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WV Senate Bill 334

Legislation

State: West Virginia
Signed: March 30, 2022

Effective: March 12, 2022
Chapter: 171

Summary
Senate Bill 334 provides legislative approval of the Secretary of State’s administrative rules on electronic, remote, and remote ink notarization.
Affects

Amends Title 153, Series 45 of the West Virginia Code of State Rules.

Changes

Definitions

  1. Clarifies that an “electronic notarial act” and “electronic notarization is an official act that is performed in the physical presence of an Electronic Notary.
  2. Defines “remote online notarial act” as a notarial act performed by means of communication technology that meets the standards of WVC 39-4-37.
  3. Defines “remote ink notarial act” as a notarial act performed for an individual who is not in the physical presence of the Notary at the time of the notarization, where the individual and Notary communicate simultaneously, in real-time, by sight and sound using communication technology defined in WVC 39-4-37, and where the documents are subsequently notarized on paper using wet ink and a physical Notary seal that meets the standards of WVC 39-4-38.

General Changes

  1. Grants legislative approval for the administrative rules proposed by the Secretary of State on July 30, 2021, and refiled on December 29, 2021, on the subjects of electronic notarization, remote notarization, and remote ink notarization.
  2. Establishes the requirements for electronic notarization and remote online notarization of electronic documents, as well as remote ink notarization of paper documents.
  3. Sets a sunset date of August 1, 2027, for the amended rules.

Registration to Perform Remote Online and Ink Notarizations

  1. Clarifies that a Notary must register the capability to perform remote online notarial acts and remote ink notarial acts with the Secretary of State before notarizing.
  2. Clarifies that to register the capability to perform electronic notarial acts, remote online notarial acts, or remote ink notarial acts, a Notary must sign and submit to the Secretary of State a form prescribed by the Secretary of State which includes (a) a description of each separate means that will be used to produce electronic signatures and Electronic Notary seals, where applicable; (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, where applicable; and (c) a declaration that the Notary will use the means issued or authorized for issuance by the Secretary of State for producing an Electronic Notary seal, where applicable.
  3. Clarifies that a Notary may register at the same, or at different times, one or more respective means for producing electronic signatures and Electronic Notary seals, remote online notarization, remote ink notarization, or single elements.

Remote Online and Ink Notarization Standards

  1. Provides that in notarizing an electronic document, except for a remote ink notarial act, the Notary must 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 conformance with CSR 153-45-6, in such a manner that the signature and the seal, or the single element, are attributed to the Notary as named on the commission.
  2. Clarifies that a Notary who performs an electronic notarial act, remote online notarial act, or remote ink notarial act, may keep, maintain, protect, and provide for lawful inspection a chronological journal of notarial acts.
  3. Provides that the requirements for notification in CSR 153-45-23 regarding the change, expiration, termination or compromise of the status, functionality, or validity of the means for producing a registered electronic signature, Notary seal, or single element combining the signature and seal, applies to the means for producing a remote online notarial act or remote ink notarial act.
  4. Clarifies that remote online notarial acts, including the procedures for properly identifying the parties, must be performed for a remotely located individual pursuant to the standards and procedures set forth in WVC 39-4-37.
  5. Clarifies that remote ink notarial acts performed for a remotely located individual, including the procedures for properly identifying the parties, must be performed pursuant to the standards and procedures set forth in WVC 39-4-38.

Administrative Actions

  1. Pursuant to CSR 153-45-23.1, directs the Secretary of State to immediately suspend the status of a Notary who has no other currently registered means for performing remote online notarial acts or remote ink notarial acts, and if such means is not registered within 30 days, requires the status to be terminated.
  2. Clarifies that any revocation, resignation, expiration, or other termination of the commission of a Notary immediately terminates any existing registration as an Electronic Notary, Remote Online Notary, or Remote Ink Notary.
  3. Provides that a Notary’s decision to terminate registration as an Electronic Notary, Remote Online Notary, or Remote Ink Notary, will not automatically terminate the underlying commission of the Notary.
  4. Provides that a Notary who terminates registration as an Electronic Notary, Remote Online Notary, or Remote Ink Notary must notify the Secretary of State in writing and dispose of any pertinent software, coding, disk, certificate, card, token, or program as described in CSR 153-45-25.
  5. Provides that when the commission of an Electronic Notary, Remote Online Notary, or Remote Ink Notary, expires or is resigned or revoked, when registration terminates as an Electronic Notary, Remote Online Notary, or Remote Ink Notary, or when the 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, perform remote online notarial acts or remote ink notarial acts, registered single elements combining the required features of an electronic signature and Notary seal, or registered electronic signatures that indicate status as a Notary.
  6. Provides that the Secretary of State shall deny, condition, suspend, or terminate registration as an Electronic Notary, Remote Online Notary, or Remote Ink Notary, for any of the following reasons: (a) submission of a registration form containing material misstatement or omission of fact; (b) failure to obtain or maintain the capability to perform electronic notarial acts, remote online notarial acts, or remote ink notarial acts, except as allowed in CSR 153-45-24; or (c) the Notary’s performance of official misconduct.
  7. Provides that if the Secretary of State denies a registration for electronic notarization, remote online notarization, or remote ink notarization, the individual making application may request a hearing according to the provisions of 153 CSR 47 to contest the decision of the Secretary of State.
  8. Clarifies that neither resignation nor expiration of a Notary commission, an Electronic Notary registration, Remote Online Notary registration, or Remote Ink Notary registration, precludes or terminates an investigation by the Secretary of State into the Notary’s conduct, and that the investigation may be pursued to a conclusion, whereupon it must 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 Notary.

Other Changes

  1. Repeals the prior emergency rules related to remote notarization authorized during a state of emergency in certain circumstances.
  2. Makes technical changes.
Analysis

In West Virginia, the Legislature must approve any rules proposed to be adopted by a state agency. As a result of the pandemic and the enactment in 2021 of remote ink notarization (Senate Bill 469), the West Virginia Secretary of State has adopted some amendments to its existing electronic notarization rules. Many of the changes involve provisions that previously only applied to Electronic Notaries Public and making them applicable to Notaries who perform remote online or remote ink notarizations.

Read Senate Bill 334.

Read the adopted administrative rules.

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