NJ Special Administrative Rules (2021)

Rule/Regulation

State: New Jersey

Effective: September 16, 2021

Summary

The New Jersey State Treasurer has adopted temporary administrative rules to implement the enactment of Public Act 2021-179 (A 4250) that expire March 16, 2023.

Affects
Creates Sections 1.1 through 1.18 to Title 17, Chapter 50, Subchapter 1 of the New Jersey Administrative Code.

Changes

Definitions

Defines “biometric information” as using a human’s physical or behavioral human features to digitally identify a person, and provides systems that use fingerprints and facial and voice patterns as examples.
Defines “digital public key certificate” as an electronic credential issued by a trusted third party that is used to identify a person who signed an electronic record.
Defines “dynamic knowledge-based authentication assessment” as identifying a person by asking the person a set of questions derived from public or private data sources for which the person has not been provided prior answers.
Defines “logically associated with” to mean connecting, cross-referencing, or otherwise linking a certificate with a notarized record accurately and reliably, in a tamper-evident manner.
Defines “non-attorney applicant” as an applicant for an initial or renewal commission as a Notary who is not also a licensed attorney-at-law in New Jersey.
Defines “notarial journal” as a compendium of each notarial act performed by a Notary and should include the: (a) date and time of the notarial act; (b) type of notarization; (c) date of document notarized; (d) type of document;(e) identification provided as proof of identity; (f) document signer’s printed name; (g) document signer’s address; (h) document signer’s signature; and (i) any other relevant information related to the notarial act.
Defines “tamper-evident” to mean that any change to a record shall provide evidence of the change.

Notary Commission

Clarifies that all applications for a Notary commission or renewal must be filed electronically through a means provided by the State Treasurer at www.nj.gov/njbgs.
Clarifies that a nonresident who applies for a New Jersey Notary commission may apply through the online commissioning site at www.nj.gov/njbgs.
Clarifies that a nonresident who files a certificate showing any change of residence or change of the office or place of employment of the Notary in New Jersey must file the certificate online with the State Treasurer at www.nj.gov/njbgs.

Commission Denial, Revocation, Suspension, or Limitation

Provides the requirements for the written notification, as specified, that the State Treasurer must send to an applicant or Notary whose application has been denied or whose commission has been refused for renewal, suspended, revoked, or limited.
Provides that a request for a hearing must be received within 20 calendar days from the date the applicant or Notary received the written notice from the State Treasurer.
Requires an applicant or Notary who is requesting a hearing to include a detailed statement of the reasons that the person believes the State Treasurer’s determination is improper, together with supporting documentation, if any.
Provides that the detailed statement of the applicant or Notary requesting a hearing should also include a statement as to whether the person is represented by legal counsel, and if so, the name, address, and telephone number of said counsel.
Provides that upon the Division of Revenue and Enterprise Services’ timely receipt of a request for a hearing, it shall determine whether a contested case exists and if it does, the Division shall transmit the matter to the Office of Administrative Law for a hearing as a contested case.
Provides that if an applicant or Notary has either failed to file a timely appeal or has expressly waived the right to appeal, the decision shall become a final decision.
Clarifies that all hearings pursuant shall be conducted in accordance with the Administrative Procedure Act, N.J.S.A. 52:14B-1 et seq., and 52:14F-1 et seq., and the Uniform Administrative Procedure Rules, N.J.A.C. 1:1.
Clarifies that any appeal of the final agency decision shall be solely to the Appellate Division of the Superior Court within time limits allowed by New Jersey Court Rule 2:2-3, and further clarifies that the final agency decision must include notice to the appellant of the right to file an appeal to the Appellate Division, the time frames, and related procedures.

Notarial Acts, Fees, and Standards

Authorizes a notarial officer to refuse to perform a notarial act, unless the individual presenting the record provides the officer with proof that refusal is prohibited by a State of New Jersey law other than N.J.S.A. 52:7-10 et seq.
Provides that for administering oaths, taking affidavits, taking proofs of a deed, and taking acknowledgments, a notarial officer may collect the fee of $2.50 per act.
Provides that for administering oaths, taking affidavits, taking proofs of a deed, and taking acknowledgments of the grantors in the transfer of real estate, regardless of the number of such services performed in a single transaction to transfer real estate, a notarial officer may collect the fee of $15.00.
Provides that for administering oaths, taking affidavits, and taking acknowledgments of the mortgagors in the financing of real estate, regardless of the number of such services performed in a single transaction to finance real estate, a notarial officer may collect the fee of $25.00.

Official Stamp, Stamping Device, and Journal

Clarifies that if the stamping device used by the Notary is lost or stolen, the Notary or the Notary’s personal representative shall notify the State Treasurer at https://www.nj.gov/treasury/revenue/revgencode.shtml of the loss or theft within 10 calendar days.
Clarifies that if the Notary’s journal is lost or stolen, the Notary or the Notary’s personal representative shall notify the State Treasurer within 10 days of the loss or theft at https://www.nj.gov/treasury/revenue/revgencode.shtml (select Notary application).
Clarifies that on resignation from, or the revocation or suspension of, a Notary’s commission, the Notary shall either: (a) retain the journal for 10 years after the performance of the last notarial act chronicled in the journal; or (b) write to the State Treasurer at https://www.nj.gov/treasury/revenue/revgencode.shtml for instructions on how to send or transmit the journal securely to the Division of Revenue and Enterprise Services.
Clarifies that on the death or adjudication of incompetency of a current or former Notary, the Notary’s personal representative or guardian or any other person knowingly in possession of the journal shall, within 45 days, write to the State Treasurer at https://www.nj.gov/treasury/revenue/revgencode.shtml for instructions on how to send or transmit the journal securely.

Electronic Notarization

Requires a Notary, before performing the Notary’s first notarial act with respect to electronic records, to notify the State Treasurer electronically at www.nj.gov/njbgs that the Notary will be performing notarial acts with respect to electronic records and identify the technology that the Notary intends to use.
Prohibits the use of electronic notarization with wills, codicils, and testamentary trusts.
Requires a notarial officer who performs an electronic notarization to execute the notarial act and complete an electronic certificate with an electronic signature and stamp, including all elements required at N.J.A.C. 17:50-1.13, and attaches the certificate and stamp to, or logically associates the certificate and stamp with, the notarized record.
Requires a notarial officer to ensure that the officer’s electronic signature stamp is reliable, and further clarifies that to be considered reliable, an electronic signature and stamp must be:(a) unique to the notarial officer; (b) capable of independent verification; (c) retained under the Notary’s sole control; and (d) attached to, or logically associated with, the electronic document in a tamper-evident manner.
Prohibits a Notary from disclosing any access information used to affix the electronic Notary’s signature and seal, except when requested by law enforcement, the courts, and with reasonable precautions, electronic document preparation, and transmission vendors.

Remote Notarization

Provides that before a Notary performs the Notary’s initial remote notarial act, the Notary must notify the State Treasurer electronically at www.nj.gov/njbgs that the Notary will be performing such notarial acts and identify the technologies the Notary intends to use.
Provides that a Notary who performs remote notarization must ensure the remote session is interactive and secure, meaning the Notary and person are viewing each other directly in real-time and that the session cannot be viewed and/or recorded by an unauthorized party. The notarial officer must follow the security procedures of the National Notary Association, as supplemented (https://www.nass.org/sites/default/files/resolutions/2018-02/nass-support-revised-enotarization-standards-winter18_0.pdf).
Requires a Notary who performs a remote notarization to obtain satisfactory evidence of identity of the remotely located individual by: (a) visually verifies a proof of identity document as set forth at N.J.A.C. 17:50-1.13(b)2; and (b) uses one of the following methods of identity proofing to authenticate the individual’s identity, which are incorporated herein by reference, as amended and supplemented: (1) dynamic knowledge-based authentication that is provided online by a third-party and that substantially follows recommended practices for this form of identification, as set forth by any of the three following authorities: National Notary Association (January 2017), available at: https://www.nationalnotary.org/file%20library/nna/reference-library/model-enotarization-act.pdf; the National Association of Secretaries of State (February 19, 2018) at: https://www.nass.org/sites/default/files/resolutions/2018-02/nass-support-revised-enotarization-standards-winter18_0.pdf; and the Mortgage Industry Standards Maintenance Organization (MISMO Remote Online Notarization Standards, Final Candidate Recommendation (CR) Version, Version 1. (2019). The Mortgage Industry Standards Maintenance Organization. Washington, D.C.) available at: www.mismo.org/standards-and-resources/emortgage-specifications/remot-online-notarization-standards; (2) biometric identity verification that is in substantial compliance with National Institute of Standards and Technology requirements, as set forth at Special Publication 800-76-2, https://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.800-76-2.pdf; and (e) digital public key certificate issued by a trusted third-party in substantial compliance with the National Notary Association’s recommended practice, set forth at: https://www.nationalnotary.org/file%20library/nna/reference-library/model-enotarization-act.pdf, (Appendix II/Rule2, Public Key Certificate).

Analysis

On October 18, 2021, special rules to implement the New Jersey Revised Uniform Law on Notarial Acts (Public Act 2021-179 – A 4250) were published in the New Jersey Register, the official publication for administrative rules in New Jersey. Most of the special rules, which expire on March 16, 2023, restate what is already in the text of the statute. There are, however, some new changes related primarily to remote and electronic notarization, including new definitions of terms and requirements for identifying a remotely located individual. Also, there are specific procedures for Notaries to follow in providing notifications to the State Treasurer (for lost or stolen journals, official stamps, etc.). Since the statute required the State Treasurer to specify the fees notarial officers may charge for notarial acts, the special rules contain the maximum fees that notarial officers may charge. As these special rules take effect, the State Treasurer also has filed a concurrent proposal to make the rules permanent. The comment deadline on the permanent rules is December 17, 2021.

To read the text of the special rules, go to the free access provided by LexisNexis at http://www.lexisnexis.com/hottopics/njoal/. Click on 2021 > October > October 18, 2021 > Special Adoptions > Treasury—General – Division of Revenue and Enterprise Services > 53 N.J.R 1809(a).