SB-0664, As Passed Senate, November 28, 2018

HOUSE SUBSTITUTE FOR

SENATE BILL NO. 664

     A bill to amend 2003 PA 238, entitled

"Michigan notary public act,"

by amending sections 3, 5, 7, 15, 26b, and 27 (MCL 55.263, 55.265,

55.267, 55.275, 55.286b, and 55.287), section 5 as amended by 2006

PA 426 and sections 15 and 27 as amended and 26b as added by 2018

PA 330, and by adding sections 26 and 26a.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

     Sec. 3. As used in this act:

     (a) "Acknowledgment" means the confirmation by a person a

declaration by an individual in the presence of a notary public

that he or she is placing or has placed his or her signature on has

signed a record for the purposes stated in the record and, if the

record is signed in a representative capacity, that he or she is

placing or has placed his or her signature on signed the record

with the proper authority and in the capacity signed it as the act

of the person represented and identified in the record.

     (b) "Cancellation" means the nullification of a notary public

commission due to an error or defect or because the notary public

is no longer entitled to the commission.

     (c) "Credential analysis" means a process or service by which

a third party affirms the validity of an identity document

described in section 25(6)(c) through a review of public and

proprietary data sources conducted remotely.

(d) (c) "Department" means the department of state.

(e) (d) "Electronic" means that term as defined in the uniform

electronic transactions act, 2000 PA 305, MCL 450.831 to 450.849.

relating to technology that has electrical, digital, magnetic,

wireless, optical, electromagnetic, or similar capabilities.

     (e) "Electronic signature in global and national commerce act"

means Public Law 106-229, 114 Stat. 464.

     (f) "Electronic notarization system" means a set or system of

applications, programs, hardware, software, or technologies

designed to enable a notary public to perform electronic

notarizations.

     (g) "Electronic signature" means an electronic sound, symbol,

or process attached to or logically associated with a record and

executed or adopted by an individual with the intent to sign the

record.

     (h) "Identity proofing" means a process or service by which a

third party provides a notary public with a reasonable means to

verify the identity of an individual through a review of personal

information from public or proprietary data sources conducted

remotely.

(i) (f) "Information" means that term as defined in the

electronic signature in global and national commerce act.includes

data, text, images, sounds, codes, computer programs, software, and

databases.

(j) (g) "In a representative capacity" means any of the

following:

     (i) For and on behalf of a corporation, limited liability

company, partnership, trust, association, or other legal entity as

an authorized officer, manager, agent, partner, trustee, or other

representative of the entity.

     (ii) As a public officer, personal representative, guardian,

or other representative in the capacity recited in the

document.record.

     (iii) As an attorney in fact for a principal.

     (iv) In any other capacity as an authorized representative of

another person.

(k) (h) "In the presence of" means in compliance with section

101(g) of title I of the electronic signature in global and

national commerce act, 15 USC 7001. either of the following:

     (i) In the same physical location with and close enough to

see, hear, communicate with, and exchange tangible identification

credentials with another individual.

     (ii) Interacting with another individual by means of audio and

visual communication technology that is part of a remote electronic

notarization platform approved under section 26b.

     Sec. 5. As used in this act:

     (a) "Jurat" means a certification by a notary public that a

signer, whose identity is personally known to the notary public or

proven on the basis of satisfactory evidence, has made in the

presence of the notary public a voluntary signature and taken an

oath or affirmation vouching for the truthfulness of the signed

record.

     (b) "Lineal ancestor" means an individual who is in the direct

line of ascent including, but not limited to, a parent or

grandparent.

     (c) "Lineal descendant" means an individual who is in the

direct line of descent including, but not limited to, a child or

grandchild.

     (d) "Notarial act" means any of the following:

     (i) An act, whether performed with respect to a tangible or

electronic record, that a notary public commissioned in this state

is authorized to perform including, but not limited to, the taking

of an acknowledgment, the administration of administering an oath

or affirmation, the taking of a verification upon oath or

affirmation, and the or witnessing or attesting a signature

performed in compliance with this act. and the uniform recognition

of acknowledgments act, 1969 PA 57, MCL 565.261 to 565.270.

     (ii) An act described in subparagraph (i) that is performed in

another jurisdiction and meets the requirements of section 25a.

     (e) "Notify" means to communicate or send a message by a

recognized mail, delivery service, or electronic means.

     (f) "Official misconduct" means either or both 1 or more of

the following:

     (i) The exercise of power or the performance of a duty that is

unauthorized, unlawful, abusive, negligent, reckless, or injurious.

     (ii) The charging of a fee that exceeds the maximum amount

authorized by law.

     (g) "Person" means every natural person, corporation,

partnership, trust, association, or other legal entity and its

legal successors.an individual or a corporation, business trust,

statutory trust, estate, partnership, trust, limited liability

company, association, joint venture, public corporation, government

or governmental subdivision, agency, or instrumentality, or any

other legal or commercial entity.

     (h) "Record" means that term as defined in the uniform

electronic transactions act, 2000 PA 305, MCL 450.831 to

450.849.information that is inscribed on a tangible medium or that

is stored in an electronic or other medium and is retrievable in

perceivable form.

     (i) "Remote electronic notarization platform" means any

combination of technology that enables a notary public to perform a

notarial act remotely; that allows the notary public to communicate

by sight and sound with the individual for whom he or she is

performing the notarial act, and witnesses, if applicable, by means

of audio and visual communication; and that includes features to

conduct credential analysis and identity proofing.

(j) (i) "Revocation" means the termination of a notary

public's commission to perform notarial acts.

     Sec. 7. As used in this act:

     (a) "Secretary" means the secretary of state acting directly

or through his or her duly authorized deputies, assistants, and

employees.or his or her designee.

     (b) "Signature" means a person's written or printed name or

electronic signature as that term is defined in the uniform

electronic transactions act, 2000 PA 305, MCL 450.831 to 450.849,

or the person's mark attached to or logically associated with a

record including, but not limited to, a contract and executed or

adopted by the person with the intent to sign the record.an

individual's written or printed name, electronic signature, or

mark, attached to or logically associated with a contract or other

record and executed, adopted, or made by the individual with the

intent to sign the record.

     (c) "State" means a state of the United States, the District

of Columbia, the Commonwealth of Puerto Rico, the United States

Virgin Islands, or any territory or insular possession subject to

the jurisdiction of the United States.

(d) (c) "Suspension" means the temporary withdrawal of the

notary's notary public's commission to perform notarial acts during

the period of the suspension.

(e) (d) "Verification upon oath or affirmation" means the

declaration by a declaration, made by an individual on oath or

affirmation before a notary public, that a statement in a record is

true.

     Sec. 15. (1) An individual shall apply to the secretary for

appointment as a notary public in a format as prescribed by the

secretary. An Unless the application is submitted electronically

under subsection (5), an application for appointment as a notary

public must include the handwritten signature of the applicant. and

An application must include all of the following information:

     (a) The applicant's name, residence address, business address,

date of birth, residence and business telephone numbers, and

electronic mail address.

     (b) The applicant's driver license or state personal

identification card number.

     (c) A validated copy of the filing of the bond, if applicable,

and oath certificate received from the county clerk.

     (d) If applicable, a statement showing whether the applicant

has previously applied for an appointment as a notary public in

this or any other state, the result of the application, and whether

the applicant has ever been the holder of a notary public

appointment that was revoked, suspended, or canceled in this or any

other state.

     (e) A statement describing the date and circumstances of any

felony or misdemeanor conviction of the applicant during the

preceding 10 years.

     (f) A declaration that the applicant is a citizen of the

United States or, if not a citizen of the United States, proof of

the applicant's legal presence in this country.

     (g) An affirmation by the applicant that the application is

correct, that the applicant has read this act, and that the

applicant will perform his or her notarial acts faithfully.

     (h) Any other information required by the secretary.

     (2) Each application shall be accompanied by an An application

processing fee of $10.00 must accompany an application or be paid

electronically under subsection (5). The secretary shall deposit

$1.00 of each fee collected under this subsection into the notary

education and training fund established in section 17 on a schedule

determined by the secretary.

     (3) When he or she receives an application that is accompanied

by and the prescribed processing fee, the secretary may inquire as

to the qualifications of the applicant and shall determine whether

the applicant meets the qualifications for appointment as a notary

public under this act. To assist in deciding whether the applicant

is qualified, the secretary may use the law enforcement information

network as provided in the C.J.I.S. policy council act, 1974 PA

163, MCL 28.211 to 28.215, or the internet criminal history access

tool (ICHAT) maintained by the department of state police, to check

the criminal background of the applicant.

     (4) After approval of an application for appointment as a

notary public, the secretary shall mail directly to the applicant

the certificate of appointment as a notary public. Each certificate

of appointment shall identify the individual as a notary public of

this state and shall specify the term and county of his or her

commission.

     (5) The secretary may develop and implement an electronic

application and payment process for individuals who are seeking

appointment as a notary public. Except as provided in this section,

all of the requirements of this section apply to an application or

payment made using this electronic process.

Sec. 26. (1) A notary public may select 1 or more tamper-

evident electronic notarization systems to perform notarial acts

electronically. A person may not require a notary public to perform

a notarial act electronically with an electronic notarization

system that the notary public has not selected.

     (2) Before a notary public performs the notary public's

initial notarial act electronically, the notary public shall notify

the secretary that the notary public will be performing notarial

acts electronically and identify the electronic notarization system

the notary public intends to use for electronic notarizations. If

the secretary and the department of technology, management, and

budget have approved the use of 1 or more electronic notarization

systems under section 26a, the notary public must select the system

he or she intends to use from the approved electronic notarization

systems. The secretary may disallow the use of an electronic

notarization system if the electronic notarization system does not

satisfy the criteria described in section 26a.

     Sec. 26a. (1) By March 30, 2019, the secretary and the

department of technology, management, and budget shall review and

approve at least 1 electronic notarization system for the

performance of electronic notarizations in this state. The

secretary and the department of technology, management, and budget

may approve multiple electronic notarization systems, and may grant

approval of additional electronic notarization systems on an

ongoing basis. The secretary and the department of technology,

management, and budget shall review the criteria for approval of

electronic notarization systems, and whether currently approved

electronic notarization systems remain sufficient for the

electronic performance of notarial acts, at least every 4 years.

     (2) Subject to subsection (3), in considering whether to

approve an electronic notarization system for use in this state

under subsection (1), the secretary and the department of

technology, management, and budget shall consider, at a minimum,

the following:

     (a) The need to ensure that any change to or tampering with an

electronic record containing the information required under this

act is evident.

     (b) The need to ensure integrity in the creation, transmittal,

storage, or authentication of electronic notarizations, records, or

signatures.

     (c) The need to prevent fraud or mistake in the performance of

electronic notarizations.

     (d) The ability to adequately investigate and authenticate a

notarial act performed electronically with that electronic

notarization system.

     (e) The most recent standards regarding electronic

notarizations or records promulgated by national bodies, including,

but not limited to, the National Association of Secretaries of

State.

     (f) The standards, practices, and customs of other

jurisdictions that allow electronic notarial acts.

     (3) If an electronic notarization system for the performance

of electronic notarizations is approved or certified by a

government-sponsored enterprise, as that term is defined in 2 USC

622(8), the secretary and the department of technology, management,

and budget shall approve the system for use in this state if

verifiable proof of that approval or certification is provided to

the secretary and department, unless the use of the electronic

notarization system is affirmatively disallowed by the secretary.

     Sec. 26b. (1) Beginning By March 30, 2019, the secretary and

the department of technology, management, and budget shall review

and may approve remote electronic notarization platforms for the

performance of notarial acts in this state. A notary public shall

not use a remote electronic notarization platform that is not

approved under this section.

     (2) Subject to subsection (3), in developing criteria for the

approval of any remote electronic notarization platform for use in

this state, the secretary of state and the department of

technology, management, and budget shall consider, at a minimum,

all of the following:

     (a) The need to ensure that any change to or tampering with an

electronic record containing the information required under this

act is evident.

     (b) The need to ensure integrity in the creation, transmittal,

storage, or authentication of remote electronic notarizations,

records, or signatures.

     (c) The need to prevent fraud or mistake in the performance of

remote electronic notarizations.

     (d) The ability to adequately investigate and authenticate a

notarial act performed remotely with that remote electronic

notarization platform.

     (e) The most recent standards regarding remote electronic

notarization promulgated by national bodies, including, but not

limited to, the National Association of Secretaries of State.

     (f) The standards, practices, and customs of other

jurisdictions that allow remote electronic notarial acts.

     (3) If a remote electronic notarization platform for the

performance of remote electronic notarizations is approved or

certified by a government-sponsored enterprise, as that term is

defined in 2 USC 622(8), the secretary of state and the department

of technology, management, and budget shall approve the platform

for use in this state if verifiable proof of that approval or

certification is provided to the secretary and department, unless

use of the remote electronic notarization platform is affirmatively

disallowed by the secretary.

     (4) The secretary and the department of technology,

management, and budget shall review their standards for approving

remote electronic notarization platforms for use in this state, and

whether the number of approved remote electronic notarization

platforms are sufficient, at least every 4 years.

     (5) A notary public may perform a notarial act using a remote

electronic notarization platform if either of the following is met:

     (a) The notary public makes all applicable determinations

under section 25 according to personal knowledge or satisfactory

evidence, performance of the notarial act complies with section 27,

and the notary public does not violate section 31 in the

performance of the notarial act.

     (b) The notary public, through use of the remote electronic

notarization platform, personal knowledge, or satisfactory

evidence, is able to identify the record before the notary public

as the same record presented by the individual for notarization.

     (6) The notary public shall not record by audio or visual

means a notarial act performed using a remote electronic

notarization platform, unless the notary public discloses to the

person that requested the notarial act that an audio or visual

recording is being made and how the recording will be preserved,

and the person consents or has previously consented to the

recording. A notary public may refuse to conduct a notarial act

using a remote electronic notarization platform if the person that

requested the notarial act objects to an audio or visual recording

of the notarial act.

     (7) If a notary public performs notarial acts using a remote

electronic notarization platform, the notary public shall maintain

a journal that records, at a minimum, each of those notarial acts.

A notary public shall maintain only 1 journal for the recording of

notarial acts and must keep the journal either as a tangible,

permanent bound register or in a tamper-evident, permanent

electronic format. A notary public shall retain the journal for at

least 10 years after the performance of the last notarial act

recorded in it. If a notary public is not reappointed, or his or

her commission is revoked, the former notary public shall inform

the secretary of state where the journal is kept or, if directed by

the secretary, shall forward the journal to the secretary or a

repository designated by the secretary.

     (8) A notary public shall make an entry in a journal

maintained under subsection (7) contemporaneously with performance

of the notarial act, and the entry must include, at a minimum, all

of the following:

     (a) The date, time, and nature of the notarial act.

     (b) A description of the record, if any.

     (c) The full name and address of each individual for whom the

notarial act is performed.

     (d) If the identity of the individual for whom the notarial

act is performed is based on personal knowledge, a statement to

that effect. If the identity of the individual for whom the

notarial act is performed is based on satisfactory evidence, a

brief description of the method of identification and the

identification credential presented, if any, including the date of

issuance and expiration for the credential.

     (e) The fee charged, if any, by the notary public.

     (9) An entry made in a journal maintained by a notary public

under subsection (7) must also reference, but shall not itself

contain, any audio or visual recording of a notarial act performed

using a remote electronic notarization platform. Subject to

subsection (1), a notary public must retain an audio or visual

recording of a notarial act for at least 10 years after the

performance of the notarial act.

     (10) A notary public may designate a custodian to do any of

the following:

     (a) Maintain the journal required under subsection (7) on his

or her behalf.

     (b) Retain an audio or visual recording of a notarial act

under subsection (9) on his or her behalf. If an audio or visual

recording of a notarial act is transferred to a custodian to hold

on behalf of the notary public, the journal entry must identify the

custodian with sufficient information to locate and contact that

custodian.

     (11) A notarial act performed using a remote electronic

notarization platform under this section that otherwise satisfies

the requirements of this act is presumed to satisfy any requirement

under this act that a notarial act be performed in the presence of

a notary public.

     (12) As used in this section:

     (a) "Credential analysis" means a process or service by which

a third party affirms the validity of an identity document

described in section 25(6)(c) through a review of public and

proprietary data sources conducted remotely.

     (b) "Identity proofing" means a process or service by which a

third party provides a notary public with a reasonable means to

verify the identity of an individual through a review of personal

information from public or proprietary data sources conducted

remotely.

     (c) "Remote electronic notarization platform" means any

combination of technology that enables a notary to perform a

notarial act remotely; that allows the notary public to communicate

by sight and sound with the individual for whom he or she is

performing the notarial act, and witnesses, if applicable, by means

of audio and visual communication; and that includes features to

conduct credential analysis and identity proofing.

     Sec. 27. (1) A notary public shall place his or her signature

on every record upon which he or she performs a notarial act. The

notary public shall sign his or her name exactly as his or her name

appears on his or her application for commission as a notary

public.

     (2) On each record that a notary public performs a notarial

act and immediately near the notary public's signature, as is

practical, the notary public shall print, type, stamp, or otherwise

imprint mechanically or electronically sufficiently clear and

legible to be read by the secretary and in a manner capable of

photographic reproduction all of the following in this format or in

a similar format that conveys all of the same information:

     (a) The name of the notary public exactly as it appears on his

or her application for commission as a notary public.

     (b) The statement: "Notary public, State of Michigan, County

of __________.".

     (c) The statement: "My commission expires __________.".

     (d) If performing a notarial act in a county other than the

county of commission, the statement: "Acting in the County of

__________.".

     (e) The date the notarial act was performed.

     (f) If applicable, whether the notarial act was performed

electronically using an electronic notarization system under

section 26a or performed using a remote electronic notarization

platform under section 26b.

     (3) A notary public may use a stamp, seal, or electronic

process that contains all of the information required by under

subsection (2). However, the notary public shall not use the stamp,

seal, or electronic process shall not be used in a manner that

renders anything illegible on the record being notarized. An A

notary public shall not use an embosser alone or use any other

method that cannot be reproduced. shall not be used.

     (4) The illegibility of the statements required in under

subsection (2) does not affect the validity of the transaction or

record that was notarized.

     Enacting section 1. This amendatory act takes effect 90 days

after the date it is enacted into law.

     Enacting section 2. This amendatory act does not take effect

unless all of the following bills of the 99th Legislature are

enacted into law:

     (a) Senate Bill No. 996.

     (b) Senate Bill No. 997.

     (c) Senate Bill No. 998.