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Nebraska: Emergency Rule, Early Implementation of Online Notary Public Act

April 2, 2020 - In effect through June 30, 2020, at which time the Online Notary Public Act becomes operative by its own terms. These emergency regulations will be replaced with codified regulations.

The Nebraska Secretary of State has adopted emergency rules effective April 2, 2020 to immediately implement Nebraska’s Online Notary Public Act, Neb. Rev. Stat. §§64-401 through 64-418. The emergency rules temporarily lift some requirements of law (for example, under the rule an Online Notary Public applicant need not take an approved course as a condition of registration, but still must take the course within 30 days of being notified by the Secretary of State that the course is available).

Definitions
The rule defines these key terms: “applicant,” “Approved Online Notary Solution Provider,” “biometric authentication,” “independently verifiable,” “Notary Public,” “online notarization system,” “password authentication,” “secretary,” “token authentication,” “under his or her exclusive control,” “under the Online Notary Public’s sole control.”

Online Notary Qualifications, Registration
To register as a Nebraska Online Notary Public, an applicant must:

  1. Hold a valid Nebraska Notary Public commission;
  2. Declare that he or she continues to meet the qualifications of a Notary Public;
  3. Take the required course of instruction* and pass the required examination;
  4. Pay the required registration fee ($50, new and renewing registrations); and
  5. Provide all information required for registration, including any other information requested by the Secretary of State to prove the applicant’s qualifications.
    * Online Notary Public applicants who qualify for registration prior to July 1, 2020 must take the required training course within 30 days after it is made available by the Secretary of State.

Online Notary Training, Exam
The Secretary of State administers the required training course and testing for Online Notary Public applicants. The Secretary may designate a third-party training course for applicants or appoint certified Notary Public instructors to administer the training course and testing.

A minimum 85% score is required to pass the exam. If an applicant fails the exam, his or her Online Notary registration will be denied and the applicant must wait 30 days to reapply for registration, including submitting a new Online Notary Public registration application, paying the registration fee, taking the training course again and passing the exam. An applicant who fails the examination three times will be considered incompetent to be registered as an Online Notary Public and ineligible to take the exam again.

Online Notary Registration Renewal
Registered Online Notaries Public wishing to renew their registration must indicate this intent on their Notary Public commission renewal application, and pay (submit) the fee for registration as an Online Notary Public in addition to (at the same time as) the fee for renewing his or her Notary Public commission. Failure to renew an Online Notary Public registration at the same time the individual is renewing his or her Notary Public commission will require the individual to submit a new Online Notary Public application and meet all requirements as if registering as an Online Notary Public for the first time.

Required Actions, End of Online Notary’s Registration
The administrative rule clarifies that the notification requirement specified in Neb. Rev. Stat. §64-413(1) (that the Online Notary or duly authorized representative has erased, deleted or destroyed the coding, disk, certificate, card, software, file, password or program that enables electronic affixation of the Online Notary’s electronic signature and seal) must be given in writing within three months after the triggering circumstance (the Online Notary’s registration expiration, resignation, cancellation or revocation or upon the Online Notary’s death, unless Neb. Rev. Stat. §64-413(2) applies).

Removal of Registration
Any violation by an Online Notary Public of Nebraska’s Online Notary Public Act or the Secretary’s administrative rules can result in removal of the Notary’s Online Notary Public registration, under procedures established in Nebraska’s statutes and administrative code (433 NAC 6 007.)

Location of Online Notary Public
A Nebraska Online Notary Public must be physically located in Nebraska when performing an online notarial act. The principal (document signer) need not be located in Nebraska.

Online Notary’s Electronic Signature, Seal
An Online Notary Public’s electronic signature and electronic seal must be:

  • • independently verifiable* and unique to the Online Notary;
    • retained under the Online Notary’s sole control;**
    • accessible by and attributable solely to the Online Notary Public to the exclusion of all other persons and entities for the entire time necessary to perform the notarial act

    * "Independently verifiable" means capable of government or third-party authentication of a notarial act, a Notary Public’s identity, and the Notary’s relevant authority.
    ** "Under the Online Notary Public’s sole control" means accessible by and attributable solely to the Online Notary Public to the exclusion of all other persons and entities, either through being in the direct physical custody of the Online Notary or through being secured with one or more biometric, password, or token authentication technologies, or other authentication technologies in an Online Notarization System provided by an Online Notary Solution Provider approved in accordance with the Online Notary Public Act and the Secretary’s administrative rules.

Additionally, an Online Notary Public’s electronic signature must be attached to or logically associated with the document, linking the data such that any alterations to the document or Online Notary’s notarial certificate made after the Online Notary has signed the certificate are visually observable.

An image of the Online Notary’s handwritten signature and seal must appear on any visual or printed representation of the online notarial certificate regardless of the technology used to affix the Online Notary’s electronic signature and seal. The appearance of the Online Notary’s seal on the electronic document must replicate the appearance of the Notary’s inked seal on paper.

The Online Notary seal image must contain a border, inside of which must appear the Online Notary Public’s name exactly as commissioned, identifying number and commission expiration date, as well as the words, “Online Notary Public” and “Nebraska.”

An Online Notary cannot obtain an Online Notary seal or electronic signature from an Online Notary solution provider unless the provider has already been approved by the Secretary of State.

Security of Online Notary’s Electronic Signature, Seal
Access to an Online Notary Public’s electronic signature and seal must be protected by use of an authentication method (password, token, biometric or other form of authentication), approved by the Secretary of State.

Neither an Online Notary Public’s employer nor any of the employer’s employees or agents may use or permit use of an Online Notary seal or electronic signature by anyone other than the Online Notary Public to whom they are registered.

An Online Notary Public must, pursuant to Neb. Rev. Stat. §64-410 and provisions of this Emergency Rule, immediately (upon discovery) report in writing to the Secretary of State the theft or vandalism of the Online Notary’s electronic signature, Online Notary seal, or electronic record (journal), including the backup record. [The administrative rule provides a 10-day period for notification, but the statute requires immediate notification.] Failure to comply with this requirement may result in removal of the Notary’s registration to act as an Online Notary Public.

Records of Online Notarizations (Secure Electronic Recordkeeping Required by Neb. Rev. Stat. §64-409)
In addition to meeting the requirements established by statute, an Online Notary must maintain secure electronic records of his or her online notarizations, including backup records, for at least 10 years after the date of the online notarial act. These records and any portion of them must be made available to the Secretary of State upon the Secretary’s request. Failure of the Online Notary Public to maintain the secure electronic record or the backup record for the required 10 years or to timely provide a record upon the Secretary’s request can result in removal of the Notary’s Online Notary Public registration.

Additional Online Notarization Procedures
For each acknowledgment online notarization performed, every principal’s signature requiring notarization/attestation in the form of an acknowledgment must be individually affixed to the electronic document by the principal, and must be separately acknowledged by the principal, except when the notarized electronic document is executed on behalf of certain specified parties (see “Separate Attestations”).

Online Notary Solution Providers, Online Notarization Systems
The rule contains extensive provisions for the Secretary of State’s approval of Online Notary solution providers, who offer the online notarization systems that enable an Online Notary Public to perform online notarizations. The rule also establishes that the Secretary may request any other information not detailed in the rule, but related to a provider’s online notarization system. Only Online Notary solution providers that have been approved by the Secretary of State may provide services to Nebraska Online Notaries. On the Secretary of State’s Electronic Notary Public Registration form, the applicant will report his or her chosen online notarization solution (technology), offered by an approved solution provider.

The rule establishes minimum performance standards for the communication technology, credential analysis and identity proofing functions provided by an Online Notary solution provider.

Online Notaries must notify the Secretary of State within 45 days after any change relative to Online Notary Systems or approved Online Notary solution providers. The rule specifies that an Online Notary’s new approved Online Notary solution provider—not the Online Notary—must submit an exemplary of the Online Notary’s new electronic signature and Online Notary seal to the Secretary

Approved Online Notary solution providers must notify the Secretary of any updates or subsequent versions of the provider’s online notarization system, within 45 days before making such updates or subsequent versions available to Nebraska Online Notaries. The updates to or subsequent versions of an approved provider’s online notarization system must meet all approval requirements, or the Secretary may remove the provider’s Approved Online Notary Solution Provider designation.

 

The content of this post was provided by the American Society of Notaries. ASN is the nation's original non-profit association that exists to provide its members with education, professional service and technical support; promoting high ethical standards; and increasing public awareness of notaries' valuable contributions.