N.Y. Comp. Codes R. & Regs. tit. 9 § 540.1

Current through Register Vol. 46, No. 45, November 2, 2024

Section 540.1 - Purpose, intent and applicability

(a) The purpose of this Part is to establish standards and procedures governing the use and authentication of electronic signatures and the utilization of electronic records in accordance with article III of the State Technology Law, which establishes the Electronic Signatures and Records Act (ESRA). ESRA requires the Office of Information Technology Services (ITS), as the electronic facilitator, to establish rules governing the use of electronic signatures and records. ESRA recognizes the importance of technology to the State and the need to build a foundation for its acceptance, implementation and use by State agencies, local government, the private sector and citizens. Consistent with legislative intent, ESRA establishes that electronic signatures and records have the same force and effect as signatures and records produced by nonelectronic means and should be utilized to facilitate both business in, as well as the business of, New York State.

(b) ESRA and this Part, among other things, ensure that persons who voluntarily elect to use electronic signatures or electronic records can do so with confidence that they carry the same force and effect as nonelectronic signatures and records. Consistent with ESRA and this Part, parties agreeing to engage in electronic transactions may deploy electronic signatures and records in a manner that meets their practices and needs.

(c) New technologies are frequently being introduced. The intent of this Part is to be flexible enough to embrace future technologies that comply with ESRA and all other applicable statutes and regulations. The electronic facilitator shall conduct periodic reviews of the regulations to ensure that the regulations facilitate and promote the use of technological advancements and address privacy and confidentiality issues.

(d) Neither ESRA nor this Part requires any person to use a document bearing an electronic signature. Under ESRA and this Part, the use or acceptance of electronic records by governmental entities is voluntary.

(e) In accordance with ESRA, the use of an electronic signature as defined in ESRA shall have the same validity and effect as the use of a signature affixed by hand. Neither ESRA, nor this Part, shall in whole, or in part, be construed to limit any legal rights or privileges, contractual or otherwise, that parties may have in the use of electronic signatures and records.

(f) ESRA and this Part are designed to, among other things, afford governmental entities the greatest latitude to determine the most effective protocols for producing, receiving, accepting, acquiring, recording, filing, transmitting, forwarding and storing electronic signatures and electronic records within the confines of existing statutory and regulatory requirements regarding privacy, confidentiality and records retention.

(g) This Part also establishes standards to implement chapter 549 of the Laws of 2011 in relation to the electronic recording of instruments affecting real property by recording officers in New York State. Chapter 549 amended ESRA to allow for the use and acceptance of electronic signatures and records with conveyances and other instruments recordable under article nine of the Real Property Law. Chapter 549 also added a new section 291-i to the Real Property Law, permitting, but not requiring, recording officers to participate in electronic recording of instruments affecting real property. Real Property Law section 291-i requires ITS, as the electronic facilitator, to promulgate rules and regulations governing the use and acceptance of digitized paper documents, electronic records and electronic signatures in the recording of instruments affecting real property. These rules and regulations are to prescribe standards to ensure that electronic records of instruments affecting real property documents a re accurate, authentic, adequately preserved for long-term electronic storage and resistant to tampering.

N.Y. Comp. Codes R. & Regs. Tit. 9 § 540.1

Amended New York State Register April 4, 2018/Volume XL, Issue 14, eff. 4/4/2018