Current through Register Vol. 50, No. 9, March 1, 2024
RELATES TO: KRS Chapter 423
NECESSITY, FUNCTION, AND CONFORMITY:
KRS
423.355,
423.415,
and
423.455
authorize the Secretary of State to promulgate administrative regulations to
implement
KRS
423.300 to
423.455,
and
KRS
423.390 requires the Secretary of State to
promulgate administrative regulations to establish forms and procedures
applicable to the registration of notaries public. This administrative
regulation establishes definitions, prescribes the process of granting,
renewing, conditioning, or denying a notary commission, establishes standards
for the performance of notarial acts with respect to electronic records,
establishes standards for the performance of online notarial acts, establishes
standards for the retention of records by notaries public authorized to perform
notarial acts with respect to electronic records and notarial acts involving
remotely located individuals using communication technology, and prescribes the
manner of performing notarial acts for tangible records.
Section 1. Definitions.
(1) "Digital Certificate" means an electronic
record, issued by a third-party certificate authority, which certifies the
ownership of a public key, rendering an electronic document as
tamper-evident.
(2) "Electronic
record" means information contained in or on a medium that requires electricity
to be perceived.
(3) "Notary
technology" means an electronic device or process that allows a notary public
to perform notarial acts with regard to electronic documents with or without
the use of communication technology.
(4) "Online notary public" means a notary
public who has registered to perform electronic notarizations.
(5) "Tangible record" means information
contained in or on a medium, whether an original or duplicate, that can be
perceived without the requirement of electricity.
Section 2. Notary Public Application,
Approval or Denial of Application, Voluntary Termination, and Required Notice
of Change of Information.
(1) Application. An
application for a commission as a notary public shall be submitted on a form
provided for that purpose by the Office of the Secretary of State or submitted
on an electronic portal established by the Office of the Secretary of State for
that purpose. A person who executes an application for filing with the
Secretary of State shall be deemed to have declared under penalty of perjury
that to the person's knowledge, the contents of the application are true. Every
application for a notarial commission shall include:
(a) The full legal name of the
applicant;
(b) The email address of
the applicant;
(c) A telephone
number for the applicant;
(d) The
signature of the applicant;
(e) The
county for which the application is being made;
(f) The physical and mailing address within
the county of application where the applicant resides or is employed;
(g) A statement of whether the applicant has
previously held a notary commission, the name under which the applicant was
previously commissioned, and the date at which the most recent commission
expired;
(h) A statement that the
applicant is at least eighteen years of age;
(i) A statement that the applicant is a
citizen or permanent legal resident of the United States;
(j) A statement that the applicant is able to
read and write English;
(k) A
statement identifying the surety provider from which the applicant intends to
obtain surety;
(l) A statement that
the applicant is not disqualified from becoming a notary public under the
provision of KRS Chapter 423 or this administrative regulation;
(m) A statement that the applicant is not
disqualified for any reason under Section 2(3)(a)-(f) of this administrative
regulation; and
(n) Payment of the
required fee.
(2)
Approval or Denial of Application. Approval of Application. If the applicant
has complied with the provisions of KRS Chapter 423 and this administrative
regulation, the application shall be approved. A notary commission shall be
effective as of the date of entry of that commission in the database of
notaries public on the website of the Secretary of State.
(3) Disapproval of Application. The Secretary
of State may disapprove the application for the following reasons:
(a) The applicant's failure to comply with
KRS Chapter 423 or the provisions of this administrative regulation or the
existence of a pending inquiry regarding the applicant's failure to comply with
KRS Chapter 423 or this administrative regulation;
(b) Any information required under this
administrative regulation is missing, inaccurate, incomplete, or cannot be
independently verified;
(c) A
fraudulent, dishonest, or deceitful misstatement or omission of fact in the
submitted application;
(d) A
finding against, or admission of liability by, the applicant in any legal
proceeding or disciplinary action based on the applicant's fraud, dishonesty,
or deceit;
(e) The denial, refusal
to renew, revocation, or suspension of an applicant's notary commission or
registration in another state; or
(f) Failure of the applicant to maintain the
required surety bond.
(4)
If the application or registration is disapproved, the Secretary of State shall
state the reasons for the disapproval.
(5) Voluntary Termination of Notary
Commission. A notary public may terminate his or her commission by notifying
the Office of the Secretary of State of that intent, in writing at: Secretary
of State, Division of Corporations, Notary Commissions, P.O. Box 821,
Frankfort, Kentucky 40602 or on any electronic portal created by the Office of
the Secretary of State for that purpose. Submission of a notification of
termination of a notary commission shall automatically terminate any notary
registration.
(6) Change of
Information. A notary public shall notify the Office of the Secretary of State,
in writing at: Secretary of State, Division of Corporations, Notary
Commissions, P.O. Box 821, Frankfort, Kentucky 40602, on a form promulgated by
the Office of the Secretary of State for that purpose or on any electronic
portal created by the Office of the Secretary of State for that purpose, during
the period of the notary's commission and within ten (10) days of the change in
any of the following information:
(a) The
notary's mailing, physical or electronic mail address;
(b) The notary's county of
residence;
(c) The notary's legal
name;
(d) The notary's
signature;
(e) The notary's
electronic signature, if any; or
(f) The notary technology used by the notary
public.
Section
3. Registration to Perform Notarial Acts with Respect to
Electronic Records and Electronic Notarizations.
(1) Authority to perform electronic and
online notarial acts. A notary public shall register to perform notarial acts
with respect to electronic records by: submitting the following information to
the Secretary of State:
(a) The registrant's
full legal name;
(b) The county in
which the registrant resides or has his or her place of employment or practice
in this Commonwealth;
(c) The
registrant's date of birth;
(d) The
registrant's notary identification number and the expiration date of the
registrant's notary commission;
(e)
The electronic mail address and mailing address where the registrant resides or
is employed;
(f) An indication of
whether the registrant is registering to perform notarial acts with respect to
electronic records or electronic notarizations, or both;
(g) A description of the notary technology
that the registrant intends to use to perform notarial acts with respect to
electronic records or electronic notarizations, or both, including the
technologies or devices to maintain the journal required under
KRS
423.380 and to render electronic records
tamper-evident after a notarial act is completed;
(h) A copy of the registrant's electronic
signature, the digital certificate required under Section 4 of this
administrative regulation, the official stamp, if any, along with any necessary
instructions or techniques supplied by a vendor or notary that allows the
signature and stamp to be read and authenticated in a portable document format
(.pdf);
(i) The name, address, and
Web site URL of any vendors or other persons that shall directly supply the
registrant with technology that he or she intends to use;
(j) A statement of whether the notary
technology provider has registered with the Secretary of State;
(k) A copy of any necessary instructions or
techniques supplied by a vendor that allow the registrant to conduct identity
proofing and credential analysis;
(l) An explanation of the methods or
technology by which the registrant shall maintain and store the journal
required by
KRS
423.380;
(m) A statement that the technologies or
devices named in the registration are compliant with KRS Chapter 423 and this
administrative regulation;
(n) A
copy of the registrant's surety bond in the amount of $1,000; and
(o) A disclosure of any convictions,
professional license or commission revocations, professional disciplinary
actions, or other disqualifying actions or proceedings taken under the laws of
any state against the registrant.
(2) Submission of registration form. The
registration form shall be submitted electronically to the Secretary of State
as provided by information posted on the Secretary of State's Web site at
https://sos.ky.gov/.
(3) Use of additional vendors. If, during the
term of his or her commission, a notary public intends to use the technologies
of a vendor or person other than those identified in subsection (1)(i) of this
Section, then an additional notification identifying the other vendors or
persons shall be submitted to the Secretary of State as provided in this
Section and in accordance with the manner established by the Secretary of State
as posted on the Secretary of State's Web site at
https://sos.ky.gov/.
(4)
(a)
Approval or disapproval by the Secretary of State. Approval of registration. If
the registrant has complied with the provisions of KRS Chapter 423 and this
administrative regulation, the registration to perform notarial acts with
respect to electronic records shall be approved within thirty (30) days of its
submission. A registration shall be effective as of the date of entry of that
registration in the database of the Secretary of State.
(b) Disapproval of registration. The
Secretary of State may disapprove and reject a registration for the following
reasons:
1. The registrant's failure to comply
with KRS Chapter 423 or the provisions of this administrative regulation or a
pending inquiry regarding the registrant's failure to comply with KRS Chapter
423 or this administrative regulation;
2. Any information required under this
Section is missing, inaccurate, or incomplete;
3. A fraudulent, dishonest, or deceitful
misstatement or omission in the submitted registration;
4. A finding against, or admission of
liability by, the registrant in any legal proceeding or disciplinary action
based on the registrant's fraud, dishonesty, or deceit;
5. Denial, refusal to renew, revocation, or
suspension of a notary commission or registration in another state;
or
6. Failure of the registrant to
maintain a surety bond in the amount of $1,000.
(5) If the registration is disapproved, the
Secretary of State shall state the reasons for the disapproval.
(6) Termination of electronic registration. A
notary public may terminate an electronic registration by notifying the Office
of the Secretary of State of that intent, in writing at: Secretary of State,
Division of Corporations, Notary Commissions, P.O. Box 821, Frankfort, Kentucky
40602 or on any electronic portal created by the Office of the Secretary of
State for that purpose. Termination of a notary's electronic registration shall
not terminate his or her commission.
(7) Renewal of commission. The renewal of the
commission of a notary public who has previously registered to perform notarial
acts with regard to electronic records or online notarizations under this
Section constitutes renewal of his or her registration without the necessity of
submitting another registration pursuant to this Section.
(8) Updated technology. Nothing in this
Section shall be construed to prohibit a notary public from receiving,
installing, or using a hardware or software update to the technologies that he
or she identified under this Section if the hardware or software update does
not result in technologies that are materially different from the technologies
that the notary public identified.
Section 4. Standards for the Performance of
Notarial Acts with Respect to Electronic Records.
(1) Tamper-evident technology requirements. A
notary public shall select one (1) or more tamper-evident technologies to
perform notarizations with regard to electronic records. No person shall
require a notary public to use a technology that the notary public has not
selected. The tamper-evident technology shall consist of a digital certificate
complying with the X.509 standard adopted by the International
Telecommunication Union or a similar industry-standard technology. A notary
public shall attach or logically associate his or her electronic signature and
official stamp, if any, to an electronic record that is the subject of a
notarial act by use of the digital certificate. A notary public shall not
perform an electronic notarization if the digital certificate:
(a) Has expired;
(b) Has been revoked or terminated by the
issuing or registering authority;
(c) Is invalid; or
(d) Is incapable of authentication.
(2)
(a) Requirements of official stamp. A notary
public shall not be required to use an official stamp when performing notarial
acts with respect to electronic records.
(b) A notary public who uses an official
stamp shall use the same unique official stamp for all notarial acts with
respect to electronic records that are performed for an individual that is not
remotely located. An official stamp under this Section is an official seal of
office of the notary public for all purposes. An official stamp shall conform
to the following requirements:
1. Required
information. An official stamp shall substantially conform to a rectangular or
circular seal design and shall include the name of the notary public as it
appears on his or her commission, the notary's commission number, the
commission expiration date, and the words "Commonwealth of Kentucky" and
"Notary Public".
2. Format and
size. When affixed to an electronic record, an official stamp shall be clear,
legible, and photographically reproducible. An official stamp shall not be
required to be within a minimum or maximum size when photographically
reproduced on an electronic record.
(3) If a notary public elects not to use an
official stamp when performing notarial acts with respect to electronic
records, the certificate of the notarial act on the electronic record shall:
(a) Contain the name of the notary public as
it appears on his or her commission;
(b) Indicate the title "Notary Public" for
any notarial act with respect to electronic records; and
(c) Indicate the notary's commission number
and commission expiration date.
(4) Use of electronic signature and stamping
device. A notary public shall be responsible for the security of his or her
stamping device and shall not allow another individual to use the device to
perform a notarial act. A notary public shall take reasonable steps to maintain
the security of the notary signature and stamping device and shall not disclose
any access information used to affix his or her electronic signature or
official stamp to electronic records, except:
(a) When requested by the Secretary of State
or a law enforcement officer;
(b)
When required by court order or subpoena; or
(c) Pursuant to an agreement to facilitate
notarial acts with a vendor or other technology provider identified in Section
5(6)(a) of this administrative regulation.
(5)
(a)
Protection against theft, alteration, or misuse. A notary public shall not
allow any other individual to alter or use his or her electronic signature,
notary technology, official stamp, or stamping device to perform a notarial
act.
(b) Upon resignation,
revocation, or expiration of the notary's commission, his or her notary
technology and electronic stamping device (including any coding, disk, digital
certificate, card, software, or password that enables the notary public to
attach or logically associate the notary's electronic signature or official
stamp to an electronic record) shall be destroyed or disabled to prohibit its
use by any other person. A former notary public whose commission terminated for
a reason other than revocation or denial of renewal is not required to destroy
his or her notary technology or electronic stamping device if the former notary
public is recommissioned as a notary public within thirty (30) days after the
termination of his or her former commission.
(c) A notary public shall promptly notify the
Secretary of State on actual knowledge of the theft or vandalism of the
notary's notary technology or electronic stamping device. A notary public shall
promptly notify the Secretary of State on actual knowledge of the unauthorized
use by another person of the notary's electronic signature, notary technology,
or electronic stamping device.
(6) Tangible copies of an electronic record.
A notary public may certify that a tangible copy of an electronic record is an
accurate copy of the electronic record if the notary has taken reasonable steps
to confirm the accuracy of that certification.
Section 5. Standards for Electronic
Notarizations.
(1) Notarial acts with respect
to electronic records. In performing electronic notarizations, an online notary
public shall comply with the registration requirements in Section 3 and the
standards for notarial acts with respect to electronic records in Section 4 of
this administrative regulation.
(2)
If used for electronic notarizations, an online notary public may use an
official stamp that shall contain the words "Online Notary Public" in lieu of
the words "Notary Public." A stamp that contains the words "Online Notary
Public" shall only be used to perform notarizations with regard to remotely
located individuals.
(3) Physical
location. An online notary public shall be physically located in this
Commonwealth at the time of the performance of the online
notarization.
(4) Identity
proofing. An online notary public shall have satisfactory evidence of the
identity of a remotely located individual if the online notary public has
personal knowledge of the identity of the individual. If an online notary
public does not have personal knowledge of the identity of a remotely located
individual, the online notary public shall reasonably verify the individual's
identity through at least two (2) different types of identity proofing
processes or services. Those processes shall include remote presentation of an
appropriate government-issued identification card that contains the signature
and photograph of the remotely located individual, credential analysis of that
government-issued identification card by a service or process that analyzes the
person's identity credential, binds the individual's identity to the individual
following a successful dynamic knowledge-based authentication assessment, and
permits the notary to visually compare the identity credential and the
individual. The analysis of the government-issued identification card and the
dynamic knowledge-based authentication assessment shall conform to the
following requirements:
(a) Credential
analysis. The analysis of a government-issued identification card shall use
public or private data sources to confirm the validity of the identity that is
the subject of remote presentation by a remotely located individual and, at a
minimum, shall:
1. Use automated software
processes to aid the online notary public in verifying the identity of each
remotely located individual;
2.
Require that the identity credential passes an authenticity test, consistent
with sound commercial practices that use appropriate technologies to confirm
the integrity of visual, physical, or cryptographic security features and to
confirm that the identity credential is not fraudulent or inappropriately
modified;
3. Use information held
or published by the issuing source or an authoritative source, as available and
consistent with sound commercial practices, to confirm the validity of personal
details and identity credential details; and
4. Enable the online notary public to
visually compare for consistency the information and photograph on the identity
credential and the remotely located individual as viewed by the online notary
public in real time through communication technology.
(b) Dynamic knowledge-based authentication. A
dynamic knowledge-based authentication assessment shall be successful if it
meets the following requirements:
1. The
remotely located individual shall answer a minimum of five (5) questions
related to the individual's personal history or identity formulated from public
or private data sources;
2. Each
question shall have a minimum of five (5) possible answer choices;
3. At least eighty (80) percent of the
questions shall be answered correctly;
4. All questions shall be answered within two
(2) minutes;
5. If the remotely
located individual fails the first attempt, the individual may attempt the
authentication assessment one (1) additional time within twenty-four (24)
hours;
6. During the second
authentication assessment, a minimum of forty (40) percent of the prior
questions shall be replaced;
7. If
the remotely located individual fails the second authentication assessment, the
individual shall not be allowed to attempt identity authentication with the
same online notary public within twenty-four (24) hours of the second failed
authentication assessment; and
8.
The online notary public shall not be able to see or record the questions or
answers.
(c)
1. Public key certificate. The identity of
the individual appearing before the online notary public may be verified by use
of a valid public key certificate that meets the requirements of a digital
certificate, complies with the X.509 standard adopted by the International
Telecommunication Union or a similar industry-standard technology, and is
issued by a technology provider or digital certificate service registered with
the Secretary of State pursuant to this administrative regulation.
2. A public key certificate shall not be
valid for identity verification if the public key certificate has expired, has
been revoked or terminated by the issuing or registering authority, is invalid,
or is incapable of authentication.
(5) Requirements for communication
technology. The communication technology used by an online notary public in the
performance of online notarizations shall conform to the following
requirements:
(a) Audio-video feeds.
Communication technology shall provide for synchronous audio-video feeds of
sufficient video resolution and audio clarity to enable the online notary
public and remotely located individual to see and speak with each other. The
process shall provide a means for the online notary public reasonably to
confirm that a record before the online notary public is the same record in
which the remotely located individual made a statement or on which the remotely
located individual executed a signature.
(b) Security measures. Communication
technology shall provide reasonable security measures to prevent unauthorized
access to:
1. The live transmission of
audio-visual feeds;
2. The methods
used to perform the identify verification process under subsection 4 of this
Section; and
3. The record in which
the remotely located individual made a statement or on which the remotely
located individual executed a signature.
(c) Work flow. If a remotely located
individual exits the workflow, the individual shall restart the identify
verification process under subsection 4 of this Section from the
beginning.
(d) Recording. All
notarial acts performed using communication technology shall be electronically
recorded. The recording shall contain a recitation that the notary has informed
the individuals participating in the notarial act that it shall be
electronically recorded.
(6)
(a)
Notary technology provider registration. A provider of technology used in the
process of electronic or online notarization shall register with Secretary of
State in the manner directed by the Secretary of State and provide the
following information:
1. The legal name of
the technology provider;
2. The
mailing address of the technology provider;
3. The physical address of the technology
provider;
4. A designated contact
person for that provider;
5. The
phone number, physical address, and email address of the contact
person;
6. The name of the
technology provided;
7. The name of
the provider or providers of the knowledge-based authentication, credential
analysis, or digital certificate services, if different from the technology
provider;
8. A description of the
technology used and the manner in which it complies with KRS Chapter 423 and
this administrative regulation;
9.
The process by which the technology provider verifies the identity of the
notary public or digital certificate holder using the technology;
10. A plan for the retention and disposition
of records created, generated, or retained in conjunction with the use of the
technology, including any electronic journal, recordings, or records created or
retained during an electronic or online notarization, in the event the
technology provider no longer engages in the business of providing electronic
or online notary technology; and
11. An authorized certification that the
technology provided complies with KRS Chapter 423 and this administrative
regulation.
(b) A
registration in compliance with this subsection is non-transferable and shall
not be conveyed to any other notary technology provider.
(7)
(a)
Complaint Against a Notary Technology Provider. A written complaint may be made
against a notary technology provider registered with the Office of the
Secretary of State. A complaint that does not comply with the requirements of
this subsection shall not be filed, responded to, or acted upon by the
Secretary of State.
(b) The Office
of the Secretary of State may commence an investigation of a registered notary
technology provider as a result of a complaint or upon its own
initiative.
(c) An investigation
under this subsection may include:
1. An
initial request for information from the accused provider;
2. A copy of the complaint forwarded to the
registration provider; and
3. A
request for supporting documentation and other sources of
information.
(d) A
provider shall provide true, accurate, and complete copies of all information
requested by the Office of the Secretary of State.
(e) Failure of a provider to comply with an
investigation directive may result in revocation of the provider's
registration.
(f) A finding that
the provider has failed to comply with the provisions of KRS Chapter 423 or
this administrative regulation may result in revocation of the provider's
registration.
(8) Duties
of Notary Technology Provider. A notary technology provider shall:
(a) Respond to a request for information from
the Office of the Secretary of State within the time directed. Any request for
information shall be sent to the addresses provided upon
registration;
(b) Take reasonable
steps to ensure that a notary public or digital certificate holder is able to
use the technology provided in accordance with this administrative regulation;
and
(c) Suspend the use of any
technology for any notary or digital certificate holder whose commission,
registration, or digital certificate has expired, been revoked, or
suspended.
Section
6. Record Retention Requirements for Notarial Acts with Respect to
Electronic Records and Electronic Notarizations. Record retention.
(1) A notary public that is registered to
perform notarial acts with respect to electronic records or electronic
notarizations shall maintain one (1) or more journals in a permanent,
tamper-evident electronic format to chronicle those notarizations.
(2) A journal entry shall be made
contemporaneously with the performance of the notarial act and shall contain:
(a) The date and time of the notarial
act;
(b) A brief description of the
record, if any, and the type of notarial act;
(c) The full name and address of each
individual for whom a notarial act is performed;
(d) A statement of how identification was
established and a description of any identification credential presented
including the type of credential and dates of issuance and expiration of the
credential;
(e) The fee charged, if
any; and
(f) For a notarial act
involving remotely located individuals using communication technology, an
audio-visual recording (or a link thereto) of the performance of the notarial
act that complies with KRS Chapter 423 and this administrative
regulation.
(3) A journal
shall be created and stored in a computer or other electronic storage device or
process that protects the electronic journal and any audio-visual recording
against unauthorized access by password or cryptographic process. A recording
shall be created in an industry-standard audio-visual file format and shall not
include images of any record in which a remotely located individual made a
statement or on which the remotely located individual executed a
signature.
(4) An electronic
journal shall be retained for at least ten (10) years after the last notarial
act chronicled in the journal. An audio-visual recording shall be retained for
at least ten (10) years after the recording is made.
(5) A journal entry shall not record
identification numbers assigned to an individual by a governmental agency or
any biometric identifier.
(6) A
notary public shall take reasonable steps to ensure that a backup of the
journal and audio-visual recording exists and is secure from unauthorized
use.
(7) On the death or
adjudication of incompetency of a current or former notary public who is
registered to perform notarial acts with respect to electronic records or
notarial acts involving remotely located individuals, the online notary's
personal representative or guardian or any other person knowingly in possession
of a journal or audio-visual recording shall:
(a) Comply with the retention requirements of
this subsection;
(b) Transmit the
journal and recording to one (1) or more repositories under this Section;
or
(c) Transmit the journal and
recording in an industry-standard readable data storage device to his or her
notary technology provider.
(8) Repositories. A notary public who is
registered to perform notarial acts with respect to electronic records or
electronic notarizations, a guardian, conservator, or agent of the notary
public, or a personal representative of a deceased online notary public may, by
written contract, engage a third person to act as a repository to provide the
storage required by this Section. A third person under contract under this
Section shall be deemed a repository or custodian under
KRS
423.380(8) or
KRS
423.455(5), as applicable.
The contract shall:
(a) Enable the registered
notary public, the guardian, conservator, or agent of the registered notary
public, or the personal representative of the deceased registered notary public
to comply with the retention requirements of this Section even if the contract
is terminated; or
(b) Provide that
the information shall be transferred to the registered notary public, the
guardian, conservator, or agent of the registered notary public, or the
personal representative of the deceased registered notary public if the
contract is terminated.
(9)
(a)
Lost, Stolen, or Improperly Accessed Journal. A notary public shall be
responsible for the security of his or her journal and shall not allow another
individual to use the journal to perform a notarial act. A notary public shall
take reasonable steps to maintain the security of the journal and shall not
allow access to his or her journal, except:
1.
When requested by the Secretary of State or a law enforcement
officer;
2. When required by court
order or subpoena; or
3. Pursuant
to an agreement to facilitate notarial acts with a vendor or other technology
provider identified in accordance with Section 5 of this administrative
regulation.
(b) A notary
public shall promptly notify the Secretary of State of a lost or stolen journal
upon discovering the journal is lost or stolen.
(10) Disposition of Notarial Records upon
Termination of Commission or Registration. Upon the revocation, resignation,
termination, or suspension of the commission of a notary public or the
revocation, resignation, termination, or suspension of the registration of a
notary public to perform notarial acts with respect to electronic records and
notarial acts involving remotely located individuals using communication
technology, the notary public shall retain the journal in accordance with the
provisions of this Section.
Section
7. Prior Notice to the Secretary of State and Standards for the
Use of Communication Technology in the Performance of Notarial Acts with
Respect to Tangible Records.
(1) A notary
public shall, prior to the initial use of communication technology in the
performance of notarial acts with respect to tangible records, notify the
Office of the Secretary of State in writing by email or regular U.S. mail. The
notice shall identify the communication technology the notary public has
selected that is capable of creating an audio-visual recording of the
performance of the notarial act. The Office of the Secretary of State shall
make an entry of the information provided in the notice.
(2) In using communication technology in the
performance of notarial acts with respect to tangible records, a notary public
shall have satisfactory evidence of the identity of a remotely located
individual if:
(a) The notary public has
personal knowledge of the identity of the remotely located
individual;
(b) The remotely
located individual is identified by oath or affirmation of a credible witness
appearing in person or by means of communication technology before the notary
public; or
(c) The notary public is
reasonably able to identify the remotely located individual by at least two (2)
different types of identity-proofing processes or services as provided in
Section 5(4) of this administrative regulation.
(3) A notary public who performs notarial act
with respect to tangible records shall create and maintain for a period of not
less than ten (10) years, an audio-visual recording of the performance of the
notarial act.
(4) A certificate
executed by a notary public for the performance of a notarial act using
communication technology with respect to tangible records shall contain the
statement, "This notarial act involved the use of communication
technology."
Section 8.
Notary Discipline.
(1) Failure to comply with
the provisions of
KRS
423.395 or this administrative regulation may
result in the denial, refusal to renew, revocation, suspension, or conditioning
of a notary public commission but shall not invalidate a notarial act performed
by a notary public.
(2) Denial,
refusal to renew, revocation, suspension, or conditioning of a notary
commission shall result upon notification to the Secretary of State of:
(a) A conviction of a felony or a crime
involving fraud, dishonesty, or deceit;
(b) A finding against, or admission of
liability by, the notary public in any legal proceeding or disciplinary action
alleging fraud, dishonesty, or deceit by the notary; or
(c) Judicial determination of liability in a
suit for fraud, misrepresentation, or failure to discharge the duties of a
notary public.
(3) A
notary public shall promptly notify the Secretary of State, in writing, of a
conviction, finding, admission of liability, or judicial determination of
liability as established in this Section.
(4) A person who knows of a violation may
file a complaint against a notary public with the Secretary of State.
(5) A complaint shall be in writing, dated,
and signed by the person making the complaint. A complaint that does not comply
with the requirements of this subsection shall not be filed, responded to, or
acted upon by the Secretary of State.
(6) Any condition, restriction, suspension,
or revocation of a notary commission shall have the same effect on the
electronic or online registration the notary public holds.
(7) The Secretary of State shall cause a
review of any complaint filed against a notary public to determine whether the
allegations in the complaint would establish a violation by a notary public,
and any appropriate disciplinary action, which shall be informed by the
following factors:
(a) Nature and severity of
the act, violation, or crime committed;
(b) Number and variety of current
violations;
(c) Evidence pertaining
to the requisite honesty, credibility, truthfulness, and integrity of the
notary public;
(d) Actual or
potential harm to the general public, group, individual or customer;
(e) History of complaints; and
(f) Prior disciplinary record or
warning;
(8) The
Secretary of State shall inform the notary public of any disciplinary action by
mailing a notice of disciplinary action to the home address of the notary
public on file. The notice shall inform the notary public of the basis for the
disciplinary action and the right to a hearing. Administrative proceedings
under this Section shall be governed by the provisions of KRS Chapter
13B.
(9) The Secretary of State
shall certify any disciplinary action to the clerk of the county in which the
notary public received his or her commission.
STATUTORY AUTHORITY:
KRS
423.355,
423.390,
423.395,
423.415,
423.455