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WV Administrative Rules 2014 (eNotarization)

Rule/Regulation

State: West Virginia

Effective: June 30, 2014

Summary

A lengthy, new administrative rule published by the West Virginia Secretary of State provides rules to implement the electronic notarization provisions of the Revised Uniform Law on Notarial Acts (RULONA) enacted as House Bill 4012 in 2014. The rules are based on the Model Notary Act of 2010.

Affects

Adds Chapter 153-45 to the West Virginia Code of State Rules.

Changes

Definitions

  1. Defines the following terms used throughout the administrative rules: “Capable of independent verification,” “electronic,” “electronic document,” “electronic journal of notarial acts,” “‘electronic notarial act’ and ‘electronic notarization,’” “electronic notarial certificate,” “‘electronic notary public’ and ‘electronic notary,’” “‘electronic notary seal’ and ‘electronic seal,’” “electronic signature,” “registered electronic notary seal,” “registered electronic notary signature” and “security procedure.”

Registration

  1. Requires a Notary to register the capability to perform electronic notarial acts with the Secretary of State before notarizing electronically, requires registration with each new commission and allows an individual to apply for a Notary commission and register to perform eNotarizations at the same time.
  2. Clarifies that the term of registration of an electronic Notary begins on the registration starting date set by the Secretary of State and continues as long as the Notary’s commission remains in effect or until registration is terminated.
  3. Requires an applicant to register the capability to perform electronic notarial acts by signing and submitting to the Secretary of State a form prescribed by the Secretary which includes the following information: (a) description of each separate means that will be used to produce electronic signatures and electronic Notary seals; (b) the names of any licensing authorities or companies issuing the means for producing the electronic signatures and seals, the source of each license, and the starting and expiration dates of each pertinent certificate, software, or process; (c) n explanation of any revocation, annulment, or other premature termination of any certificate, software, or process ever issued or registered to the applicant to produce an electronic signature or seal; and (d) a declaration that the Notary will use the means issued or authorized for issuance by the Secretary for producing an electronic Notary seal.
  4. Allows a Notary public to register at the same, or at different times, one or more respective means for producing electronic signatures and electronic Notary seals, or single elements combining the required features of both.
  5. Provides that the Secretary of State shall deny registration to any applicant submitting an electronic registration form that contains a material misstatement or omission of fact.
  6. Clarifies that information in the registration form of an electronic Notary shall be used by the Secretary of State and designated employees only for the purpose of performing official duties, and shall not be disclosed to any person other than to: (a) a government agent acting in an official capacity and duly authorized to obtain such information; (b) person authorized by court order; or (c) the registrant or the registrant’s duly authorized agent.

Electronic Notarial Acts

  1. Authorizes Notaries to perform the following notarial acts electronically: (a) acknowledgments; (b) jurats; (c) signature witnessings; (d) copy certifications; and (e) verifications of fact.
  2. Provides that an electronic Notary shall perform an electronic notarization only if the principal: (a) is in the presence of the Notary at the time of notarization; (b) is personally known to the Notary or identified by the Notary through satisfactory evidence; (c) appears to understand the nature of the transaction; (d) appears to be acting of his or her own free will; (e) communicates directly with the Notary in a language both understand; and (f) reasonably establishes the electronic signature as his or her own.
  3. Requires an electronic Notary shall adhere to all applicable rules governing electronic notarial acts provided in the rule.

Certificate of Electronic Notarial Act

  1. Provides that in performing an electronic notarial act, the Notary shall properly complete an electronic notarial certificate which contains: (a) completed wording appropriate to the particular electronic notarial act, as prescribed in subsection 13.3 of the rule; (b) a registered electronic signature; and (c) a registered electronic Notary seal.
  2. Requires the wording of an electronic notarial certificate to be in a form that: (a) is set forth in WV Code §39-4-16; (b) is otherwise prescribed by the law of WV; (c) is prescribed by a law, regulation, or custom of another jurisdiction, provided it does not require actions by the electronic Notary that are unauthorized by WV; or (d) describes the actions of the electronic Notary in such a manner as to meet the requirements of the particular notarial act.
  3. Provides that a notarial certificate shall be worded and completed using only letters, characters, and a language that are read, written, and understood by the electronic Notary.
  4. Provides that if a notarial certificate is completed in a language other than English, and English translation must be attached or otherwise provided with the original notarial certificate.

Electronic Official Stamp and Signature

  1. Requires an electronic Notary seal to include: (a) the words “Official Seal;” (b) the words “Electronic Notary Public”; (c) the words “State of West Virginia;” (d) the notary public’s name as it is spelled on the commissioning document; (e) the Notary’s address as it is listed on the commissioning document; (f) the commission expiration date of the electronic Notary; (g) an image of the West Virginia State Seal; and (h) the commission or registration number of the electronic Notary.
  2. Provides that in notarizing an electronic document, the Notary shall attach to, or logically associate with, the electronic notarial certificate a registered electronic signature and a registered electronic Notary seal, or a registered single element, in such a manner that the signature and the seal, or the single element, are attributed to the Notary as named on the commission.
  3. Requires a registered Notary electronic signature to be: (a) unique to the electronic Notary; (b) capable of independent verification; (c) attached to or logically associated with an electronic notarial certificate in such a manner that any subsequent alteration of the certificate or underlying electronic document prominently displays evidence of the alteration; and (d) attached or logically associated by a means under the electronic Notary’s sole control.
  4. Requires that at all times the means for producing registered electronic Notary seals, or registered single elements as described in section 6 of this rule, must be kept under the sole control of the electronic Notary.
  5. Provides that if the means for producing registered electronic Notary seals, or registered single elements are accessed by a username and password, the electronic Notary must maintain sole control of the access information.
  6. Prohibits the employer of an electronic Notary from using or controlling the means for producing registered electronic signatures and Notary seals, or registered single elements combining the required features of both.
  7. Prohibits an employer of an electronic Notary upon termination of a Notary’s employment, from retaining any software, coding, disk, certificate, card, token, or program that is intended exclusively to produce a registered electronic signature, Notary seal, or combined single element, whether or not the employer financially supported the employee’s activities as a Notary.
  8. Allows a registered electronic signature to be used by the electronic Notary for lawful purposes other than performing electronic notarizations, provided that neither the title “Notary” nor any other indication of status as a notarial officer is part of the signature.
  9. Prohibits neither a registered electronic Notary seal nor a combined single element containing the seal to be used by the electronic Notary for any purpose other than performing lawful electronic notarizations.

Journal

  1. Allows, but does not require, an electronic Notary public to keep, maintain, protect, and provide for lawful inspection a chronological journal of notarial acts.
  2. Provides that the journal must be a permanently bound book with numbered pages or an electronic journal of notarial acts as described in section 20 of this rule.
  3. Allows an electronic Notary to keep a record of electronic and non-electronic notarial acts in the same journal.
  4. Requires an electronic journal of notarial acts to: (a) allow journal entries to be made, viewed, printed out, and copied only after access is obtained by a procedure that uses two factors of authentication; (b) not allow a journal entry to be deleted or altered in content or sequence by the Notary or any other person after a record of the notarization is entered and stored; and (c) have a backup system in place to provide a duplicate record of notarial acts as a precaution in the event of loss of the original record.
  5. Provides that in maintaining an electronic journal of notarial acts, a Notary shall comply with the applicable prescriptions and prohibitions regarding the contents, copying, security, surrender, and disposition of a journal as set forth in sections 19 and 20 of the rules. (Note: This is an error: sections 19 and 20 do not provide any such rules.)

Authentication of Electronic Notarial Acts

  1. Provides that the Secretary of State may authenticate an electronic notarial act in conformance with any current and pertinent international treaties, agreements and conventions subscribed by the government of the United States.
  2. Provides the form for a certificate of authority for an electronic notarial act.

Status Changes; Administrative Actions

  1. Provides that within 5 business days after the change of an electronic Notary’s email address, the Notary must electronically transmit to the Secretary of State a notice of the change, and he email must include the Notary’s identification number issued by the Secretary of State.
  2. Provides that any change or addition to the data on the electronic registration form submitted to the Secretary of State to register as an electronic Notary must be reported within 10 days to the Secretary.
  3. Provides that upon becoming aware that the status, functionality, or validity of the means for producing a registered electronic signature, Notary seal, or single element combining the signature and seal, has changed, expired, terminated, or become compromised, the Notary must: (a) immediately notify the Secretary of State; (b) cease producing seals or signatures in electronic notarizations using that means; (c) perform electronic notarizations only with a currently registered means or another means that has been registered within 30 days; and (d) dispose of any software, coding, disk, certificate, card, token, or program that has been rendered defunct, in the manner described in subsection 29.1 of the rule.
  4. Provides that the Secretary of State shall immediately suspend the electronic status of a Notary who has no other currently registered means for producing electronic signatures or Notary seals, and if such means is not registered within 30 days, electronic status shall be terminated.
  5. Clarifies that any revocation, resignation, expiration, or other termination of the commission of a Notary public immediately terminates any existing registration as an electronic Notary.
  6. Clarifies a Notary’s decision to terminate registration as an electronic notary shall not automatically terminate the underlying commission of the Notary.
  7. Provides that a Notary who terminates registration as an electronic Notary shall notify the Secretary of State in writing and dispose of any pertinent software, coding, disk, certificate, card, token, or program as described in section 29 of the rule. (Note: Section 27, and not Section 29, provides this guidance.)
  8. Provides that when the commission of an electronic Notary expires or is resigned or revoked, when registration as an electronic notary terminates, or when an electronic Notary dies, the Notary or the Notary’s duly authorized representative within 30 business days shall permanently erase or expunge the software, coding, disk, certificate, card, token, or program that is intended exclusively to produce registered electronic Notary seals, registered single elements combining the required features of an electronic signature and Notary seal, or registered electronic signatures that indicate status as a Notary.
  9. Requires the Secretary of State to deny, condition, suspend, or terminate an electronic Notary’s registration for any of the following reasons: (a) submission of an electronic registration form containing material misstatement or omission of fact; (b) failure to obtain or maintain the capability to perform electronic notarial acts, except as allowed in subsection 27.1 of this rule; or (c) the electronic Notary’s performance of official misconduct.
  10. Provides that if the Secretary of State denies a registration for electronic notarization, the individual making application may request a hearing according to the provisions of WV 153 CSR 47 to contest the decision of the Secretary of State.
  11. Provides that prior to conditioning, suspending, or terminating an electronic Notary’s registration, the Secretary of State shall provide notice to the electronic Notary in the form of a short, plain statement of the basis for action, the date, time, and place of a hearing on the matter, and the name of the hearing examiner, and further provides that the procedures for any hearing regarding the conditioning, suspension or termination of an electronic Notary’s registration must be conducted according to the procedures set forth in WV 153 CSR 47.
  12. Clarifies that neither resignation nor expiration of a Notary commission or of an electronic Notary registration precludes or terminates an investigation by the Secretary of State into the electronic Notary’s conduct, and further provides that the investigation may be pursued to a conclusion, whereupon it shall be made a matter of public record whether or not the finding would have been grounds for conditioning, suspension, or termination of the commission or registration of the electronic Notary.
Analysis

A lengthy, new administrative rule published by the West Virginia Secretary of State provides rules to implement the electronic notarization provisions of the Revised Uniform Law on Notarial Acts (RULONA) enacted as House Bill 4012 in 2014. The rules are based on the Model Notary Act of 2010.

These rules were published as emergency rules, and as such, they were published in haste. This accounts for a number of errors in the rules, including pointers to nonexistent sections in the rules or the wrong sections. In addition, the rules allow a Notary to perform “verifications of fact,” a notarial act allowed under the Model Notary Act, but West Virginia’s RULONA statute does not authorize Notaries to perform this act and the rules do not provide any guidance on how Notaries are to perform it. In addition, another inconsistency is that under the rules, a Notary may not notarize for a signer who does not appear to understand the nature of the transaction or appears not to be acting of his or her own free will. However, under the RULONA the standard is different. The RULONA allows a Notary to refuse to notarize for these reasons, but does not impose a duty on a Notary to ascertain a signer’s understanding of the transaction or willingness to sign a document voluntarily. This inconsistency sets two different standards for the performance of paper-based and electronic acts, respectively. However, even with these issues, the NNA supports the rules on the whole and believes that they will ensure that electronic notarizations in West Virginia are performed securely.

Read the adopted administrative rule.

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