Securing and Enabling Commerce Using Remote and Electronic Notarization Act of 2023

Subjects: Law


<html><body><pre>[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[S. 1212 Introduced in Senate (IS)]

&lt;DOC&gt;






118th CONGRESS
  1st Session
                                S. 1212

   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.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             April 19, 2023

Mr. Cramer (for himself and Mr. Warner) introduced the following bill; 
  which was read twice and referred to the Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
   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.

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

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Securing and Enabling Commerce Using 
Remote and Electronic Notarization Act of 2023''.

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 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 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 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 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
                    (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 
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 
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, 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.
                                 &lt;all&gt;
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