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NE Emergency Rules (2020)

Rule/Regulation

State: Nebraska

Effective: April 02, 2020

Summary

The Nebraska Secretary of State has adopted emergency rules implementing Governor Ricketts' Executive Order 20-13 related to online notarization during the COVID-19 crisis.

Affects

All Nebraska Notaries Public.

Changes

Definitions

  1. Defines “applicant”, “approved online Notary solution provider”, “biometric authentication”, “Notary Public”, “online notarization system”, “password authentication”, “token authentication”, “under his or her exclusive control”, and “under the online Notary Public’s sole control”.

Registration

  1. Requires an applicant for registration as an online Notary to: (a) provide all information required for registration pursuant to Neb. Rev. Stat. §64-406; (b) hold a valid Nebraska Notary commission; (c) declare that he or she continues to meet the qualifications of a Notary; (d) take the required course of instruction within 30 days after it is made available by the Secretary and pass the examination as required by Neb. Rev. Stat. § 64-404; (e) pay the required registration fee; and, (f) provide any other information requested by the Secretary to prove the qualifications of the applicant.
  2. Provides that a Notary applying to renew his or her registration as an online Notary must so indicate on his or her Notary renewal application and pay the fee for registration as an online Notary, in addition to the fee for renewal of his or her Notary commission.
  3. Provides that if an online Notary fails to renew his or her registration at the same time the Notary commission is renewed, he or she must submit a new application for registration and meet all of the requirements of Section 003 of the administrative rules to be registered as an online Notary.
  4. Clarifies that the Secretary of State will administer the training course and testing for online Notary applicants.
  5. Authorizes the Secretary to designate a third-party training course for applicants or appoint certified Notary instructors to administer the training course and testing for online Notary applicants if the Secretary determines there is a need.
  6. Provides that an applicant who qualifies for registration as an online Notary before July 1, 2020, must take the required training course within 30 days after it is made available by the Secretary.
  7. Requires a score of 85% or better to pass the examination.
  8. Provides that if an applicant fails the examination, the application for registration will be denied.
  9. Provides that an applicant who fails the examination must wait 30 days to reapply for registration, including submitting a new application for registration, paying the registration fee, taking the course of instruction, and passing the exam.
  10. Provides that an applicant who fails the examination 3 times will be considered incompetent to be registered as an online Notary and will be ineligible to take the exam again.
  11. Provides that an online Notary who violates the Online Notary Public Act or the rules is subject to having his or her registration removed.
  12. Provides that any removal of a registration will be under the procedures provided in Neb. Rev. Stat. § 64-113 and 433 NAC 6 007.
  13. Sets a fee of $50 for registering or renewing a registration as an online Notary.
  14. Provides that the forms for approval as an online Notary solution provider will be available to applicants on the Secretary of State’s website or upon request.
  15. Requires an online Notary, or his or her duly authorized representative, who is required to certify that he or she has erased, deleted, or destroyed the coding, disk, certificate, card, software, file, password, or program that enables the electronic affixation of the online Notary’s electronic signature and online Notary seal, in compliance with Neb. Rev. Stat. § 64-413, to do so in writing to the Secretary within 3 months after the registration of the online Notary expires, is resigned, canceled, or revoked or upon the death of the online Notary.

Credential Analysis and Identity Proofing Standards

  1. Requires credential analysis provided by an online Notary solution provider to: (a) use automated software processes to aid the online Notary in verifying the identity of each principal or any credible witness; (b) require that the identity credential passes 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 identity 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 identity credential details; (d) provide the result of the authenticity test to the online Notary; and (e) enable the online Notary visually to compare for consistency the information and photograph on the identity credential and the individual as viewed by the online Notary in real time through communication technology.
  2. Requires identity proofing provided by an online Notary solution provider to: (a) comprise a quiz of 5 questions related to the individual’s personal history or identity formulated from public and private data sources; (b) include 5 possible answers for each question: (c) require 80% of the questions to be answered correctly; (d) require that all questions be answered within 2 minutes; (e) allow a principal who fails the first quiz to retake the quiz 1 time within 24 hours; (f) replace 60% of the quiz questions in the retake quiz; (g) prohibit a principal who fails the second quiz from retaking the quiz with the same Notary within 24 hours of the second failed attempt: and (h) require the principal to retake the quiz from the beginning if the principal or online Notary must exit the online Notary solution or if the communication technology is interrupted.

Communication Technology Standards

  1. Requires communication technology provided by an online Notary solution provider to provide for synchronous audio-video feeds of sufficient video resolution and audio clarity for the Notary and principal to see and speak with one another.
  2. Requires communication technology provided by an online Notary solution provider to provide sufficient captured image resolution for credential analysis to be performed in accordance with the Online Notary Public Act and this Chapter of the rules.
  3. Requires communication technology provided by an online Notary solution provider to include a means of authentication that reasonably ensures only the proper parties have access to the online notarization.
  4. Requires communication technology provided by an online Notary solution provider to be capable of securely creating and storing or transmitting securely to be store an electronic recording of the online notarization, keeping confidential the questions asked during identity proofing and the means and methods used to general credential analysis output.
  5. Requires communication technology provided by an online Notary solution provider to provide reasonable security measures to prevent authorized access to the live transmission of the communication technology, a recording of the online notarization, the verification methods and credentials used to identify the parties and the electronic documents presented for online notarization.

Electronic Signature and Seal

  1. Requires the online Notary’s electronic signature and seal to be independently verifiable and unique to the online Notary.
  2. Requires the online Notary’s electronic signature and seal to be retained under the online Notary’s sole control.
  3. Provides that when performing an online notarization, the electronic signature and seal used by the online Notary must be accessible by and attributable solely to the online Notary to the exclusion of all other persons and entities for the entire time necessary to perform the online notarial act.
  4. Requires the online Notary’s electronic signature and seal to be attached or logically associated with the document, linking the data in such a manner that any subsequent alterations to the underlying document or online notarial certificate are observable through visual examination.
  5. Requires an image of the online Notary's handwritten signature and seal to appear on any visual or printed representation of an online notarial certificate regardless of the technology being used to affix the online Notary’s electronic signature or seal.
  6. Requires the perimeter of the online Notary seal to contain a border such that the physical appearance of the seal replicates the appearance of an inked seal on paper.
  7. Requires the online Notary seal to have, within its border, the online Notary’s name exactly as commissioned, identifying number, and commission expiration date, as well as the words “Online Notary Public” and the word “Nebraska”.
  8. Requires an online Notary to be physically in Nebraska when performing an online notarization.
  9. Prohibits an employer of an online Notary or any employees of the employer to use or permit the use of an online Notary signature or seal by anyone other than the authorized online Notary to whom they are registered.
  10. Requires access to an online Notary signature and seal to be protected by biometric authentication, password authentication, token authentication or other form of authentication approved by the Secretary of State.
  11. Clarifies that an online Notary who is required to report, pursuant to NRS 64-410, the theft or vandalism of the Notary’s electronic signature, seal, or record, including the backup record, must do so in writing the Secretary of State within 10 days after discovering the theft or vandalism, and provides that failure to report may subject the online Notary’s registration to being removed.

Record of Online Notarization

  1. Clarifies that an online Notary must present the electronic record or any portion of the record to the Secretary of State upon written request.
  2. Requires an online Notary to maintain the record and the backup record for at least 10 years after the date of the notarial act.
  3. Provides that an online Notary who fails to maintain the record or backup record for at least 10 years or fails to timely provide the record to the Secretary upon request, shall be subject to removal of the registration.

Solution Providers

  1. Requires an online Notary solution provider to be approved by the Secretary of State before it may issue any online Notary seals or electronic signatures to Nebraska online Notaries.
  2. Provides the requirements, as specified, for an online Notary solution provider to apply for approval.
  3. Requires an online Notary solution provider to provide a free and readily available viewer/reader to enable all parties relying on an online notarization to view it without cost.
  4. Requires an online Notary solution provider to comply with the laws, policies, and rules that govern Nebraska Notaries and online Notaries.
  5. Requires an online Notary solution provider to provide a system that complies with all technical specifications for online notarization in the rules, including the minimum requirements for credential analysis, identity proofing and communication technology.
  6. Requires the individual signing a provider application on behalf of the provider to pass the examination and take the Nebraska course within 30 days after it is made available.
  7. Requires Notaries to present the certificate of registration as an online Notary to the solution provider before authorizing an online Notary seal and electronic signature.
  8. Requires an online Notary solution provider to notify the Secretary within 45 days of changes, modifications, or updates to information previously submitted to the Secretary.
  9. Requires an online Notary solution provider to provide prorated fees to align the usage and cost of the provider’s online system with the commission term limit of the Notary purchasing the online Notary seal and electronic signature.
  10. Requires an online Notary solution provider to suspend the use of the system by any Notary whose commission or registration has been revoked, suspended, or canceled by the Secretary of State.
  11. Requires an online Notary solution provider to submit an exemplary of the electronic signature and seal of each online Notary who subscribes to the system to the Secretary of State.
  12. Requires an online notarization solution provider to notify the Secretary of State of within 45 days before making available to Nebraska online Notaries any updates to the provider’s online notarization system.
  13. Authorizes the Secretary of State to remove the designation of the authorized online solution provider if any changes made to the provider’s online notarization system do not meet the requirements of the Online Notary Public Act and the administrative rules.

Other Provisions

  1. Requires each electronic signature requiring online notarization and attestation in the form of an acknowledgment to be individually affixed to the electronic document by the principal signer and to be acknowledged separately by the principal signer, except in the following situations: (a) the notarized document is executed on behalf of any foreign or domestic corporation, non-profit corporation, professional corporation, limited liability company, unincorporated association or partnership, business trust, estate, partnership, trust; or (b) the United States, any state, or any foreign government.
Analysis

On April 1, 2020, Governor Ricketts issued Executive Order 20-13, accelerating the implementation of online notarization ahead of the July 1, 2020, effective date of Nebraska's enacted Online Notary Public Act. The Order gave the Secretary of State authority to immediately commence implementation of the Act, and thus, the Secretary has now adopted emergency rules that will be in effect until June 30, 2020.

Read the emergency administrative rules.

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