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WA Emergency Rules (2020)

Rule/Regulation

State: Washington
Signed: March 26, 2020

Effective: March 27, 2020

Summary

The Washington Department of Licensing has adopted emergency rules to support the temporary authorization and permanent statute for Notaries to perform remote notarial acts.

Affects
  1. The March 27, 2020 emergency rules amend Sections 308-30-020, 308-30-030, 308-40-040, 308-30-050, 308-30-150, 308-30-220, 308-30-270 of and adds new Sections 308-30-290, 308-30-300, 308-30-310, and 308-30-330, 308-30-330 to the Washington Administrative Code.
  2. The emergency rules adopted on July 16, 2020, did not change any of the March 27, 2020 rules.
  3. The emergency rules adopted on September 21, 2020, repeal in their entirety the July 16, 2020 rules and amend Sections 308-30-020, 308-30-030, 308-40-040, 308-30-050, 308-30-150, 308-30-200, 308-30-220, and 308-30-270 of and add new Sections 308-30-290 and 308-30-300 to the Washington Administrative Code.
  4. The emergency rules adopted on November 17, 2020, repeal in their entirety the September 17, 2020 rules and amend Sections 308-30-020, 308-40-040, 308-30-200, 308-30-300 of, and add new Sections 308-30-310 and 308-30-320 to the Washington Administrative Code.
Changes

Definitions

  1. Defines "appear personally" to mean: (a) Being in the same physical location as another individual and close enough to see, hear, communicate with, and exchange tangible identification credentials with that individual; or (b) For remote notarial acts, being in a different physical location from another individual but able to see, hear, and communicate with that individual by means of communication technology.
  2. Defines "remote notarial act" to mean a notarization that is performed electronically using approved audio-video technology that allows for direct interaction between the Notary and the individuals that are remotely located.

Remote Notary Endorsement

  1. Provides that to apply for a remote Notary endorsement, an electronic records Notary must submit a remote Notary endorsement application on forms provided by the Department of Licensing.
  2. Provides that an applicant may only apply for a remote Notary endorsement if: (a) They currently hold an active Notary commission and with an electronic records Notary endorsement; (b) They currently hold an active Notary commission, and are applying for an electronic records Notary endorsement and a remote Notary endorsement simultaneously; or (c) They are applying for a Notary commission, an electronic records Notary endorsement, and a remote notarial acts endorsement simultaneously.
  3. Clarifies that a Notary may elect not to apply for an electronic records Notary endorsement or a remote Notary endorsement.
  4. Provides that upon an applicant's fulfillment of the requirements for a remote Notary endorsement, the Department of Licensing shall approve the application and issue the Notary commission along with any endorsements.
  5. Clarifies that an applicant may not perform any notarial acts in person, electronically, or remotely before receiving a Notary commission from the Department of Licensing.
  6. Provides that unless terminated pursuant to WAC 308-30-270, the remote Notary endorsement is valid from the date the endorsement is issued by the Department of Licensing and continues as long as the Notary's current commission remains valid.
  7. Provides that for every remote notarial act, a Notary shall complete an electronic notarial certificate that complies with the requirements of these rules, RCW 42.45.130 and 42.45.140.
  8. Provides that notwithstanding the maximum fees set forth in subsection (1) of WAC 308-30-220 and the prohibition set forth in subsection (3) of that section, a Notary may charge a maximum fee of twenty-five dollars to perform a remote notarial act.
  9. Provides a Notary may terminate the remote Notary endorsement by notifying the Department of Licensing of this intent in writing and disposing of all or any part of a tamper-evident technology in the Notary's control whose purpose was to perform electronic notarizations.
  10. Provides that a Notary may terminate the remote Notary endorsement and maintain the underlying Notary commission.
  11. Authorizes a Notary who has received both an electronic records Notary endorsement and a remote notarial acts endorsement from the Department of Licensing may perform the following remote notarial acts: (a) Taking an acknowledgment; (b) Taking a verification on oath or affirmation; (c) Witnessing or attesting a signature; (d) Certifying or attesting a copy; (e) Certifying that an event has occurred or an act has been performed; and (f) Noting a protest of a negotiable instrument, if the Notary is acting under the authority of an attorney who is licensed to practice law in Washington or another state; or acting under the authority of a financial institution regulated by this state, another state, or the federal government.
  12. Provides that in performing remote notarial acts, a Notary must comply with all requirements for electronic notarial acts under the rules.

Identification of Remotely Located Individuals

  1. Provides that in performing remote notarial acts, if a Notary does not personally know or use a credible witness to identify a remotely located individual, the Notary must reasonably verify the individual's identity through two different types of identity proofing consisting of a credential analysis procedure and a dynamic knowledge-based authentication assessment.
  2. Provides that a Notary has satisfactory evidence of the identity of a remotely located individual if: (a) The Notary has personal knowledge of the identity of the individual; or (b) The individual is identified by oath or affirmation of a credible witness.
  3. Requires a credible witness to have personal knowledge of the remotely located individual, and the Notary to personal knowledge of the credible witness or verify the identity of the credible witness by two different types of identity proofing in accordance with subsections (1), (2), and (3) of WAC 308-30-300.
  4. Clarifies that a credible witness may be outside the physical presence of the Notary or remotely located individual if the Notary, credible witness, and remotely located individual can communicate by using communication technology.
  5. Requires credential analysis to use public or private data sources to confirm the validity of the identification credential presented by a remotely located individual and at a minimum: (a) Use automated software processes to aid the Notary in verifying the identity of each remotely located individual; (b) Require the identification credential to pass 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 identification 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 identification credential details; and (d) Enable the Notary visually to compare for consistency the information and photograph on the identification credential and the remotely located individual as viewed by the Notary in real-time through communication technology.
  6. Provides that a dynamic knowledge-based authentication assessment is successful if it meets the following requirements: (a) The remotely located individual must answer a minimum of five questions related to the individual's personal history or identity formulated from public or private data sources; (b) Each question must have a minimum of five possible answer choices; (c) At least 80% of the questions must be answered correctly; (d) All questions must be answered within two minutes; (e) If the remotely located individual fails the first attempt, the individual may retake the quiz one time within twenty-four hours; (f) During a retake of the quiz, a minimum of forty percent of the prior questions must be replaced; (g) If the remotely located individual fails the second attempt, the individual is not allowed to retry with the same online Notary within twenty-four hours of the second failed attempt; and (h) The Notary must not be able to see or record the questions or answers.

Communication Technology Standards

  1. Requires communication technology for remote notarial acts to provide for synchronous audio-visual feeds of sufficient audio clarity and video resolution to enable the Notary and remotely located individual to see and speak with each other.
  2. Requires communication technology to provide a means for the Notary reasonably to confirm that an electronic record before the Notary is the same record in which the remotely located individual made a statement or on which the remotely located individual executed a signature.
  3. Requires communication technology to provide reasonable security measures to prevent unauthorized access to (a) The live transmission of the audio-visual feeds, (b) The methods used to perform identify verification, and (c) The electronic record that is the subject of the remote notarial act.
  4. Clarifies that if a remotely located individual must exit the workflow, the individual must restart the identify verification process required under WAC 308-30-300 from the beginning.

Certificate of Remote Notarial Act

  1. Requires an electronic notarial certificate shall be completed at the time of notarization and in the presence of the principal.
  2. Provides that a form of notarial certificate for a remote notarial act satisfies the requirement of RCW 42.45.280(4) and 42.45.130(1)(g) if it is in the form provided by applicable law and contains a statement substantially as follows: "This notarial act involved the use of communication technology."
  3. Provides short-form of notarial certificates for (a) an acknowledgment in an individual capacity; (b) an acknowledgment in a representative capacity; (c) a verification on oath or affirmation; and (d) witnessing or attesting a signature.

Records of Remote Notarial Acts

  1. Requires a Notary to retain any audio-visual recording created under RCW 42.45.280(3)(c) in a computer or other electronic storage device that protects the recording against unauthorized access by password or other secure means of authentication.
  2. Requires the recording to be created in an industry-standard audio-visual file format and must not include images of any electronic record that was the subject of the remote notarial act.
  3. Requires an audio-visual recording to be retained for at least 10 years after the recording is made.
  4. Requires a Notary to take reasonable steps to ensure that a backup of the audio-visual recording exists and is secure from unauthorized use.
  5. Clarifies that the fact that the Notary's employer, contractor, or repository keeps or stores any audio-visual recordings shall not relieve the Notary of the duties required by the rules.
  6. Requires the personal representative or guardian of a Notary to follow RCW 42.45.280(6) related to the disposition of the Notary's audio-visual recordings upon the death or adjudication of incompetency of the Notary.
  7. Requires the Notary, or the Notary's personal representative or guardian, to provide access instructions to the Department of Licensing for any audio-visual recordings maintained or stored by the Notary, upon commission resignation, revocation, or expiration without renewal, or upon the death or adjudication of incompetency of the Notary.
  8. Authorizes a Notary, or the Notary's personal representative or guardian, to by written contract engage a third party to act as a repository to provide the storage required by this section.
  9. Provides that a third party under contract under the rules is deemed to be a repository under RCW 42.45.280(6).
  10. Requires any contract with a repository to (a) Enable the Notary, or the Notary's personal representative or guardian, to comply with the retention requirements of this section even if the contract is terminated, or (b) Provide that the information will be transferred to the Notary, or to the Notary's personal representative or guardian if the contract is terminated.

July 16, 2020 Emergency Rules

  1. The July 16, 2020 emergency rules left intact the March 27, 2020 emergency rules as described above.

September 21, 2020 Emergency Rules

  1. Rescinds and replaces the emergency rules filed on July 16, 2020, with these rules which are substantially the same with the addition of the changes noted below.
  2. Defines "remote notarial act" as a notarization that is performed using audio-video technology that meets the requirements in WAC 308-30-130 and allows for direct interaction between the Notary and the individual(s) that are remotely located.
  3. Provides that an applicant may only apply for a remote Notary endorsement if: (a) They currently hold an active Notary commission and with an electronic records Notary endorsement; (b) They currently hold an active Notary commission, and are applying for an electronic records Notary endorsement and a remote Notary endorsement simultaneously; or (c) They are applying for a Notary commission, an electronic records Notary endorsement, and a remote notarial acts endorsement simultaneously.
  4. Clarifies that a Notary may elect not to apply for a remote Notary endorsement.
  5. Clarifies that an applicant may not perform any notarial acts on a tangible or electronic record before receiving a Notary commission and the appropriate endorsement from the Department of Licensing.
  6. Provides that unless terminated pursuant to WAC 308-30-270, the remote Notary endorsement is valid from the date the endorsement is issued by the Department of Licensing and continues as long as the Notary's current commission remains valid.
  7. Provides that for every remote notarial act, a Notary shall complete an electronic notarial certificate that complies with the requirements of these rules, RCW 42.45.130 and 42.45.140.
  8. Provides that notwithstanding the maximum fees set forth in subsection (1) of WAC 308-30-220 and the prohibition set forth in subsection (3) of that section, a Notary may charge a maximum fee of twenty-five dollars to perform a remote notarial act.
  9. Authorizes a Notary who has received both an electronic records Notary endorsement and a remote notarial acts endorsement from the Department of Licensing may perform the following remote notarial acts: (a) Taking an acknowledgment; (b) Taking a verification on oath or affirmation; (c) Witnessing or attesting a signature; (d) Certifying or attesting a copy; (e) Certifying that an event has occurred or an act has been performed; and (f) Noting a protest of a negotiable instrument, if the Notary is acting under the authority of an attorney who is licensed to practice law in Washington or another state; or acting under the authority of a financial institution regulated by this state, another state, or the federal government.
  10. Provides that in performing remote notarial acts, a Notary must comply with all requirements for electronic notarial acts under the rules.
  11. Repeals the standards for credential analysis, dynamic knowledge-based authentication and credible witnesses who identify remotely located individuals (prior WAC 308-30-300) that were in the July 16, 2020 emergency rules.
  12. Repeals the standards for communication technology (prior WAC 308-30-310) that were in the July 16, 2020 emergency rules.
  13. Repeals the short-form certificates for remote notarial acts (prior WAC 308-30-320) that were in the July 16, 2020 emergency rules.
  14. Repeals the provisions related to the retention of audio-visual recordings and repositories for recordings (prior WAC 308-30-330) that were in the July 16, 2020 emergency rules.
  15. Clarifies that Notaries performing remote notarizations are not required to collect and maintain the signatures of the signers in their tangible journals.
  16. Clarifies that when completing a journal entry for a remote online notarization, the signature of the principal is not required but the Notary must add a notation in the journal that the notarial act was performed via remote notarization instead of obtaining the signature of the remotely located individual.
  17. Provides that in performing remote notarial acts, a Notary must use technology that allows for a multifactor authentication process in compliance with RCW 42.45.050 and WAC 308-30.
  18. Requires Notaries who perform remote notarial acts to use technology which (a) Verifies the identity of the signer in compliance with RCW 42.45.050; (b) Has two-way audio-visual capabilities between the Notary and signer(s); (c) Is capable of recording the notarization; and (d) Has reasonable security measures which ensure notarial acts are secure once recorded.
  19. Makes technical, non-substantive changes.
  20. Sets December 20, 2020, as the date of expiration of these rules.

November 17, 2020 Emergency Rules

  1. Rescinds and replaces the emergency rules filed on September 21, 2020, with these rules which are substantially the same as the September 21, 2020 rules with the additional changes noted below.
  2. Defines "remote notarial act" as a notarization that is performed using audio-video technology that meets the requirements in WAC 308-30-130 and allows for direct interaction between the Notary and the individual(s) that are remotely located.
  3. Reinstates the certificate forms of notarial act for a remote online notarization (see the March 27, 2020 changes, above).
  4. Reinstates the retention requirements for audiovisual recordings and repositories (see the March 27, 2020 changes, above).
  5. Reinstates the standards for identity proofing (see the March 27, 2020 changes, above).
  6. Reinstates the standards for communication technology (see the March 27, 2020 changes, above).
  7. Makes technical, non-substantive changes.
  8. Sets March 17, 2020 as the expiration date of the rules.
Analysis

With Governor Inslee ordering that the effective date of Washington's new laws for performing notarizations for remotely located individuals to temporarily take effect, the Washington Department of Licensing has adopted emergency rules to implement that authorization. The Department has now issued four versions of the emergency rules. The changes under each are noted above.

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