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SC Administrative Regulations (2022)

Rule/Regulation

State: South Carolina

Effective: June 24, 2022

Summary
The South Carolina Secretary of State has adopted regulations to implement the state's Electronic Notary Act.
Affects
Adds Sections 113-400, 113-410, 113-420, 113-430, 113-440, 113-450, 113-460, 113-470, 113-480, 113-490, 113-500, 113-510 to Chapter 113, Article 4 of the South Carolina Code of Regulations.
Changes

Electronic Notary Registration; Information Changes

  1. Requires a Notary to register to perform electronic notarial acts with the Secretary of State before performing notarial acts electronically.
  2. Clarifies that the term of registration as an Electronic Notary shall coincide with the term of the Notary’s commission pursuant to SC Code Section 26-2-20(B).
  3. Clarifies that an Electronic Notary may commence performing electronic notarial duties upon receipt of confirmation of registration as an Electronic Notary from the Secretary of State.
  4. Prescribes the following must be included in an application for registration: (a) the Notary’s full legal name and the name under which the Notary’s commission was issued, if different; (b) the residential address of the Notary and the county in which the Notary’s commission is enrolled pursuant to Section 26-1-50; (c) the email address of the Notary; (d) Proof of the successful completion of the Electronic Notary course of instruction, including the date of completion and name of the course of instruction on the duties of an Electronic Notary as approved by the Secretary of State; (e) the expiration date of the Notary’s commission; (f) the disclosure of all license or commission revocations or other disciplinary actions against the Notary; (g) a description of the Notary technology that the Notary intends to use to perform notarial acts with respect to electronic notarizations, including the name of the Electronic Notary system provider, and clarifies that the description of the technology that the Notary intends to use must include the technology to be used in attaching an electronic notarial certificate, signature, or seal to an electronic document, the technology used to maintain the electronic journal; and the technology used to render electronic records tamper-evident; (h) If the device used to create the registrant’s electronic signature was issued or registered through a licensed certification authority, then the application must include the name of that authority, the source of the license, and the starting and expiration dates of the device’s term of registration; and (i) a copy of the Notary’s electronic signature, electronic notarial certificate and electronic seal, along with any necessary instructions or techniques supplied by the vendor or Notary that allows the signature and stamp to be read and authenticated.
  5. Authorizes the Secretary of State to exempt from disclosure under the Freedom of Information Act the residential address and email address of the Notary, except as otherwise required by statute, regulation, or court order.
  6. Provides that before each registration to perform electronic notarial acts, a Notary must complete a course of instruction approved by the Secretary of State and pass an examination of this course.
  7. Provides that the Secretary of State, or his designee, will administer the training course and testing for applicants for Electronic Notary registration.
  8. Provides that the content of the course shall include notarial rules, procedures, and ethical obligations pertaining to electronic notarization as provided in the South Carolina Electronic Notary Act or in any other law or official guideline of this State.
  9. Authorizes the Secretary of State to reject an application for registration as an Electronic Notary for failure to comply with any of the requirements of the South Carolina Electronic Notary Act.
  10. Provides that the Secretary of State may reject an application for registration as an Electronic Notary for the following reasons: (a) the application is incomplete or contains any misstatement or omission of fact; (b) there is a pending inquiry by the Secretary of State or law enforcement into the applicant’s alleged failure to comply with any of the statutes, regulations or policies governing Notaries and electronic Notaries; (c) there has been a finding against or an admission of liability by the applicant in any legal proceeding or disciplinary action based on the applicant’s conduct as a Notary or an Electronic Notary; or (d) the applicant has been convicted of a criminal offense involving fraud, theft, forgery, or breach of trust.
  11. Requires an Electronic Notary to notify the Secretary of State of any changes in the information submitted in the Notary’s application for registration within 30 days following the change in information.
  12. Requires notifications to the Secretary of State to be made in a form or manner prescribed by the Secretary of State and must be accompanied by a fee of $10.
  13. Provides that failure to timely notify the Secretary of State of information changes may subject the Electronic Notary to having his or her registration terminated.
  14. Clarifies that nothing in the regulation shall be construed to prohibit an Electronic Notary from receiving, installing, or using hardware and/or software updates to the technologies that the Electronic Notary identified in the Electronic Notary’s application if the hardware or software update does not result in technologies that are materially different from the technologies that the Electronic Notary identified previously.

Electronic Notary Signature and Seal

  1. Requires that the Electronic Notary signature must meet all of the following requirements: (a) it must be independently verifiable and unique to the Electronic Notary; (b) it must be retained under the Electronic Notary’s sole control; (c) when the Electronic Notary performs an electronic notarization, the electronic signature used by the Electronic Notary must be accessible by and attributable solely to the Electronic Notary to the exclusion of all other persons and entities for the entire time necessary to perform the electronic notarization; (d) it must be attached or logically associated with the document, linking the data in such a manner that any subsequent alterations to the underlying document or Electronic Notary certificate are observable through visual examination; and (e) it must include an image of the Electronic Notary’s handwritten signature that appears on any visual or printed representation of an Electronic Notary certificate regardless of the technology being used to affix the Electronic Notary’s electronic signature.
  2. Requires the Electronic Notary seal to meet all of the following requirements: (a) it must be independently verifiable and unique to the Electronic Notary; (b) it must be retained under the Electronic Notary’s sole control; (c) when the Electronic Notary performs an electronic notarization, the electronic seal used by the Electronic Notary shall be accessible by and attributable solely to the Electronic Notary to the exclusion of all other persons and entities for the entire time necessary to perform the electronic notarization; (d) it must be attached or logically associated with the document, linking the data in such a manner that any subsequent alterations to the underlying document or Electronic Notary certificate are observable through visual examination; (e) it must include an image of the Electronic Notary’s electronic seal that appears on any visual or printed representation of the Electronic Notary certificate regardless of the technology being used to affix the Electronic Notary’s electronic seal; and (f) it must have, within its border, the Electronic Notary’s name exactly as commissioned, the title “Notary”, the words “State of South Carolina”, the Electronic Notary’s registration number indicating that the Electronic Notary may perform electronic notarial acts, and the expiration date of the Electronic Notary’s commission.
  3. Permits the perimeter of the Electronic Notary seal to contain a border such that the physical appearance of the seal replicates the appearance of an inked seal on paper.
  4. Prohibits the employer of an Electronic Notary nor any of the employer’s employees or agents from using or permitting the use of an Electronic Notary seal or signature by anyone other than the Electronic Notary to whom it is registered.
  5. Provides that upon the cessation of employment of an Electronic Notary, the employer of the Electronic Notary must do the following, if applicable: (a) relinquish any and all control of the Electronic Notary’s Electronic Notary seal conveyed by the employer’s provision of an electronic notarization system as part of the Electronic Notary’s employment; (b) transfer possession of the Electronic Notary seal to the Electronic Notary; and (c) eliminate the ability of any other person to use the former employee’s Electronic Notary seal if the electronic notarization system used by the employer does not permit transfer of possession of the Electronic Notary seal.
  6. Requires that the Electronic Notary’s electronic signature and seal must remain within the exclusive control of the Electronic Notary.
  7. Requires access to Electronic Notary signatures and Electronic Notary seals to be protected by biometric verification, password authentication, token authentication, or other form of authentication approved by the Secretary of State according to the South Carolina Electronic Notary Act.
  8. Prohibits an Electronic Notary from disclosing any access information used to affix the Electronic Notary’s electronic signature or electronic seal to electronic records except: (a) when requested by the Secretary of State or a law enforcement officer; (b) when required by court order or subpoena; or (c) pursuant to an agreement to facilitate electronic notarizations with a vendor or other technology provider identified in an application submitted under the South Carolina Electronic Notary Act.
  9. Requires an Electronic Notary to replace an electronic seal or signature under any of the following circumstances: (a) the Electronic Notary’s registration has expired, (b) the electronic seal or signature is for any reason no longer valid or capable of authentication, (c) the Electronic Notary has changed any of the following information, or the following information has changed for any reason: (i) the Electronic Notary’s name; (ii) the Electronic Notary’s jurisdiction; (iii) the Electronic Notary’s registration number; or (iv) the expiration date of Notary commission.

Electronic Notary Journal

  1. Requires an Electronic Notary journal to be created and stored in a computer or other electronic storage device or process that protects the electronic journal against unauthorized access by password, biometric verification, token, or other form of authentication.
  2. Clarifies that the Electronic Notary journal is the exclusive property of the Notary and no employer or vendor of e-Notary services may retain control of a Notary’s electronic record for any reason.
  3. Requires an Electronic Notary journal to be retained for at least 10 years after the last notarial act chronicled in the journal.
  4. Requires an Electronic Notary journal to be tamper-evident.
  5. Prohibits an Electronic Notary from allowing a record entry to be deleted or altered in content or sequence by the Electronic Notary or any other person after a record of the electronic notarization is entered and stored.
  6. Requires an Electronic Notary journal to be capable of providing tangible or electronic copies of any entry made in the journal.
  7. Provides that upon the death or adjudication of incompetency of a current or former Notary who is registered to perform notarial acts with respect to electronic records, the Electronic Notary’s personal representative or guardian or any other person knowingly in possession of a journal shall: (a) comply with the retention requirements; (b) transmit the journal to a third person contracted to act as a repository to provide the storage; or (c) transmit the journal in an industry-standard readable data storage device to the Electronic Notary’s technology provider.

Electronic Notarization Providers

  1. Requires electronic notarization system providers applying to the Secretary of State for designation as a registered electronic notarization system provider to complete and submit electronically an application to the Secretary for review and approval before authorizing any Electronic Notary seals, digital certificates, or electronic signatures for use by Electronic Notaries.
  2. Requires an application as an electronic notarization provider to include the following information: (a) the legal name of the technology provider; (b) the mailing address of the technology provider; (c) the physical address of the technology provider; (d) a designated contact person for the technology provider; (e) the phone number, physical address, and email address of the contact person for the technology provider; (f) the name of the technology provided; (g) a description of the technology used, including hardware and software specifications and requirements for the provider’s electronic notarization system; and (h) a plan for the retention and disposition of records created, generated, or retained in conjunction with the use of the technology, including any electronic journal or records created or retained during an electronic notarization, in the event the technology provider no longer engages in the business of providing electronic or online Notary technology.
  3. Requires an electronic notarization system provider to: (a) provide a free and readily available viewer/reader to enable all parties relying on the electronically notarized record or document to view the Electronic Notary’s electronic signature and the Electronic Notary seal without incurring any cost; (b) comply with the laws, policies, and rules that govern South Carolina Notaries; (c) provide an electronic notarization system that complies with the technical specifications of the rules and standards that govern electronic notarization processes and procedures in South Carolina; (d) verify that a Notary is registered to act as a South Carolina Electronic Notary prior to authorizing an Electronic Notary seal and electronic signature for that Notary; (e) notify the Secretary of State of the name of each Notary who enrolls in the provider’s electronic notarization system within 5 days after enrollment by means prescribed by the Secretary of State; (f) provide prorated fees to align the usage and cost of the electronic notarization system with the commission term limit of the Electronic Notary purchasing the Electronic Notary seal and electronic signature; (g) suspend the use of any electronic notarization system for any Notary whose commission has been revoked, suspended, or canceled by the Secretary, within 10 calendar days of receipt of notification from the Secretary; (h) submit an exemplary of the Electronic Notary’s electronic signature and the Electronic Notary seal to the Secretary for each Electronic Notary who subscribes to the provider’s electronic notarization system; (i) require access to the system by a password or other secure means of authentication; (j) enable a Notary to affix the Notary’s electronic signature in a manner that attributes such signature to the Notary as evidenced by a digital certificate and render every electronic notarial act tamper-evident; and (k) respond to a request for information from the Secretary within the time directed to the contact person designated by the provider upon registration, or as updated pursuant to Regulation 113-510.
  4. Requires an electronic notarization system provider to notify the Secretary of State within 30 days of any changes, modifications or updates to information previously submitted to the Secretary and provides that notifications must be made in a form or manner prescribed by the Secretary.
  5. Requires an electronic notarization system provider to be registered with the Secretary of State at the time it makes available to South Carolina Electronic Notaries any updates or subsequent versions of the provider’s electronic notarization system.

Analysis

In 2021, South Carolina enacted the Electronic Notary Public Act as Act Number 85 (Senate Bill 631). The Act authorized the Secretary of State to promulgate and enforce regulations to administer the new law and provided that prior to acceptance of Electronic Notary applications, the rules had to be in effect and vendors of technology approved by the Secretary. Thus, the adoption of the regulations is the next step in the process of in-person electronic notarization being implemented in South Carolina and paves the way for technology providers to have their systems approved.

Read the adopted administrative regulations (see pages 37-42).

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