29-250-700 Me. Code R. § 5

Current through 2024-51, December 18, 2024

Section 250-700-5 - ELECTRONIC NOTARIZATION

1.Provider application for approval of technology for electronic notarization

A provider of technology to be used for electronic notarization may request approval from the Secretary of State by submitting an application that contains the following information:

A. A certification that the provider's technology is designed to ensure that notarial acts performed by notarial officers with respect to electronic records using electronic signatures will comply with the requirements of 4 M.R.S. chapter 39 and this rule;

B. A certification that the provider is currently registered to do business in Maine and is in good standing with the Secretary of State;

C. A list of all jurisdictions in which the provider's technology has been approved for the performance of electronic notarization, and the month and year in which the provider received the most recent approval from each jurisdiction;

D. Disclosure of any complaints, official warnings, or disciplinary actions taken against the provider in any jurisdiction;

E. Any pending, threatened or adjudicated legal actions against the provider relating in any way to the performance of electronic notarial acts using the provider's technology in any jurisdiction;

F. The name and contact information of a representative of the applicant with knowledge of the provider's technology and with authority to make binding representations; and

G. Any other information sufficient to demonstrate that the provider's technology meets or exceeds the standards set forth in subsection 2 below.

H. The provider must submit the application fee to the Secretary of State, made payable to Treasurer, State of Maine, prescribed by 5 M.R.S. §86.

2.Criteria and standards for technology used for electronic notarization

To obtain approval, a technology provider must demonstrate that the technology to be used for electronic notarization in this State:

A. Restricts access to the provider's technology only to notarial officers whose written notice to the Secretary of State of their intent to perform electronic notarization has been accepted, in accordance with the requirements of this rule;

B. Requires a password or other secure means of authentication to access the provider's technology;

C. Requires a notarial officer to present a valid Maine notary commission or other evidence of the notarial officer's qualification to perform notarial acts prior to receiving an authorized digital or electronic stamp and signature;

D. Includes a method to ensure that a notarial officer enrolled to use the technology has been trained and has the requisite knowledge to use it to perform notarial acts in compliance with 4 M.R.S. chapter 39 and this rule;

E. Enables a notarial officer to retain their authorized digital or electronic signature under the notarial officer's sole control and to affix their electronic signature in a manner that attributes the signature to the notarial officer, is capable of independent verification, and is tamper-evident;

F. Enables a notarial officer to attach or logically associate a certificate of notarial act to the electronic record in a tamper-evident manner; and

G. Uses tamper-evident technology sufficient to ensure that the electronic signature on an electronic record is authentic.

3.Approval process

Upon review of an application from a technology provider, the Secretary of State may:

A. Return the application as incomplete with a written notice of the deficiencies;

B. Require the applicant to supplement the application with additional explanations, information or evidence of its ability to ensure compliance with state law;

C. Deny the application; or

D. Approve the application with or without conditions.

If the Secretary determines upon review of a completed application that the provider has met the standards set forth in this rule and in 4 M.R.S. chapter 39, the Secretary shall notify the provider of its approval and add the name of the provider to the list of providers of technology approved for electronic notarizations. The Secretary of State's approval is valid for one year from the date of issuance and may be renewed in accordance with section 5, subsection 4, paragraph D of this rule.

4.Ongoing obligations of providers of technology for electronic notarization

A.Notice regarding users of the technology. The provider must notify the Secretary of State within 5 business days when any notary public commissioned by the Secretary of State or other notarial officer in Maine has been accepted or approved to use the provider's technology to perform electronic notarizations in the State.

B.Suspension or termination. The provider must suspend or terminate access to its electronic notarization technology for any notary public whose commission has been suspended or revoked by the Secretary of State or whose commission has expired, within 5 business days of being notified by the Secretary of State or the notary public of such action.

C.Binding representations; notification of material changes. All representations, promises and assurances of performance made by a provider or its authorized representative to the Secretary of State are binding on the provider. If facts or circumstances change such that any material statement, representation or explanation made by the provider in its application for approval is no longer accurate or complete, the provider must inform the Secretary of State of the change, explain the reasons for the change and provide evidence sufficient to demonstrate that the technology for use in electronic notarization remains in compliance with the standards set forth in this rule. If, upon review of the new information, the Secretary determines that the technology no longer meets the standards set forth in this rule, the Secretary may suspend or terminate approval in accordance with section 5, subsection 5 of this rule.

D.Annual renewal. The technology provider must file a renewal application on or before the expiration of the Secretary's initial approval and each year thereafter on a form prescribed by the Secretary of State. The application must be accompanied by payment of the application fee prescribed by 5 M.R.S. §86.

E.Notice of security breach. If a provider of technology for electronic notarizations becomes aware of a possible security breach involving its data, the provider must give written notice to the Secretary of State and to each notarial officer using the provider's services for electronic notarizations. Such notice must be provided as expediently as possible and no later than 15 business days after the date on which the provider has determined that the security breach occurred. The notice must include the steps the provider has taken or will take to mitigate the breach as well as a general description of the data that was or is reasonably believed to have been compromised.

5.Denial, non-renewal, suspension, termination or revocation of approval for a technology provider; complaints

A.Complaints. A notarial officer or other person using or relying upon an electronic notarization technology may file a complaint with the Secretary of State if they believe the technology provided does not comply with the standards set forth in 4 M.R.S. chapter 39 or this rule. The complaint must include the complainant's contact information and a detailed statement describing the basis for the complaint and attaching any relevant records.

B.Investigation. The Secretary of State may, on its own initiative or in response to a complaint, make such investigation as it determines to be reasonable and necessary to determine whether a technology provider has violated, is violating or is about to violate any provision of 4 M.R.S chapter 39 or this rule. The Secretary of State may require the filing of statements by the provider or others with knowledge of the allegations and require production of records that the Secretary of State deems relevant to the investigation.

C.Grounds for denial, non-renewal, suspension, termination or revocation of approval. The Secretary may deny, refuse to renew, suspend, terminate or revoke approval of a provider of technology used for electronic notarization in the State if the Secretary of State determines that the technology provider:

(1) has violated 4 M.R.S. chapter 39 or this rule;

(2) has made a false or misleading statement or omission of material fact to the Secretary of State;

(3) has failed to carry out its obligations in accordance with section 5, subsection 4 of this rule;

(4) has been subject to administrative or judicial action involving a violation of laws pertaining to electronic notarization in any other jurisdiction;

(5) is no longer authorized to do business in the State or is not in good standing with the Secretary of State; or

(6) is no longer able to meet its obligations and ensure compliance with 4 M.R.S. chapter 39 or this rule;

(7) Has failed to cooperate with any investigation pursuant section 5, subsection 5, paragraph B of this rule.

D.Procedure

Prior to taking any action described in section 5, subsection 5, paragraph C of this rule, the Secretary of State must provide written notice of the proposed action to the provider and offer the provider an opportunity to respond in writing within 30 business days. The Secretary of State shall review the information submitted by the provider and issue a final decision, which shall be appealable to Superior Court pursuant to 5 M.R.S. chapter 375, subchapter 7.

Upon the Secretary of State's denial, non-renewal, suspension, termination or revocation of the technology provider's approval, the provider shall not deny any notarial officer registered with the provider access to the notarial officer's electronic signature, official seal and records stored by the technology provider on behalf of the notarial officer.

6.Notice by Notarial Officer of intent to perform electronic notarization

A.Contents of notice. Before performing a notarial act with respect to an electronic document or using an electronic signature for the first time, a notarial officer must notify the Secretary of State by providing the following information in a format prescribed by the Secretary of State:

(1) The name(s) of the provider(s) of technology approved by the Secretary of State that the notarial officer intends to use in attaching or logically associating an electronic notarial signature, stamp and certificate to an electronic record;

(2) Certification from each provider of technology the notarial officer intends to use, confirming that the notarial officer has received training in the use of that technology for electronic notarization and has been approved as a user of that technology;

(3) A certification by the notarial officer that the officer has read and understands the requirements of 4 M.R.S. chapter 39 and this rule regarding electronic notarization; and

(4) An example of the notarial officer's electronic signature and official electronic stamp.

If the notice is deemed insufficient by the Secretary of State, the notarial officer shall be notified of the deficiencies and shall have the opportunity to resubmit it. The notice is not valid until it is accepted as complete by the Secretary of State.

B.Authority to perform electronic notarization. In addition to submitting the notice described in section 5, subsection 6, paragraph A of this rule and accepted by the Secretary of State, a notary public who wishes to perform electronic notarizations must have a valid notary public commission, and an attorney-at-law must be duly admitted and eligible to practice law in the courts of this State.

C.Amending the notice. After submitting written notice under section 5, subsection 6 of this rule to the Secretary of State, a notarial officer must amend the notice to include any change in the technology providers including but not limited to identifying any new or additional technology providers. Such amended notice must be submitted to the Secretary of State within ten 10 business days of making the change.

D.Termination of authority. A notarial officer's authority to perform electronic notarizations automatically expires upon the occurrence of any of the following:

(1) The notarial officer is a notary public and the notary public's commission expires, is revoked, suspended or terminated by the Secretary of State;

(2) The notarial officer is a notary public and the notary public resigns their commission;

(3) The notarial officer is a notary public and the notary public no longer has a place of employment, a business or residence in this State;

(4) The notarial officer is an attorney, upon suspension or termination of that attorney's authority to practice law in this State; or

(5) The Secretary of State has revoked or terminated approval of the technology provider whose technology the notarial officer is using to perform electronic notarization unless the notarial officer is approved to use another technology provider.

7.Requirements for performing electronic notarization

A.Procedure. When performing a notarial act with respect to electronic records, or affixing an electronic signature, the notarial officer must:

(1) Require the principal to appear in person before the notarial officer at the time of the electronic notarization if the principal is making a statement or executing a signature on a record, pursuant to 4 M.R.S. §1906;

(2) Identify the principal who is physically present in accordance with 4 M.R.S. §1907;

(3) Verify that the principal has adopted an electronic signature that complies with 10 M.R.S. chapter 1051, if the record is to be signed electronically;

(4) Complete an electronic notarial certificate and attach it to or logically associate it with the notarial officer's electronic signature and official stamp in a tamper-evident manner and

(5) Use an electronic signature in combination with the electronic notary stamp only for the purpose of performing electronic notarizations.

B.Journal required. A notarial officer must maintain a journal in which all electronic notarizations are recorded. Entries in the journal must be made contemporaneously with the notarial act and must comply with all the requirements set forth in 4 M.R.S. §1920 (2) and (3).

29-250 C.M.R. ch. 700, § 5