N.J. Admin. Code § 17:50-1.14

Current through Register Vol. 56, No. 23, December 2, 2024

Section 17:50-1.14 - Requirements for use of communications technology

(a) If a notarial act relates to a statement made in, or a signature executed on, a record, the individual making the statement or executing the signature shall appear personally before the notarial officer or shall use communication technology to appear before the notarial officer.

(b) This section does not apply to a record to the extent it is governed by a law governing the creation and execution of wills or codicils, except as to a tangible record that is governed by a law governing the creation or execution of wills and codicils in which case, this section shall apply.

(c) As used in this section:

1. "Biometric identification" means using a human's physical or behavioral human features to digitally identify a person. Examples of biometric identification includes systems that use fingerprints and facial and voice patterns.

2. "Communication technology" means an electronic device or process that:

i. Allows a notarial officer and a remotely located individual to communicate with each other simultaneously by sight and sound; and

ii. When necessary and consistent with other applicable law, facilitates communication with a remotely located individual who has a vision, hearing, or speech impairment.

3. "Digital public key certificate" means an electronic credential issued by a trusted third-party that is used to identify a person who signed an electronic record.

4. "Dynamic knowledge-based authentication assessment" means identifying a person by asking the person a set of questions derived from public or private data sources for which the person has not been provided prior answers.

5. "Foreign state" means a jurisdiction other than the United States, a state, or a Federally recognized Indian tribe.

6. "Identity proofing" means a process or service by which a third person provides a notarial officer with a means to verify the identity of a remotely located individual by a review of personal information from public or private data sources.

7. "Outside the United States" means a location outside the geographic boundaries of the United States, Puerto Rico, the United States Virgin Islands, and any territory, insular possession, or other location subject to the jurisdiction of the United States.

8. "Remotely located individual" means an individual who is not in the physical presence of a notarial officer performing a notarial act.

(d) Before a notary public performs the notary public's initial notarial act pursuant to this section, the notary public must notify the State Treasurer electronically at www.nj.gov/njbgs that the notary public will be performing such notarial acts and identify the technologies the notary public intends to use.

(e) A remotely located individual may comply with this subchapter and N.J.S.A. 46:14-2.1.a and b (officers authorized to take acknowledgements and proofs) by using communication technology to appear before a notarial officer.

(f) A notarial act performed using communication technology for a remotely located individual is deemed performed in New Jersey and is governed by New Jersey law.

(g) A notarial officer located in this State may perform a notarial act using a communication technology for a remotely located individual, regardless of whether the individual is physically located in this State, if the notarial officer:

1. Ensures the remote session is interactive and secure, meaning the notary and person are viewing each other directly in real time and that the session cannot be viewed and/or recorded by an unauthorized party. The notarial officer must follow the security procedures of the National Notary Association, as supplemented

(http://www.nass.org/sites/default/files/resolutions/2018-02/nass-support-revised-enotarization-standards-winter18_0.pdf );

2. Is able reasonably to confirm that a record before the notarial officer is the same record in which the remotely located individual made a statement or on which the remotely located individual executed a signature;

3. Obtains satisfactory identification for the remotely located individual that, for purposes of this subsection, means:

i. Visually verifies a proof of identity document as set forth at N.J.A.C. 17:50-1.13(b)2; and

ii. Uses personal knowledge to authenticate the individual's identity, or one of the following methods of identity proofing to authenticate the individual's identity, which are incorporated herein by reference, as amended and supplemented:

(1) Dynamic knowledge-based authentication that is provided online by a third-party and that substantially follows recommended practices for this form of identification, as set forth by any of the three following authorities: National Notary Association (January 2017), available at: http://www.nationalnotary.org/file%20library/nna/reference-library/model-enotarization-act.pdf ; the National Association of Secretaries of State (February 19, 2018) at: http://www.nass.org/sites/default/files/resolutions/2018-02/nass-support-revised-enotarization-standards-winter18_0.pdf ; and the Mortgage Industry Standards Maintenance Organization (MISMO Remote Online Notarization Standards, Final Candidate Recommendation (CR) Version, Version 1.

(2019) . The Mortgage Industry Standards Maintenance Organization. Washington, D.C.) available at: www.mismo.org/standards-and-resources/emortgage-specifications/remot-online-notarization-standards ;

(2) Biometric identity verification that is in substantial compliance with National Institute of Standards and Technology requirements, as set forth at Special Publication 800-76-2, http://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.800-76-2.pdf; and

(3) Digital public key certificate issued by a trusted third-party in substantial compliance with the National Notary Association's recommended practice, set forth at:

http://www.nationalnotary.org/file%20library/nna/reference-library/model-enotarization-act.pdf , (Appendix II/Rule2, Public Key Certificate); and

iii. For a remotely located individual who is located outside the United States, ensures the record:

(1) Is to be filed with, or relates to, a matter before a public official or court, governmental entity, or other entity subject to the jurisdiction of the United States; or

(2) Involves property located in the territorial jurisdiction of the United States or involves a transaction substantially connected with the United States; and

iv. For the purposes of (g)3iii above, the act of making the statement or signing the record is not prohibited by the foreign state in which the remotely located individual is located;

4. Completes a certificate and stamp in accordance with the requirements set forth at N.J.A.C. 17:50-1.8(b), (c), (d), (e), (g), and (h); and

5. Creates an audio-visual recording of the performance of the notarial act.

(h) A notarial officer in this State may use communication technology to take an acknowledgement of a signature on a tangible record that is in the possession of the notary public if the record is displayed to, and identified by, the remotely located individual during the audio-visual session.

(i) A notarial officer may perform a notarial act with respect to a tangible record not physically present before the notarial officer, if:

1. The remotely located individual, during the audio-visual session:

i. Signs the record; and

ii. Signs a declaration, substantially in the following form, which is part of or securely attached to the record:

"I declare under penalty of perjury that the record to which this declaration is attached is the same record on which [name of notarial officer] performed a notarial act and before whom I appeared by means of communication technology on [date].

[Printed name of remotely located individual]

[Signature of remotely located individual"]; and

iii. Sends the record and declaration to the notarial officer not later than three days after the notarial act was performed; and

2. The notarial officer:

i. In the audio-visual recording required records the individual signing the record and declaration; and

ii. After receipt of the record and declaration from the individual, executes the notarial certificate and stamps the same as required at (g) above, which must include the following statement or words of similar import:

"I [name of notarial officer] witnessed, by means of communication technology, [name of remotely located individual] sign the attached record and declaration on [date]".

(j) A notarial act performed in compliance with (g) above is effective as of the date on which the declaration was signed by the remotely located individual.

(k) A notarial officer in this State may administer an oath to a remotely located individual using communication technology. The notarial officer shall identify the remotely located individual by obtaining satisfactory forms of identification pursuant to (g) above, creating an audio-visual recording of the individual taking the oath, and preserving a copy of the audio-visual recording for 10 years.

(l) If a notarial act is performed pursuant to this section, the certificate of notarial act as required at (g) above or the certificate required at N.J.S.A. 46:14-2.1.c must indicate that the notarial act was performed using communication technology.

(m) A notarial officer, a guardian, conservator, or agent of a notarial officer, or a personal representative of a deceased notarial officer shall retain the audio-visual recording created pursuant to this section or cause the recording to be retained by a repository designated by or on behalf of the person required to retain the recording, for a period of 10 years.

N.J. Admin. Code § 17:50-1.14

Adopted by 54 N.J.R. 268(b) effective 2/7/2022