Stricken language would be deleted from and underlined language would be added to present law.
Act 1047 of the Regular Session
1 State of Arkansas As Engrossed: S3/9/21 S4/13/21 H4/26/21
2 93rd General Assembly A Bill
3 Regular Session, 2021 SENATE BILL 340
4
5 By: Senator B. Ballinger
6 By: Representative Penzo
7
8 For An Act To Be Entitled
9 AN ACT TO REGULATE THE WITNESSING OF CERTAIN
10 DOCUMENTS BY A NOTARY PUBLIC; TO ALLOW FOR REMOTE
11 WITNESSING OF CERTAIN DOCUMENTS BY A NOTARY PUBLIC;
12 TO DECLARE AN EMERGENCY; AND FOR OTHER PURPOSES.
13
14
15 Subtitle
16 TO REGULATE THE WITNESSING OF CERTAIN
17 DOCUMENTS BY A NOTARY PUBLIC; TO ALLOW
18 FOR REMOTE WITNESSING OF CERTAIN
19 DOCUMENTS BY A NOTARY PUBLIC; AND TO
20 DECLARE AN EMERGENCY.
21
22
23 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF ARKANSAS:
24
25 SECTION 1. TEMPORARY LANGUAGE. DO NOT CODIFY. Notary public Public
26 emergency exceptions Definitions.
27 (a) As used in this section:
28 (1) "Notary public" means a person:
29 (A) Appointed and commissioned as a notary public under
30 21-14-101 et seq.; and
31 (B) Who is:
32 (i) An attorney licensed by the State of Arkansas;
33 (ii) A title agent licensed by the State of
34 Arkansas;
35 (iii) Supervised by an attorney or a title agent
36 licensed by the State of Arkansas; or
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1 (iv) Employed by a:
2 (a) Nonbank financial institution licensed or
3 registered by the State Securities Department; or
4 (b) Bank, savings and loan association, or
5 state or federal credit union with federal depository insurance;
6 (2)(A) "Real-time audio and visual means" means technology by
7 which all parties can see and hear the other parties simultaneously.
8 (B) "Real-time audio and visual means" includes without
9 limitation videoconference technology; and
10 (3) "Videoconference technology" means Skype, Zoom, FaceTime,
11 and other similar technologies.
12 (b)(1) A notary public may perform remote witnessing of certain
13 documents.
14 (2)(A) A notarial certificate is complete if an official
15 signature or seal on the notarial certificate is executed at a time when the
16 principal or signer is not present in person but is otherwise present
17 remotely through real-time audio and visual means.
18 (B) A signed or sealed notarial certificate may be
19 executed with the understanding that the notarial certificate will be
20 completed or attached to a document outside of the physical presence of the
21 notary public if the notary public is present through real-time audio and
22 visual means.
23 (3)(A) A notary public may notarize signatures, including
24 acknowledgments and jurats, virtually through real-time audio and visual
25 means, provided that the notary public is physically located in the State of
26 Arkansas at the time of signing and the signing of documents is visually seen
27 by the person who confirms it.
28 (B)(i) An individual who:
29 (a) Witnesses a document through real-time
30 audio and visual means may be considered an in-person witness if the presence
31 and identity of the witnesses are validated at the time of signing by a
32 notary public; or
33 (b) Signs a document through real-time audio
34 and visual means may be considered in the presence of an in-person witness if
35 the presence and identity of the witnesses are validated at the time of
36 signing by a notary public.
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1 (ii) The identity and physical presence of witnesses
2 and signers in this state shall be validated at the time of execution of the
3 documents to be witnessed.
4 (4)(A) If two (2) or more individuals sign a document
5 simultaneously in different locations, the individuals shall necessarily sign
6 separate signature pages, and all documents executed under this section shall
7 be executed in counterparts.
8 (B) Absent an express prohibition in a document against
9 signing in counterparts, all legal documents, including without limitation
10 deeds, last wills and testaments, durable powers of attorney, and healthcare
11 proxies, may be signed in counterparts.
12 (5) A notary public does not have to file with the Secretary of
13 State his or her signatures, general descriptions of potential commercial
14 documents to be notarized by facsimile signature, the names of persons
15 signing documents by facsimile signature, or the written consent of those
16 persons if the notary public determines that the commercial documents would
17 be best notarized by facsimile signature.
18
19 SECTION 2. Arkansas Code 21-14-302(6), concerning the definition of
20 "electronic notary public" in the Arkansas Electronic Notary Public Act, is
21 amended to read as follows:
22 (6) Electronic notary public means a notary public who has
23 registered with the Secretary of State and possesses the capability of
24 performing electronic notarial acts and online notarial acts;
25
26 SECTION 3. Arkansas Code 21-14-302(12), concerning the definition of
27 "solution provider" in the Arkansas Electronic Notary Public Act, is amended
28 to read as follows:
29 (12) Solution provider means a business entity that has
30 submitted an application, meets standards, and has been approved by the
31 Secretary of State to offer electronic notarization notarial acts or online
32 notarial acts or solutions to duly commissioned electronic notaries public;
33
34 SECTION 4. Arkansas Code 21-14-302, concerning definitions used in
35 the Arkansas Electronic Notary Public Act, is amended to add additional
36 subdivisions to read as follows:
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1 (16) "Communication technology" means an electronic device or
2 process that:
3 (A) Allows an online notary public and a remotely located
4 individual to communicate with each other simultaneously by sight and sound;
5 and
6 (B) If applicable, facilitates communication with a
7 remotely located individual who has a vision, hearing, or speech impairment;
8 (17) "Credential analysis" means a process or service operating
9 according to criteria approved by the Secretary of State through which a
10 third person affirms the validity of a government-issued identification
11 credential through review of public and proprietary data sources;
12 (18) "Credible witness" means an individual appearing before an
13 online notary public by means of communication technology who identifies the
14 principal and:
15 (A) Is personally known to the online notary public; or
16 (B) Can be identified by the online notary public on the
17 basis of remote presentation by the individual of a government-issued
18 identification credential, including without limitation a passport or state-
19 issued drivers license, that contains the signature and a photograph of the
20 individual;
21 (19) "Foreign state" means a jurisdiction other than the United
22 States, a state, or a federally recognized Indian tribe;
23 (20) "Identity proofing" means a process or service operating
24 according to criteria approved by the Secretary of State through which a
25 third person affirms the identity of an individual through review of personal
26 information from public and proprietary data sources;
27 (21)(A) Online notarial act means a notarial act performed by
28 means of communication technology.
29 (B) Online notarial act includes:
30 (i) Taking an acknowledgment;
31 (ii) Administering an oath or affirmation;
32 (iii) Taking a verification on oath or affirmation;
33 (iv) Witnessing or attesting a signature; and
34 (v) Certifying or attesting a copy;
35 (22) Online notary public means an electronic notary public
36 who has been authorized by the Secretary of State to perform online notarial
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1 acts;
2 (23) "Outside the United States" means a location outside the
3 geographic boundaries of the United States, Puerto Rico, the United States
4 Virgin Islands, and any territory, insular possession, or other location
5 subject to the jurisdiction of the United States;
6 (24) "Principal" means an individual:
7 (A) Whose electronic signature is notarized through an
8 online notarization; or
9 (B) Taking an oath or affirmation from the online notary
10 public but not in the capacity of a witness for the online notarization;
11 (25) "Remote presentation" means a transmission to the online
12 notary public through communication technology of an image of a government-
13 issued identification credential that is of sufficient quality to enable the
14 online notary public to:
15 (A) Identify the individual seeking the online notary
16 public's services; and
17 (B) Perform credential analysis; and
18 (26) "Remotely located individual" means an individual who is
19 not within physical proximity to a notary public.
20
21 SECTION 5. Arkansas Code 21-14-304 is amended to read as follows:
22 21-14-304. Registration and application.
23 (a)(1)(A) The Secretary of State shall require a notary public to
24 register the capability to notarize electronically or online before
25 performing an electronic notarial act.
26 (B) The Secretary of State shall promulgate rules to
27 enforce the requirement under subdivision (a)(1)(A) of this section.
28 (2) A person who seeks to become an electronic notary public or
29 an online notary public shall submit to the Secretary of State:
30 (A) An application stating the intent to become an
31 electronic notary public or an online notary public on a form provided by the
32 Secretary of State;
33 (B) An attestation that he or she has not been convicted
34 of a felony; and
35 (C) A filing fee of twenty dollars ($20.00).
36 (b) An applicant shall:
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1 (1) Successfully complete an approved training course provided
2 by the Secretary of State; and
3 (2)(A) Pass an examination approved by the Secretary of State.
4 (B) An applicant may attend the examination up to two (2)
5 times in a twelve-month period.
6 (C) If the applicant does not pass the examination during
7 the time period in subdivision (b)(2)(B) of this section, he or she shall
8 repeat the application process under this section.
9 (c) The Secretary of State shall promulgate rules to enforce the
10 requirements under subdivision (a)(1) of this section.
11
12 SECTION 6. Arkansas Code 21-14-307, concerning the requirement of
13 physical proximity in the Arkansas Electronic Notary Public Act, is amended
14 to add an additional subsection to read as follows:
15 (c) This section does not apply to online notarial acts as described
16 in 21-14-309.
17
18 SECTION 7. Arkansas Code Title 21, Chapter 14, Subchapter 3, is
19 amended to add additional sections to read as follows:
20 21-14-309. Online notarization process.
21 (a) An electronic notary public may perform an online notarial act
22 through a solution provider by means of communication technology under this
23 subchapter if:
24 (1) The online notary public is physically located within this
25 state but regardless of whether or not the principal is a remotely located
26 individual at the time of the online notarial act;
27 (2) The online notary public:
28 (A) Is able to verify the principals identity according
29 to subsection (c) of this section;
30 (B) Is able to reasonably confirm that a record before the
31 notary public is the same record on which the principal made a statement or
32 on which the principal executed a signature; and
33 (C) Creates an audio-visual recording of the performance
34 of the online notarial act or designates an individual to do this on behalf
35 of the online notary public;
36 (3) For a remotely located individual located outside the United
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1 States, an online notary public confirms that the record:
2 (A) Is to be filed with or relates to a matter before a
3 public official or court, governmental entity, or other entity subject to the
4 jurisdiction of the United States; or
5 (B) Involves property located in the territorial
6 jurisdiction of the United States or involves a transaction substantially
7 connected with the United States; and
8 (4) The act of making the statement or signing the record is not
9 prohibited by the foreign state in which the remotely located individual is
10 located.
11 (b)(1) In performing an online notarial act, a notary public shall
12 verify the identity of a person creating an electronic signature at the time
13 that the electronic signature is taken by using communication technology that
14 meets the requirements of this subchapter.
15 (2) Identity may be verified by:
16 (A) A notary publics personal knowledge of the person
17 creating the electronic signature;
18 (B) Satisfactory evidence of the identity of the principal
19 from a credible witness; or
20 (C) Each of the following:
21 (i) Remote presentation by the person creating the
22 electronic signature of a government-issued identification credential,
23 including without limitation a passport or a state-issued drivers license,
24 that contains the signature and a photograph of the person;
25 (ii) Credential analysis; and
26 (iii) Identity proofing.
27 (c) A notary public shall take reasonable steps to ensure that the
28 communication technology used in an online notarial act is secure from
29 unauthorized interception.
30 (d) The electronic notarial certificate for an online notarial act
31 shall include a notation that the notarization is an online notarization.
32
33 21-14-310. Electronic record of online notarial acts.
34 (a)(1) An electronic notary public performing an online notarial act
35 shall keep a secure electronic record of electronic documents notarized.
36 (2) The electronic record shall contain for each online notarial
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1 act:
2 (A) The date and time of the online notarial act;
3 (B) The type of online notarial act;
4 (C) The type, the title, or a description of the
5 electronic document or proceeding;
6 (D) The printed name and address of each principal
7 involved in the transaction or proceeding;
8 (E) Evidence of identity of each principal involved in the
9 transaction or proceeding in the form of:
10 (i) A statement that the person is personally known
11 to the online notary public;
12