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ME Emergency Rules 2023 (Notaries Public)

Rule/Regulation

State: Maine

Effective: July 05, 2023

Summary
Effective July 5 through October 3, 2023, the Maine Secretary of State has adopted emergency rules to implement the Revised Uniform Law on Notarial Acts, including electronic and remote notarization.
Affects
Repeals Chapter 700 (Agency 29, Sub-Agency 250) of the Code of Maine Rules, and replaces them with new Chapter 700.
Changes

Definitions

  1. Defines “credible witness,” direct beneficial interest,” “electronic notarization,” “electronic record,” “notarial officer,” “principal,” “remotely located individual,” “remote notarization,” “residence and resident,” “Secretary of State,” “tamper-evident,” and “tamper-evident technology.”

Notary Public Appointment and Commission

  1. Requires an applicant for a Notary commission to be at least 18 years of age at the time of submitting the application.
  2. Requires a Notary commission applicant to demonstrate that the applicant: (a) Is a Maine resident; or (b) Has a place of employment located in Maine; or (c) Has a business located in Maine.
  3. Requires a Notary commission applicant to demonstrate an ability to read and write the English language.
  4. Requires a Notary commission applicant to be worthy of the public trust, which at a minimum means the applicant must: (a) Not have been convicted of any crime punishable by one year or more of imprisonment; (b) Not have been convicted of any crime involving fraud, dishonesty or deceit; (c) Not have received a finding or have made any admission of liability in any legal proceeding or disciplinary action against the applicant based on the applicant’s fraud, dishonesty or deceit; (d) Not have made any false, fraudulent, dishonest or deceitful statements in the application for a Notary commission; and (e) Not have had a Notary Public commission in another state revoked, suspended, conditioned, or not renewed for cause.
  5. Clarifies that a crime involving fraud, dishonesty or deceit includes, but is not limited to, any crime involving false swearing, unsworn falsification, perjury, tampering with public records, impersonation, bribery, forgery, identity theft, negotiating a worthless instrument, misuse of information, theft, larceny, robbery, extortion, counterfeiting, unauthorized transfer of property, misappropriation, embezzlement, and deceptive practices.
  6. Requires a Notary commission applicant to pass an examination administered by the Secretary of State to demonstrate an understanding of the laws, rules, procedures and ethics relevant to performing notarial acts.
  7. Provides that the examination will be administered by the Secretary of State and based on a course of study offered regularly by the Secretary of State in accordance with 4 MRSA 1923.
  8. Provides the information that must be included in an application for a Notary commission, as specified.
  9. Provides that every application for a Notary Public commission must be accompanied by payment of a fee prescribed by 5 MRSA 87, submitted to the Secretary of State and made payable to the Treasurer, State of Maine.
  10. Provides that upon approval of an application for a Notary commission, a certificate of commission will be mailed to the applicant who then has 30 calendar days to appear before a Dedimus Justice to take the oath prescribed by 4 MRSA 1922(3), and 45 calendar days from the date of appointment to return the completed certificate of qualification to the Secretary of State.
  11. Provides that if the Secretary of State does not receive the certificate of commission back from the appointed Notary within the 45 calendar days or the certificate demonstrates that the applicant was not sworn into office within 30 calendar days of appointment, the Secretary will notify the applicant of the failure to qualify.
  12. Provides that an applicant who receives notice from the Secretary of State of the failure to qualify has from the date of that notice, 90 calendar days to request a reappointment by the Secretary of State, and from the date of reappointment, the applicant has 30 calendar days to be sworn into office by a Dedimus Justice, and further provides if the applicant does not request reappointment within 90 calendar days from the date of notification of a failure to qualify, the applicant must reapply in order to be appointed as a Notary Public.

Notary Public Commission Renewal

  1. Provides that the Secretary of State will send written notification to a Notary Public, no less than 30 calendar days prior to the expiration of the Notary’s commission to the email address recorded on the Secretary of State’s database or by U.S. Postal Service, regular first-class mail if the Notary doesn’t have an email address.
  2. Clarifies that failure to receive the notice of renewal does not delay or suspend the expiration of the commission.
  3. Provides the information that must be submitted in an application for renewal of a Notary Public commission, as specified.
  4. Provides that if the Notary fails to file a renewal application before the expiration date of the current commission, the Notary Public is not authorized to perform any notarial acts until the commission has been renewed or a new commission has been issued and the applicant has taken the oath of office before a Dedimus Justice.
  5. Provides that if the application for renewal is not received by the Secretary of State within 90 calendar days after the expiration date of the commission, the Notary Public must apply for a new commission.
  6. Clarifies that an applicant for a renewal Notary commission must pass an examination administered by the Secretary of State to demonstrate an understanding of the laws, rules, procedures and ethics relevant to performing notarial acts.
  7. Provides that every application for renewal of a Notary Public commission, or a new commission, must be accompanied by payment of a fee prescribed by 5 MRSA 87, submitted to the Secretary of State and made payable to the Treasurer, State of Maine.

Status Changes

  1. Requires a Notary, within 30 calendar days of the occurrence of any of the following changes to the Notary’s status or information previously submitted, to submit written notice to the Secretary of State regarding the change(s) in a manner prescribed by the Secretary: (a) A change of the Notary’s name by court order or marriage; (b) A change of the Notary’s residence or mailing address; (c) A change of the Notary’s email address or telephone number; (d) A change in the Notary’s place of employment if the Notary’s eligibility for a commission was based on having a place of employment in Maine; (e) A change in the location of the Notary’s business if the Notary’s eligibility for a commission was based on having a business in Maine; (f) A change to the information previously submitted in writing notifying the Secretary of State that the Notary Public will be performing notarial acts with respect to electronic records or remotely located individuals; (g) A conviction of a crime punishable by one year or more of imprisonment or of a crime involving fraud, dishonesty or deceit, as described in section 2, subsection 1, paragraph D of the emergency rule; or (h) A finding against, or admission of liability by, the Notary in any legal proceeding or disciplinary action based on the applicant’s or Notary’s fraud, dishonesty or deceit.
  2. Provides that a Notary Public who notifies the Secretary of State of a name change must use the new name in performing notarial acts only after: (a) The Notary has delivered the notice required by section 2, subsection 5, paragraph A of the emergency rule; (b) The new name has been updated in the Secretary of State’s Notary Public database; and (c) The Notary, if using a stamping device or official stamp, has made the change to their device bearing the new name.
  3. Clarifies that an amended certificate of commission will be issued by the Secretary of State upon receipt of notice of a name change or change of residence to a new municipality by the Notary.
  4. Provides that a Notary Public may resign their commission at any time by submitting written notice to the Secretary of State of the intent to resign and the resignation shall be deemed effective as of the date of the written notice.
  5. Requires that upon resignation, a Notary Public must return their certificate of commission to the Secretary of State.

Notarial Acts

  1. Prohibits a notarial officer from making any certified or attested copies of public records or vital records.
  2. Prohibits a notarial officer from certifying a copy of any document that states on its face that it is illegal to make copies of the document.
  3. Prohibits a notarial officer from making or noting a protest of a negotiable instrument unless the notarial officer is an employee of a financial institution acting in the course and scope of the notarial officer’s employment with the financial institution.

Official Stamp

  1. Provides that when a Notary Public uses a Notary stamp, the stamp must be a rectangular or circular stamp and contain the Notary Public’s name as it appears on their commission, the words “Notary Public” and “State of Maine” or “Maine” and the commission expiration date.
  2. Provides that the stamp must be capable of being copied together with the record to which it is affixed or attached or with which it is logically associated, pursuant to 4 MRSA 1918(2).

Electronic and Remote Notarization Notification

  1. Provides if an applicant for a Notary commission intends to perform notarial acts with respect to electronic records using an electronic signature, the applicant must submit the notice form prescribed by the Secretary of State that contains the information required by section 5, subsection 6 of the emergency rule pertaining to electronic notarization.
  2. Provides the contents of the notice to inform the Secretary of State that a Notary will be performing electronic notarizations, including (a) The name of the electronic notarization provider(s) the notarial officer will be using, (b) A requirement for certification from each provider that the notarial officer has received training in the use of that technology for electronic notarization, (c) A certification that the officer has read Maine laws pertaining to electronic notarization, and (d) An example of the officer’s electronic signature and official electronic stamp.
  3. Provides that the contents of the notice to inform the Secretary of State that a Notary will be performing remote notarizations are the same, except for (d) immediately above.
  4. Clarifies that a Notary who intends to submit the notice of intent to perform electronic or remote notarizations must have a valid Notary commission, and an attorney-at-law who intends to submit a notice must be duly admitted and eligible to practice law in the courts of Maine.
  5. Requires a notarial officer to amend the notice of intent to perform electronic or remote notarizations if the officer changes or adds technology providers within 10 days of the change or addition.
  6. Provides that a notarial officer’s authority to perform electronic or remote notarizations automatically expires upon the occurrence of any of the following: (a) The notarial officer is a Notary Public and the Notary Public’s commission expires, is revoked, suspended or terminated by the Secretary of State; (b) The notarial officer is a Notary Public and the Notary Public resigns their commission; (c) The notarial officer is a Notary Public and the Notary Public no longer has a place of employment, a business or residence in Maine; (d) The notarial officer is an attorney, upon suspension or termination of that attorney’s authority to practice law in Maine (for electronic notarizations only); or (e) The Secretary of State has revoked or terminated approval of the technology provider whose technology the notarial officer is using to perform electronic notarization unless the notarial officer is approved to use another technology provider.
  7. Clarifies that a Notary who has been issued a commission is not authorized to perform electronic or remote notarizations unless and until a notice meeting all the requirements described in section 5, subsection 6, and section 6, subsection 8 of the emergency rule has been submitted to the Secretary of State and accepted in accordance with 4 MRSA Chapter 39 and the emergency rule.

Standards for Performing Electronic Notarizations

  1. Requires the notarial officer to require the principal to appear in person before the notarial officer at the time of the electronic notarization if the principal is making a statement or executing a signature on a record.
  2. Requires the notarial officer to identify the principal who is physically present for an electronic notarization in accordance with 4 MRSA 1907.
  3. Requires for each electronic notarization that the notarial officer verify that the principal has adopted an electronic signature that complies with 10 MRSA chapter 1051, if the record is to be signed electronically.
  4. Requires the notarial officer for each electronic notarization to complete an electronic notarial certificate and attach it to or logically associate it with the notarial officer’s electronic signature and official stamp in a tamper-evident manner.
  5. Requires the notarial officer for each electronic notarization to use an electronic signature in combination with the electronic Notary stamp only for the purpose of performing electronic notarizations.
  6. Requires the notarial officer for each electronic notarization to maintain a journal in which all electronic notarizations are recorded, and further provides that entries in the journal must be made contemporaneously with the notarial act and must comply with all the requirements set forth in 4 MRSA 1920 (2) and (3).

Standards for Performing Remote Notarizations

  1. Provides that when performing a remote notarization, the notarial officer must: (a) Use a device with a camera and microphone and ensure that the remotely located individual is also using a device with a camera and microphone so that real-time audiovisual communication is occurring; (b) Use only a communication technology provider and identity proofing method approved by the Secretary of State and identified in the notice provided by the notarial officer to the Secretary of State; (c) Proceed with the remote notarization only if the notarial officer determines that they have a reliable internet connection with the remotely located individual to enable the notarial officer to perform the remote notarization in compliance with 4 MRSA Chapter 39 and these rules; (d) Recite information sufficient to identify the notarial officer, the officer’s authority to act, the type of notarial act to be performed, the name of the remotely located individual for whom the notarial act is being performed, and the date, time, and location of the notarial act at the commencement of the notarial proceeding; (e) Reasonably identify the remotely located individual by one or more of the following methods: the notarial officer’s personal knowledge of the remotely located individual, using at least 2 different types of identity proofing as described in the emergency rule, and by verification on oath or affirmation of a credible witness appearing before the notarial officer who is known to the officer or whom the officer can identify using at least 2 different types of identity proofing; (f) Cease the remote notarization procedure and restart it from the beginning if: the remotely located individual, any required witness or the notarial officer exits or disconnects from the communication technology before completion of the notarial act, the audio or visual feed is interrupted or terminated for any reason, or the notarial officer believes the process has been compromised and cannot be completed in accordance with applicable legal requirements; (g) create an audiovisual recording of the remote notarization, including in the recording the statements required in section 6, subsection 9, paragraph A, subparagraph 4 of the emergency rule, a statement by the notarial officer explaining the methods by which the officer has identified the remotely located individual for whom the notarial act is being performed pursuant to section 6, subsection 9, paragraph A, subparagraph 5 of the emergency rule, and, with respect to a tangible record not physically present before the notarial officer, record the individual signing the record and the written declaration required pursuant to 4 MRSA 1915(5).
  2. Provides that when a notarial act involves taking an acknowledgment of a remotely located individual’s signature on a tangible record, the notarial officer must adhere to the following procedures: (a) If the tangible record is physically present before the notarial officer, the officer must display the record to the remotely located individual and have the individual identify the record during the audiovisual recording; (b) If the tangible record is not physically present before the notarial officer, the remotely located individual must make the declaration described in 4 MRSA 1915(5); and (c) If the remotely located individual is located outside the territorial boundaries of the United States, the record may be acknowledged only if it meets the requirements of 4 MRSA 1915(3)(D).
  3. Provides that any tangible record signed and notarized remotely must include a statement that the notarial act was performed remotely using communication technology approved by the Secretary of State.
  4. Authorizes a notarial officer to administer an oath or affirmation to a remotely located individual in accordance with 4 MRSA 1915(8).
  5. Clarifies that the audiovisual recording of the remote notarization required under section 6 of the emergency rule must be retained for a period of at least 10 years.
  6. Provides that if a remote notarization involves an electronic record, a notarial certificate must be attached to or logically associated with that electronic record in a tamper-evident manner in accordance with 4 MRSA 1916(6).
  7. Requires a notarial officer to record each remote notarization in the notarial officer’s journal, which must be retained under the notarial officer’s sole control.
  8. Provides that a journal in an electronic format must be tamper-evident, backed up in a secure manner, and only accessible through the use of passwords or other secure means of authentication under the control of the notarial officer.

Electronic and Remote Notarization Provider Approval

  1. Provides the information, as specified, for a provider of electronic or remote technology to apply for approval from the Secretary of State as an electronic notarization approved provider.
  2. Provides that to obtain approval, an electronic notarization technology provider must demonstrate that the technology to be used for electronic notarization in Maine: (a) Restricts access to the provider’s technology only to notarial officers whose written notice to the Secretary of State of their intent to perform electronic notarization has been accepted, in accordance with the requirements of the emergency rule; (b) Requires a password or other secure means of authentication to access the provider’s technology; (c) Requires a notarial officer to present a valid Maine Notary commission or other evidence of the notarial officer’s qualification to perform notarial acts prior to receiving an authorized digital or electronic stamp and signature; (d) Includes a method to ensure that a notarial officer enrolled to use the technology has been trained and has the requisite knowledge to use it to perform notarial acts in compliance with 4 MRSA chapter 39 and the emergency rule; (e) Enables a notarial officer to retain their authorized digital or electronic signature under the notarial officer’s sole control and to affix their electronic signature in a manner that attributes the signature to the notarial officer, is capable of independent verification, and is tamper-evident; (f) Enables a notarial officer to attach or logically associate a certificate of notarial act to the electronic record in a tamper-evident manner; and (g) Uses tamper-evident technology sufficient to ensure that the electronic signature on an electronic record is authentic.
  3. Provides that to obtain approval, in addition to items (a) through (d) above with respect to an electronic notarization technology provider, a remote notarization technology provider must demonstrate that the technology to be used for electronic notarization in Maine: (a) For remote notarization of electronic records, enables a notarial officer to affix their electronic signature to an electronic notarial certificate in a manner that attributes the signature to the notarial officer and is tamper-evident; (b) For remote notarization of electronic records, enables a notarial officer to attach or logically associate a certificate of notarial act to the electronic record in a tamper-evident manner; (c) Provides continuous, synchronous audio-visual feeds that allow the remotely located individual and the notarial officer to see and speak to one another simultaneously through live, real time transmission; (d) Captures images with sufficient resolution to enable analysis of the remote individual’s credentials; (e) Includes at least two (2) of the following methods of identity proofing: a credential that is validated by a government or third party; a biometric identifier, including a retina or iris scan, fingerprint, voiceprint, scan of hand or face geometry, or any other physiological, biological or behavioral characteristic used to identify an individual; a public key certificate; or an identity assessment based on a set of questions formulated from public or private data sources for which the principal has not provided a prior answer; (f) For remote notarization of electronic records, provides a secure method of document upload and transfer; (g) Records the audio-visual communication in real time and associates that recording with the notarial officer’s electronic record; (h) Provides reasonable security measures to prevent unauthorized access to: the live communication between the notarial officer and the remotely located individual; the recording of the audio-visual communication; the verification methods and credentials used to verify the identity of the remotely located individual; and electronic records presented for remote notarization, if applicable; (i) Is capable of securely creating, storing, accessing and reproducing a copy of an electronic recording of the remote notarial act. and (j) For remote notarization of electronic records, provides an electronic verification or audit trail of the electronically notarized document that is accessible to all parties involved in a notarial act that is performed remotely.
  4. Clarifies the process, as specified, for the process to become an approved electronic or remote notarization technology provider.
  5. States the ongoing obligations, as specified, of approved electronic or remote notarization technology providers.
  6. Authorizes a notarial officer or any other person to file a complaint against an approved electronic or remote notarization technology provider and authorizes the Secretary of State to investigate the complaint or initiate an investigation on its own against an approved technology provider.
  7. Clarifies the procedure, as specified, before taking any action against an approved electronic or remote notarization technology provider.
  8. States the grounds, as specified, for denial, non-renewal, suspension, termination, or revocation of an approved electronic or remote notarization provider.
  9. Provides that by making its communication technology or identity proofing available for use in remote notarization in Maine, and by providing storage for audio-visual recordings of remote notarizations, a technology provider appoints the Secretary of State as the provider’s agent for service of process in any civil action in this State related to a remote notarization pursuant to 4 MRSA 1915(15), and further clarifies that the fee for the Secretary of State to accept service of process is $20.

Complaints; Administrative Actions; Hearings

  1. Provides that a person may file a complaint with the Secretary of State regarding the performance of a Notary Public.
  2. Provides that a complaint against a Notary Public should include the complainant’s contact information and a detailed statement describing the basis for the complaint and attaching any relevant records.
  3. Authorizes the Secretary of State, on its own initiative or in response to a complaint, to make such investigation as it determines to be reasonable and necessary to determine whether a person has violated, is violating or is about to violate any provision of 4 MRSA chapter 39 or the emergency rule.
  4. Provides that the Secretary of State may require the filing of statements by the alleged violator or others with knowledge of the allegations and require production of records that the Secretary of State deems relevant to the investigation.
  5. States the grounds, as specified, for the Secretary of State to deny, refuse to renew, suspend, revoke or impose a condition on the commission of a Notary Public for any act or omission that demonstrates the individual lacks the competence, reliability, or integrity to act as a Notary Public.
  6. Provides that if the Secretary of State denies an application for a Notary Public commission, imposes a condition on a commission, refuses to renew, suspends, or revokes a Notary Public commission, the applicant or Notary Public has a right to a hearing in accordance with the Maine Administrative Procedure Act, 5 MRSA chapter 375, subchapter 4.
  7. Clarifies that the applicant or Notary Public must be notified in writing of the administrative action taken by the Secretary and of their right to a hearing.
  8. Provides that after hearing, the Secretary shall issue a written decision which may be appealed to Superior Court pursuant to 5 MRSA chapter 375, subchapter 7.

Other Provisions

  1. Clarifies that a Notary Public who has been issued a Notary commission by the Secretary of State is not authorized to solemnize marriages in Maine unless the Notary has also been issued a marriage officiant license by the Secretary of State pursuant to 5 MRSA 90-G and Chapter 720, Rules Governing the Licensing of Marriage Officiants Who Are Authorized to Solemnize Marriages in Maine.
  2. Clarifies that any fee to be charged by a commissioned Notary Public for performing a notarial act must be disclosed in writing to the individual requesting the services of the Notary Public before the notarial act is performed and the Notary Public must obtain the individual’s consent to any fee to be charged prior to performing the notarial act.
Analysis

Maine’s Revised Uniform Law on Notarial Acts (RULONA) which was enacted by Public Law 651 (House Paper 1503) of 2022, took effect July 1, 2023. At that time the Maine Secretary of State had not finalized the administrative rules to implement the RULONA that it had put out for public comment earlier. Therefore, the Secretary of State adopted this emergency rule that will be effective until October 3, 2023. The emergency rule covers the Notary commissioning and renewal process, complaints and administrative adjudication, process for notarial officers to notify the Secretary that they will be performing electronic or remote notarial acts, or both, procedures for performing these notarial acts, and rules for the approval of technology system providers of electronic and remote notarization.

Read the emergency Notaries Public rules.

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