destroy that seal.
Requires a Notary to sign a notarial certificate using the exact name that an applicant for a Notary commission provides in the application, that appears on the Notary’s commission certificate and that is engraved in the Notary’s seal.
Provides that a Notary who submits a name change notification must continue to use their original notary seal and their original name and signature until ONCA renews their commission and that upon renewal, the notary will receive a new commission certificate and seal with the new information.
No longer requires a Notary, upon termination of the commission, to return the Notary seal to ONCA, but instead requires the Notary to destroy or disable the seal or secure it against use.

Electronic Notary Endorsement

Provides that a Notary may not perform any electronic notarial acts before receiving an Electronic Notary endorsement from ONCA unless the Notary has authority to do so pursuant to a statute other than the Act or a regulation outside Chapter 24 of the regulations.
Establishes a fee of $30 to apply for or renew an Electronic Notary endorsement.
Provides that an applicant may apply for an Electronic Notary endorsement only if the Notary holds a current commission.
Provides that a Notary in the service of the U.S. or D.C. governments does not have to pay the $30 Electronic Notary endorsement fee if the Notary’s notarial duties are confined to official federal or District government business.
Requires an applicant for an Electronic Notary endorsement to do the following within 30 days of receiving an Electronic Notary endorsement or forfeit the endorsement: (a) complete a training course provided by ONCA; (b) take the oath prescribed for civil officers; (c) notify ONCA of the tamper-evident technology provider the Notary intends to use; and (d) file an exemplar of the Electronic Notary’s electronic signature and seal.
Provides that an Electronic Notary endorsement is valid from the date ONCA issues it and remains valid as long as the Notary’s current commission remains valid unless ONCA terminates it or the Notary resigns the endorsement.

Standards for Electronic Notarial Acts

Authorizes a Notary with an Electronic Notary endorsement to perform the following notarial acts: (a) acknowledgments, (b) verifications on oath or affirmation, (c) signature witnessings, (d) copy certifications, and (e) protests, if the Notary is licensed to practice law in the District, acting under the authority of an attorney who is licensed to practice law in the District, or acting under the authority of a financial institution regulated by the District, another state, or the federal government.
Clarifies that the same requirements for taking an acknowledgment or verification on oath or affirmation, witnessing a signature, certifying a copy, and noting a protest that apply to tangible notarial acts apply also to in-person electronic notarial acts.
Requires notarial acts performed on electronic records to comply with DC Code 1-1231.21.
Authorizes an electronic notary to charge a reasonable fee based on the electronic technology that the electronic notary uses if that fee is agreed to in advance with the customer and itemized separately on the invoice.
Authorizes an Electronic Notary to refuse a notarization to use a tamper-evident technology the Notary does not know how to operate.
Authorizes an Electronic Notary to refuse a request to perform a notarial act if the Notary has a reasonable belief that a tamper-evident technology does not meet the D.C. rules.

Electronic Notarial Certificate, Signature and Seal

Requires an Electronic Notary to complete a notarial certificate that complies with the requirements of DC Code 1-1231.14 and 1-1231.15.
Requires an Electronic Notary to sign each electronic notarial certificate with an electronic signature that complies with Section 2414 of the regulations and authenticate an electronic notarial act with an official electronic seal that complies with Section 2415 of the regulations.
Requires an Electronic Notary to complete a notarial certificate for an electronic notarization in the physical presence of the person for whom they are notarizing.
Requires that the Notary’s tamper-evident technology must produce the Notary’s electronic signature in a manner that is capable of independent verification and defines the term “capable of independent verification.”
Requires a Notary to take reasonable steps to ensure that no one else may possess or use the Notary’s electronic signature.
Requires a Notary to keep in the Notary’s sole control any or all parts of a tamper-evident technology used to perform notarial acts.
Requires the Notary’s electronic seal to be a digital image that appears in the likeness of a traditional Notary seal meeting D.C. Official Code 1-1231.16 and Section 2404 of the new rules.
Prohibits a Notary from using the tamper-evident technology used to create an Electronic Notary seal for any other purpose than performing electronic notarizations.
Clarifies that an Electronic Notary is the only one who can authenticate an electronic notarial record with an Electronic Notary seal.

Technology Providers and Tamper-Evident Technologies

Requires a technology provider to enroll only Notaries who have been issued an Electronic Notary endorsement to use their system.
Requires a technology provider to take reasonable steps to ensure a Notary knows how to use the provider’s system.
Requires a tamper-evident technology to utilize a password or other secure means of authentication.
Requires that the tamper-evident technology an Electronic Notary uses must enable a Notary to affix the Notary’s electronic signature and seal in a manner that attributes the signature and seal to the Notary.
Requires that the tamper-evident technology must allow a party that sought the Notary's signature and seal on one or more documents, or who seeks access to one or more documents containing that signature and seal, to detect unauthorized tampering or alteration of the electronic document after it has been digitally signed by the Electronic Notary.

Analysis

The District of Columbia has adopted rules amending Title 17, Chapter 24 of the District of Columbia Municipal Regulations. The new regulations touch Notary commissions, Notary seals and notarial certificates, standards for performing notarial acts, and journals. They also, importantly, finally implement in-person electronic notarization (IPEN) in the District by specifying procedures for applying for an “endorsement” to the Notary Public commission authorizing a Notary to perform IPENs. The rules require Notaries to take a training course if they want to perform IPENs. They also provide requirements for the Notary’s electronic seal, standards for performing IPENs, and rules for technology providers. It should be noted, however, that the new rules do not implement remote notarization which was only recently enacted and that presumably will be implemented by further regulations.

There is a new expanded travel fee provision for Notaries, as well as another provision allowing Electronic Notaries to charge a reasonable fee for the use of technology, although with the latter it is unclear if the Electronic Notary can also charge the $5 fee for a notarial act in addition to the technology usage fee.

Many provisions in the new regulations duplicate sections that are already in the D.C. Code and are not noted in this new law update. One provision – new Section 2424.5, requiring a Notary to return any original records to a person upon request – seems to imply that contrary to DC Code 1-1231.25(e), a Notary may withhold an original record from a person if they do not ask the Notary to return it.

The revised rules repeal a number of things, such as certain definitions, the previous requirement for Notaries to display a sign, a prohibition against recording electronic signatures in an electronic journal, and the requirements for obtaining two references and submitting letters to justify a Notary commission at the time of application. However, the latter two repealers – the references and the letters – still will be required according to Judi Gold, the Notary Public Administrator of the District. And another lengthy section of the prior regulations related to the filing of a petition for review, was simply replaced with a pointer reference to Title 1, Chapter 28 of the D.C. Municipal Regulations, where most of the repealed sections may be found.

Existing Notaries with commissions in effect on December 4, 2018, may continue to use their old seals until their commissions expire, and then upon renewal must obtain a seal the conforms to the new rules. The NNA has seen some states change their seal requirements in recent years and still require Notaries with existing commissions to obtain a new seal, which is costly to Notaries and businesses. The NNA applauds the District for the inclusion of the grandfather seal clause.

Read the adopted administrative regulations.