TITLE 12 TRADE, COMMERCE AND BANKING
CHAPTER
9 NOTARIES PUBLIC
PART
4 REMOTE ONLINE NOTARIZATION STANDARDS
12.9.4.1 ISSUING
AGENCY:
Office of the Secretary of State.
[12.9.4.1
NMAC - N, 1/1/2022]
12.9.4.2 SCOPE: Notaries public and
other notarial officers authorized by the secretary of state to perform remote
online notarizations in the state of New Mexico as well as remote notarization
system providers.
[12.9.4.2
NMAC - N, 1/1/2022]
12.9.4.3 STATUTORY
AUTHORITY: In accordance with Subsection H of Section
14-14A-5 and Section 14-14A-26 NMSA 1978, the secretary of state has the
authority to promulgate rules for notarial officers to perform notarial acts
for remotely located individuals using communication technology.
[12.9.4.3
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12.9.4.4 DURATION: Permanent.
[12.9.4.4
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12.9.4.5 EFFECTIVE
DATE:
January 1, 2022, unless a later date is cited at the end of a section.
[12.9.4.5
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12.9.4.6 OBJECTIVE: The objective of the rule is to establish
uniform standards of performance and governance
of notarial acts for remotely located individuals by use of communication technology.
[12.9.4.6 NMAC - N, 1/1/2022]
12.9.4.7 DEFINITIONS:
A. “Certified
tangible copy of an electronic record” means
an original tangible copy, as defined pursuant to Subsection F of 2.9.3.7 NMAC,
of an electronic record that has been certified by a notarial officer as an
accurate copy of the electronic record.
B. “Credential analysis”
means an identity assessment used by a notarial officer to determine if an
individual’s government-issued identification card is genuine. The assessment requires the use of technology
to confirm the security features on an identification card and confirm the
identification card is not fraudulent.
C. “Electronic
record” means see Subsection C of 12.9.3.7
NMAC.
D. “Identity credential”
means a government issued identification card pursuant to the requirements of Paragraph
(1) of Subsection B of Section 14-14A-6 NMSA 1978.
E. “Knowledge-based authentication” means an identity assessment used by a notarial officer to verify
the identity of an individual that is based on questions formulated from public
or private data sources for which the individual has not provided prior answers.
F. “Remote
online notarization (RON)” means see Subsection
F of 12.9.3.7 NMAC.
G. “Remote online notarization system” means a set of applications, programs, hardware, or
software designed to enable a notarial officer to perform notarial acts on
electronic records involving the use of communication technology that satisfies
the requirements outlined in this rule.
H. “Remote online
notarization system provider” means a business entity that provides a
remote online notarization system that has been approved by the secretary of
state.
[12.9.4.7
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12.9.4.8 REMOTE ONLINE NOTARIZATION APPLICATION
REQUIREMENTS:
A. A notarial officer must submit an application to perform
remote online notarizations (RON) on a form prescribed by the secretary of
state and receive approval from the secretary of state before the notarial
officer may remotely notarize a record. The notarial officer shall provide:
(1) the
name of all remote online notarization systems approved for use by the
secretary of state the notarial officer intends to use;
(2) a
copy of any necessary instructions or techniques supplied by a remote online notarization
system provider that allow the notarial officer’s signature and official stamp
to be read and authenticated;
(3) an
explanation of the methods and technology by which the notarial officer will maintain
and store the required journal, if applicable, and audio video recording;
(4) proof
of having successfully completed an approved training course and passing the
required examination. If the secretary of state has a record that a commissioned
notary public applying for renewal has previously passed the required
examination, a commissioned notary public applying for renewal is not required
to re-take the training and examination unless:
(a) the applicant’s commission has
expired for more than one year; or
(b) there have been substantial changes
to the statutes or rules pertaining to RONs, as determined by the secretary of
state, since the effective date of applicant’s last application date; and
(5) a
non-refundable application fee of $75.
B. An individual applying for
authorization to perform RONs shall already be a current notarial officer
pursuant to Section 14-14A-9 or Section 14-14A-20 NMSA 1978 or an individual
may simultaneously apply to be commissioned as a notary public with
authorization to perform RONs.
C. The
secretary of state shall issue an approval authorizing the notarial officer to perform
RONs when the secretary of state determines that the applicant has met the
qualifications. Within 45 days of
receiving authorization to perform RONs from the secretary of state, the notarial
officer shall provide a copy of the applicant’s official electronic stamp to
the secretary of state along with the form prescribed by the secretary of state. The applicant’s official electronic stamp
must be received by the secretary of state prior to the notarial officer
performing a RON. Failure to provide
this information shall result in a referral to the State Ethics Commission.
D. The
expiration date for a notary public authorized to perform RONs shall be the commission
expiration date established when an individual is commissioned as a notary
public pursuant to Section 14-14A-20 NMSA 1978.
E. If
at any time a notarial officer authorized to perform RONs adopts a new remote online
notarization system provider, the notarial officer must notify the secretary of
state of the new system and provider on a form prescribed by the secretary of
state.
F. The
renewal of the commission of a notary public who has previously been authorized
to perform RONs under this section constitutes renewal of the notary public’s
qualification without the necessity to submit another application under this
section, and the renewal fees shall be the same as that to renew a notary
public commission unless the applicant’s commission has been expired for more
than one year. If an applicant’s commission
has been expired for more than one year, the applicant must complete the application
for authorization to perform RONs and pay the required application fee as prescribed
by this section.
[12.9.4.8
NMAC - N, 1/1/2022]
12.9.4.9 EDUCATION AND EXAMINATION
PROCEDURES:
A. The secretary of state shall
provide a remote notarization course and examination. Training may be administered in house or
through any third-party training vendor approved by the secretary of state.
B. The fee for administering
the training and examination is not included in the application fee collected
pursuant to 12.9.4.8 NMAC.
C. An applicant must provide proof of passing the
required examination with a score of eighty percent or higher.
D. Examination records maintained by any third-party
vendor, including the applicant’s score, shall be retained for five years.
[12.9.4.9
NMAC - N, 1/1/2022]
12.9.4.10 PERFORMANCE
OF REMOTE ONLINE NOTARIAL ACTS:
A. A
notarial officer authorized to perform RONs must be physically located in New
Mexico at the time the notarial act takes place.
B. A
notarial officer authorized to perform RONs may perform authorized notarial
acts relating to electronic records only if the individual personally appears
before the notarial officer at the time of the notarization by means of
communication technology.
C. A
notarial officer authorized to perform RONs may make a reasonable determination
regarding whether an individual is under duress or being coerced to complete a
transaction. The notarial officer may:
(1) observe
the individual’s behavior for signs of being nervous, fearful, hesitant, distracted,
distraught or uncomfortable;
(2) observe
the surroundings and watch the behavior of others in the room who seem to make
the individual uncomfortable;
(3) request
to speak privately with the individual; and
(4) ask
direct questions such as “are you signing this record of your own free will?”
D. A
notarial officer may refuse to perform a notarial act if the notarial officer
has reasonable grounds to believe that the individual is acting under coercion
or undue influence.
E. A
notarial officer authorized to perform RONs shall verify the identity of the individual
at the start of an online notarial session by means of communication technology.
Identity shall be verified by the notarial officer pursuant to Section 14-14A-6
NMSA 1978 or 12.9.4.11 NMAC.
F. A
notarial officer shall not base identification merely on familiarity with an individual’s
signature or an electronic verification process that authenticates the individual’s
electronic signature without the individual personally before the notarial
officer by two-way audio and video communication technology.
G. A
notarial officer authorized to perform RONs shall refuse to complete the
notarial act if the notarial officer:
(1) is
unable to verify the identity of the individual in compliance with these rules:
(2) becomes
aware that communication technology is not secure;
(3) determines
the signature of the individual cannot be attached to the electronic record; or
(4) cannot
attach the notarial officer’s electronic stamp to the electronic record using
technology that renders any subsequent change or modification to the record evident.
H. The
notarial officer shall complete and affix or attach the officer’s signature and
official stamp to the electronic notarial certificate. The electronic notarial certificate shall meet
the requirements of Subsection A of Section 14-14A-14 NMSA 1978.
[12.9.4.10
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12.9.4.11 IDENTITY
PROOFING: If a notarial officer does not personally know the identity
of a remotely located individual pursuant to Subsection A of Section 14-14A-6
NMSA 1978, the notarial officer must reasonably verify the individual’s
identity through two different types of identity proofing procedures as
provided in this section. The procedure
shall analyze the individual's identity credential against trusted third-person
data sources, bind the individual's identity to the individual following
successful knowledge-based authentication, and permit the notarial officer to
visually compare the identity credential and the individual. The analysis of
the identity credential and the knowledge-based authentication shall conform to
the following requirements:
A. Credential
Analysis. The analysis of an identity credential must use public or private
data sources to confirm the genuineness of the identity credential presented by
a remotely located individual and, at a minimum:
(1) use
automated software processes to aid the notarial officer in verifying the
identity of each remotely located individual;
(2) require
the identity credential to pass an authenticity test, consistent with sound commercial
practices that use appropriate technologies to confirm the integrity of visual,
physical, or cryptographic security features and to confirm that the identity
credential is not fraudulent or inappropriately modified;
(3) use
information held or published by the issuing source or an authoritative source,
as available and consistent with sound commercial practices, to confirm the
validity of personal details and identity credential details; and
(4) enable
the notarial officer to visually compare for consistency, the information and
photograph on the identity credential and the remotely located individual appearing
before the notarial officer in real time through communication technology.
B. Knowledge-based
authentication. A knowledge-based authentication
is successful if it meets the following requirements:
(1) the
remotely located individual must answer a quiz consisting of a minimum of five
questions related to the individual’s personal history or identity formulated
from public or private data sources;
(2) each
question must have a minimum of five possible answer choices;
(3) at
least eighty percent of the questions must be answered correctly;
(4) all
questions must be answered within two minutes;
(5) if
the remotely located individual fails after two attempts, the individual may not
retake the quiz within 24 hours;
(6) during
a retake of the quiz, a minimum of forty percent of the prior questions must be
replaced; and
(7) the
notarial officer must not be able to see or record the questions or answers.
C. Credible
Witness. A notarial officer has
satisfactory evidence of the identity of a remotely located individual if the
notarial officer has personal knowledge and satisfactory evidence of the
identity of the individual by oath or affirmation of a credible witness
appearing before the notarial officer as provided in Paragraph (2) of
Subsection B of Section 14-14A-6 NMSA 1978.
A credible witness may be remotely located if the notarial officer,
credible witness, and remotely located individual can communicate simultaneously
by using communication technology.
[12.9.4.11
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12.9.4.12 COMMUNICATION
TECHNOLOGY REQUIREMENTS:
A. Communication
technology shall provide:
(1) for
synchronous audio-video feeds of sufficient video resolution and audio clarity
to enable the notarial officer and the remotely located individual to see and
speak with each other;
(2) a
means for the notarial officer to reasonably confirm that a record before the
notarial officer is the same record in which the remotely located individual
made a statement or on which the remotely located individual executed a
signature; and
(3) accessibility
accommodations to facilitate communication with a remotely located individual
who has a vision, hearing, or speech impairment.
B. Communication
technology shall provide reasonable security measures to prevent unauthorized
access to the live transmission of the audiovisual feeds, the methods used to
perform the identity proofing process, and the electronic record that is the
subject of the notarial act.
C. A
notarial officer authorized to perform RONs shall stop and restart the remote
online notarization process from the beginning if the:
(1) remotely
located individual or the remote notarial officer must exit the remote online notarization
system before completion of the notarial act;
(2) audio
or visual feed is interrupted or terminated; or
(3) resolution
or quality of the transmission becomes such that the remote notarial officer
believes the process has been compromised and cannot be completed.
D. A
notarial officer performing a RON shall verify that each remote online notarization
system provider has an active status with the secretary of state before using
that provider’s remote online notarization system to perform a remote
notarization. This duty extends to each remote online notarization.
[12.9.4.12
NMAC - N, 1/1/2022]
12.9.4.13 ELECTRONIC
SIGNATURE AND STAMP:
A. A
notarial officer authorized to perform RONs shall use the same electronic signature
and electronic official stamp for all electronic notarial acts. A copy of the official stamp shall be
provided to the secretary of state within 45 days of being authorized by the
secretary of state to perform RONs and prior to the first RON being performed.
B. A
notarial officer shall select one or more tamper-evident technologies to
perform notarial acts with respect to electronic records. A person may not require a notarial officer
to use a technology that the notarial officer has not selected. The tamper-evident technology must be capable
of:
(1) affixing
or attaching the notarial officer’s electronic signature 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; and
(2) utilizing
a valid digital certificate issued by a third-party provider that uses public
key infrastructure (PKI) technology that is X.509 compliant or higher. A notarial officer shall not perform a
notarial act with respect to an electronic record if the digital certificate:
(a) has
expired;
(b) has
been revoked or terminated by the issuing or registering authority;
(c) is
invalid; or
(d) is
incapable of authentication.
C. The
remote notarial officer’s electronic signature and official stamp must be
retained under the notarial officer’s sole control and access. A notarial officer’s employer must not permit
the use of a notarial officer’s electronic signature or official stamp by
anyone except the notarial officer.
[12.9.4.13
NMAC - N, 1/1/2022]
12.9.4.14 AUDIOVISUAL
RECORD RETENTION AND REPOSITORIES:
A. A notarial officer authorized to perform RONs shall retain
an audiovisual recording required under Paragraph (4) of Subsection C of Section
14-14A-5 NMSA 1978, on a computer, storage device, or online storage that
protects the audiovisual recording against unauthorized access by password or
cryptographic process. The recording must be created in an open file format and
not include images of any record in which a remotely located individual made a
statement or on which the remotely located individual executed a signature.
B. On the death or adjudication of incompetency of a current
or former notarial officer, the notarial officer's personal representative or
guardian or any other person knowingly in possession of an audiovisual
recording shall:
(1) comply
with the retention requirements of this section;
(2) transmit
the recording to one or more repositories pursuant to Subsection C below; or
(3) transmit
the recording on a data storage device to the secretary of state on an open
file format that can be accessed and read by the secretary of state.
C. A
notarial officer, a guardian, conservator, or agent of a notarial officer, or a
personal representative of a deceased notarial officer may, by written
contract, engage a third person to act as a secure repository to provide the
storage required by this Subsection. The contract shall:
(1) enable
the notarial officer, the guardian, conservator, or agent of the notarial
officer, or the personal representative of the deceased notarial officer to
comply with the retention requirements of this section even if the contract is
terminated;
(2) enable the notarial officer to keep
all audiovisual recordings under the sole control of the notarial officer and
provide copies to any requesting person; or
(3) provide
that the information will be securely transferred to the notarial officer, the
guardian, conservator, or agent of the notarial officer, or the personal
representative of the deceased notarial officer if the contract is terminated.
[12.9.4.14
NMAC - N, 1/1/2022]
12.9.4.15 NOTARIAL
JOURNAL TO RECORD REMOTE ONLINE NOTARIZATIONS:
A. A
notarial officer authorized to perform RONs shall adhere to the rule on
journals pursuant to 12.9.3.16 NMAC.
B. In
addition to the journal information required by Subsection C of Section 14-14A-18
NMSA 1978, the notarial officer must record the name of the remote online notarization
system provider used for each remote online notarization.
[12.9.4.15
NMAC - N, 1/1/2022]
12.9.4.16 CERTIFICATE
OF REMOTE NOTARIAL ACT:
A. An
electronic certificate of a notarial act for a remote online notarization must
clearly state that the remotely located individual signing the record appeared
using communication technology. This
requirement is met if the statement is substantially as follows: “This notarial
act involved the use of communication technology.”
B. A certified tangible copy of an electronic
record shall be considered an original record.
A certified tangible copy of an electronic record must include a
notarial certificate substantially in the short form provided in Subsection E
of Section 14-14A-15 NMSA 1978.
[12.9.4.16
NMAC - N, 1/1/2022]
12.9.4.17 STANDARDS
FOR REMOTE ONLINE NOTARIZATION SYSTEM PROVIDERS:
A. Application. A provider must submit an application on
a form prescribed by the secretary of state before the provider can provide its
remote online notarization system to a notarial officer in New Mexico. Upon being approved as a provider, the
secretary of state shall list the provider as active on the website of the
secretary of state.
B. Criteria
for approval. To be approved and
maintain an active status, a remote online notarization system provider shall:
(1) provide
the ability for an individual receiving notarization services to print tangible
copies of all records notarized for that individual executed on the system;
(2) ensure
that access to a notarial officer’s electronic signature and official stamp is
limited solely to the notarial officer and protected by the use of a password
or other secure means of authentication;
(3) communication
technology provided by the remote notarization system provider shall comply
with the requirements of Section 12.9.4.12 NMAC;
(4) provide
for the credential analysis and knowledge-based authentication assessment
requirements provided for in Section 12.9.4.11 NMAC;
(5) provide,
or allow a notarial officer to provide, a public key certificate to satisfy the
requirement of Paragraph 2 of Subsection B of Section 12.9.4.13 NMAC; and
(6) provide
a storage system that complies with 12.9.4.14 NMAC.
C. The
secretary of state may request that remote online notarization system providers
submit an application on an annual basis for a remote online notarization
system provider to maintain active status.
D. Notifications.
(1) If
a remote online notarization system provider becomes aware of a security breach
involving its data, the provider must comply with the requirements of the Data
Breach Notification Act, Sections 57-12C-1 to 57-12C-12 NMSA 1978, and submit notice
to the secretary of state.
(2) No
later than 30 days before making any substantial changes or feature
enhancements to the remote online notarization system that was previously
approved by the secretary of state, a provider must request approval from the
secretary of state and notify the New Mexico notarial officers using its system.
(3) No
later than 30 days after any changes to the provider’s information on file with
the secretary of state, the provider must notify and update the information on
a form prescribed by the secretary of state.
E. Complaints.
A person may file a complaint with the secretary of state against a remote
online notarization system provider. The
complaint must allege a specific violation of New Mexico’s Revised Uniform Law
on Notarial Acts or these rules.
F. Grounds
for termination of active status. The
secretary of state may terminate approval of a provider for any of the
following reasons:
(1) a violation
of the Revised Uniform Law on Notarial Act or these rules that impacts the
ability of the remote online notarization provider from providing a compliant
remote online notarization system;
(2) making
representations that the secretary of state endorses, recommends, or mandates
use of any of the provider’s products, goods, or services;
(3) if
the provider sustains a security breach pursuant to Subsection D of Section
57-12C-2 NMSA 1978; and
(4) failure
to respond within ten business days to the secretary of state’s request for
information or otherwise cooperate with an investigation, including providing
requested information.
[12.9.4.17
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12.9.4.18 NON-COMMISSIONED
NOTARIAL OFFICERS:
A. If a notarial
officer who is not commissioned as a notary public desires to be authorized to
conduct RONs, the notarial officer shall follow the authorization application
procedures pursuant to 12.9.4.8 NMAC.
B. Upon approval by the secretary of state to perform RONs,
the notarial officer shall comply with this rule and all statutes applicable to
a notary public performing RONs.
[12.9.4.18
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12.9.4.19 NOTARY
PUBLIC COMMISSION IN EFFECT:
A notary public with an appointment or
renewal date prior to the effective date of the Revised Uniform Law on Notarial
Acts who desires to be authorized to perform RONs shall follow the application
process prescribed by Subsection B of 12.9.4.8 NMAC to apply to become
authorized to perform RONs.
[12.9.4.19
NMAC - N, 1/1/2022]
History of 12.9.4 NMAC:
12.9.2 NMAC, Performing Electronic
Notarial Acts, filed 5/30/2008, was repealed and replaced with new rules 12.9.3
NMAC – Notarial Procedures, and 12.9.4 NMAC – Remote Online Notarizations, effective
1/1/2022.