WSR 20-19-119
EMERGENCY RULES
DEPARTMENT OF LICENSING
[Filed September 21, 2020, 2:41 p.m., effective September 21, 2020, 2:41 p.m.]
Effective Date of Rule: Immediately upon filing.
Purpose: The department of licensing is refiling emergency rules allowing for remote notarization in Washington state. After receiving stakeholder input on the original emergency rules, the language was adjusted. The department will file the CR-102 to propose the permanent adoption of these rules on September 23, 2020. The department originally filed notice for permanent rule making regarding SB 5641 under WSR 20-06-073. Interested stakeholders can participate in the rule-making process for the permanent rules by contacting rulescoordinator@dol.wa.gov.
Citation of Rules Affected by this Order: Amending chapter 308-30 WAC, Notaries public.
Statutory Authority for Adoption: RCW
42.45.250.
Other Authority: Proclamation by the Governor 20-27 Electronic Notary Effective Date.
Under RCW
34.05.350 the agency for good cause finds that immediate adoption, amendment, or repeal of a rule is necessary for the preservation of the public health, safety, or general welfare, and that observing the time requirements of notice and opportunity to comment upon adoption of a permanent rule would be contrary to the public interest.
Reasons for this Finding: This emergency rulemaking is enacted to decrease in-person notarization to assist with COVID-19 response efforts, allowing remote notarization in Washington state ahead of SB 5641 implementation.
Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 1, Amended 0, Repealed 0.
Number of Sections Adopted at the Request of a Nongovernmental Entity: New 1, Amended 0, Repealed 0.
Number of Sections Adopted on the Agency's own Initiative: New 0, Amended 0, Repealed 0.
Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 0, Repealed 0.
Number of Sections Adopted using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 0, Repealed 0.
Date Adopted: September 21, 2020.
Ellis Starrett
Rules and Policy Manager
AMENDATORY SECTION(Amending WSR 18-12-028, filed 5/29/18, effective 7/1/18)
WAC 308-30-020Definitions.
Words and terms used in these rules have the same meaning as in the Revised Uniform Law on Notarial Acts, RCW
42.45.010.
"Appear personally" means:
(a) Being in the same physical location as another individual and close enough to see, hear, communicate with, and exchange tangible identification credentials with that individual; or
(b) For remote notarial acts, being in a different physical location from another individual but able to see, hear, and communicate with that individual by means of communication technology.
"Commission" is equivalent to the term "license" as defined in RCW
18.235.010(6).
"Department" means the Washington state department of licensing.
"Director" means the director of the department of licensing or the director's designee.
"Electronic journal" means a chronological record of notarizations maintained by a notary public in an electronic format in compliance with these rules.
"Electronic notarial acts" means notarizations or notarial acts with respect to electronic records.
"Electronic notarial certificate" means the part of, or attachment to, an electronic record that is completed by the notary public, contains the information required under RCW
42.45.130 and the notary's official stamp, bears that notary's electronic signature, and states the facts attested to by the notary in a notarization performed on an electronic record.
"Enroll" and "enrollment" mean a process for registering a notary public with a technology provider to access and use a tamper-evident technology in order to perform electronic notarial acts.
"Principal" means:
(a) An individual whose electronic signature is notarized; or
(b) An individual, other than a witness required for an electronic notarial act, taking an oath or affirmation from the notary public.
"Remote notarial act" means a notarization that is performed using audio-video technology that meets the requirements in WAC 308-30-130 and allows for direct interaction between the notary and the individual(s) that are remotely located.
"Sole control" means at all times being in the direct physical custody of the notary public or safeguarded by the notary with a password or other secure means of authentication.
"Tamper-evident technology" means a set of applications, programs, hardware, software, or other technologies designed to enable a notary public to perform electronic notarial acts and to display evidence of any changes made to an electronic record.
"Technology provider" means an individual or entity that offers the services of a tamper-evident technology for electronic notarial acts.
"Venue" means the state and county where the notary public is physically located while performing a notarial act.
AMENDATORY SECTION(Amending WSR 18-12-028, filed 5/29/18, effective 7/1/18)
WAC 308-30-030Application process for notary public commission.
(1) To apply for a notary public commission, an applicant who meets the requirements of RCW
42.45.200(2) shall submit an application on forms provided by the department. The application shall include:
(a) Evidence of a ten thousand dollar surety bond, signed by the notary public, that conforms to RCW
42.45.200(4);
(b) Payment of the prescribed fee; and
(c) A signed and notarized oath of office.
(2) As part of a notary public commission application, an applicant shall provide both their legal name and their commission name. The applicant's commission name must contain their surname, and at least the initials of the applicant's first and middle name.
(3) To apply for an electronic records notary public endorsement, an applicant who meets the requirements of RCW
42.45.200(7) shall submit an electronic records notary public application on forms provided by the department and pay the prescribed fee.
(4) An applicant may only apply for an electronic records notary public endorsement if:
(a) They currently hold an active notary public commission; or
(b) They are applying for a notary public commission and an electronic records notary public endorsement simultaneously.
(5) An individual applying for an electronic records notary public endorsement must inform the department within thirty days of applying of the tamper-evident technology provider that they have enrolled with before they perform their first electronic notarial act.
(6) To apply for a remote notary endorsement, an electronic records notary public shall submit a remote notary endorsement application on forms provided by the department.
(7) An applicant may only apply for a remote notary endorsement if:
(a) They currently hold an active notary public commission with an electronic records notary public endorsement;
(b) They currently hold an active notary public commission, and are applying for an electronic records notary public endorsement and a remote notary endorsement simultaneously; or
(c) They are applying for a notary public commission, an electronic records notary public endorsement, and a remote notarial acts endorsement simultaneously.
(8) A notary public shall reapply with the department for each commission term before performing notarial acts.
(((7)))(9) A notary public may elect not to apply for an electronic records notary public endorsement or a remote notary endorsement.
AMENDATORY SECTION(Amending WSR 18-12-028, filed 5/29/18, effective 7/1/18)
WAC 308-30-040Approval or denial of application.
(1) Upon ((the))an applicant's fulfillment of the requirements for a notary public commission ((or))and/or an electronic records notary public endorsement, and/or a remote notary endorsement, the department shall approve the application and issue the notary public commission ((or))and/or any endorsements.
(2) If the department receives an incomplete or invalid application, the department shall hold the application for thirty calendar days to allow the applicant to cure any defects. After the thirty day period, the application shall be canceled and any application fees forfeited.
(3) An applicant may not perform any notarial acts on a tangible or electronic record before receiving a notary public commission and the appropriate endorsement from the department.
(4) ((A notary public may not perform any electronic notarial acts before receiving an electronic records notary public endorsement from the department.
(5))) The department may deny a commission or endorsement application if the applicant fails to comply with these rules or does not meet the requirements for licensure.
AMENDATORY SECTION(Amending WSR 18-12-028, filed 5/29/18, effective 7/1/18)
WAC 308-30-050Term of commission.
(1) The term of a notary public commission shall expire on the expiration date of the notary public's surety bond, no more than four years after their commission date.
(2) Unless terminated pursuant to WAC 308-30-270, an electronic records notary public endorsement ((is))and the remote notary endorsement are valid from the date the endorsement is issued by the department, and continues as long as the notary public's current commission remains valid.
AMENDATORY SECTION(Amending WSR 18-12-028, filed 5/29/18, effective 7/1/18)
WAC 308-30-150Completion of electronic notarial certificate.
(1) For every electronic notarial act
and remote notarial act, a notary public shall complete an electronic notarial certificate that complies with the requirements of these rules, RCW
42.45.130 and
42.45.140.
(2) An electronic notarial certificate shall be completed at the time of notarization and in the ((physical)) presence of the principal.
AMENDATORY SECTION(Amending WSR 18-12-028, filed 5/29/18, effective 7/1/18)
WAC 308-30-200Format of journals of notarial acts.
(1) A tangible notarial journal shall:
(a) Be a permanent, bound book with numbered pages; and
(b) Have the capacity to record for each notarial act:
(i) The information required by RCW
42.45.180(4);
(ii) A description of the notary public's method of identifying the principal; and
(iii) The principal's signature, or the signature of an authorized party in compliance with RCW
42.45.070, or a notation in the notary journal that the notarial act was performed via remote notarization.
(2) If a notary public keeps an electronic journal pursuant to RCW
42.45.180(3), the electronic journal shall:
(a) Be maintained only in addition to the tangible journal;
(b) Have the capacity to record the information required for a tangible notarial journal;
(c) Enable access by a password or other secure means of authentication;
(d) Be tamper-evident;
(e) Create a duplicate record of the journal as a backup; and
(f) Be capable of providing tangible or electronic copies of any entry made in the journal.
(3) A notary public's journal is the exclusive property of the notary public, and shall not be surrendered to an employer upon demand or termination, whether the employer paid for the journal or the notary's bond or application fees.
(4) A notary performing remote notarization must maintain a tangible notary journal as required in RCW 42.45.180 and WAC 308-30-190, 308-30-200, and 308-30-210. Notaries performing remote notarization are not required to collect and maintain the signatures of the signers when those notarizations were performed remotely. Notaries must note in their tangible notary log that a notarization was performed remotely. AMENDATORY SECTION(Amending WSR 18-12-028, filed 5/29/18, effective 7/1/18)
WAC 308-30-220Fees for notarial acts.
(1) The maximum fees a notary may charge for notarial acts are:
Notarial Act | Fee |
Witnessing or attesting a signature | $10.00 |
Taking an acknowledgment or a verification upon oath or affirmation | $10.00 |
Certifying or attesting a copy | $10.00 |
Administering an oath or affirmation | $10.00 |
Certifying that an event has occurred or an act has been performed | $10.00 |
(2) A notary public need not charge for notarial acts.
(3) A notary public may not charge fees for receiving or noting a protest of a negotiable instrument.
(4) A notary public may additionally charge the actual costs of copying any instrument or record.
(5) A notary public may charge a travel fee when traveling to perform a notarial act if:
(a) The notary public and the individual requesting the notarial act agree upon the travel fee in advance of the travel; and
(b) The notary public explains to the individual requesting the notarial act that the travel fee is in addition to the notarial fee in subsection (1) of this section and is not required by law.
(6) Notwithstanding the maximum fees set forth in subsection (1) of this section and the prohibition set forth in subsection (3) of this section, a notary public may charge a maximum fee of twenty-five dollars to perform a remote notarial act.
AMENDATORY SECTION(Amending WSR 18-12-028, filed 5/29/18, effective 7/1/18)
WAC 308-30-270Termination or suspension of commission or endorsement.
(1) The department may take action against the commission and/or endorsement of a notary public who fails to comply with these rules as provided in RCW
42.45.210,
42.45.270, and chapter
18.235 RCW. Any restriction, suspension, or revocation of a notary public's commission will automatically have the same effect on any endorsement the notary public holds.
(2) A notary public may terminate their notary public commission and/or electronic records endorsement and/or remote notary endorsement by notifying the department of this intent in writing and disposing of all or any part of a tamper-evident technology in the notary's control whose purpose was to perform electronic notarizations.
(3) A notary public may terminate the electronic records notary public endorsement or the remote notary endorsement and maintain the underlying notary public commission.
(4) A notary public whose commission is terminated or expired, either by the notary or the department, shall disable their official stamp by destroying, defacing, damaging, or securing the device against use. The notary shall maintain their notarial journals for ten years as required by RCW
42.45.180 and WAC 308-30-210.
NEW SECTION
WAC 308-30-290Authorized remote notarial acts.
(1) A notary public who has received both an electronic records notary public endorsement and a remote notarial acts endorsement from the department may perform the following remote notarial acts:
(a) Taking an acknowledgment;
(b) Taking a verification on oath or affirmation;
(c) Witnessing or attesting a signature;
(d) Certifying or attesting a copy;
(e) Certifying that an event has occurred or an act has been performed; and
(f) Noting a protest of a negotiable instrument, if the notary public is:
(i) Acting under the authority of an attorney who is licensed to practice law in this state or another state; or
(ii) Acting under the authority of a financial institution regulated by this state, another state, or the federal government.
(2) In performing remote notarial acts, a notary public shall comply with all requirements for electronic notarial acts under this chapter.
NEW SECTION
WAC 308-30-300Standards for technology identity proofing and documentation.
In performing remote notarial acts, a notary must use technology which allows for a multifactor authentication process in compliance with RCW
42.45.050 and this chapter. To perform remote notarial acts the notary must use technology which:
(1) Verifies the identity of the signer in compliance with RCW
42.45.050;
(2) Has two-way audio-visual capabilities between the notary and signer(s);
(3) Is capable of recording the notarization; and
(4) Has reasonable security measures which ensure notarial acts are secure once recorded.