[Congressional Record Volume 170, Number 115 (Thursday, July 11, 2024)]
[Senate]
[Pages S4699-S4701]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
SA 2362. Mr. CRAMER (for himself and Mr. Warner) submitted an
amendment intended to be proposed by him to the bill S. 4638, to
authorize appropriations for fiscal year 2025 for military activities
of the Department of Defense, for military construction, and for
defense activities of the Department of Energy, to prescribe military
personnel strengths for such fiscal year, and for other purposes; which
was ordered to lie on the table; as follows:
At the appropriate place, insert the following:
SEC. ___. SECURE NOTARIZATIONS.
(a) Short Title.--This section may be cited as the
``Securing and Enabling Commerce Using Remote and Electronic
Notarization Act of 2024''.
(b) Definitions.--In this section:
(1) Communication technology.--The term ``communication
technology'', with respect to a notarization, means an
electronic device or process that allows the notary public
performing the notarization and a remotely located individual
to communicate with each other simultaneously by sight and
sound during the notarization.
(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, rule, or rule of law.
(4) Notarial officer.--The term ``notarial officer''
means--
(A) a notary public; or
(B) any other individual authorized to perform a
notarization under the laws of a State without a commission
or appointment as a notary public.
(5) Notarial officer's state; notary public's state.--The
term ``notarial officer's State'' or ``notary public's
State'' means the State in which a notarial officer, or a
notary public, as applicable, is authorized to perform a
notarization.
(6) Notarization.--The term ``notarization''--
(A) means any act that a notarial officer may perform
under--
(i) Federal law, including this section; or
(ii) the laws of the notarial officer's State; and
(B) includes any act described in subparagraph (A) and
performed by a notarial officer--
(i) with respect to--
(I) a tangible record; or
(II) an electronic record; and
(ii) for--
(I) an individual in the physical presence of the notarial
officer; or
(II) a remotely located individual.
(7) Notary public.--The term ``notary public'' means an
individual commissioned or appointed as a notary public to
perform a notarization under the laws of a State.
(8) Personal knowledge.--The term ``personal knowledge'',
with respect to the identity of an individual, means
knowledge of the identity of the individual through dealings
sufficient to provide reasonable certainty that the
individual has the identity claimed.
(9) Remotely located individual.--The term ``remotely
located individual'', with respect to a notarization, means
an individual who is not in the physical presence of the
notarial officer performing the notarization.
(10) Requirement.--The term ``requirement'' includes a
duty, a standard of care, and a prohibition.
(11) Signature.--The term ``signature'' means--
(A) an electronic signature; or
(B) a tangible symbol executed or adopted by a person and
evidencing the present intent to authenticate or adopt a
record.
(12) 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 any reasonably short delay that is inherent
in, or common with respect to, the method used for the
communication.
(13) 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, registrar, commission, authority, institution,
instrumentality, county, municipality, or other political
subdivision of an entity described in any of clauses (i)
through (v) of subparagraph (A).
(c) Authorization to Perform and Minimum Standards for
Electronic Notarization.--
(1) Authorization.--Unless prohibited under subsection (j),
and subject to paragraph (2), a notary public may perform a
notarization that occurs in or affects interstate commerce
with respect to an electronic record.
(2) Requirements of electronic notarization.--If a notary
public performs a notarization under paragraph (1), the
following requirements shall apply with respect to the
notarization:
(A) The electronic signature of the notary public, and all
other information required to be included under other
applicable law, shall be attached to or logically associated
with the electronic record.
(B) The electronic signature and other information
described in subparagraph (A) shall be bound to the
electronic record in a manner that renders any subsequent
change or modification to the electronic record evident.
(d) Authorization to Perform and Minimum Standards for
Remote Notarization.--
(1) Authorization.--Unless prohibited under subsection (j),
and subject to paragraph (2), a notary public may perform a
notarization that occurs in or affects interstate commerce
for a remotely located individual.
(2) Requirements of remote notarization.--If a notary
public performs a notarization under paragraph (1), the
following requirements shall apply with respect to the
notarization:
(A) The remotely located individual shall appear personally
before the notary public at the time of the notarization by
using communication technology.
(B) The notary public shall--
(i) reasonably identify the remotely located individual--
(I) through personal knowledge of the identity of the
remotely located individual; or
(II) by obtaining satisfactory evidence of the identity of
the remotely located individual by--
(aa) using not fewer than 2 distinct types of processes or
services through which a third person provides a means to
verify the identity of the remotely located individual
through a review of public or private data sources; or
(bb) oath or affirmation of a credible witness who either
is in the physical presence of the notary public or the
remotely located individual or appears personally before the
notary public and the remotely located individual by using
communication technology, has personal knowledge of the
identity of the remotely located individual, and has been
identified by the notary public under subclause (I) or item
(aa) of this subclause;
(ii) either directly or through an agent--
(I) create an audio and visual recording of the performance
of the notarization; and
(II) notwithstanding any resignation from, or revocation,
suspension, or termination of, the notary public's commission
or appointment, retain the recording created under subclause
(I) as a notarial record--
(aa) for a period of not less than--
(AA) if an applicable law of the notary public's State
specifies a period of retention, the greater of--
(BB) that specified period; or
(CC) 5 years after the date on which the recording is
created; or
(DD) if no applicable law of the notary public's State
specifies a period of retention, 10 years after the date on
which the recording is created; and
(bb) if any applicable law of the notary public's State
govern the content, manner or place of retention, security,
use, effect, or disclosure of such recording or any
information contained in the recording, in accordance with
those laws; and
(iii) if the notarization is performed with respect to a
tangible or electronic record, take reasonable steps to
confirm that the record before the notary public is the same
record with respect to which the remotely located individual
made a statement or on which the individual executed a
signature.
(C) If a guardian, conservator, executor, personal
representative, administrator, or similar fiduciary or
successor is appointed
[[Page S4700]]
for or on behalf of a notary public or a deceased notary
public under applicable law, that person shall retain the
recording under subparagraph (B)(ii)(II), unless--
(i) another person is obligated to retain the recording
under applicable law of the notary public's State; or
(ii)(I) under applicable law of the notary public's State,
that person may transmit the recording to an office, archive,
or repository approved or designated by the State; and
(II) that person transmits the recording to the office,
archive, or repository described in subclause (I) in
accordance with applicable law of the notary public's State.
(D) If the remotely located individual is physically
located outside the geographic boundaries of a State, or is
otherwise physically located in a location that is not
subject to the jurisdiction of the United States, at the time
of the notarization--
(i) the record shall--
(I) be intended for filing with, or relate to a matter
before, a court, governmental entity, public official, or
other entity that is subject to the jurisdiction of the
United States; or
(II) involve property located in the territorial
jurisdiction of the United States or a transaction
substantially connected to the United States; and
(ii) the act of making the statement or signing the record
may not be prohibited by a law of the jurisdiction in which
the individual is physically located.
(3) 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 requirement shall be considered to be
satisfied if--
(A) the individual--
(i) is a remotely located individual; and
(ii) appears personally before the notary public at the
time of the notarization by using communication technology;
and
(B)(i) the notarization was performed under or relates to a
public act, record, or judicial proceeding of the notary
public's State; or
(ii) the notarization occurs in or affects interstate
commerce.
(e) Recognition of Notarizations in Federal Court.--
(1) Recognition of validity.--Each court of the United
States shall recognize as valid under the State or Federal
law applicable in a judicial proceeding before the court any
notarization performed by a notarial officer of any State if
the notarization is valid under the laws of the notarial
officer's State or under this section.
(2) Legal effect of recognized notarization.--A
notarization recognized under paragraph (1) shall have the
same effect under the State or Federal law applicable in the
applicable judicial proceeding as if that notarization was
validly performed--
(A)(i) by a notarial officer of the State, the law of which
is applicable in the proceeding; or
(ii) under this section or other Federal law; and
(B) without regard to whether the notarization was
performed--
(i) with respect to--
(I) a tangible record; or
(II) an electronic record; or
(ii) for--
(I) an individual in the physical presence of the notarial
officer; or
(II) a remotely located individual.
(3) Presumption of genuineness.--In a determination of the
validity of a notarization for the purposes of paragraph (1),
the signature and title of an individual performing the
notarization shall be prima facie evidence in any court of
the United States that the signature of the individual is
genuine and that the individual holds the designated title.
(4) Conclusive evidence of authority.--In a determination
of the validity of a notarization for the purposes of
paragraph (1), the signature and title of the following
notarial officers of a State shall conclusively establish the
authority of the officer to perform the notarization:
(A) A notary public of that State.
(B) A judge, clerk, or deputy clerk of a court of that
State.
(f) Recognition by State of Notarizations Performed Under
Authority of Another State.--
(1) Recognition of validity.--Each State shall recognize as
valid under the laws of that State any notarization performed
by a notarial officer of any other State if--
(A) the notarization is valid under the laws of the
notarial officer's State or under this section; and
(B)(i) the notarization was performed under or relates to a
public act, record, or judicial proceeding of the notarial
officer's State; or
(ii) the notarization occurs in or affects interstate
commerce.
(2) Legal effect of recognized notarization.--A
notarization recognized under paragraph (1) shall have the
same effect under the laws of the recognizing State as if
that notarization was validly performed by a notarial officer
of the recognizing State, without regard to whether the
notarization was performed--
(A) with respect to--
(i) a tangible record; or
(ii) an electronic record; or
(B) for--
(i) an individual in the physical presence of the notarial
officer; or
(ii) a remotely located individual.
(3) Presumption of genuineness.--In a determination of the
validity of a notarization for the purposes of paragraph (1),
the signature and title of an individual performing a
notarization shall be prima facie evidence in any State court
or judicial proceeding that the signature is genuine and that
the individual holds the designated title.
(4) Conclusive evidence of authority.--In a determination
of the validity of a notarization for the purposes of
paragraph (1), the signature and title of the following
notarial officers of a State conclusively establish the
authority of the officer to perform the notarization:
(A) A notary public of that State.
(B) A judge, clerk, or deputy clerk of a court of that
State.
(g) Electronic and Remote Notarization Not Required.--
Nothing in this section may be construed to require a notary
public to perform a notarization--
(1) with respect to an electronic record;
(2) for a remotely located individual; or
(3) using a technology that the notary public has not
selected.
(h) Validity of Notarizations; Rights of Aggrieved Persons
Not Affected; State Laws on the Practice of Law Not
Affected.--
(1) Validity not affected.--The failure of a notary public
to meet a requirement under subsection (c) or (d) in the
performance of a notarization, or the failure of a
notarization to conform to a requirement under subsection (c)
or (d), shall not invalidate or impair the recognition of the
notarization.
(2) Rights of aggrieved persons.--The validity and
recognition of a notarization under this section 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 section for any reason not
specified in this section, including on the basis--
(A) that a person did not, with present intent to
authenticate or adopt a record, execute a signature on the
record;
(B) that an individual was incompetent, lacked authority or
capacity to authenticate or adopt a record, or did not
knowingly and voluntarily authenticate or adopt a record; or
(C) of fraud, forgery, mistake, misrepresentation,
impersonation, duress, undue influence, or other invalidating
cause.
(3) Rule of construction.--Nothing in this section may be
construed to affect a State law governing, authorizing, or
prohibiting the practice of law.
(i) Exception to Preemption.--
(1) In general.--A State law may modify, limit, or
supersede the provisions of subsection (c), or paragraph (1)
or (2) of subsection (d), with respect to State law only if
that State law--
(A) either--
(i) constitutes an enactment or adoption of the Revised
Uniform Law on Notarial Acts, as approved and recommended for
enactment in all the States by the National Conference of
Commissioners on Uniform State Laws in 2018, except that a
modification to such Law enacted or adopted by a State shall
be preempted to the extent such modification--
(I) is inconsistent with a provision of subsection (c), or
paragraph (1) or (2) of subsection (d), as applicable; or
(II) would not be permitted under clause (ii); or
(ii) specifies additional or alternative procedures or
requirements for the performance of notarizations with
respect to electronic records or for remotely located
individuals, if those additional or alternative procedures or
requirements--
(I) are consistent with subsection (c), or paragraph (1) or
(2) of subsection (d); and
(II) do not accord greater legal effect to the
implementation or application of a specific technology or
technical specification for performing those notarizations;
and
(B) requires the retention of an audio and visual recording
of the performance of a notarization for a remotely located
individual for a period of not less than 5 years after the
recording is created.
(2) Rule of construction.--Nothing in subsection (e) or (f)
may be construed to preclude the recognition of a
notarization under applicable State law, regardless of
whether such State law is consistent with subsection (e) or
(f).
(j) Standard of Care; Special Notarial Commissions; False
Advertising.--
(1) State standards of care; authority of state regulatory
officials.--Nothing in this section may be construed to
prevent a State, or a notarial regulatory official of a
State, from--
(A) adopting a requirement in this section 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;
(B) establishing requirements and qualifications for, or
denying, refusing to renew, revoking, suspending, or imposing
a condition on, a commission or appointment as a notary
public;
(C) creating or designating a class or type of commission
or appointment, or requiring an endorsement or other
authorization to be received by a notary public, as a
condition on the authority to perform notarizations with
respect to electronic records or for remotely located
individuals; or
(D) prohibiting a notary public from performing a
notarization under subsection (c) or (d) as a sanction for a
breach of duty or standard of care or for official
misconduct.
[[Page S4701]]
(2) Special commissions or authorizations created by a
state; sanction for breach or official misconduct; false
advertising.--A notary public may not perform a notarization
under subsection (c) or (d) if any of the following applies:
(A) The notary public's State has enacted a law that
creates or designates a class or type of commission or
appointment, or requires an endorsement or other
authorization to be received by a notary public, as a
condition on the authority to perform notarizations with
respect to electronic records or for remotely located
individuals, and--
(i) the commission or appointment of the notary public is
not of that class or type; or
(ii) the notary public has not received the endorsement or
other authorization.
(B) The notarial regulatory official of the notary public's
State has prohibited the notary public from performing the
notarization as a sanction for a breach of duty or standard
of care or for official misconduct.
(C)(i) The notary public has engaged in false or deceptive
advertising.
(ii) For the purposes of clause (i), a notary public shall
be considered to have engaged in false or deceptive
advertising if the notary public (unless the notary public is
an attorney licensed to practice law in a State)--
(I) uses the term ``notario'' or ``notario publico''; or
(II) states or represents in a record offering commercial
notarial services that the notary public is authorized to--
(aa) assist in drafting legal records, give legal advice,
or otherwise practice law;
(bb) act as an immigration consultant or an expert on
matters pertaining to immigration;
(cc) represent a person in a judicial or administrative
proceeding relating to immigration to the United States,
United States citizenship, or related matters; or
(dd) receive compensation for performing any activity
described in this clause.
(iii) For the purposes of a notarization performed by a
notary public under subsection (d) for a remotely located
individual, if a record executed by the remotely located
individual attests that the notary public disclosed to the
individual the prohibitions under this subparagraph, and that
the notary public did not make any statement or
representation in violation of this subparagraph, that record
shall conclusively establish compliance by the notary public
with the requirements of this subparagraph, as of the date on
which the individual executes that record.
(k) Severability.--If any provision of this section or the
application of such provision to any person or circumstance
is held to be invalid or unconstitutional, the remainder of
this section and the application of the provisions thereof to
other persons or circumstances shall not be affected by that
holding.
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