This document includes House Committee Amendments incorporated into the bill on Wed, Jan 30, 2019 at 12:35 PM by ngarrow.
This document includes House Floor Amendments incorporated into the bill on Thu, Jan 31, 2019 at 11:55 AM by pflowers.
Representative Craig Hall proposes the following substitute bill:


1     
REMOTE NOTARIZATION STANDARDS

2     
2019 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Craig Hall

5     
Senate Sponsor: Kirk A. Cullimore

6     

7     LONG TITLE
8     General Description:
9          This bill modifies the Notaries Public Reform Act to allow a notarization to be
10     performed remotely.
11     Highlighted Provisions:
12          This bill:
13          ▸     defines terms;
14          ▸     establishes requirements for and a process by which the lieutenant governor may
15     certify a notary as a remote notary;
16          ▸     establishes requirements for the process by which a remote notary may perform a
17     remote notarization, including standards for:
18               •     determining an individual's identity; and
19               •     the equipment, software, and hardware by which a remote notary may perform a
20     remote notarization;
21          ▸     grants rulemaking authority to the director of elections in the Office of the
22     Lieutenant Governor;
23          ▸     amends the fees a notary may charge for performing a notarization;
24          ▸     requires a remote notary to keep an electronic journal, including an audio and video
25     recording, of each notarization the remote notary performs;
26          ▸     amends provisions related to the security, maintenance, and custody of a notary's
27     journal;
28          ▸     amends provisions related to the obtaining, use, surrendering, and destruction of a
29     notary's official seal; and
30          ▸     makes technical and conforming changes.
31     Money Appropriated in this Bill:
32          None
33     Other Special Clauses:
34          This bill provides a special effective date.
35     Utah Code Sections Affected:
36     AMENDS:
37          46-1-2, as last amended by Laws of Utah 2017, Chapter 259
38          46-1-3, as last amended by Laws of Utah 2017, Chapter 259
39          46-1-4, as last amended by Laws of Utah 2017, Chapter 259
40          46-1-6, as repealed and reenacted by Laws of Utah 2017, Chapter 259
41          46-1-6.5, as enacted by Laws of Utah 2017, Chapter 259
42          46-1-10, as repealed and reenacted by Laws of Utah 1998, Chapter 287
43          46-1-12, as last amended by Laws of Utah 1998, Chapter 287
44          46-1-13, as repealed and reenacted by Laws of Utah 1998, Chapter 287
45          46-1-14, as last amended by Laws of Utah 2006, Chapter 21
46          46-1-15, as last amended by Laws of Utah 2017, Chapter 259
47          46-1-16, as last amended by Laws of Utah 2017, Chapter 259
48          46-1-17, as repealed and reenacted by Laws of Utah 1998, Chapter 287
49          46-1-18, as last amended by Laws of Utah 2017, Chapter 259
50          46-1-21, as last amended by Laws of Utah 2003, Chapter 136
51          53-10-108, as last amended by Laws of Utah 2018, Chapters 417 and 427
52     ENACTS:
53          46-1-3.5, Utah Code Annotated 1953
54          46-1-3.6, Utah Code Annotated 1953
55          46-1-3.7, Utah Code Annotated 1953
56     

57     Be it enacted by the Legislature of the state of Utah:
58          Section 1. Section 46-1-2 is amended to read:
59          46-1-2. Definitions.
60          As used in this chapter:
61          (1) "Acknowledgment" means a notarial act in which a notary certifies that a signer,
62     whose identity is personally known to the notary or proven on the basis of satisfactory
63     evidence, has admitted, in the presence of the notary, to voluntarily signing a document for the
64     document's stated purpose.
65          (2) "Before me" means that an individual appears in the presence of the notary.
66          [(2)] (3) "Commission" means:
67          (a) to empower to perform notarial acts; or
68          (b) the written document that gives authority to perform notarial acts, including the
69     Certificate of Authority of Notary Public that the lieutenant governor issues to a notary.
70          [(3)] (4) "Copy certification" means a notarial act in which a notary certifies that a
71     photocopy is an accurate copy of a document that is neither a public record nor publicly
72     recorded.
73          (5) "Electronic recording" means the audio and video recording, described in
74     Subsection 46-1-3.6(3), of a remote notarization.
75          (6) "Electronic seal" means an electronic version of the seal described in Section
76     46-1-16, that conforms with rules made under Subsection 46-1-3.7(1)(d), that a remote notary
77     may attach to a notarial certificate to complete a remote notarization.
78          [(4)] (7) "Electronic signature" means the same as that term is defined in Section
79     46-4-102.
80          (8) "In the presence of the notary" means that an individual:
81          (a) is physically present with the notary in close enough proximity to see and hear the
82     notary; or
83          (b) communicates with a remote notary by means of an electronic device or process
84     that:
85          (i) allows the individual and remote notary to communicate with one another
86     simultaneously by sight and sound; and
87          (ii) complies with rules made under Section 46-1-3.7.
88          [(5)] (9) "Jurat" means a notarial act in which a notary certifies:
89          (a) the identity of a signer who:
90          (i) is personally known to the notary; or
91          (ii) provides the notary satisfactory evidence of the signer's identity;
92          (b) that the signer affirms or swears an oath attesting to the truthfulness of a document;
93     and
94          (c) that the signer voluntarily signs the document in the presence of the notary.
95          [(6)] (10) "Notarial act" or "notarization" means an act that a notary is authorized to
96     perform under Section 46-1-6.
97          [(7)] (11) "Notarial certificate" means the affidavit described in Section 46-1-6.5 that
98     is:
99          (a) a part of or attached to a notarized document; and
100          (b) completed by the notary and bears the notary's signature and official seal.
101          [(8)] (12) (a) "Notary" means [any person] an individual commissioned to perform
102     notarial acts under this chapter.
103          (b) "Notary" includes a remote notary.
104          [(9)] (13) "Oath" or "affirmation" means a notarial act in which a notary certifies that a
105     person made a vow or affirmation in the presence of the notary on penalty of perjury.
106          [(10)] (14) "Official misconduct" means a notary's performance of any act prohibited or
107     failure to perform any act mandated by this chapter or by any other law in connection with a
108     notarial act.
109          (15) (a) "Official seal" means the seal described in Section 46-1-16 that a notary may
110     attach to a notarial certificate to complete a notarization.
111          (b) "Official seal" includes an electronic seal.
112          [(11)] (16) "Personally known" means familiarity with an individual resulting from
113     interactions with that individual over a period of time sufficient to eliminate every reasonable
114     doubt that the individual has the identity claimed.
115          (17) "Remote notarization" means a notarial act performed by a remote notary in
116     accordance with this chapter for an individual who is not in the physical presence of the remote
117     notary at the time the remote notary performs the notarial act.
118          (18) "Remote notary" means a notary that holds an active remote notary certification
119     under Section 46-1-3.5.
120          [(12)] (19) (a) "Satisfactory evidence of identity" means:
121          (i) for both an in-person and remote notarization, identification of an individual based
122     on:
123          [(i)] (A) subject to Subsection (19)(b), valid personal identification with the
124     individual's photograph, signature, and physical description that the United States government,
125     any state within the United States, or a foreign government issues;
126          [(ii)] (B) subject to Subsection (19)(b), a valid passport that any nation issues; or
127          [(iii)] (C) the oath or affirmation of a credible person who is personally known to the
128     notary and who personally knows the individual[.]; and
129          (ii) for a remote notarization only, a third party's affirmation of an individual's identity
130     in accordance with rules made under Section 46-1-3.7 by means of:
131          (A) dynamic knowledge-based authentication, which may include requiring the
132     individual to answer questions about the individual's personal information obtained from
133     public or proprietary data sources; or
134          (B) analysis of the individual's biometric data, which may include facial recognition,
135     voiceprint analysis, or fingerprint analysis.
136          (b) "Satisfactory evidence of identity," for a remote notarization, requires the
137     identification described in Subsection (19)(a)(i)(A) or passport described in Subsection
138     (19)(a)(i)(B) to be verified through public or proprietary data sources in accordance with rules
139     made under Section 46-1-3.7.
140          [(b)] (c) "Satisfactory evidence of identity" does not include:
141          (i) a driving privilege card under Subsection 53-3-207(10); or
142          (ii) another document that is not considered valid for identification.
143          [(13)] (20) "Signature witnessing" means a notarial act in which an individual:
144          (a) appears in [person before a] the presence of the notary and presents a document;
145          (b) provides the notary satisfactory evidence of the individual's identity, or is
146     personally known to the notary; and
147          (c) signs the document in the presence of the notary.
148          Section 2. Section 46-1-3 is amended to read:
149          46-1-3. Qualifications -- Application for notarial commission required -- Term.
150          (1) Except as provided in Subsection [(3)] (4), and subject to Section 46-1-3.5, the
151     lieutenant governor shall commission as a notary any qualified person who submits an
152     application in accordance with this chapter.
153          (2) To qualify for a notarial commission an individual shall:
154          (a) be at least 18 years old;
155          (b) lawfully reside in the state for at least 30 days immediately before the individual
156     applies for a notarial commission;
157          (c) be able to read, write, and understand English;
158          (d) submit an application to the lieutenant governor containing no significant
159     misstatement or omission of fact, that includes:
160          (i) the individual's:
161          (A) name as it will appear on the commission;
162          (B) residential address;
163          (C) business address;
164          (D) daytime telephone number; and
165          (E) date of birth;
166          (ii) an affirmation that the individual meets the requirements of this section;
167          (iii) an indication of any criminal convictions the individual has received, including a
168     plea of admission or no contest;
169          (iv) all issuances, denials, revocations, suspensions, restrictions, and resignations of a
170     notarial commission or other professional license involving the applicant in this or any other
171     state;
172          (v) an indication that the individual has passed the examination described in
173     Subsection [(5)] (6); and
174          (vi) payment of an application fee that the lieutenant governor establishes in
175     accordance with Section 63J-1-504; [and]
176          (e) (i) be a United States citizen; or
177          (ii) have permanent resident status under Section 245 of the Immigration and
178     Nationality Act[.]; and
179          (f) submit to a background check described in Subsection (3).
180          (3) (a) The lieutenant governor shall:
181          (i) request the Department of Human Resource Management to perform a criminal
182     background check under Subsection 53-10-108(16) on each individual who submits an
183     application under this section;
184          (ii) require an individual who submits an application under this section to provide a
185     signed waiver on a form provided by the lieutenant governor that complies with Subsection
186     53-10-108(4); and
187          (iii) provide the Department of Human Resource Management the personal identifying
188     information of each individual who submits an application under this section.
189          (b) The Department of Human Resource Management shall:
190          (i) perform a criminal background check under Subsection 53-10-108(16) on each
191     individual described in Subsection (3)(a)(i); and
192          (ii) provide to the lieutenant governor all information that pertains to the individual
193     described in Subsection (3)(a)(i) that the department identifies or receives as a result of the
194     background check.
195          [(3)] (4) The lieutenant governor may deny an application based on:
196          (a) the applicant's conviction for a crime involving dishonesty or moral turpitude;
197          (b) any revocation, suspension, or restriction of a notarial commission or professional
198     license issued to the applicant by this or any other state;
199          (c) the applicant's official misconduct while acting in the capacity of a notary; or
200          (d) the applicant's failure to pass the examination described in Subsection [(5)] (6).
201          [(4)] (5) (a) An individual whom the lieutenant governor commissions as a notary:
202          (i) may perform notarial acts in any part of the state for a term of four years, unless the
203     person resigns or the commission is revoked or suspended under Section 46-1-19[.]; and
204          (ii) except through a remote notarization performed in accordance with this chapter,
205     may not perform a notarial act for another individual who is outside of the state.
206          (b) (i) After an individual's commission expires, the individual may not perform a
207     notarial act until the individual obtains a new commission.
208          (ii) An individual whose commission expires and who wishes to obtain a new
209     commission shall submit a new application, showing compliance with the requirements of this
210     section.
211          [(5)] (6) (a) Each applicant for a notarial commission shall take an examination that the
212     lieutenant governor approves and submit the examination to a testing center that the lieutenant
213     governor designates for purposes of scoring the examination.
214          (b) The testing center that the lieutenant governor designates shall issue a written
215     acknowledgment to the applicant indicating whether the applicant passed or failed the
216     examination.
217          [(6)] (7) (a) A notary shall maintain permanent residency in the state during the term of
218     the notary's notarial commission.
219          (b) A notary who does not maintain permanent residency under Subsection [(6)] (7)(a)
220     shall resign the notary's notarial commission in accordance with Section 46-1-21.
221          Section 3. Section 46-1-3.5 is enacted to read:
222          46-1-3.5. Remote notary qualifications -- Application -- Authority.
223          (1) An individual commissioned as a notary, or an individual applying to be
224     commissioned as a notary, under Section 46-1-3 may apply to the lieutenant governor for a
225     remote notary certification under this section.
226          (2) The lieutenant governor shall certify an individual to perform remote notarizations
227     as a remote notary if the individual:
228          (a) complies with Section 46-1-3 to become a commissioned notary;
229          (b) submits to the lieutenant governor, on a form created by the lieutenant governor, a
230     correctly completed application for a remote notary certification; and
231          (c) pays to the lieutenant governor the application fee described in Subsection (4).
232          (3) The lieutenant governor shall ensure that the application described in Subsection
233     (2)(b) requires an applicant to:
234          (a) list the applicant's name as it appears or will appear on the applicant's notarial
235     commission;
236          (b) agree to comply with the provisions of this chapter, and rules made under Section
237     46-1-3.7, that relate to a remote notarization; and
238          (c) provide the applicant's email address.
239          (4) The lieutenant governor may establish and charge a fee in accordance with Section
240     63J-1-504 to an individual who seeks to obtain remote notary certification under this section.
241          Section 4. Section 46-1-3.6 is enacted to read:
242          46-1-3.6. Remote notarization procedures.
243          (1) A remote notary who receives a remote notary certification under Section 46-1-3.5
244     may perform a remote notarization if the remote notary is physically located in this state.
245          (2) A remote notary that performs a remote notarization for an individual that is not
246     personally known to the remote notary shall, at the time the remote notary performs the remote
247     notarization, establish satisfactory evidence of identity for the individual by:
248          (a) communicating with the individual using an electronic device or process that:
249          (i) allows the individual and remote notary to communicate with one another
250     simultaneously by sight and sound; and
251          (ii) complies with rules made under Section 46-1-3.7; and
252          (b) requiring the individual to transmit to the remote notary an image of a form of
253     identification described in Subsection 46-1-2(17)(a)(i)(A) or passport described in Subsection
254     46-1-2(17)(a)(i)(B) that is of sufficient quality for the remote notary to establish satisfactory
255     evidence of identity.
256          (3) Ĥ→ (a) ←Ĥ A remote notary shall create an audio and video recording of the
256a     performance of
257     each remote notarization and store the recording in accordance with Sections 46-1-14 and
258     46-1-15.
258a     Ĥ→ (b) A remote notary shall take reasonable steps, consistent with industry standards, to
258b     ensure that any non-public data transmitted or stored in connection with a remote notarization
258c     performed by the remote notary is secure from unauthorized interception or disclosure. ←Ĥ
259          (4) Notwithstanding any other provision of law, a remote notarization lawfully
260     performed under this chapter satisfies any provision of state law that requires an individual to
261     personally appear before, or be in the presence of, a notary at the time the notary performs a
262     notarial act.
263          Section 5. Section 46-1-3.7 is enacted to read:
264          46-1-3.7. Rulemaking authority for remote notarization.
265          (1) The director of elections in the Office of the Lieutenant Governor may make rules
266     in accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, regarding
267     standards for and types of:
268          (a) electronic software and hardware that a remote notary may use to:
269          (i) perform a remote notarization; and
270          (ii) keep an electronic journal under Section 46-1-13;
271          (b) public and proprietary data sources that a remote notary may use to establish
272     satisfactory evidence of identity under Subsection 46-1-2(17)(b);
273          (c) dynamic knowledge-based authentication or biometric data analysis that a remote
274     notary may use to establish satisfactory evidence of identity under Subsection 46-1-2(17)(a)(ii);
275     and
276          (d) electronic seals a remote notary may use to complete an electronic notarial
277     certificate.
278          (2) When making a rule under this section, the director of elections in the Office of the
279     Lieutenant Governor shall review and consider standards recommended by one or more
280     national organizations that address the governance or operation of notaries.
281          Section 6. Section 46-1-4 is amended to read:
282          46-1-4. Bond.
283          (1) A notarial commission is not effective until:
284          [(1)] (a) the notary named in the commission takes a constitutional oath of office and
285     files a $5,000 bond with the lieutenant governor that:
286          [(a)] (i) a licensed surety executes for a term of four years beginning on the
287     commission's effective date and ending on the commission's expiration date; and
288          [(b)] (ii) conditions payment of bond funds to any person upon the notary's misconduct
289     while acting in the scope of the notary's commission; and
290          [(2)] (b) the lieutenant governor approves the oath and bond [are approved by the
291     lieutenant governor] described in Subsection (1)(a).
292          (2) In addition to the requirements described in Subsection (1), a remote notary
293     certification described in Section 46-1-3.5 is not effective until:
294          (a) the notary named in the remote notary certification files with the lieutenant
295     governor evidence that the notary has obtained $5,000 of bond coverage, in addition to the
296     bond coverage described in Subsection (1)(a), that:
297          (i) a licensed surety executes for a term that begins on the certification's effective date
298     and ends on the remote notary's commission's expiration date; and
299          (ii) conditions payment of bond funds to any person upon the remote notary's
300     misconduct while acting in the scope of the remote notary's commission; and
301          (b) the lieutenant governor approves the additional bond coverage described in
302     Subsection (2)(a).
303          Section 7. Section 46-1-6 is amended to read:
304          46-1-6. Powers and limitations.
305          (1) A notary may perform the following acts:
306          (a) a jurat;
307          (b) an acknowledgment;
308          (c) a signature witnessing;
309          (d) a copy certification; and
310          (e) an oath or affirmation.
311          (2) A notary may not:
312          (a) perform an act as a notary that is not described in Subsection (1); or
313          (b) perform an act described in Subsection (1) if the [person] individual for whom the
314     notary performs the notarial act is not in the [physical] presence of the notary at the time the
315     notary performs the act.
316          Section 8. Section 46-1-6.5 is amended to read:
317          46-1-6.5. Form of notarial certificate for document notarizations.
318          (1) A correctly completed affidavit in substantially the form described in this section,
319     that is included in or attached to a document, is sufficient for the completion of a notarization
320     under this Title 46, Chapter 1, Notaries Public Reform Act.
321          (2) (a) A notary shall ensure that a signer takes the following oath or makes the
322     following affirmation before the notary witnesses the signature for a jurat:
323          "Do you swear or affirm under penalty of perjury that the statements in your document
324     are true?"
325          (b) An affidavit for a jurat that is in substantially the following form is sufficient under
326     Subsection (1):
327          "State of Utah
328          §
329          County of ____________
330          Subscribed and sworn to before me (notary public name), on this (date) day of (month),
331     in the year (year), by (name of document signer).
332          ([Notary] Notary's Official Seal) ____________________________________
333          Notary Signature".
334          (3) An affidavit for an acknowledgment that is in substantially the following form is
335     sufficient under Subsection (1):
336          "State of Utah
337          §
338          County of ____________
339          On this (date) day of (month), in the year (year), before me (name of notary public), a
340     notary public, personally appeared (name of document signer), proved on the basis of
341     satisfactory evidence to be the person(s) whose name(s) (is/are) subscribed to in this document,
342     and acknowledged (he/she/they) executed the same.
343          ([Notary] Notary's Official Seal) ____________________________________
344          Notary Signature".
345          (4) An affidavit for a copy certification that is in substantially the following form is
346     sufficient under Subsection (1):
347          "State of Utah
348          §
349          County of ____________
350          On this (date) day of (month), in the year (year), I certify that the preceding or attached
351     document is a true, exact, and unaltered photocopy of (description of document), and that, to
352     the best of my knowledge, the photocopied document is neither a public record nor a publicly
353     recorded document.
354          ([Notary] Notary's Official Seal) ____________________________________
355          Notary Signature".
356          (5) An affidavit for a signature witnessing that is in substantially the following form is
357     sufficient under Subsection (1):
358          "State of Utah
359          §
360          County of ____________
361          On this (date) day of (month), in the year (year), before me, (name of notary public),
362     personally appeared (name of document signer), proved to me through satisfactory evidence of
363     identification, which was (form of identification), to be the person whose name is signed on the
364     preceding or attached document in my presence.
365          ([Notary] Notary's Official Seal) ____________________________________
366          Notary Signature".
367          (6) A remote notary shall ensure that the notarial certificate described in this section
368     that is used for a remote notarization includes a statement that the remote notary performed the
369     notarization remotely.
370          Section 9. Section 46-1-10 is amended to read:
371          46-1-10. Testimonials prohibited.
372          A notary may not use the notary's title or official seal to endorse or promote any
373     product, service, contest, or other offering [if the notary's title or seal is used in the
374     endorsement or promotional statement].
375          Section 10. Section 46-1-12 is amended to read:
376          46-1-12. Fees and notice.
377          (1) (a) [The maximum fees that may be charged by a notary] Except as provided in
378     Subsection (1)(b), the maximum fees a notary may charge for notarial acts are [for]:
379          [(a)] (i) [acknowledgments, $5] for an acknowledgment, $10 per signature;
380          [(b)] (ii) [certified copies, $5] for a certified copy, $10 per page certified;
381          [(c)] (iii) [jurats, $5] for a jurat, $10 per signature; [and]
382          [(d)] (iv) [oaths or affirmations] for an oath or affirmation without a signature, [$5]
383     $10 per person[.]; and
384          (v) for each signature witnessing, $10.
385          (b) The maximum fee a remote notary may charge for an item described in Subsection
386     (1)(a) that the remote notary performs as a part of a remote notarization is $25.
387          (2) A notary may charge a travel fee, not to exceed the approved federal mileage rate,
388     when traveling to perform a notarial act if:
389          (a) the notary explains to the person requesting the notarial act that the travel fee is
390     separate from the notarial fee in Subsection (1) and is neither specified nor mandated by law;
391     and
392          (b) the notary and the person requesting the notarial act agree upon the travel fee in
393     advance.
394          (3) A notary shall display an English-language schedule of fees for notarial acts and
395     may display a nonEnglish-language schedule of fees.
396          (4) (a) [The fee of a notary shall not exceed $5] A notary may not charge a fee of more
397     than $10 per individual for each set of forms relating to a change of that individual's
398     immigration status.
399          (b) The fee limitation described in Subsection (4)(a) [shall apply whether or not]
400     applies regardless of whether the notary is acting as a notary but does not apply to a licensed
401     attorney, who is also a notary rendering professional services regarding immigration matters.
402          Section 11. Section 46-1-13 is amended to read:
403          46-1-13. Notary journal.
404          (1) A notary may keep, maintain, and protect as a public record, and provide for lawful
405     inspection a chronological, permanently bound official journal of notarial acts, containing
406     numbered pages.
407          (2) A remote notary shall keep a secure electronic journal of each remote notarization
408     the notary performs.
409          Section 12. Section 46-1-14 is amended to read:
410          46-1-14. Entries in journal -- Required information.
411          (1) [For every notarial act, the notary may] A notary may, for each notarial act the
412     notary performs, and a remote notary shall, for each notarial act the remote notary performs
413     remotely, record the following information in the journal described in Section 46-1-13 at the
414     time of notarization:
415          (a) the date and time of day of the notarial act;
416          (b) the type of notarial act;
417          (c) [a] the type title, or a description of the document, electronic record, or proceeding
418     that is the subject of the notarial act;
419          (d) the signature and printed name and address of each [person] individual for whom a
420     notarial act is performed;
421          (e) the evidence of identity of each [person] individual for whom a notarial act is
422     performed, in the form of:
423          (i) a statement that the person is ["]personally known["] to the notary;
424          (ii) a description of the identification document[, its] and the identification document's
425     issuing agency, [its] serial or identification number, and [its] date of issuance or expiration;
426     [or]
427          (iii) the signature and printed name and address of a credible witness swearing or
428     affirming to the person's identity; [and] or
429          (iv) if used for a remote notarization, a description of the dynamic knowledge-based
430     authentication or biometric data analysis that was used to provide satisfactory evidence of
431     identity under Subsection 46-1-2(17)(a)(ii); and
432          (f) the fee, if any, the notary charged for the notarial act.
433          (2) A notary may record in the journal a description of the circumstances [in refusing]
434     under which the notary refused to perform or complete a notarial act.
435          (3) (a) A remote notary shall include with the journal a copy of the electronic recording
436     of the remote notarization.
437          (b) The electronic recording is not a public record and is not a part of the notary's
438     journal.
439          (4) A remote notary shall maintain, or ensure that a person that the notary designates as
440     a custodian under Subsection 46-1-15(2)(b)(i) maintains, for a period of five years, the
441     information described in Subsections (1) and (3) for each remote notarization the notary
442     performs.
443          Section 13. Section 46-1-15 is amended to read:
444          46-1-15. Inspection of journal -- Safekeeping and custody of journal.
445          (1) [If] Except as provided in Subsection (2)(b), if a notary maintains a journal, the
446     notary shall:
447          (a) keep the journal in the notary's exclusive custody; and
448          (b) ensure that the journal is not used by any other person for any purpose.
449          (2) (a) A remote notary shall:
450          (i) ensure that the electronic journal and electronic recording described in Section
451     46-1-14 that is maintained by the remote notary is a secure and authentic record of the remote
452     notarizations that the notary performs;
453          (ii) maintain a backup electronic journal and electronic recording; and
454          (iii) protect the backup electronic journal and electronic recording described in
455     Subsection (2)(a)(ii) from unauthorized access or use.
456          (b) (i) A remote notary may designate as a custodian of the remote notary's electronic
457     journal and electronic recording described in Section 46-1-14:
458          (A) subject to Subsection (3), the remote notary's employer that employs the remote
459     notary to perform notarizations; or
460          (B) except as provided in Subsection (2)(b)(iii), an electronic repository that grants the
461     remote notary sole access to the electronic journal and electronic recording and does not allow
462     the person who operates the electronic repository or any other person to access the journal,
463     information in the journal, or the electronic recording for any purpose.
464          (ii) A remote notary that designates a custodian under Subsection (2)(b)(i) shall
465     execute an agreement with the custodian that requires the custodian to comply with the safety
466     and security requirements of this chapter with regard to the electronic journal, the information
467     in the electronic journal, and the electronic recording.
468          (iii) An electronic repository described in Subsection (2)(b)(i)(B) may access an
469     electronic journal, information contained in an electronic journal, and the electronic recording:
470          (A) for a purpose solely related to completing, in accordance with this chapter, the
471     notarization for which the journal or information in the journal is accessed;
472          (B) for a purpose solely related to complying with the requirements to retain and store
473     records under this chapter; or
474          (C) if required under a court order.
475          [(2)] (3) The notary's employer may not require the notary to surrender the journal or
476     the electronic recording upon termination of the notary's employment.
477          Section 14. Section 46-1-16 is amended to read:
478          46-1-16. Official signature -- Official seal -- Destruction of seal -- Unlawful use of
479     seal -- Criminal penalties.
480          (1) In completing a notarial act, a notary shall sign on the notarial certificate exactly
481     and only the name indicated on the notary's commission.
482          (2) (a) [A] Except as provided in Subsection (2)(d), a notary shall keep an official
483     [notarial] seal, and a remote notary shall keep an electronic seal and electronic signature, that is
484     the exclusive property of the notary [and that].
485          (b) Except as provided in Subsection (2)(d), a notary's official seal, electronic seal, or
486     electronic signature may not be used by any other person.
487          [(b) Upon the resignation, revocation, or expiration of a notarial commission, the
488     notary shall destroy the notary's seal.]
489          (c) (i) Each [notarial seal obtained by a notary shall use purple ink] official seal used
490     for an in-person notarization shall be in purple ink.
491          (ii) Each official seal used for a remote notarization shall be rendered in black.
492          (d) (i) A remote notary may allow a person that provides an electronic seal to the
493     remote notary under Section 46-1-17 to act as guardian over the electronic seal.
494          (ii) Except as provided in Subsection (2)(d)(iii), a guardian described in Subsection
495     (2)(d)(i) shall store the seal in a secure manner that prevents any person from:
496          (A) accessing the seal, other than the guardian and the remote notary named on the
497     seal; or
498          (B) using the seal to perform a notarization, other than the remote notary named on the
499     seal.
500          (iii) A guardian that a notary designates under Subsection (2)(d)(i) may access and use
501     the seal of the notary:
502          (A) for a purpose solely related to completing, in accordance with this chapter, the
503     notarization, by the notary, for which the seal is accessed or used;
504          (B) for a purpose solely related to complying with the requirements to obtain, store,
505     and protect the seal under this chapter; or
506          (C) if required under a court order.
507          (3) (a) A notary shall obtain a new official seal:
508          (i) when the notary receives a new commission; or
509          (ii) if the notary changes the notary's name of record at any time during the notary's
510     commission.
511          (b) [A] Subject to Subsection (3)(c), a notary shall affix the official seal [impression]
512     near the notary's official signature on a notarial certificate and shall include a sharp, legible,
513     and photographically reproducible [ink impression of the notarial] rendering of the official seal
514     that consists of:
515          (i) the notary public's name exactly as indicated on the notary's commission;
516          (ii) the words "notary public," "state of Utah," and "my commission expires on
517     (commission expiration date)";
518          (iii) the notary's commission number, exactly as indicated on the notary's commission;
519          (iv) a facsimile of the great seal of the state; and
520          (v) a rectangular border no larger than one inch by two and one-half inches surrounding
521     the required words and official seal.
522          (c) When performing a remote notarization, a remote notary shall attach the remote
523     notary's electronic signature and electronic seal under Subsection (3)(b) to an electronic
524     notarial certificate in a manner that makes evident any subsequent change or modification to:
525          (i) the notarial certificate; or
526          (ii) any electronic record, that is a part of the notarization, to which the notarial
527     certificate is attached.
528          (4) A notary may use an embossed seal impression that is not photographically
529     reproducible in addition to, but not in place of, the photographically reproducible official seal
530     required in this section.
531          (5) A notary shall affix the [notarial] official seal in a manner that does not obscure or
532     render illegible any information or signatures contained in the document or in the notarial
533     certificate.
534          (6) A notary may not use [a notarial] an official seal independent of a notarial
535     certificate.
536          (7) [A] Except for a notarial certificate that is completed as a part of a remote
537     notarization, a notarial certificate on an annexation, subdivision, or other map or plat is
538     considered complete without the imprint of the notary's official seal if:
539          (a) the notary signs the notarial certificate in permanent ink; and
540          (b) the following appear below or immediately adjacent to the notary's signature:
541          (i) the notary's name and commission number appears exactly as indicated on the
542     notary's commission;
543          (ii) the words "A notary public commissioned in Utah"; and
544          (iii) the expiration date of the notary's commission.
545          (8) A notarial certificate on an electronic message or document is considered complete
546     without the [imprint of the] notary's official seal if the following information appears
547     electronically within the message or document:
548          (a) the notary's name and commission number appearing exactly as indicated on the
549     notary's commission; and
550          (b) the words "notary public," "state of Utah," and "my commission expires on______
551     (date)".
552          (9) (a) When a notary resigns or the notary's commission expires or is revoked, the
553     notary shall:
554          (i) destroy the notary's official seal and certificate; and
555          (ii) if the notary is a remote notary, destroy any coding, disk, certificate, card, software,
556     or password that enables the remote notary to affix the remote notary's electronic signature or
557     electronic seal to a notarial certificate.
558          (b) A former remote notary shall certify to the lieutenant governor in writing that the
559     former remote notary has complied with Subsection (9)(a)(ii) within 10 days after the day on
560     which the notary resigns or the notary's commission expires or is revoked.
561          (10) (a) A person who, without authorization, knowingly obtains, conceals, damages,
562     or destroys the certificate, disk, coding, card, program, software, or hardware enabling a remote
563     notary to affix an official electronic signature or electronic seal to an electronic record is guilty
564     of a class Ĥ→ [A] B ←Ĥ misdemeanor.
565          (b) A remote notary shall immediately notify the lieutenant governor if the notary
566     becomes aware that the notary's electronic signature, electronic seal, electronic journal, or
567     information from the journal has been lost, stolen, or used unlawfully.
568          Section 15. Section 46-1-17 is amended to read:
569          46-1-17. Obtaining official seal.
570          (1) A [vendor] person may not provide [a notarial seal, either inking or embossing, to a
571     person] an official seal to an individual claiming to be a notary, unless the [person presents a
572     photocopy of the person's] individual presents a copy of the individual's notarial commission,
573     attached to a notarized declaration substantially as follows:
574          Application for [Notary] Notary's Official Seal
575          I, __________________ (name of [person] individual requesting seal), declare that I am
576     a notary public duly commissioned by the state of Utah with a commission starting date of
577     __________, a commission expiration date of_______________, and a commission number of
578     ___________. As evidence, I attach to this [paper a photocopy] statement a copy of my
579     commission.
580          (2) (a) Except as provided in Subsection (2)(b), an individual may not create, obtain, or
581     possess an electronic seal unless the individual is a remote notary.
582          (b) A person is not guilty of a violation of Subsection (2)(a) if the person is a business
583     that creates, obtains, or possesses an electronic seal for the sole purpose of providing the
584     electronic seal to a certified remote notary.
585          [(2)] (3) A [vendor] person who provides [a notarial], creates, obtains, or possesses an
586     official seal in violation of this section is guilty of a class Ĥ→ [[] B [] A] ←Ĥ misdemeanor.
587          Section 16. Section 46-1-18 is amended to read:
588          46-1-18. Liability.
589          (1) A notary may be liable to any person for any damage to that person proximately
590     caused by the notary's misconduct in performing a notarization.
591          (2) (a) A surety for a notary's bond may be liable to any person for damages
592     proximately caused to that person by the notary's misconduct in performing a notarization, but
593     the surety's liability may not exceed the penalty of the bond or of any remaining bond funds
594     that have not been expended to other claimants.
595          (b) Regardless of the number of claimants under Subsection (2)(a), a surety's total
596     liability may not exceed the penalty of the bond.
597          (3) It is a class Ĥ→ [[] B [] A] ←Ĥ misdemeanor, if not otherwise a criminal offense
597a     under this code,
598     for:
599          (a) a notary to violate a provision of this chapter; or
600          (b) Ĥ→ [the employer of a notary] a notary's employer ←Ĥ to solicit the notary to violate a
600a     provision of this chapter.
601          Section 17. Section 46-1-21 is amended to read:
602          46-1-21. Resignation.
603          (1) A notary who resigns a notarial commission shall provide to the lieutenant
604     governor a notice indicating the effective date of resignation.
605          (2) A notary who ceases to reside in this state or who becomes unable to read and write
606     as provided in Section 46-1-3 shall resign the commission.
607          (3) A notary who resigns shall destroy the official seal and certificate in accordance
608     with Subsection 46-1-16(9).
609          Section 18. Section 53-10-108 is amended to read:
610          53-10-108. Restrictions on access, use, and contents of division records -- Limited
611     use of records for employment purposes -- Challenging accuracy of records -- Usage fees
612     -- Missing children records -- Penalty for misuse of records.
613          (1) As used in this section:
614          (a) "FBI Rap Back System" means the rap back system maintained by the Federal
615     Bureau of Investigation.
616          (b) "Rap back system" means a system that enables authorized entities to receive
617     ongoing status notifications of any criminal history reported on individuals whose fingerprints
618     are registered in the system.
619          (c) "WIN Database" means the Western Identification Network Database that consists
620     of eight western states sharing one electronic fingerprint database.
621          (2) Dissemination of information from a criminal history record, including information
622     obtained from a fingerprint background check, name check, warrant of arrest information, or
623     information from division files, is limited to:
624          (a) criminal justice agencies for purposes of administration of criminal justice and for
625     employment screening by criminal justice agencies;
626          (b) (i) agencies or individuals pursuant to a specific agreement with a criminal justice
627     agency to provide services required for the administration of criminal justice;
628          (ii) the agreement shall specifically authorize access to data, limit the use of the data to
629     purposes for which given, and ensure the security and confidentiality of the data;
630          (c) a qualifying entity for employment background checks for their own employees and
631     persons who have applied for employment with the qualifying entity;
632          (d) noncriminal justice agencies or individuals for any purpose authorized by statute,
633     executive order, court rule, court order, or local ordinance;
634          (e) agencies or individuals for the purpose of obtaining required clearances connected
635     with foreign travel or obtaining citizenship;
636          (f) agencies or individuals for the purpose of a preplacement adoptive study, in
637     accordance with the requirements of Sections 78B-6-128 and 78B-6-130;
638          (g) private security agencies through guidelines established by the commissioner for
639     employment background checks for their own employees and prospective employees;
640          (h) state agencies for the purpose of conducting a background check for the following
641     individuals:
642          (i) employees;
643          (ii) applicants for employment;
644          (iii) volunteers; and
645          (iv) contract employees;
646          (i) governor's office for the purpose of conducting a background check on the
647     following individuals:
648          (i) cabinet members;
649          (ii) judicial applicants; and
650          (iii) members of boards, committees, and commissions appointed by the governor;
651          (j) the office of the lieutenant governor for the purpose of conducting a background
652     check on an individual applying to be a notary public under Section 46-1-3.
653          [(j)] (k) agencies and individuals as the commissioner authorizes for the express
654     purpose of research, evaluative, or statistical activities pursuant to an agreement with a criminal
655     justice agency; and
656          [(k)] (l) other agencies and individuals as the commissioner authorizes and finds
657     necessary for protection of life and property and for offender identification, apprehension, and
658     prosecution pursuant to an agreement.
659          (3) An agreement under Subsection (2)[(j)](k) shall specifically authorize access to
660     data, limit the use of data to research, evaluative, or statistical purposes, preserve the
661     anonymity of individuals to whom the information relates, and ensure the confidentiality and
662     security of the data.
663          (4) (a) Before requesting information, a qualifying entity under Subsection (2)(c), state
664     agency, or other agency or individual described in Subsections (2)(d) through [(i)] (j) shall
665     obtain a signed waiver from the person whose information is requested.
666          (b) The waiver shall notify the signee:
667          (i) that a criminal history background check will be conducted;
668          (ii) who will see the information; and
669          (iii) how the information will be used.
670          (c) A qualifying entity under Subsection (2)(c), state agency, or other agency or
671     individual described in Subsections (2)(d) through (g) that submits a request for a noncriminal
672     justice name based background check of local databases to the bureau shall provide to the
673     bureau:
674          (i) personal identifying information for the subject of the background check; and
675          (ii) the fee required by Subsection (15)[(a)(ii)].
676          (d) A qualifying entity under Subsection (2)(c), state agency, or other agency or
677     individual described in Subsections (2)(d) through (g) that submits a request for a WIN
678     database check to the bureau shall provide to the bureau:
679          (i) personal identifying information for the subject of the background check;
680          (ii) a fingerprint card for the subject of the background check; and
681          (iii) the fee required by Subsection (15)[(a)(i)].
682          (e) Information received by a qualifying entity under Subsection (2)(c), state agency, or
683     other agency or individual described in Subsections (2)(d) through [(i)] (j) may only be:
684          (i) available to individuals involved in the hiring or background investigation of the job
685     applicant [or], employee, or notary applicant;
686          (ii) used for the purpose of assisting in making an employment appointment, selection,
687     or promotion decision or for considering a notary applicant under Section 46-1-3; and
688          (iii) used for the purposes disclosed in the waiver signed in accordance with Subsection
689     (4)(b).
690          (f) An individual who disseminates or uses information obtained from the division
691     under Subsections (2)(c) through [(i)] (j) for purposes other than those specified under
692     Subsection (4)(e), in addition to any penalties provided under this section, is subject to civil
693     liability.
694          (g) A qualifying entity under Subsection (2)(c), state agency, or other agency or
695     individual described in Subsections (2)(d) through [(i)] (j) that obtains background check
696     information shall provide the subject of the background check an opportunity to:
697          (i) review the information received as provided under Subsection (9); and
698          (ii) respond to any information received.
699          (h) In accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the
700     division may make rules to implement this Subsection (4).
701          (i) The division or its employees are not liable for defamation, invasion of privacy,
702     negligence, or any other claim in connection with the contents of information disseminated
703     under Subsections (2)(c) through [(i)] (j).
704          (5) (a) Any criminal history record information obtained from division files may be
705     used only for the purposes for which it was provided and may not be further disseminated,
706     except under Subsection (5)(b), (c), or (d).
707          (b) A criminal history provided to an agency pursuant to Subsection (2)(f) may be
708     provided by the agency to the individual who is the subject of the history, another licensed
709     child-placing agency, or the attorney for the adoptive parents for the purpose of facilitating an
710     adoption.
711          (c) A criminal history of a defendant provided to a criminal justice agency under
712     Subsection (2)(a) may also be provided by the prosecutor to a defendant's defense counsel,
713     upon request during the discovery process, for the purpose of establishing a defense in a
714     criminal case.
715          (d) A public transit district, as described in Title 17B, Chapter 2a, Part 8, Public
716     Transit District Act, that is under contract with a state agency to provide services may, for the
717     purposes of complying with Subsection 62A-5-103.5(5), provide a criminal history record to
718     the state agency or the agency's designee.
719          (6) The division may not disseminate criminal history record information to qualifying
720     entities under Subsection (2)(c) regarding employment background checks if the information is
721     related to charges:
722          (a) that have been declined for prosecution;
723          (b) that have been dismissed; or
724          (c) regarding which a person has been acquitted.
725          (7) (a) This section does not preclude the use of the division's central computing
726     facilities for the storage and retrieval of criminal history record information.
727          (b) This information shall be stored so it cannot be modified, destroyed, or accessed by
728     unauthorized agencies or individuals.
729          (8) Direct access through remote computer terminals to criminal history record
730     information in the division's files is limited to those agencies authorized by the commissioner
731     under procedures designed to prevent unauthorized access to this information.
732          (9) (a) The commissioner shall establish procedures to allow an individual right of
733     access to review and receive a copy of the individual's criminal history report.
734          (b) A processing fee for the right of access service, including obtaining a copy of the
735     individual's criminal history report under Subsection (9)(a) shall be set in accordance with
736     Section 63J-1-504.
737          (c) (i) The commissioner shall establish procedures for an individual to challenge the
738     completeness and accuracy of criminal history record information contained in the division's
739     computerized criminal history files regarding that individual.
740          (ii) These procedures shall include provisions for amending any information found to
741     be inaccurate or incomplete.
742          (10) The private security agencies as provided in Subsection (2)(g):
743          (a) shall be charged for access; and
744          (b) shall be registered with the division according to rules made by the division under
745     Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
746          (11) Before providing information requested under this section, the division shall give
747     priority to criminal justice agencies needs.
748          (12) (a) It is a class B misdemeanor for a person to knowingly or intentionally access,
749     use, disclose, or disseminate a record created, maintained, or to which access is granted by the
750     division or any information contained in a record created, maintained, or to which access is
751     granted by the division for a purpose prohibited or not permitted by statute, rule, regulation, or
752     policy of a governmental entity.
753          (b) A person who discovers or becomes aware of any unauthorized use of records
754     created or maintained, or to which access is granted by the division shall inform the
755     commissioner and the director of the Utah Bureau of Criminal Identification of the
756     unauthorized use.
757          (13) (a) Subject to Subsection (13)(b), a qualifying entity or an entity described in
758     Subsection (2)(b) may request that the division register fingerprints taken for the purpose of
759     conducting current and future criminal background checks under this section with:
760          (i) the WIN Database rap back system, or any successor system;
761          (ii) the FBI Rap Back System; or
762          (iii) a system maintained by the division.
763          (b) A qualifying entity or an entity described in Subsection (2)(b) may only make a
764     request under Subsection (13)(a) if the entity:
765          (i) has the authority through state or federal statute or federal executive order;
766          (ii) obtains a signed waiver from the individual whose fingerprints are being registered;
767     and
768          (iii) establishes a privacy risk mitigation strategy to ensure that the entity only receives
769     notifications for individuals with whom the entity maintains an authorizing relationship.
770          (14) The division is authorized to submit fingerprints to the FBI Rap Back System to
771     be retained in the FBI Rap Back System for the purpose of being searched by future
772     submissions to the FBI Rap Back System, including latent fingerprint searches.
773          (15) (a) The division shall impose fees set in accordance with Section 63J-1-504 for
774     the applicant fingerprint card, name check, and to register fingerprints under Subsection
775     (13)(a).
776          (b) Funds generated under this Subsection (15) shall be deposited into the General
777     Fund as a dedicated credit by the department to cover the costs incurred in providing the
778     information.
779          (c) The division may collect fees charged by an outside agency for services required
780     under this section.
781          (16) For the purposes of conducting a criminal background check authorized under
782     Subsection (2)(h) [or (2)(i)],(i), or (j), the Department of Human Resource Management, in
783     accordance with Title 67, Chapter 19, Utah State Personnel Management Act, and the
784     governor's office shall have direct access to criminal background information maintained under
785     Title 53, Chapter 10, Part 2, Bureau of Criminal Identification.
786          Section 19. Effective date.
787          This bill takes effect on November 1, 2019.