TITLE 12 TRADE,
COMMERCE AND BANKING
CHAPTER 9 NOTARIES PUBLIC
PART 2 PERFORMING ELECTRONIC NOTARIAL ACTS
12.9.2.1 ISSUING AGENCY:
Office of the Secretary of State.
[12.9.2.1 NMAC - N, 5/30/2008]
12.9.2.2 SCOPE: All notaries
public who register to perform electronic notarial
acts.
[12.9.2.2 NMAC - N, 5/30/2008]
12.9.2.3 STATUTORY AUTHORITY:
14-9A-5 (C) NMSA 1978
[12.9.2.3 NMAC - N, 5/30/2008]
12.9.2.4 DURATION:
Permanent.
[12.9.2.4 NMAC - N, 5/30/2008]
12.9.2.5 EFFECTIVE DATE: May
30, 2008 unless a later date is cited at the end of a section.
[12.9.2.5 NMAC - N, 5/30/2008]
12.9.2.6 OBJECTIVE: The
objective of the rule is to establish standards, guidelines, procedures, fees
and to define the duties and responsibilities for notaries public electing to
perform electronic notarial acts. The office of the
secretary of state recognizes that as technology has advanced financial
institutions, mortgage lenders, government and businesses are turning to
electronic documents in order to speed up communication and productivity.
[12.9.2.6 NMAC - N, 5/30/2008]
12.9.2.7 DEFINITIONS:
A. “Electronic” means relating to
technology having electrical, digital, magnetic, wireless, optical,
electromagnetic, or similar capabilities.
B. “Electronic document” means information that is created,
generated, sent, communicated, received or stored by electronic means.
C. “Electronic notarial act” means
an official act by a notary public on or involving an electronic document and
using means authorized by the secretary of state.
D. “Electronically enabled notary public” means a notary
public who has registered with the secretary of state the capability of
performing electronic notarial acts.
E. “Electronic notary seal” and “official electronic seal”
mean information within a notarized electronic document that includes the
notary public’s name, jurisdiction of appointment, commission expiration date
and generally corresponds to data in notary public seals used on paper
documents.
F. “Electronic signature” means an electronic sound,
symbol, or process attached to or logically associated with an electronic
document and executed or adopted by a person with the intent to sign the
electronic document or record.
G. “Electronic notarial certificate”
means the portion of a notarized electronic document that is completed by a
notary public and contains the notary public’s electronic signature or official
electronic seal, official title, commission expiration date, and any required
information concerning the date and place of the electronic notarization, and
states the facts attested to or certified by the notary public in a particular
electronic notarization.
H. “Notary electronic signature” means those forms of electronic
signature, which have been approved by the secretary of state as an acceptable
means for an electronic notary to affix the notary’s official signature to an
electronic record that is being notarized.
I. “Physical appearance” and “appears before the notary”
mean that the principal and the notary public are physically close enough to
see, hear, communicate with and give documents to each other without reliance
on electronic devices such as telephone, computers, video cameras or facsimile
machines.
J. “Unique to the notary public” and “under the sole
control” mean with respect to an electronic notarization that the signing
device used to affix the electronic signature of the notary public and to
render the official electronic seal information tamper-evident must be
accessible by and attributable solely to the notary public to the exclusion of
all other persons and entities operating to effectuate the authorized
electronic notarization.
K. “Acknowledgment” means a notarial
act in which a person at a single time and place appears in person before the
notary public and presents a document; is personally known to the notary public
or identified by the notary through satisfactory evidence; and indicates to the
notary public that the signature on the document was voluntarily affixed by the
person for the purpose stated within the document and, if applicable, that the
person had due authority to sign in a particular representative capacity.
L. “Affirmation” means a notarial
act, that is legally equivalent to an oath and in which a person at a single
time and place appears in person before the notary public; is personally known
to the notary public or identified by the notary public through satisfactory
evidence; and makes a vow of truthfulness or fidelity on penalty of perjury,
based on personal honor and without invoking a deity or using any form of the
word “swear”.
M. “Jurat” means a notarial act in which a person at a single time and place
appears in person before the notary public and presents a document; is
personally known to the notary public or identified by the notary public
through satisfactory evidence; signs the document in the presence of the notary
public that the person is voluntarily affixing his signature and vouching for
the truthfulness or accuracy of the signed document.
[12.9.2.7 NMAC - N, 5/30/2008]
12.9.2.8 PHYSICAL APPEARANCE REQUIREMENT:
A. A notary public shall not perform an electronic notarial act if the document signer does not appear in
person before the notary public at the time of notarization. Under no circumstance shall a notary public
base identification merely upon familiarity with a signer’s electronic
signature or an electronic verification process that authenticates the signer’s
electronic signature when the signer is not in the physical presence of the
notary public.
B. The methods for identifying document signers for an
electronic notarization shall be the same as the methods required for a
paper-based notarization.
[12.9.2.8 NMAC - N, 5/30/2008]
12.9.2.9 REGISTRATION REQUIREMENTS:
A. Before performing any electronic notarial
act(s), a notary public shall register the capability to notarize
electronically with the secretary of state on a form prescribed by the
secretary of state.
B. In registering the capability to perform electronic notarial acts, the notary public shall provide the
following information to the secretary of state, notary processing unit:
(1) the applicant’s
name as currently commissioned and complete mailing address;
(2) the expiration
date of the notary public’s commission and signature of the commissioned
notary;
(3) proof of successful completion of a course
of instruction on electronic notarization offered through an educational
provider approved by the United States department of education (ACCET) accrediting council for continuing education and
training;
(4) the applicant’s
e-mail address;
(5) the description
of the electronic technology or technologies to be used in attaching an
electronic notarial certificate to an electronic
document;
(6) the description
of the electronic technology or technologies to be used in attaching the
notary’s electronic signature to the electronic document;
(7) an exemplar of the notary’s electronic
signature and the notary’s official electronic seal, which shall contain the
notary’s name and any necessary instructions or techniques that allow the notary’s
electronic signature or official electronic seal to be read;
(8) the name, address
and phone number of the vendor issuing the electronic notary seal; this vendor
shall be registered in the state of New Mexico to transact business;
(9) the starting and expiration date of the
device’s term of registration and any revocations, annulment, or other
premature termination of any registered device of the registrant that was due
to misuse or compromise of the device, with the date, cause, and nature of each
termination explained in detail.
[12.9.2.9 NMAC - N, 5/30/2008]
12.9.2.10 TYPES OF ELECTRONIC NOTARIAL ACTS:
A. acknowledgments
B. jurats
C. oaths or affirmations
[12.9.2.10 NMAC - N, 5/30/2008]
12.9.2.11 FORM
AND MANNER OF PERFORMING THE ELECTRONIC NOTARIAL ACT:
A. When performing an electronic notarial
act, a notary public shall apply an electronic signature, which shall be
attached to or logically associated with the electronic document such that
removal or alteration of such electronic signature is detectable and will
render evidence of alteration of the document containing the notary certificate
which may invalidate the electronic notarial act.
B. When performing an electronic notarial
act, a notary public shall complete an electronic notarial
certificate, which shall be attached to or logically associated with the
electronic document such that removal or alteration of the electronic notarial certificate is detectable and will render evidence
of alteration of the document containing the notary certificate which may
invalidate the electronic notarial act.
C. The notary public’s electronic signature is deemed to be
reliable if the following requirements are met:
(1) it is unique to
the notary public;
(2) it is capable of
independent verification;
(3) it is retained
under the notary public’s sole control;
(4) it is attached to
or logically associated with the electronic document, and
(5) it is linked to
the data in such a manner that any subsequent alterations to the underlying
document’s electronic notarial certificate are
detectable and may invalidate the electronic notarial
act.
D. When performing an electronic notarial
act, a notary public shall apply an electronic seal, when required by law,
which shall be attached to or logically associated with the electronic document
such that removal or alteration of such official electronic seal is detectable
and will render evidence of alteration of the document containing the notary
certificate which may invalidate the electronic notarial
act.
E. The notary public’s electronic seal is deemed to be
reliable if the following requirements are met:
(1) it is unique to
the notary public,
(2) it is capable of
independent verification,
(3) it is retained
under the notary public’s sole control,
(4) it is attached to
or logically associated with the electronic document and
(5) it is linked to
the data in such a manner that any subsequent alterations to the underlying
document or electronic notarial certificate are
detectable and may invalidate the electronic notarial
act.
F. An electronic image of a seal need not accompany an
electronic signature.
G. The notary public’s electronic signature and with the
electronic notary seal shall be used only for the purpose of performing electronic
notarial acts.
[12.9.2.11 NMAC - N, 5/30/2008]
12.9.2.12 FEES:
A. For acknowledgments, $10.00
B. For jurats, $10.00
C. For oaths or affirmations, $10.00
D. An employer shall not establish fees for electronic notarial services that are in excess of those specified
within this rule.
E. When performing an electronic notarial
act, a notary public may charge the maximum fee specified in this section,
charge less than the maximum fee or waive the fee.
[12.9.2.12 NMAC - N, 5/30/2008]
12.9.2.13 CHANGE OF E-MAIL ADDRESS:
Within five days after the change of an electronically enabled notary
public’s e-mail address, the notary shall electronically transmit to the
secretary of state a notice of the change, signed with the notary official
electronic signature.
[12.9.2.13 NMAC - N, 5/30/2008]
12.9.2.14 LIABILITY, SANCTIONS AND REMEDIES
RELATING TO IMPROPER ELECTRONIC NOTARIZATIONS: The liability, sanctions, and
remedies for the improper performance of electronic notarial
acts are the same as described in the New Mexico notary handbook.
[12.9.2.14 NMAC - N, 5/30/2008]
12.9.2.15 VIOLATION
BY PERSON NOT REGISTERED TO PERFORM ELECTRONIC NOTARIZATIONS: Performing an electronic notarization without
registering with the secretary of state is subject to sanctions as described in
the New Mexico notary public handbook.
[12.9.2.15 NMAC - N, 5/30/2008]
HISTORY OF 12.9.2 NMAC: [RESERVED]