[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.
                                 ______