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NY Administrative Regulations (2023)

Rule/Regulation

State: New York

Effective: January 25, 2023

Summary
The New York Department of State has published final regulations for the implementation of remote notarization. 
Affects
Amends Part 182 of Title 19 NYCRR.
Changes

Definitions

  1. Defines “credential analysis," “credential service provider,” “electronic notarial act,” “electronic notary public,” “electronic signature,” “identity proofing,” “identity verification,” “notarial act,” “notary public” or “notary,” “personal appearance,” “principal,” “public key infrastructure,” “public/private key or asymmetric cryptographic system,” and “record.”
  2. Defines “notarial act” to mean: (a) administering oaths and affirmations; (b) taking affidavits and depositions; (c) receiving and certifying acknowledgments or proof of such written instruments as deeds, mortgages, powers of attorney, and other instruments in writing;  (d) demanding acceptance or payment of foreign and inland bills of exchange, promissory notes and obligations in writing, and protesting the same for non-acceptance or non-payment, as the case may require;  (e) preparation of a certificate of authenticity in accordance with paragraph (f) of subdivision six of section 135c of the Executive Law or (6) an electronic notarial act.
  3. Defines “electronic notarial act” to mean an official act by a notary public, physically present in the state of New York, on or involving an electronic record and using communication technology authorized by the new regulations.

Commission Application and Renewal; Electronic Notarization Registration; Status Changes

  1. Clarifies that prior to performing any notarial acts, a Notary must be commissioned by the Secretary of State and provide all information required by the application form prescribed by the Secretary.
  2. Prohibits a Notary from performing electronic notarial acts until the Notary has registered on a form prescribed by the Secretary of State, including, in addition to any other information prescribed by the secretary of state, the following: (a) the Notary’s name as commissioned and mailing address; (b) the expiration date of the Notary’s commission and signature of the Notary; (c) the notary’s email address; (d) the description of the technology to be used in attaching the Notary’s electronic signature to the record; (e) an exemplar of the Notary’s electronic signature, which shall be provided through and in the manner required by the Department of State’s registration system using the Notary’s selected signature vendor and contain the Notary’s name and any instructions, authorizations, or techniques that allow the Notary’s electronic signature to be read and verified.
  3. Provides that all application, renewal, and registration fees required to be paid pursuant to the new regulations must be transmitted in a manner prescribed by the Secretary of State.
  4. Establishes a new fee of $60 for registrants to perform electronic notarial acts.
  5. Clarifies that a Notary may apply for reappointment within 90 days of the expiration of their commission, provided that the Notary continues to meet the requirements set forth in law.
  6. Requires a Notary who has registered to perform electronic notarial acts and applies for reappointment to provide verification of the accuracy of all information on file with the Secretary of State and affirm compliance with all requirements of the new regulations.
  7. Clarifies that any Notary who has failed to comply with any of the requirements of the new regulations shall not be eligible for reappointment.
  8. Requires all applications for appointment and reappointment of Notaries, and all registrations of the capability to perform electronic notarial acts, to be in the form and manner prescribed by the Secretary of State.
  9. Requires Notaries within 5 days after a change of name, address, or e-mail address, to transmit to the Secretary of State a notice of the change that is signed with the Notary’s official signature.
  10. Requires an Electronic Notary, for a change of address, to ensure that the notice of change is electronically transmitted to the Secretary of State, signed with the Notary’s designated electronic signature.
  11. Clarifies that any update to the information required to be submitted by a Notary to register as an E-Notary must be made prior to the performance of any electronic notarial act.

Standards for Notarial Acts

  1. Requires Notaries to satisfy the requirements of the Executive Law.
  2. Requires Notaries to identify the individual appearing before the Notary as authorized.
  3. Requires Notaries to require the personal appearance of all parties to any transaction for which a notarial act is required, except acts performed in conformity with law unless a law expressly excludes such authorization.
  4. Requires Notaries to administer any oath or affirmation.
  5. Requires Notaries to disqualify themselves from transactions in which the Notary is a party or directly and peculiarly interested;
  6. Requires Notaries to refuse to perform a notarial act when the requirements of the administrative regulations are not met.
  7. Requires Notaries to refuse to perform a notarial act if the Notary is not satisfied that the presented record evidences the individual’s capacity to act as the representative on the record presented for notarization.
  8. Authorizes a Notary to refuse to perform a notarial act if the Notary is not satisfied that: (a) the principal is competent or has the capacity to execute a record; and/or (b) the principal’s signature is knowingly and voluntarily made.
  9. Requires a Notary to obtain satisfactory evidence of the identity of anyone signing a document appearing before a Notary, including any principal seeking a notarial act, and any witness to the notarial act.
  10. Provides, for anyone signing a document who appears physically before a Notary, that satisfactory evidence of identity is obtained through (a) presentation of an identification card issued by a governmental agency provided the card is valid and current, contains the photographic image of the bearer, has an accurate physical description of the bearer, if applicable, and includes the signature of the bearer; (b) at least two current documents issued by an institution, business entity, or federal or state government with the individual’s signature; (c) attestation by the Notary that the individual is personally known to them; or (d) the oath or affirmation of a credible witness who is personally known to the individual and notary, or the oath or affirmation of two witnesses who know the individual personally and provide identification that meets the requirements of the new regulations.

Standards for Electronic Notarial Acts

  1. Requires all Notaries who wish to perform electronic notarial acts to register the capability to notarize electronically with the Secretary of State.
  2. Requires an Electronic Notary to use only those vendors or providers who comply with the standards outlined in the new regulations and any communication or reporting relating to those standards by the Secretary of State.
  3. Requires an Electronic Notary to be physically located in New York when performing electronic notarial acts.
  4. Requires an Electronic Notary to use a network that permits location detection when performing an electronic notarial act.
  5. Requires, for anyone who appears before an Electronic Notary using communication technology, and who is not personally known to the Notary, satisfactory evidence of identity to be obtained through all of the following: (a) identity verification utilizing communication technology that meets the requirement set forth in the new regulations; (b) credential analysis, and (c) identity proofing by a third-party service provider.
  6. Requires credential analysis to be performed by a third-party service provider who has provided evidence to the Online Notary of the provider’s ability to satisfy the requirements set forth in this rule.
  7. Requires credential analysis to utilize public or private data sources to confirm the validity of an identification credential and must (a) use automated software processes to aid the Online Notary in verifying the identity of a remotely located individual; and (b) ensure that the identification credential passes an authenticity test consistent with sound commercial practices that (i) uses appropriate technologies to confirm the integrity of visual, physical, or cryptographic security features; (ii) uses appropriate technologies to confirm that the identification credential is not fraudulent or inappropriately modified; (iii) uses information held or published by the issuing source or an authoritative source, as available, to confirm the validity of identification credential details; and (iv) provides output of the authenticity test to the Notary.
  8. Requires identity proofing to meet, at minimum, the Identity Assurance Level 2 standard as outlined in the Digital Identity Guidelines of the National Institute of Standards and Technology, or any industry-accepted standard that is at least as secure, or more secure, than that standard.
  9. Incorporates by reference the Identity Assurance Level 2 standard, as outlined in the Digital Identity Guidelines of the National Institute of Standards and Technology, United States Department of Commerce, document SP 800-63-3, Revision 3, dated June 2017, including updates as of 03-02-2020.  
  10. Provides that attestation by an Electronic Notary that an individual appearing through communication technology is personally known to the Electronic Notary is satisfactory evidence of identity for electronic notarial acts, provided that all other requirements of the new regulations are met.
  11. Requires an Electronic Notary, for execution of any instrument in writing, to confirm that such instrument is the same in which the principal made a statement or on which the principal executed a signature.
  12. Requires, if the principal is located outside of the United States, that the Electronic Notary verify that the record or subject of the notarial act (a) is to be filed with or relates to a matter before a public official or court, governmental entity, or other entity subject to the jurisdiction of the U.S.; or (b) involves property located in the territorial jurisdiction of the United States or involves a transaction substantially connected with the U.S.

Standards for Communication Technology

  1. Requires the communication technology used to perform electronic notarial acts to permit sufficient audio and visual clarity to enable the notary and the person(s) for whom a notarial act is requested to see and speak to each other simultaneously through live, real-time transmission throughout the duration of the notarial act, through and including identity verification, identity proofing, and signature of any parties present during the transaction without interruption.
  2. Requires communication technology to permit sufficient visual clarity to enable the notary to view, read, and capture the front and back of any identification card presented as verification of identity; (c) include a signal transmission secure from interception through lawful means by anyone other than the parties to the notarial act.
  3. Requires communication technology to include a process of reproduction that does not permit additions, deletions, or changes without leaving a record of such.
  4. Requires communication technology to provide some manner of ensuring that the electronic record that is presented for electronic notarization is the same record electronically signed by the principal.
  5. Requires communication technology to permit recording and archiving of the audio-video communication session.

Electronic Notarial Certificate and Signature

  1. Requires an Electronic Notary to ensure the remote online notarial certificate for an electronic notarial act states that the person making the acknowledgment or making the oath appeared using communication technology.
  2. Requires an Electronic Notary to affix a reliable electronic signature to electronic records.
  3. Provides that an electronic signature is reliable if it is: (a) unique to the Notary; (b) attached or logically associated with an electronic record by use of a digital certificate that utilizes public key infrastructure as defined in the new regulations and is capable of independent verification; (c) retained under the Notary's sole control; and (d) linked to the data in such a manner that any subsequent alterations to the underlying record are detectable and may invalidate the electronic notarial act.
  4. Requires an Electronic Notary to use their electronic signature only for performing electronic notarial acts or as otherwise specified in the new regulations.
  5. Prohibits an Electronic Notary from disclosing any access information used to affix the Electronic Notary’s signature and seal except when requested by the Secretary of State or a designee, or judicial subpoena, and with reasonable precautions, electronic document preparation and transmission vendors.
  6. Provides that control of security aspects related to the Electronic Notary’s signature and seal must remain under the sole control of the Electronic Notary.

Recordkeeping

  1. Requires Notaries to maintain records for all notarial acts as outlined in the new regulations, which shall be made contemporaneously with the notarial act.
  2. Requires a record of a notarial act to include: (a) the date, approximate time, and type of notarial acts performed; (b) the name and address of any individuals for whom a notarial act was performed; (c) the number and type of notarial services provided; (d) the type of credential used to identify the principal; (e) the verification procedures used for any personal appearance before the Notary; and (f) for electronic notarial acts, identification of the communication technology, certification authority, and verification providers used.
  3. Requires a Notary to maintain records for at least 10 years.
  4. Requires that records retained by a Notary must be capable of being produced to the Secretary of State and others as necessary in relation to the performance of the Notary’s obligations.
  5. Requires an Electronic Notary to keep a copy of the recording of the video and audio conference that satisfies stated requirements.

Notary and Electronic Notary Fees

  1. Provides that a Notary shall be entitled to a fee for notarial acts as set forth in section 136 of the Executive Law.
  2. Provides that an Electronic Notary shall be entitled to a fee of $25 per notarial act, inclusive of all costs incurred by the Notary.

Analysis

The New York Department of State has published final regulations for the implementation of remote notarization (called electronic notarization) in the state of New York. The regulations are effective January 25, 2023. The new regulations do not apply only to remote notarizations. There are new provisions that are long overdue in New York Notary law, including clearly defining the satisfactory evidence that must be presented to a Notary to identify a principal for a notarial act, a recordkeeping requirement that will now require all New York Notaries to keep a journal of notarial acts with specified minimum information for each notarial act, and allowing Notaries to refuse to perform a notarial act for any person who the Notary believes is not competent or is signing a document voluntarily. There are new regulations related to applying for and renewing a Notary commission and applying for registration to perform electronic notarial acts.

Read the adopted regulations.

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