[House Report 117-443]
[From the U.S. Government Publishing Office]
117th Congress } { Rept. 117-443
HOUSE OF REPRESENTATIVES
2d Session } { Part 1
======================================================================
SECURING AND ENABLING COMMERCE USING REMOTE AND ELECTRONIC NOTARIZATION
ACT OF 2022
_______
July 26, 2022.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Pallone, from the Committee on Energy and Commerce, submitted the
following
R E P O R T
[To accompany H.R. 3962]
The Committee on Energy and Commerce, to whom was referred
the bill (H.R. 3962) to authorize notaries public to perform,
and to establish minimum standards for, electronic
notarizations and remote notarizations that occur in or affect
interstate commerce, to require any Federal court to recognize
notarizations performed by a notarial officer of any State, to
require any State to recognize notarizations performed by a
notarial officer of any other State when the notarization was
performed under or relates to a public Act, record, or judicial
proceeding of the notarial officer's State or when the
notarization occurs in or affects interstate commerce, and for
other purposes, having considered the same, reports favorably
thereon with an amendment and recommends that the bill as
amended do pass.
CONTENTS
Page
I. Purpose and Summary..............................................7
II. Background and Need for the Legislation..........................7
III. Committee Hearings...............................................7
IV. Committee Consideration..........................................8
V. Committee Votes..................................................8
VI. Oversight Findings..............................................11
VII. New Budget Authority, Entitlement Authority, and Tax Expenditure11
VIII.Federal Mandates Statement......................................11
IX. Statement of General Performance Goals and Objectives...........11
X. Duplication of Federal Programs.................................11
XI. Committee Cost Estimate.........................................11
XII. Earmarks, Limited Tax Benefits, and Limited Tariff Benefits.....11
XIII.Advisory Committee Statement....................................12
XIV. Applicability to Legislative Branch.............................12
XV. Section-by-Section Analysis of the Legislation..................12
XVI. Changes in Existing Law Made by the Bill, as Reported...........14
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Securing and Enabling Commerce Using
Remote and Electronic Notarization Act of 2022'' or the ``SECURE
Notarization Act of 2022''.
SEC. 2. DEFINITIONS.
In this Act:
(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, a remotely located individual, and
(if applicable) a credible witness 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 Act; 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).
SEC. 3. AUTHORIZATION TO PERFORM AND MINIMUM STANDARDS FOR ELECTRONIC
NOTARIZATION.
(a) Authorization.--Unless prohibited under section 10, and subject
to subsection (b), a notary public may perform a notarization that
occurs in or affects interstate commerce with respect to an electronic
record.
(b) Requirements of Electronic Notarization.--If a notary public
performs a notarization under subsection (a), the following
requirements shall apply with respect to the notarization:
(1) 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.
(2) The electronic signature and other information described
in paragraph (1) shall be bound to the electronic record in a
manner that renders any subsequent change or modification to
the electronic record evident.
SEC. 4. AUTHORIZATION TO PERFORM AND MINIMUM STANDARDS FOR REMOTE
NOTARIZATION.
(a) Authorization.--Unless prohibited under section 10, and subject
to subsection (b), a notary public may perform a notarization that
occurs in or affects interstate commerce for a remotely located
individual.
(b) Requirements of Remote Notarization.--If a notary public performs
a notarization under subsection (a), the following requirements shall
apply with respect to the notarization:
(1) The remotely located individual shall appear personally
before the notary public at the time of the notarization by
using communication technology.
(2) The notary public shall--
(A) 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--
(I) 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
(II) oath or affirmation of a
credible witness who--
(aa)(AA) is in the physical
presence of the notary public
or the remotely located
individual; or
(BB) appears personally
before the notary public and
the remotely located individual
by using communication
technology;
(bb) has personal knowledge
of the identity of the remotely
located individual; and
(cc) has been identified by
the notary public in the same
manner as specified for
identification of a remotely
located individual under clause
(i) or subclause (I) of this
clause;
(B) 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 clause (i)
as a notarial record--
(I) 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--
(AA) that specified
period; or
(BB) 5 years after
the date on which the
recording is created;
or
(bb) 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
(II) if any applicable law of the
notary public's State governs the
content, manner or place of retention,
security, use, effect, or disclosure of
the recording or any information
contained in the recording, in
accordance with that law; and
(C) 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.
(3) If a guardian, conservator, executor, personal
representative, administrator, or similar fiduciary or
successor is appointed for or on behalf of a notary public or a
deceased notary public under applicable law, that person shall
retain the recording under paragraph (2)(B)(ii), unless--
(A) another person is obligated to retain the
recording under applicable law of the notary public's
State; or
(B)(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 clause (i)
in accordance with applicable law of the notary
public's State.
(4) 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--
(A) 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
(B) 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.
(c) 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--
(1) the individual--
(A) is a remotely located individual; and
(B) appears personally before the notary public at
the time of the notarization by using communication
technology; and
(2)(A) the notarization was performed under or relates to a
public act, record, or judicial proceeding of the notary
public's State; or
(B) the notarization occurs in or affects interstate
commerce.
SEC. 5. RECOGNITION OF NOTARIZATIONS IN FEDERAL COURT.
(a) 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 Act.
(b) Legal Effect of Recognized Notarization.--A notarization
recognized under subsection (a) shall have the same effect under the
State or Federal law applicable in the applicable judicial proceeding
as if that notarization was validly performed--
(1)(A) by a notarial officer of the State, the law of which
is applicable in the proceeding; or
(B) under this Act or other Federal law; and
(2) 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.
(c) Presumption of Genuineness.--In a determination of the validity
of a notarization for the purposes of subsection (a), 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.
(d) Conclusive Evidence of Authority.--In a determination of the
validity of a notarization for the purposes of subsection (a), the
signature and title of the following notarial officers of a State shall
conclusively establish the authority of the officer to perform the
notarization:
(1) A notary public of that State.
(2) A judge, clerk, or deputy clerk of a court of that State.
SEC. 6. RECOGNITION BY STATE OF NOTARIZATIONS PERFORMED UNDER AUTHORITY
OF ANOTHER STATE.
(a) 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--
(1) the notarization is valid under the laws of the notarial
officer's State or under this Act; and
(2)(A) the notarization was performed under or relates to a
public act, record, or judicial proceeding of the notarial
officer's State; or
(B) the notarization occurs in or affects interstate
commerce.
(b) Legal Effect of Recognized Notarization.--A notarization
recognized under subsection (a) 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--
(1) with respect to--
(A) a tangible record; or
(B) an electronic record; or
(2) for--
(A) an individual in the physical presence of the
notarial officer; or
(B) a remotely located individual.
(c) Presumption of Genuineness.--In a determination of the validity
of a notarization for the purposes of subsection (a), 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.
(d) Conclusive Evidence of Authority.--In a determination of the
validity of a notarization for the purposes of subsection (a), the
signature and title of the following notarial officers of a State shall
conclusively establish the authority of the officer to perform the
notarization:
(1) A notary public of that State.
(2) A judge, clerk, or deputy clerk of a court of that State.
SEC. 7. ELECTRONIC AND REMOTE NOTARIZATION NOT REQUIRED.
Nothing in this Act 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.
SEC. 8. VALIDITY OF NOTARIZATIONS; RIGHTS OF AGGRIEVED PERSONS NOT
AFFECTED; STATE LAWS ON THE PRACTICE OF LAW NOT
AFFECTED.
(a) Validity Not Affected.--The failure of a notary public to meet a
requirement under section 3 or 4 in the performance of a notarization,
or the failure of a notarization to conform to a requirement under
section 3 or 4, shall not invalidate or impair the validity or
recognition of the notarization.
(b) Rights of Aggrieved Persons.--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
specified in this Act, including on the basis--
(1) that a person did not, with present intent to
authenticate or adopt a record, execute a signature on the
record;
(2) 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
(3) of fraud, forgery, mistake, misrepresentation,
impersonation, duress, undue influence, or other invalidating
cause.
(c) 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) In General.--A State law may modify, limit, or supersede the
provisions of section 3, or subsection (a) or (b) of section 4, with
respect to State law only if that State law--
(1) either--
(A) 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 or 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 2021, 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
section 3 or subsection (a) or (b) of section
4, as applicable; or
(ii) would not be permitted under
subparagraph (B); or
(B) 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 section 3 and
subsections (a) and (b) of section 4; 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
(2) 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.
(b) Rule of Construction.--Nothing in section 5 or 6 may be construed
to preclude the recognition of a notarization under applicable State
law, regardless of whether such State law is consistent with section 5
or 6.
SEC. 10. STANDARD OF CARE; SPECIAL NOTARIAL COMMISSIONS.
(a) State Standards of Care; Authority of State Regulatory
Officials.--Nothing in this Act may be construed to prevent a State, or
a notarial regulatory 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, or
denying, refusing to renew, revoking, suspending, or imposing a
condition on, a commission or appointment as a notary public;
(3) 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
(4) prohibiting a notary public from performing a
notarization under section 3 or 4 as a sanction for a breach of
duty or standard of care or for official misconduct.
(b) Special Commissions or Authorizations Created by a State;
Sanction for Breach or Official Misconduct.--A notary public may not
perform a notarization under section 3 or 4 if--
(1)(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
(B) the commission or appointment of the notary public is not
of the class or type or the notary public has not received the
endorsement or other authorization; or
(2) 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.
SEC. 11. SEVERABILITY.
If any provision of this Act or the application of such provision to
any person or circumstance is held to be invalid or unconstitutional,
the remainder of this Act and the application of the provisions thereof
to other persons or circumstances shall not be affected by that
holding.
I. PURPOSE AND SUMMARY
H.R. 3962, the ``Securing and Enabling Commerce Using
Remote and Electronic Notarization Act of 2021,'' establishes
nationwide standards and technical requirements for remote
online notarization. This bill authorizes a notary public
commissioned under state law to remotely notarize electronic
records and perform notarizations for remotely-located
individuals. The legislation also requires United States courts
and states to recognize remote notarizations, including remote
notarizations from notary publics commissioned in other states
or U.S. territories. State laws that meet or exceed the minimum
national standards and technical requirements of the bill will
remain in effect.
II. BACKGROUND AND NEED FOR LEGISLATION
Notarization is an official process to attest that a
document is authentic and is typically required for wills,
marriage certificates, mortgages, and other documents
concerning valuable assets.\1\ While notarization has
historically required a person to physically appear before a
notary public, the coronavirus disease of 2019 (COVID-19)
pandemic spurred several states to permit remote online
notarizations to help ensure that such transactions could be
completed. To date, dozens of states have enacted laws or taken
emergency actions to permit remote online notarization.\2\ In
enacting this legislation, Congress is heeding a lesson learned
from the pandemic by reducing friction in commerce and
protecting consumers.
---------------------------------------------------------------------------
\1\National Notary Association, What Is Notarization?
(www.nationalnotary.org/knowledge-center/about-notaries/what-is-
notarization) (accessed May 23, 2022).
\2\DLA Piper, [UPDATED] Coronavirus: Federal and State Governments
Work Quickly to Enable Remote Online Notarization to Meet Global Crisis
(Aug. 25, 2021) (www.dlapiper.com/en/us/insights/publications/2020/03/
coronavirus-federal-and-state-governments-work-quickly-to
-enable-remote-online-notarization/
#: :text=Currently%2C%2034%20states%20have%20enacted,
%2C%20Ohio%2C%20Oklahoma%2C%20Oregon%2C).
---------------------------------------------------------------------------
III. COMMITTEE HEARINGS
For the purposes of section 3(c) of rule XIII of the Rules
of the House of Representatives, the following hearing was used
to develop or consider H.R. 3962:
The Subcommittee on Consumer Protection and Commerce held a
legislative hearing on May 26, 2022. The hearing was entitled,
``Legislative Hearing to Protect Consumers and Strengthen the
Economy.'' The Subcommittee received testimony from the
following witnesses:
Kaitlin Kraska, Director of Federal
Legislation, Government Relations, American Society for
the Prevention of Cruelty to Animals;
Julie Menin, Former Commissioner, New York
City Department of Consumer Affairs;
Hadley Heath Manning, Vice President for
Policy, Independent Women's Forum; Partner, Wiley Rein
LLP;
Michael O'Neal, Vice President--Corporate
Underwriting, First American Title Insurance Company;
Trista Hamsmith, Founder and Reese's Mom,
Reese's Purpose;
Eric D. Hagopian, CEO and President, Pilot
Precision Products; and
Tori Barnes, Executive Vice President,
Public Affairs and Policy, U.S. Travel Association.
IV. COMMITTEE CONSIDERATION
H.R. 3962, the ``Securing and Enabling Commerce Using
Remote and Electronic Notarization Act of 2021,'' was
introduced on June 17, 2021, by Representative Madeline Dean
(D-PA) and 32 original bipartisan cosponsors and referred to
the Committee on Energy and Commerce. Subsequently, on June 18,
2021, the bill was referred to the Subcommittee on Consumer
Protection and Commerce. A legislative hearing was held on May
26, 2022.
On June 23, 2022, the Subcommittee on Consumer Protection
and Commerce met in open markup session, pursuant to notice, to
consider H.R. 3962 and seven other bills. No amendments were
offered during consideration of the bill. Upon conclusion of
consideration of the bill, the Subcommittee on Consumer
Protection and Commerce agreed to report the bill favorably to
the full Committee, without amendment, by a roll call vote of
22 yeas to 0 nays.
On July 20, 2022, the full Committee met in open markup
session, pursuant to notice, to consider H.R. 3962 and five
other bills. During consideration of the bill, an amendment in
the nature of a substitute (AINS), offered by Representative
Armstrong (R-ND), was agreed to by a voice vote. Upon
conclusion of consideration of the bill, the full Committee
agreed to a motion on final passage offered by Representative
Pallone, Chairman of the Committee, to order H.R. 3962 reported
favorably to the House, amended, by a roll call vote of 56 yeas
to 0 nays.
V. COMMITTEE VOTES
Clause 3(b) of rule XIII of the Rules of the House of
Representatives requires the Committee to list each record vote
on the motion to report legislation and amendments thereto. The
Committee advises that there were two record votes taken on
H.R. 3962, including a motion by Mr. Pallone ordering H.R. 3962
favorably reported to the House, amended. The motion on final
passage of the bill was approved by a record vote of 56 yeas to
0 nays. The following are the record votes taken during
Committee consideration, including the names of those members
voting for and against:
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
VI. OVERSIGHT FINDINGS
Pursuant to clause 3(c)(1) of rule XIII and clause 2(b)(1)
of rule X of the Rules of the House of Representatives, the
oversight findings and recommendations of the Committee are
reflected in the descriptive portion of the report.
VII. NEW BUDGET AUTHORITY, ENTITLEMENT AUTHORITY, AND TAX EXPENDITURES
Pursuant to 3(c)(2) of rule XIII of the Rules of the House
of Representatives, the Committee adopts as its own the
estimate of new budget authority, entitlement authority, or tax
expenditures or revenues contained in the cost estimate
prepared by the Director of the Congressional Budget Office
pursuant to section 402 of the Congressional Budget Act of
1974.
The Committee has requested but not received from the
Director of the Congressional Budget Office a statement as to
whether this bill contains any new budget authority, spending
authority, credit authority, or an increase or decrease in
revenues or tax expenditures.
VIII. FEDERAL MANDATES STATEMENT
The Committee adopts as its own the estimate of Federal
mandates prepared by the Director of the Congressional Budget
Office pursuant to section 423 of the Unfunded Mandates Reform
Act.
IX. STATEMENT OF GENERAL PERFORMANCE GOALS AND OBJECTIVES
Pursuant to clause 3(c)(4) of rule XIII, the general
performance goal or objective of this legislation is to
establish minimum standards for electronic notarizations and
remote notarizations, authorize notaries public to perform such
notarizations, and require any federal court and any state to
recognize notarizations performed by a notarial officer of any
state.
X. DUPLICATION OF FEDERAL PROGRAMS
Pursuant to clause 3(c)(5) of rule XIII, no provision of
H.R. 3962 is known to be duplicative of another Federal
program, including any program that was included in a report to
Congress pursuant to section 21 of Public Law 111-139 or the
most recent Catalog of Federal Domestic Assistance.
XI. COMMITTEE COST ESTIMATE
Pursuant to clause 3(d)(1) of rule XIII, the Committee
adopts as its own the cost estimate prepared by the Director of
the Congressional Budget Office pursuant to section 402 of the
Congressional Budget Act of 1974.
XII. EARMARKS, LIMITED TAX BENEFITS, AND LIMITED TARIFF BENEFITS
Pursuant to clause 9(e), 9(f), and 9(g) of rule XXI, the
Committee finds that H.R. 3962 contains no earmarks, limited
tax benefits, or limited tariff benefits.
XIII. ADVISORY COMMITTEE STATEMENT
No advisory committee within the meaning of section 5(b) of
the Federal Advisory Committee Act was created by this
legislation.
XIV. APPLICABILITY TO LEGISLATIVE BRANCH
The Committee finds that the legislation does not relate to
the terms and conditions of employment or access to public
services or accommodations within the meaning of section
102(b)(3) of the Congressional Accountability Act.
XV. SECTION-BY-SECTION ANALYSIS OF THE LEGISLATION
Section 1. Short title
Section 1 designates that the short title may be cited as
the ``Securing and Enabling Commerce Using Remote and
Electronic Notarization Act of 2021.''
Sec. 2. Definitions
Section 2 defines key terms of the bill.
Sec. 3. Authorization to perform and minimum standards for electronic
notarization
Subsection (a) authorizes a notary public to perform an
electronic notarization.
Subsection (b) establishes requirements for such
notarization, including requirements that the electronic
signature of the notary public and all applicable information
be bound to the electronic record in a manner that prevents
subsequent change or modification to the electronic record.
Sec. 4. Authorization to perform and minimum standards for remote
notarization
Subsection (a) permits a notary public to perform
notarizations for a remotely located individual.
Subsection (b) establishes requirements for remote
notarizations, including requirements for reasonably
identifying the remote individual with the use of communication
technology or by other means, creating an audio and visual
recording of the notarization, and maintaining the record for a
specified period of time.
Subsection (c) specifies that remote notarizations
performed in accordance with this section shall satisfy the
requirements of state or federal law requiring an individual to
be physically present at the time of the notary.
Sec. 5. Recognition of notarizations in Federal court
Section 5 requires that notaries performed under this Act
be recognized as valid in any court in the United States under
state or federal law.
Sec. 6. Recognition by State of notarizations performed under authority
of another State
Section 6 states that each State shall recognize as valid a
notarization performed by a notarial officer of any other State
if certain requirements are met.
Sec. 7. Electronic and remote notarization not required
Section 7 clarifies that nothing in this Act may be
construed to require a notary public to perform an electronic
or remote notarization.
Sec. 8. Validity of notarizations; rights of aggrieved persons not
affected; State laws on the practice of law not affected
Subsection (a) states that if a notary public fails to meet
the requirements under Sections 3 and 4, the validity of the
notarization shall not be impaired.
Subsection (b) clarifies that aggrieved individuals may
seek remedies under state or federal law to invalidate a record
or transaction that is subject to a notarization.
Subsection (c) clarifies that nothing in this Act may be
construed to affect a state law governing, authoring, or
prohibiting the practice of law.
Sec. 9. Exception to preemption
Section 9 states that a state may modify, limit, or
supersede a provision of Section 3, or subsections (a) or (b)
of Section 4 if the state law constitutes an enactment or
adoption of the Revised Uniform Law on Notarial Acts so long as
they are not inconsistent with a provision of section 3 or
subsections (a) or (b) of section 4. This section also permits
a state to specify additional or alternative procedures or
requirements for the performance of electronic or remote
notarizations so long as they are consistent with a provision
of section 3 or subsections (a) or (b) of section 4 and do not
accord greater legal effect to the implementation or
application of a specific technology or technical specification
for performing those notarizations. Such state laws must
require 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.
Sec. 10. Standard of care; special notarial commissions
Subsection (a) clarifies that this Act does not prevent a
state from adopting requirements under this Act as a standard
of care for notarizations under their state law, 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, 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 prohibiting a notary public
from performing a notarization under section 3 or 4 as a
sanction for a breach of duty or standard of care or for
official misconduct.
Subsection (b) prohibits a notary public from performing a
notarization under section 3 or 4 if the notary public's state
has enacted a law that creates or designates a class or type of
commission or appointment, or requires authorization to be
received by a notary public, as a condition on the authority to
perform a notary for such electronic records or for remotely
located individuals or 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.
Sec. 11. Severability
Section 11 states that if any provision of this Act is held
to be invalid or unconstitutional, the remainder of this Act
shall not be affected.
XVI. CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED
There are no changes to existing law made by the bill, H.R.
3962.
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