SSSB 109: "An Act relating to the recording of documents; relating to notaries and notarization, including notarial acts performed for remotely located individuals; and providing for an effective date."
00 SPONSOR SUBSTITUTE FOR SENATE BILL NO. 109 01 "An Act relating to the recording of documents; relating to notaries and notarization, 02 including notarial acts performed for remotely located individuals; and providing for an 03 effective date." 04 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 05 * Section 1. AS 40.17.020(a) is amended to read: 06 (a) A conveyance that is eligible for recording under AS 40.17.030 and 07 40.17.110 may be offered for recording only in the recording district in which land 08 affected by the conveyance is located. If land affected by the conveyance is located in 09 more than one recording district, an original conveyance or an electronic version of 10 the conveyance may be offered for recording in the recording district in which part of 11 the land is located and an original, [OR] a certified copy, or an electronic version of 12 the conveyance may be offered for recording in each other recording district in which 13 part of the land is located. A certified copy or an electronic version of the 14 conveyance recorded has the same effect from the time it is recorded as though it were
01 the original conveyance. 02 * Sec. 2. AS 40.17.030(a) is amended to read: 03 (a) Except as provided in (b), (c), and (e) of this section, to be eligible for 04 recording, a document must 05 (1) contain original signatures; original signatures may be provided 06 in electronic form; 07 (2) be legible or capable of being converted into legible form by a 08 machine or device used in the recording office; 09 (3) be capable of being copied by the method used in the recording 10 office; 11 (4) contain a title reflecting the overall intent of the document; 12 (5) contain the information needed to index the document under 13 regulations of the department; 14 (6) contain a book and page reference or serial number reference if the 15 document amends, corrects, extends, modifies, assigns, or releases a document 16 previously recorded in this state; 17 (7) contain the name and address of a person to whom the document 18 may be returned after recording; 19 (8) if it is a deed, contain the mailing addresses of all persons named in 20 the document who grant or acquire an interest under the document; 21 (9) contain the name of the recording district in which it is to be 22 recorded; and 23 (10) be accompanied by the applicable recording fee set by regulation; 24 if the document is to be recorded for multiple purposes, it must be accompanied by the 25 applicable fee for each of the multiple purposes. 26 * Sec. 3. AS 40.17 is amended by adding a new section to read: 27 Sec. 40.17.140. Application of electronic provisions. (a) The provisions of 28 AS 09.80 (Uniform Electronic Transactions Act) apply to this chapter. 29 (b) In applying this chapter, the department shall accept notarial acts 30 performed for remotely located individuals under AS 44.50.075. 31 * Sec. 4. AS 44.50.033 is amended to read:
01 Sec. 44.50.033. Application fee. A person applying for a commission as a 02 notary public shall pay a nonrefundable application fee [OF $40]. The lieutenant 03 governor shall set the amount of the fee by regulation. However, an applicant for a 04 limited governmental notary public commission under AS 44.50.010(a)(2) who is 05 employed by the state may not be required to pay an application fee. 06 * Sec. 5. AS 44.50.034(a) is amended to read: 07 (a) A person applying for a commission as a notary public without limitation 08 under AS 44.50.010(a)(1) shall execute an official bond of $2,500 [$1,000] and submit 09 the bond with the application under AS 44.50.032. The bond must be for a term of 10 four years from the date of commission. 11 * Sec. 6. AS 44.50.060 is amended to read: 12 Sec. 44.50.060. Duties. A notary public may 13 (1) administer oaths and affirmations; 14 (2) take the acknowledgment of or proof of execution of instruments in 15 writing, and give a notarial certificate of the proof or acknowledgment, included in or 16 attached to the instrument; the notarial certificate shall be signed by the notary public 17 in the notary public's own handwriting or by electronic means as authorized by 18 regulations adopted by the lieutenant governor; 19 (3) give a notarial certificate that a tangible copy of an electronic 20 record is an accurate copy of the electronic record. 21 * Sec. 7. AS 44.50.062 is amended to read: 22 Sec. 44.50.062. Prohibited acts. A notary public may not 23 (1) violate state or federal law in the performance of acts authorized by 24 this chapter; 25 (2) influence a person to enter into or avoid a transaction involving a 26 notarial act by the notary public; 27 (3) affix the notary public's signature or seal on a notarial certificate 28 that is incomplete; 29 (4) charge a fee for a notarial act unless a fee schedule has been 30 provided to the signer before the performance of the notarial act; 31 (5) affix the notary public's official seal to a document unless the
01 person who is to sign the document 02 (A) except as provided by AS 44.50.075, appears and signs 03 the document before the notary public or, for an acknowledgment, appears and 04 indicates to the notary public that the person voluntarily affixed the person's 05 signature on the document for the purposes stated within the document; 06 (B) gives an oath or affirmation if required under law or if the 07 notarial certificate states that the document was signed under oath or 08 affirmation; [AND] 09 (C) in the case of a notarial act performed in the physical 10 presence of the notary public, is personally known to the notary public, 11 produces government-issued identification containing the photograph and 12 signature of the person signing, or produces 13 (i) government-issued identification containing the 14 signature of the person signing, but without a photograph; and 15 (ii) another valid identification containing the 16 photograph and signature of the person signing; and 17 (D) in the case of a notarial act performed for a remotely 18 located individual, satisfies the requirements of AS 44.50.075; 19 (6) perform a notarial act if the notary public 20 (A) is a signer of or named in the document that is to be 21 notarized; or 22 (B) will receive directly from a transaction connected with the 23 notarial act a commission, fee, advantage, right, title, interest, cash, property, 24 or other consideration exceeding in value the normal fee charged by the notary 25 for the notarial act. 26 * Sec. 8. AS 44.50.072 is amended to read: 27 Sec. 44.50.072. Regulations. The lieutenant governor shall [MAY] adopt 28 regulations under AS 44.62 (Administrative Procedure Act) to carry out the purposes 29 of this chapter. 30 * Sec. 9. AS 44.50.072 is amended by adding new subsections to read: 31 (b) The regulations adopted by the lieutenant governor under this section must
01 provide standards for 02 (1) communication technology and identity proofing; and 03 (2) sufficient forms of notarial certificates for notarial acts performed 04 for remotely located individuals. 05 (c) The regulations adopted by the lieutenant governor under this section may 06 (1) prescribe the manner of performing notarial acts regarding tangible 07 and electronic records; 08 (2) include provisions to ensure that a change to or tampering with a 09 record bearing a certificate of a notarial act is self-evident; 10 (3) include provisions to ensure integrity in the creation, transmittal, 11 storage, or authentication of electronic records or signatures; and 12 (4) include provisions to prevent fraud or a mistake in the performance 13 of notarial acts. 14 (d) In adopting, amending, or repealing a regulation regarding notarial acts 15 with respect to electronic records, the lieutenant governor shall consider, so far as is 16 consistent with this chapter, 17 (1) the most recent standards regarding electronic records adopted by 18 national bodies; 19 (2) standards, practices, and customs of other jurisdictions with 20 substantially similar provisions; and 21 (3) the views of other governmental officials and entities and other 22 interested persons. 23 (e) A regulation adopted by the lieutenant governor regarding the performance 24 of notarial acts with respect to electronic records may not require, or accord greater 25 legal status or effect to, the implementation or application of a specific technology or 26 technical specification. 27 * Sec. 10. AS 44.50 is amended by adding a new section to read: 28 Sec. 44.50.075. Notarial act performed for remotely located individual. (a) 29 A remotely located individual may comply with AS 44.50.062(5)(A) by using 30 communication technology to appear before a notary public. 31 (b) A notary public located in this state may perform a notarial act using
01 communication technology for a remotely located individual if 02 (1) the notary public has 03 (A) personal knowledge of the identity of the individual; 04 (B) obtained satisfactory evidence of the identity of the 05 remotely located individual by oath or affirmation from a credible witness 06 appearing before the notary public under AS 44.50.062(5)(A); or 07 (C) obtained satisfactory evidence of the identity of the 08 remotely located individual by using 09 (i) a government-issued identification card; 10 (ii) a credential analysis of the identification card 11 described in (i) of this subparagraph; in this sub-subparagraph, 12 "credential analysis" means a form of identity proofing by which a third 13 person affirms the accuracy of a government-issued identification card; 14 and 15 (iii) at least one type of identity proofing; 16 (2) the notary public is able reasonably to confirm that a record before 17 the notary public is the same record in which the remotely located individual made a 18 statement or on which the individual executed a signature; 19 (3) the notary public, or a person acting on behalf of the notary public, 20 creates an audiovisual recording of the performance of the notarial act; and 21 (4) for a remotely located individual located outside the United States, 22 (A) the record 23 (i) is to be filed with or relates to a matter before a 24 public official, court, governmental entity, or other entity subject to the 25 jurisdiction of the United States; or 26 (ii) involves property located in the territorial 27 jurisdiction of the United States or involves a transaction substantially 28 connected with the United States; and 29 (B) the act of making the statement or signing the record is not 30 prohibited by the foreign state in which the remotely located individual is 31 located.
01 (c) If a notarial act is performed under this section, the certificate of notarial 02 act required under AS 44.50.060 must state that the notarial act was performed using 03 communication technology. A statement is sufficient if it states substantially as 04 follows: "This notarial act involved the use of communication technology." 05 (d) A notary public, guardian, conservator, or agent of a notary public, or a 06 personal representative of a deceased notary public shall retain the audiovisual 07 recording created under (b)(3) of this section or cause the recording to be retained by a 08 repository designated by or on behalf of the person required to retain the recording. 09 Unless a different period is required by regulation adopted under (f)(4) of this section, 10 the recording must be retained for a period of at least 10 years after the recording is 11 made. 12 (e) Before a notary public performs the notary public's initial notarial act 13 under this section, the notary public shall notify the lieutenant governor that the notary 14 public will be performing notarial acts with respect to remotely located individuals 15 and identify the communication technologies the notary public intends to use. If the 16 lieutenant governor has established standards under (f)(3) of this section or 17 AS 44.50.072 for approval of communication technology or identity proofing, the 18 communication technologies and identity proofing must conform to the standards. 19 (f) In addition to adopting regulations under AS 44.50.072, the lieutenant 20 governor may adopt regulations regarding performance of a notarial act under this 21 section. The regulations may 22 (1) prescribe the means of performing a notarial act involving a 23 remotely located individual using communication technology; 24 (2) establish standards for communication technology and identity 25 proofing; 26 (3) establish requirements or procedures to approve providers of 27 communication technology and the process of identity proofing; and 28 (4) establish standards and a period for the retention of an audiovisual 29 recording created under (b)(3) of this section. 30 (g) Before adopting, amending, or repealing a regulation governing 31 performance of a notarial act with respect to a remotely located individual, the
01 lieutenant governor shall consider 02 (1) the most recent standards regarding the performance of a notarial 03 act with respect to a remotely located individual adopted by national standard-setting 04 organizations; 05 (2) standards, practices, and customs of other jurisdictions that have 06 laws substantially similar to this section; and 07 (3) the views of other governmental officials and entities and other 08 interested persons. 09 (h) By allowing its communication technology or identity proofing to facilitate 10 a notarial act for a remotely located individual or by providing storage of the 11 audiovisual recording created under (b)(3) of this section, the provider of the 12 communication technology, identity proofing, or storage appoints the lieutenant 13 governor as the provider's agent for service of process in any civil action in this state 14 related to the notarial act. 15 (i) In this section, 16 (1) "foreign state" means a jurisdiction other than the United States, a 17 state, or a federally recognized Indian tribe; 18 (2) "outside the United States" means a location outside the geographic 19 boundaries of the United States, the Commonwealth of Puerto Rico, the United States 20 Virgin Islands, and a territory, insular possession, or other location subject to the 21 jurisdiction of the United States. 22 * Sec. 11. AS 44.50 is amended by adding a new section to read: 23 Sec. 44.50.078. Journal. (a) A notary public shall maintain a journal in which 24 the notary public chronicles all notarial acts that the notary public performs under 25 AS 44.50.075. The notary public shall retain the journal for 10 years after the 26 performance of the last notarial act chronicled in the journal. 27 (b) A notary public may create a journal on a tangible medium or in an 28 electronic format. A notary public shall maintain at least one journal in a tangible 29 medium to chronicle all notarial acts described in (a) of this section. A notary public 30 may maintain one or more journals in an electronic format to chronicle all notarial acts 31 described in (a) of this section. If a journal is maintained in an electronic format, the
01 journal must be in a permanent, tamper-evident electronic format complying with the 02 regulations of the lieutenant governor under AS 44.50.072. 03 (c) A notary shall make an entry in a journal contemporaneously with 04 performance of the notarial act, and an entry must contain the following information: 05 (1) the date and time of the notarial act; 06 (2) a description of the record, if any, and type of notarial act; 07 (3) the full name and address of each individual for whom the notarial 08 act is performed; 09 (4) if identity of the individual is based on personal knowledge, a 10 statement to that effect; 11 (5) if identity of the individual is based on satisfactory evidence, a 12 brief description of the method of identification and the identification credential 13 presented, if any, including the date of issuance and expiration of the identification 14 credential; and 15 (6) the fee, if any, charged by the notary public. 16 (d) If a notary public's journal is lost or stolen, the notary public shall 17 promptly notify the lieutenant governor upon discovering that the journal is lost or 18 stolen. 19 (e) Upon resignation from, or revocation or suspension of, a notary public's 20 commission, the notary public shall retain the notary public's journal in accordance 21 with (a) of this section and inform the lieutenant governor where the journal is located. 22 * Sec. 12. AS 44.50 is amended by adding a new section to read: 23 Sec. 44.50.145. Notification regarding performance of notarial act on 24 electronic record; selection of technology; acceptance of tangible copy of 25 electronic record. (a) A notary public may select one or more tamper-evident 26 technologies with which to perform notarial acts with respect to electronic records. A 27 person may not require a notary public to perform a notarial act with respect to an 28 electronic record with a technology that the notary public has not selected. 29 (b) Before a notary public performs the notary public's initial notarial act with 30 respect to an electronic record, a notary public shall notify the lieutenant governor that 31 the notary public will be performing notarial acts with respect to electronic records
01 and identify the technology the notary public intends to use. If the lieutenant governor 02 has established standards for approval of technology under AS 44.50.072, the 03 technology must conform to the standards. If the technology conforms to the 04 standards, the lieutenant governor shall approve the use of the technology. 05 (c) A recorder may accept for recording a tangible copy of an electronic 06 record containing a notarial certificate as satisfying any requirement that a record 07 accepted for recording be an original, if the notarial officer executing the notarial 08 certificate certifies that the tangible copy is an accurate copy of the electronic record. 09 * Sec. 13. AS 44.50 is amended by adding a new section to read: 10 Sec. 44.50.165. Validity of notarial acts. The failure of a notarial officer to 11 perform a duty or meet a requirement specified in this chapter does not invalidate a 12 notarial act performed by the notarial officer. The validity of a notarial act under this 13 chapter does not prevent an aggrieved person from seeking to invalidate the record or 14 transaction that is the subject of the notarial act or from seeking other remedies based 15 on a law of this state other than this chapter or a law of the United States. This section 16 does not validate a purported notarial act performed by an individual who does not 17 have the authority to perform a notarial act. 18 * Sec. 14. AS 44.50 is amended by adding a new section to read: 19 Sec. 44.50.185. Relation to Electronic Signatures in Global and National 20 Commerce Act. This chapter modifies, limits, and supersedes 15 U.S.C. 7001 - 7031 21 (Electronic Signatures in Global and National Commerce Act) but does not modify, 22 limit, or supersede 15 U.S.C. 7001(c) or authorize electronic delivery of any of the 23 notices described in 15 U.S.C. 7003(b). 24 * Sec. 15. AS 44.50.200(2) is amended to read: 25 (2) "notarial act" means an act, whether performed with respect to a 26 tangible or electronic record, that is identified as a notarial act under AS 09.63.120 27 and an act that a notary public is directed to perform under AS 44.50.060; 28 * Sec. 16. AS 44.50.200 is amended by adding new paragraphs to read: 29 (4) "acknowledgment" means a declaration by an individual before a 30 notarial officer that the individual has signed a record for the purpose stated in the 31 record and, if the record is signed in a representative capacity, that the individual
01 signed the record with proper authority and signed it as the act of the individual or 02 entity identified in the record; 03 (5) "communication technology" means an electronic device or process 04 that 05 (A) allows a notary public and a remotely located individual to 06 communicate with each other simultaneously by sight and sound; and 07 (B) when necessary and consistent with other applicable law, 08 facilitates communication with a remotely located individual who has a visual, 09 hearing, or speech impairment; 10 (6) "electronic" means relating to technology having electrical, digital, 11 magnetic, wireless, optical, electromagnetic, or similar capabilities; 12 (7) "electronic signature" means an electronic sound, symbol, or 13 process attached to or logically associated with a record and executed or adopted by an 14 individual with the intent to sign the record; 15 (8) "identity proofing" means a process or service by which a third 16 person provides a notary public with a means to verify the identity of a remotely 17 located individual by a review of personal information from public or private data 18 sources; 19 (9) "in a representative capacity" means acting as 20 (A) an authorized officer, agent, partner, trustee, or other 21 representative for a person other than an individual; 22 (B) a public officer, personal representative, guardian, or other 23 representative in the capacity stated in a record; 24 (C) an agent or attorney-in-fact for a principal; or 25 (D) an authorized representative of another in any other 26 capacity; 27 (10) "notarial officer" means a notary public or other individual 28 authorized to perform a notarial act; 29 (11) "record" means information that is inscribed on a tangible 30 medium or that is stored in an electronic or other medium and is retrievable in 31 perceivable form;
01 (12) "remotely located individual" means an individual who is not in 02 the physical presence of a notary public who performs a notarial act under 03 AS 44.50.075; 04 (13) "sign" means, with present intent to authenticate or adopt a 05 record, to 06 (A) execute or adopt a tangible symbol; or 07 (B) attach to or logically associate with the record an electronic 08 symbol, sound, or process; 09 (14) "signature" means a tangible symbol or an electronic signature 10 that evidences the signing of a record. 11 * Sec. 17. The uncodified law of the State of Alaska is amended by adding a new section to 12 read: 13 APPLICABILITY. (a) Sections 1 - 3 of this Act apply to the recording of documents 14 on or after the effective date of secs. 1 - 3 of this Act. 15 (b) Sections 4 - 16 of this Act apply to a notarial act performed on or after the 16 effective date of secs. 4 - 16 of this Act. 17 (c) Sections 4 and 5 of this Act apply to a person who applies for a new or subsequent 18 commission as a notary public under AS 44.50.032 or 44.50.038 on or after the effective date 19 of secs. 4 and 5 of this Act. 20 (d) In this section, 21 (1) "document" has the meaning given in AS 40.17.900; 22 (2) "notary public" has the meaning given in AS 44.50.200, as amended by 23 sec. 15 of this Act. 24 * Sec. 18. The uncodified law of the State of Alaska is amended by adding a new section to 25 read: 26 TRANSITION: REGULATIONS. The lieutenant governor may adopt regulations 27 necessary to implement the changes made by secs. 1 - 16 of this Act. The regulations adopted 28 under this section take effect under AS 44.62 (Administrative Procedure Act), but not before 29 the effective date of secs. 1 - 16 of this Act. 30 * Sec. 19. The uncodified law of the State of Alaska is amended by adding a new section to 31 read:
01 SAVING CLAUSE. (a) This Act does not affect the validity or effect of a document 02 recorded before the effective date of secs. 1 - 3 of this Act. In this subsection, "document" has 03 the meaning given in AS 40.17.900. 04 (b) This Act does not affect the validity or effect of a notarial act performed before 05 the effective date of secs. 4 - 16 of this Act. In this subsection, "notarial act" has the meaning 06 given in AS 44.50.200, as amended by sec. 15 of this Act. 07 * Sec. 20. Section 18 of this Act takes effect immediately under AS 01.10.070(c). 08 * Sec. 21. Except as provided in sec. 20 of this Act, this Act takes effect January 1, 2021.