29-250-700 Me. Code R. § 6

Current through 2024-51, December 18, 2024

Section 250-700-6 - REMOTE NOTARIZATION

1.Provider application for approval of communication technology and identity proofing to be used in remote notarization

A provider of communication technology to be used for remote notarization may request approval from the Secretary of State by submitting an application on a form provided by the Secretary of State that contains the following information:

A. A certification that the provider's communication technology is designed to ensure that remote notarizations using the provider's technology 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 communication technology has been approved for the performance of notarial acts remotely, and the month and year in which the provider received its most recent approval;

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 notarial acts using the provider's communication technology in any jurisdiction;

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

G. Any other information sufficient to demonstrate that the provider's communication technology and identity proofing methods meet or exceed the criteria and standards set forth in section 6, subsection 2 of this rule.

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 communication technology and identity proofing used for remote notarization

To obtain approval, a provider must demonstrate that the communication technology to be used for remote notarization in this state:

A. Restricts access to notarial officers whose written notice to the Secretary of State of intent to perform remote 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 public commission or other evidence of the notarial officer's qualification to perform notarial acts in order to access or utilize the communication technology to perform remote notarizations;

D. Includes a method to ensure that a notarial officer enrolled to use the technology 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 verify the identity of the principal and any required witness in compliance with 4 M.R.S. chapter 39 and this rule;

F. For remote notarization of electronic records, enables a notarial officer to affix their electronic signature to an electronic notarial certificate in a manner that attributes the signature to the notarial officer and is tamper-evident;

G. For remote notarization of electronic records, enables a notarial officer to attach or logically associate a certificate of notarial act to the electronic record in a tamper-evident manner;

H. Provides continuous, synchronous audio-visual feeds that allow the remotely located individual and the notarial officer to see and speak to one another simultaneously through live, real time transmission;

I. Captures images with sufficient resolution to enable analysis of the remote individual's credentials;

J. Includes at least two (2) of the following methods of identity proofing:

(1) A credential that is validated by a government or third party;

(2) A biometric identifier, including a retina or iris scan, fingerprint, voiceprint, scan of hand or face geometry, or any other physiological, biological or behavioral characteristic used to identify an individual;

(3) A public key certificate; or

(4) An identity assessment based on a set of questions formulated from public or private data sources for which the principal has not provided a prior answer;

K. For remote notarization of electronic records, provides a secure method of document upload and transfer;

L. Records the audio-visual communication in real time and associates that recording with the notarial officer's electronic record;

M. Provides reasonable security measures to prevent unauthorized access to:

(1) The live communication between the notarial officer and the remotely located individual;

(2) The recording of the audio-visual communication;

(3) The verification methods and credentials used to verify the identity of the remotely located individual; and

(4) Electronic records presented for remote notarization, if applicable;

N. Is capable of securely creating, storing, accessing and reproducing a copy of an electronic recording of the remote notarial act. and

O. For remote notarization of electronic records, provides an electronic verification or audit trail of the electronically notarized document that is accessible to all parties involved in a notarial act that is performed remotely.

3.Approval process for communication technology providers

The process for review and approval of applications by communication technology providers is the same as described in section 5, subsection 3 of this rule for providers of electronic notarization technology.

4.Ongoing obligations of communication technology providers

Providers of communication technology for remote notarization have the same ongoing obligations as those specified in section 5, subsection 4 of this rule for providers of technology for electronic notarization.

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

The filing of complaints, handling of investigations, and the grounds upon which the Secretary of State may deny, refuse to renew, suspend, terminate, or revoke approval of a provider of communication technology for remote notarization in the State are the same as described in section 5, subsection 5 of this rule for providers of technology for electronic notarization.

After the Secretary of State's denial, non-renewal, suspension, termination or revocation of a 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.Service of process fee

By making its communication technology or identity proofing available for use in remote notarization in this State, and by providing storage for audio-visual recordings of remote notarizations, a technology provider appoints the Secretary of State as the provider's agent for service of process in any civil action in this State related to a remote notarization pursuant to 4 M.R.S. §1915(15). The fee for the Secretary of State to accept service of process shall be twenty dollars ($20).

7.Notice by Notarial Officer of intent to perform remote notarization

A.Contents of notice. Before performing a remote notarization for the first time, a notarial officer must submit written notice to the Secretary of State in a format prescribed by the Secretary of State and must include the following information:

(1) The name of the provider(s) of communication technology approved by the Secretary of State that the notarial officer intends to use for remote notarization;

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

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

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

B.Authority to perform remote notarization. In addition to submitting written notice to the Secretary of State in accordance with section 6, subsection 8, paragraph A of this rule and accepted by the Secretary of State, a notary public applying to perform remote 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 6, subsection 8, paragraph A to the Secretary of State, a notarial officer must amend the notice to include any change in communication 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 10 business days of making the change.

D.Termination of authority. The notarial officer's authority to perform remote 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 is no longer a Maine resident and no longer has a place of employment or a business in this State;

(4) The notarial officer is no longer authorized to perform notarial acts pursuant to 4 M.R.S. §1910; or

(5) The Secretary of State revokes or terminates approval of the technology provider whose technology the notarial officer is using to perform remote notarization unless the notarial officer is approved to use another technology provider.

E.Exemptions. The requirements for remote notarization in this rule do not apply to a judge, justice, clerk or deputy clerk of any court in Maine who is performing a notarial act for a remotely located individual in the course of performing exclusively judicial functions pursuant to statute, or rules or administrative orders adopted by the Maine Supreme Judicial Court. The requirements for remote notarization in this rule also do not apply to a court reporter in Maine administering the oath to a witness in a deposition conducted pursuant to the rules of procedure adopted by the Maine Supreme Judicial Court or the federal courts.

8.Requirements for performing remote notarization

A.General procedure. When performing a remote notarization, the notarial officer must:

(1) Use a device with a camera and microphone and ensure that the remotely located individual is also using a device with a camera and microphone so that real-time audiovisual communication is occurring;

(2) Use only a communication technology provider and identity proofing method approved by the Secretary of State and identified in the notice provided by the notarial officer to the Secretary of State;

(3) Proceed with the remote notarization only if the notarial officer determines that they have a reliable internet connection with the remotely located individual to enable the notarial officer to perform the remote notarization in compliance with 4 M.R.S. Chapter 39 and these rules;

(4) Recite information sufficient to identify the notarial officer, the officer's authority to act, the type of notarial act to be performed, the name of the remotely located individual for whom the notarial act is being performed, and the date, time, and location of the notarial act at the commencement of the notarial proceeding;

(5) Reasonably identify the remotely located individual by one or more of the following methods:

(a) The notarial officer's personal knowledge of the remotely located individual through dealings sufficient to provide reasonable certainty that the individual is the person they claim to be;

(b) Satisfactory evidence of the remotely located individual's identity provided by using at least 2 different types of identity proofing as described in this rule; and

(c) By verification on oath or affirmation of a credible witness appearing before the notarial officer who is known to the officer or whom the officer can identify using at least 2 different types of identity proofing as described in this rule;

(6) Cease the remote notarization procedure and restart it from the beginning if:

(a) the remotely located individual, any required witness or the notarial officer exits or disconnects from the communication technology before completion of the notarial act;

(b) the audio or visual feed is interrupted or terminated for any reason; or

(c) the notarial officer believes the process has been compromised and cannot be completed in accordance with applicable legal requirements;

(7) Create an audiovisual recording of the remote notarization, including in the recording the statements required in section 6, subsection 9, paragraph A, subparagraph 4 of this rule, a statement by the notarial officer explaining the methods by which the officer has identified the remotely located individual for whom the notarial act is being performed pursuant to section 6, subsection 9, paragraph A, subparagraph 5 of this rule, and, with respect to a tangible record not physically present before the notarial officer, record the individual signing the record and the written declaration required pursuant to 4 M.R.S. §1915(5);

B.Acknowledgment of a tangible record. When a notarial act involves taking an acknowledgment of a remotely located individual's signature on a tangible record, the notarial officer must adhere to the following procedures:

(1) If the tangible record is physically present before the notarial officer, the officer must display the record to the remotely located individual and have the individual identify the record during the audiovisual recording;

(2) If the tangible record is not physically present before the notarial officer, the remotely located individual must make the declaration described in 4 M.R.S. §1915(5); and

(3) If the remotely located individual is located outside the territorial boundaries of the United States, the record may be acknowledged only if it meets the requirements of 4 M.R.S. §1915(3)(D).

Any tangible record signed and notarized remotely must include a statement that the notarial act was performed remotely using communication technology approved by the Secretary of State.

C.Administration of an oath. The notarial officer may administer an oath or affirmation to a remotely located individual in accordance with 4 M.R.S. § 1915(8).

D.Retention of recording. The audiovisual recording of the remote notarization required under section 6 of this rule must be retained for a period of at least 10 years.

E.Notarial certificate for electronic record. If a remote notarization involves an electronic record, a notarial certificate must be attached to or logically associated with that electronic record in a tamper-evident manner in accordance with 4 M.R.S. §1916(6).

F.Journal required. The notarial officer must record each remote notarization in the notarial officer's journal, which must be retained under the notarial officer's sole control. A journal in an electronic format must be tamper-evident, backed up in a secure manner, and only accessible through the use of passwords or other secure means of authentication under the control of the notarial officer.

29-250 C.M.R. ch. 700, § 6