[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[S. 3533 Introduced in Senate (IS)]

<DOC>






116th CONGRESS
  2d Session
                                S. 3533

To authorize and establish minimum standards for electronic and remote 
 notarizations that occur in or affect interstate commerce, to require 
    any Federal court located in a State to recognize notarizations 
  performed by a notary public commissioned by another State when the 
 notarization occurs in or affects interstate commerce, and to require 
   any State to recognize notarizations performed by a notary public 
   commissioned by another State when the notarization occurs in or 
  affects interstate commerce or when the notarization was performed 
under or relates to a public act, record, or judicial proceeding of the 
           State in which the notary public was commissioned.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             March 18, 2020

  Mr. Cramer introduced the following bill; which was read twice and 
               referred to the Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
To authorize and establish minimum standards for electronic and remote 
 notarizations that occur in or affect interstate commerce, to require 
    any Federal court located in a State to recognize notarizations 
  performed by a notary public commissioned by another State when the 
 notarization occurs in or affects interstate commerce, and to require 
   any State to recognize notarizations performed by a notary public 
   commissioned by another State when the notarization occurs in or 
  affects interstate commerce or when the notarization was performed 
under or relates to a public act, record, or judicial proceeding of the 
           State in which the notary public was commissioned.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Securing and Enabling Commerce Using 
Remote and Electronic Notarization Act of 2020''.

SEC. 2. DEFINITIONS.

    In this Act:
            (1) Commissioned.--The term ``commissioned'', with respect 
        to a notary public, includes a notary public who is appointed 
        and licensed.
            (2) Electronic; electronic record; electronic signature; 
        information; person; record.--The terms ``electronic'', 
        ``electronic record'', ``electronic signature'', 
        ``information'', ``person'', and ``record'' have the meanings 
        given those terms in section 106 of the Electronic Signatures 
        in Global and National Commerce Act (15 U.S.C. 7006).
            (3) Law.--The term ``law'' includes any statute, 
        regulation, or rule.
            (4) Notarization.--The term ``notarization'' includes any 
        act--
                    (A) that a notary public may perform under Federal 
                law, including this Act, or under the laws of the State 
                in which the notary public is commissioned, without 
                regard to whether the notary public performs the act--
                            (i) with respect to a tangible or 
                        electronic record; or
                            (ii) in an individual, official, or 
                        representative capacity; and
                    (B) in which an individual making a statement or 
                executing a record is not in the physical presence of a 
                notary public but is able to communicate with the 
                notary public simultaneously by sight and sound through 
                an electronic device or process at the time of the act.
            (5) Requirement.--The term ``requirement'' includes a duty, 
        a standard of care, and a prohibition.
            (6) Simultaneously.--The term ``simultaneously'', with 
        respect to a communication between parties--
                    (A) means that each party communicates 
                substantially simultaneously and without unreasonable 
                interruption or disconnection; and
                    (B) includes a reasonably short delay that is 
                inherent in, or common with respect to, the method used 
                for the communication.
            (7) Stamp or seal of office.--The term ``stamp or seal of 
        office'' means an image that--
                    (A) contains information as specified under the law 
                of the State in which a notary public is commissioned;
                    (B) a notary public uses to authenticate the 
                notarization of a record; and
                    (C) may consist of--
                            (i) a physical image or impression affixed 
                        to or embossed on a tangible record; or
                            (ii) an electronic image attached to, or 
                        logically associated with, an electronic 
                        record.
            (8) State.--The term ``State''--
                    (A) means--
                            (i) any State of the United States;
                            (ii) the District of Columbia;
                            (iii) the Commonwealth of Puerto Rico;
                            (iv) any territory or possession of the 
                        United States; and
                            (v) any federally recognized Indian tribe; 
                        and
                    (B) includes any executive, legislative, or 
                judicial agency, court, department, board, office, 
                clerk, recorder, register, commission, authority, 
                institution, instrumentality, county, municipality, or 
                other political subdivision of an entity described in 
                any of clauses (i) through (v) of subparagraph (A).

SEC. 3. AUTHORIZATION TO PERFORM AND MINIMUM STANDARDS FOR ELECTRONIC 
              NOTARIZATION.

    A notary public commissioned under the laws of a State may perform 
a notarization that occurs in or affects interstate commerce with 
respect to an electronic record, if--
            (1)(A) a stamp or seal of office is attached to or 
        logically associated with the electronic record; or
            (B) the electronic signature of the notary public, and all 
        other information required to be included under other 
        applicable law, is attached to or logically associated with the 
        signature or record; and
            (2) the stamp or seal of office, electronic signature, or 
        other information described in paragraph (1) is securely bound 
        to the electronic record in a manner that is capable of 
        independent verification and renders any subsequent change or 
        modification to the electronic record evident.

SEC. 4. AUTHORIZATION TO PERFORM AND MINIMUM STANDARDS FOR REMOTE 
              NOTARIZATION.

    (a) Requirements of Remote Notarization.--A notary public 
commissioned under the laws of a State may perform a notarization that 
occurs in or affects interstate commerce for an individual not in the 
physical presence of the notary public, if--
            (1) the individual and the notary public are able to 
        communicate simultaneously by sight and sound through an 
        electronic device or process at the time of the notarization;
            (2) the notary public--
                    (A) has reasonably identified the individual 
                through--
                            (i) personal knowledge of the individual;
                            (ii) not fewer than 2 distinct types of 
                        processes or services through which a third 
                        person provides a means to verify the identity 
                        of the individual through a review of public or 
                        private data sources; or
                            (iii) oath or affirmation of a credible 
                        witness who--
                                    (I)(aa) is in the physical presence 
                                of the notary public or the individual; 
                                or
                                    (bb) is able to communicate with 
                                the notary public and the individual 
                                simultaneously by sight and sound 
                                through an electronic device or process 
                                at the time of the notarization;
                                    (II) has personal knowledge of the 
                                individual; and
                                    (III) has been reasonably 
                                identified by the notary public under 
                                clause (i) or (ii); and
                    (B) either directly or through an agent--
                            (i) creates an audio and visual recording 
                        of the performance of the notarization; and
                            (ii) retains the recording created under 
                        clause (i)--
                                    (I) as a notarial record during the 
                                term of the notary public's office, 
                                including renewals of that term, unless 
                                a law of the State requires a different 
                                period of retention; and
                                    (II) if any laws of the State 
                                govern the content, retention, 
                                security, use, effect, and disclosure 
                                of that recording and any information 
                                contained in the recording, in 
                                accordance with those laws; and
            (3) with respect to an individual physically located 
        outside the geographic boundaries of a State or other location 
        subject to the jurisdiction of the United States at the time of 
        the notarization--
                    (A) the record--
                            (i) is intended for filing with, or relates 
                        to a matter before, a court, governmental 
                        entity, public official, or other entity 
                        subject to the jurisdiction of the United 
                        States; or
                            (ii) involves property located in the 
                        territorial jurisdiction of the United States 
                        or a transaction substantially connected to the 
                        United States; and
                    (B) the notary public has no actual knowledge that 
                the act of making the statement or signing the record 
                is prohibited by the laws of the jurisdiction in which 
                the individual is physically located.
    (b) Personal Appearance Satisfied.--If a State or Federal law 
requires an individual to appear personally before or be in the 
physical presence of a notary public at the time of a notarization that 
occurs in or affects interstate commerce, that requirement is satisfied 
if the individual and the notary public are not in the physical 
presence of each other but can communicate simultaneously by sight and 
sound through an electronic device or process at the time of the 
notarization.

SEC. 5. RECOGNITION OF NOTARIZATIONS IN FEDERAL COURT.

    Each court of the United States shall recognize any notarization 
performed by a notary public commissioned under the laws of a State 
other than the State in which the court is located if--
            (1) the notarization occurs in or affects interstate 
        commerce; and
            (2)(A) a stamp or seal of office is affixed or embossed on 
        a tangible record; or
            (B) in the case of an electronic record--
                    (i) a stamp or seal of office is attached to or 
                logically associated with the electronic record; or
                    (ii) the electronic signature of the notary public, 
                and all other information required to be included under 
                other applicable law, is attached to or logically 
                associated with the electronic record.

SEC. 6. RECOGNITION BY STATE OF NOTARIZATIONS PERFORMED UNDER AUTHORITY 
              OF ANOTHER STATE.

    Each State shall recognize as having the same effect under the laws 
of that State as if performed by a notary public of that State any 
notarization performed by a notary public commissioned under the laws 
of any other State if--
            (1)(A) the notarization was performed under or relates to a 
        public act, record, or judicial proceeding of the State in 
        which the notary public is commissioned; or
            (B) the notarization occurs in or affects interstate 
        commerce; and
            (2)(A) a stamp or seal of office is affixed or embossed on 
        a tangible record; or
            (B) in the case of an electronic record--
                    (i) a stamp or seal of office is attached to or 
                logically associated with the electronic record; or
                    (ii) the electronic signature of the notary public, 
                and all other information required to be included by 
                other applicable law, is attached to or logically 
                associated with the electronic record.

SEC. 7. ELECTRONIC AND REMOTE NOTARIZATION NOT REQUIRED.

    Nothing in this Act may be construed to require a notary public 
commissioned under the laws of a State to perform a notarization--
            (1) with respect to an electronic record;
            (2) for an individual not in the physical presence of the 
        notary public; or
            (3) using a technology that the notary public has not 
        selected.

SEC. 8. RIGHTS OF AGGRIEVED PERSONS NOT AFFECTED; STATE LAWS ON THE 
              PRACTICE OF LAW NOT AFFECTED.

    (a) In General.--The validity and recognition of a notarization 
under this Act may not be construed to prevent an aggrieved person from 
seeking to invalidate a record or transaction that is the subject of a 
notarization or from seeking other remedies based on State or Federal 
law other than this Act for any reason not addressed in this Act, 
including on the basis--
            (1) that a person did not, with present intent to 
        authenticate or adopt a record--
                    (A) execute or adopt on the record a tangible 
                symbol; or
                    (B) attach to or logically associate with the 
                record an electronic signature;
            (2) that an individual was incompetent, lacked authority or 
        capacity to execute the record, or did not knowingly and 
        voluntarily execute a record; or
            (3) of fraud, forgery, mistake, misrepresentation, 
        impersonation, duress, undue influence, or other invalidating 
        cause.
    (b) Rule of Construction.--Nothing in this Act may be construed to 
affect a State law governing, authorizing, or prohibiting the practice 
of law.

SEC. 9. EXCEPTION TO PREEMPTION.

    A State law shall not be affected by a provision of section 3 or 4 
of this Act to the extent that the law--
            (1) constitutes an enactment or adoption of the Revised 
        Uniform Law on Notarial Acts, as approved and recommended for 
        enactment in all States by the National Conference of 
        Commissioners on Uniform State Laws in 2018, except that a 
        modification to such Act enacted by a State shall be preempted 
        to the extent the modification is inconsistent with this Act or 
        would not be permitted under paragraph (2); or
            (2) specifies additional or alternative procedures or 
        requirements for the performance of notarizations with respect 
        to electronic records or for individuals not in the physical 
        presence of a notary public at the time of the notarization, if 
        those additional or alternative procedures or requirements--
                    (A) are consistent with this Act; and
                    (B) do not accord greater legal effect to the 
                implementation or application of a specific technology 
                or technical specification for performing those 
                notarizations.

SEC. 10. VALIDITY OF NOTARIZATIONS; STANDARD OF CARE; SPECIAL NOTARIAL 
              COMMISSIONS; SAVINGS CLAUSE.

    (a) Validity Not Affected.--The failure of a notary public to meet 
a requirement specified in this Act shall not invalidate or impair the 
recognition of a notarization performed by the notary public.
    (b) Rule of Construction.--This Act may not be construed to create 
a public or private cause of action or remedy.
    (c) State Standards of Care; Authority of State Commissioning 
Officials.--Nothing in this Act may be construed to prevent a State, or 
a commissioning official of a State, from--
            (1) adopting a requirement in this Act as a duty or 
        standard of care under the laws of that State or sanctioning a 
        notary public for breach of such a duty or standard of care;
            (2) establishing requirements and qualifications for 
        denying, refusing to renew, revoking, suspending, or imposing a 
        condition on a commission as a notary public; or
            (3) creating or designating a class or type of commission, 
        or requiring an endorsement or other authorization to be 
        received by a notary public, as a condition on the authority to 
        perform notarial acts with respect to electronic records or for 
        individuals not in the physical presence of the notary public.
    (d) Special Commissions Created by a State.--A notary public 
commissioned under the laws of a State may not perform a notarization 
under section 3 or 4 of this Act if--
            (1) the State has enacted a law that creates or designates 
        a class or type of commission, or requires an endorsement or 
        other authorization to be received by a notary public, as a 
        condition on the authority to perform notarial acts with 
        respect to electronic records or for individuals not in the 
        physical presence of the notary public; and
            (2) the commission of the notary public is not of the class 
        or type or the notary public has not received the endorsement 
        or other authorization.
    (e) Savings Clause.--This Act shall not affect the validity of a 
notarization performed before the date of enactment of this Act.

SEC. 11. SEVERABILITY.

    If any provision of this Act or the application of such a provision 
to any person or circumstance is held to be invalid or 
unconstitutional, the remainder of this Act and the application of the 
provisions of this Act to other persons or circumstances shall not be 
affected by that holding.
                                 <all>