NV Senate Bill 92

Legislation

State: Nevada
Signed: June 09, 2009

Effective: July 01, 2009
Chapter: 499

Summary

Senate Bill 92, creating the Electronic Notary Public Authentication Act, enacts measures regulating Electronic Notaries and notarization, specifying the notarial acts that may be performed electronically, prescribing mandatory education and an examination, setting fees for electronic notarial acts, authorizing the Secretary of State to issue authentications and apostilles to verify the electronic signatures of Electronic Notaries and permitting the Secretary of State to promulgate rules to implement the new laws. Matters pertaining to the commissioning of “paper-based” Notaries are also addressed in the bill.

Affects
Creates as yet uncodified sections in Chapter 240 of the Nevada Revised Statutes.

Changes

Definitions

Defines “notarial record,” “electronic,” “electronic document,” “electronic notarial act,” “electronic notary public,” “electronic seal” and “electronic signature.”

Notary Commission

Prohibits the Secretary of State from appointing a person as a Notary Public who has been convicted of a crime of moral turpitude unless: (a) more than 10 years have elapsed since the date of release from confinement or the expiration of parole, probation or sentence, whichever is later; (b) the person has made complete restitution for the crime, if applicable; (c) the person’s civil rights have been restored; and (d) the crime is not burglary, conversion, embezzlement, extortion, forgery, fraud, identity theft, larceny, obtaining money under false pretenses, robbery or any other crime involving misappropriation of the identity or property of another person or entity.
Prohibits the Secretary of State from appointing a person as a Notary Public who has been convicted of burglary, conversion, embezzlement, extortion, forgery, fraud, identity theft, larceny, obtaining money under false pretenses, robbery or any other crime involving misappropriation of the identity or property of another person or entity.
Requires an applicant for Notary Public appointment who resides in an adjoining state to show that he or she maintains a place of business in Nevada that is licensed pursuant to NRS 360.780 and any applicable business licensing requirements of the local government where they business is located.
Requires an applicant for a Notary Public appointment who resides in an adjoining state to produce a copy of the state business license and any license required by local government where the business is located, if self-employed.
Requires an applicant for a Notary Public appointment who resides in an adjoining state to produce a copy of the employer’s state business license and any license required by local government where the business is located, if not self-employed.
Clarifies that the affidavit that must be submitted by an employer of an applicant for a Notary Public appointment who resides in an adjoining state no longer must set forth the facts that the employer is licensed to do business in Nevada.
No longer requires a Notary Public who is a resident of an adjoining state to annually submit within 30 days before the anniversary of his or her appointment an affidavit setting forth the facts showing that the Notary Public is a resident of an adjoining state, and the Notary’s mailing and business addresses, but requires the Notary to annually submit within 30 days before the anniversary of the Notary’s appointment a copy of the state and local business licenses of the Notary’s employer and the abovementioned information.

Electronic Notary Appointment

Authorizes the Secretary of State to issue an Electronic Notary appointment to qualified applicants separate from the regular “paper-based” appointment.
Requires an applicant for an Electronic Notary appointment to have been a notarial officer in Nevada for 4 years prior to application.
Requires the following for application for an Electronic Notary appointment: (a) completion of an application containing no substantial or material misstatement or omission of fact; (b) payment of a $50 application fee; (c) submission of proof of successful completion of a mandatory course of study; (d) filing of a $10,000 Notary bond with the clerk of the county in which the applicant resides, or, if the applicant is a resident of an adjoining state, with the clerk of the county in which the applicant works or maintains a place of business and issuance by the clerk to the Secretary of State of a certificate of filing; and (e) taking the oath of office.
Prescribes that the following information must be included on the application for an Electronic Notary appointment, including: (a) the applicant’s full legal name, and the name used for appointment, if different; (b) the applicant’s county of residence; (c) the applicant’s e-mail address; (d) a description of the technology or device approved by the Secretary of State that the applicant will use to create an electronic signature; (e) the applicant’s electronic signature; and (f) any other information requested by the Secretary.
Prescribes additional information in an application for appointment as an Electronic Notary that must be submitted by an applicant who resides in an adjoining state, including: (a) an affidavit setting forth the adjoining state, the applicant’s mailing address and the address of business or employment in Nevada; (b) a copy of the applicant’s state and local business license; and (c) unless the applicant is self-employed, a copy of the employer’s business license and an affidavit from the employer setting forth the facts of employment.
Clarifies that the term of an Electronic Notary commences on the effective date of the bond.
Stipulates that an applicant for an Electronic Notary appointment shall not be required to disclose a residential address or telephone number on any document which will become available to the public.
Authorizes the Secretary of State to charge $10 for each duplicate or amended certificate of appointment issued to an Electronic Notary, and provide a duplicate certificate without charge if the Electronic Notary does not receive the original and the Electronic Notary tenders a request for the duplicate certificate within 60 days after the date on which the original certificate was issued.
Sets the initial term of appointment as an Electronic Notary at 2 years, with each successive appointment at 4 years.
Prohibits the Secretary of State from appointing any person as an Electronic Notary who submits an application containing a substantial and material misstatement or omission of fact and states it is unlawful for a person to submit an application for appointment as an electronic Notary containing a substantial and material misstatement or omission of fact.
Prohibits an Electronic Notary from performing an electronic notarial act after the effective date of the bond unless the Electronic Notary has been issued a certificate of appointment.

Status Changes

Specifies that an Electronic Notary appointment is suspended by rule of law when the electronic Notary is no longer appointed as a Notary Public (i.e., when the Notary commission has expired or been revoked or suspended). Note: The inference is that an Electronic Notary must also be commissioned as a Notary Public concurrently.
Requires an Electronic Notary to notify the Secretary of State within 10 days if the Electronic Notary’s e-mail address, technology or device used to create an electronic signature, county of residence or name has changed by creating an electronic document with the new information and signing it with the approved electronic signature submitted on the application for appointment and including a fee of $10.
Requires the Electronic Notary in the event of resignation, or the Electronic Notary’s executor or representative in the event of the Electronic Notary’s death, to (a) notify the Secretary of State of the resignation or death, (b) erase, delete, destroy or otherwise render ineffective the technology or device used to create an electronic signature.
Clarifies that a former Electronic Notary whose previous appointment was not revoked and whose previous application was not denied is not required to erase, delete, destroy or otherwise render ineffective the technology or device used to create an electronic signature if the Electronic Notary renews the appointment within 3 months after expiration of the previous appointment.
Requires applicants for an Electronic Notary appointment to take a mandatory course of at least 3 hours and an examination on the subjects of electronic notarization, notarial law and ethics, technology and procedures that is approved by the Secretary of State and complies with rules published by the Secretary.
Clarifies that the following person must take the mandatory educational course for electronic notarization; (a) an applicant for an initial appointment as an Electronic Notary; (b) an applicant submitting a renewal application, if the previous appointment as an Electronic Notary has been expired by 1 year or more; and (c) an Electronic Notary against whom the Secretary of State has taken action pursuant to NRS 240.150 for failing to comply with NRS Chapter 240 or any regulations adopted by the Secretary.
Permits the Secretary of State to provide the mandatory educational course and charge a reasonable fee for this course.
Requires the surety for the Electronic Notary bond to be a company qualified and authorized to do business in Nevada.
Provides that if the sum of the bond is exhausted, the surety must notify the Secretary of State in writing within 30 days.
Provides that a surety bond may be released after the surety gives 30 days’ written notice to the Secretary of State and the Electronic Notary, but the release does not affect a claim on the bond which is alleged to have occurred while the bond was in force.
Specifies that the Secretary of State may reinstate the appointment of an Electronic Notary who submits to the Secretary: (a) an application for amended certificate of appointment; (b) a certificate issued by the clerk of the Electronic Notary’s county of residence or county of employment (for an electronic Notary who resides in an adjoining state), which indicates that the electronic Notary has filed a new surety bond with the clerk; and (c) a fee of $10.

Electronic Notarial Acts, Fees, and Standards

Authorizes an Electronic Notary to perform the following notarial acts: (a) acknowledgments; (b) jurats; and (c) oaths and affirmations. Note: under the new law, copy certifications and protests may not be performed. The law is silent on whether subscribing witness jurats may be performed.
Disallows electronic notarial acts to be performed on a will, codicil or testamentary trust and any transaction governed by certain provisions of the Uniform Commercial Code.
Clarifies that a Nevada Electronic Notary appointment does not authorize an Electronic Notary to perform notarial acts in another state.
Authorizes Electronic Notaries to charge $10 for an electronic notarial act and the travel fees allowed to Notaries under existing law.
Permits employers of Electronic Notaries to prohibit an Electronic Notary who is an employee from charging for electronic notarial acts performed within the scope of employment, as the law allows for Notaries.
Prohibits an Electronic Notary from willfully notarizing the signature or electronic signature of a person unless the person is in the presence of the Electronic Notary at the time of notarization and (a) is known the electronic Notary and (b) if unknown to the Electronic Notary, provides a credible witness or documentary evidence of identification; and further stipulates that a violation is a gross misdemeanor.
States that it is unlawful for a person to represent that he or she is an Electronic Notary without having been appointed by the Secretary of State.
Classifies as a gross misdemeanor the offense of knowingly creating, manufacturing or distributing software or hardware for the purpose of allowing a person to act as an Electronic Notary without being appointed.
Classifies as a gross misdemeanor the offense of wrongfully obtaining, concealing, damaging or destroying the technology or device used to create the Electronic Notary’s electronic signature.
Requires an Electronic Notary to keep a journal of each electronic notarial act which includes, without limitation, the requirements of NRS 240.120(1) and (2).
Authorizes the Secretary of State to suspend the appointment of an Electronic Notary who fails to produce a journal entry within 10 days after receipt of a request from the Secretary.
Stipulates that all journals must be delivered to the Secretary of State upon resignation, revocation or expiration of the appointment.

Electronic Notarial Certificate, Seal, and Signature

Specifies that the electronic signature and seal of the Electronic Notary and the wording of a notarial certificate pursuant to NRS 240.1655, 240.166 to 240.167, inclusive, must evidence an electronic notarial act by being attached to or logically associated with the electronic document and by being immediately perceptible and reproducible.
Permits the electronic signature and seal of an Electronic Notary only to be used for the purposes of performing electronic notarial acts.
Requires an Electronic Notary to safeguard the electronic Notary’s electronic signature and seal, and all records by: (a) keeping the electronic signature, seal and records under the exclusive control of the Electronic Notary and protected by a password, where applicable, when not in use; (b) not permitting the electronic signature or seal to be used by another person; and (c) not surrendering or destroying notarial records except as otherwise required by the order of a court or as allowed pursuant to NRS 240 or any regulation adopted by the Secretary of State.
Requires an Electronic Notary within 10 days of discovering that the electronic signature or seal has been stolen, lost, damaged or otherwise rendered incapable of affixing a legible image to notify (a) law enforcement in the case of theft or vandalism; and (b) the Secretary of State in writing, including a signature using the name on the certificate of appointment.
Requires an Electronic Notary to take reasonable steps to ensure that the technology or device used to create an electronic signature has not been recalled, revoked, terminated or otherwise rendered ineffective or unsecure and to cease performing electronic notarial acts with the technology or device upon learning the technology or device has been rendered ineffective until a new technology or device is acquired; and the Electronic Notary sends an electronic notice to the Secretary of State to register the new technology or device.

Authentication of Electronic Notarial Acts

Requires the Secretary of State in conformance with any relevant international treaties, agreements and conventions subscribed to by the government of the United States to issue an authentication, signed by the Secretary of State, that an Electronic Notary’s signature is genuine and that the electronic Notary holds an appointment to perform electronic notarial acts.
Prohibits the Secretary of State from issuing an authentication if the electronic document has not been electronically notarized in conformance with the provisions of NRS 240 or if the Secretary has reason to believe that the electronic document may be used to accomplish any fraudulent, criminal or unlawful purpose.

Other Changes

Permits the Secretary of State to adopt regulations to implement the new electronic notarization laws.
Clarifies that an Electronic Notary must comply with all other provisions in NRS Chapter 240 that pertain to Notaries Public and that if any of the new electronic notarization laws conflict with these other notarization laws, the specific electronic notarization laws control.
Clarifies that certain information obtained by the Secretary of State in the appointment and investigative process is public information except in the case when the information pertains to a conviction and restoration of rights for certain crimes used in the appointment process.
Makes technical changes.

Analysis

Senate Bill 92 enacts the comprehensive Electronic Notary Public Authorization Act, which authorizes the Secretary of State to appoint electronic Notaries who will be authorized to notarize electronic documents. In this legislation, Nevada opts to issue a separate appointment to electronic Notaries. To become an electronic Notary, an applicant must have been appointed as a Notary Public for 4 years and must retain the appointment as a “paper-based” Notary during the appointment term as electronic Notary. The Act requires the Secretary of State to approve electronic signature technologies used by an electronic Notary.

SB 92 contains definitions and provisions inspired by the Model Notary Act of 2002, including a requirement for mandatory education and testing, registration of electronic signature technology, safeguarding the means of creating an electronic signature, misconduct and status changes.

This bill states that an electronic Notary may perform the same notarial acts as a Notary except for certifying copies and noting protests of a negotiable instrument, and prohibits the electronic notarization of a will, codicil, testamentary trust or any document related to transactions governed by certain sections of the Uniform Commercial Code, as prohibited by the Uniform Electronic Transactions Act. SB 92 authorizes (but does not require) the Secretary of State to promulgate regulations to carry out the provisions of the Electronic Notary Public Authorization Act and provides that all the laws which apply to regular Notaries apply to electronic Notaries unless a provision of the Electronic Notary Public Authorization Act conflicts, in which case the latter controls.

SB 92 also contains amendments affecting the appointment process for “paper-based” Notaries.

Read Senate Bill 92.