Amendment SSA1-SB317

SB317-SSA1,42 Section 42 . 140.12 of the statutes is created to read:

SB317-SSA1,19,5 140.12 Notarial act under authority of federally recognized Indian tribe. (1) A notarial act performed under the authority and in the jurisdiction of a federally recognized Indian tribe has the same effect as if performed by a notarial officer of this state, if the act performed in the jurisdiction of the tribe is performed by any of the following:

SB317-SSA1,19,6 (a) A notary public of the tribe.

SB317-SSA1,19,7 (b) A judge, clerk, or deputy clerk of a court of the tribe.

SB317-SSA1,19,9 (c) Any other individual authorized by the law of the tribe to perform the notarial act.

SB317-SSA1,19,13 (2) The signature and title of an individual performing a notarial act under the authority of and in the jurisdiction of a federally recognized Indian tribe are prima facie evidence that the signature is genuine and that the individual holds the designated title.

SB317-SSA1,19,15 (3) The signature and title of a notarial officer described in sub. (1) (a) or (b) conclusively establish the authority of the officer to perform the notarial act.

SB317-SSA1,43 Section 43 . 140.13 of the statutes is created to read:

SB317-SSA1,19,20 140.13 Notarial act under federal authority. (1) A notarial act performed under federal law has the same effect under the law of this state as if performed by a notarial officer of this state, if the act performed under federal law is performed by any of the following:

SB317-SSA1,19,21 (a) A judge, clerk, or deputy clerk of a court.

SB317-SSA1,19,23 (b) An individual in military service or performing duties under the authority of military service who is authorized to perform notarial acts under federal law.

SB317-SSA1,19,25 (c) An individual designated a notarizing officer by the federal department of state for performing notarial acts overseas.

SB317-SSA1,20,1 (d) Any other individual authorized by federal law to perform the notarial act.

SB317-SSA1,20,4 (2) The signature and title of an individual acting under federal authority and performing a notarial act are prima facie evidence that the signature is genuine and that the individual holds the designated title.

SB317-SSA1,20,6 (3) The signature and title of an officer described in sub. (1) (a), (b), or (c) conclusively establish the authority of the officer to perform the notarial act.

SB317-SSA1,44 Section 44 . 140.14 of the statutes is created to read:

SB317-SSA1,20,10 140.14 Foreign notarial act. (1) In this section, “foreign state” means a government other than the United States, a state, or a federally recognized Indian tribe.

SB317-SSA1,20,15 (2) If a notarial act is performed under authority and in the jurisdiction of a foreign state or constituent unit of the foreign state or is performed under the authority of a multinational or international governmental organization, the act has the same effect under the law of this state as if performed by a notarial officer of this state.

SB317-SSA1,20,19 (3) If the title of office and indication of authority to perform notarial acts in a foreign state appear in a digest of foreign law or in a list customarily used as a source for that information, the authority of an officer with that title to perform notarial acts is conclusively established.

SB317-SSA1,20,22 (4) The signature and official stamp of an individual holding an office described in sub. (3) are prima facie evidence that the signature is genuine and the individual holds the designated title.

SB317-SSA1,21,2 (5) An apostille in the form prescribed by the Hague Convention of October 5, 1961, and issued by a foreign state party to the convention conclusively establishes that the signature of the notarial officer is genuine and that the officer holds the indicated office.

SB317-SSA1,21,7 (6) A consular authentication issued by an individual designated by the federal department of state as a notarizing officer for performing notarial acts overseas and attached to the record with respect to which the notarial act is performed conclusively establishes that the signature of the notarial officer is genuine and that the officer holds the indicated office.

SB317-SSA1,45 Section 45 . 140.145 of the statutes is created to read:

SB317-SSA1,21,10 140.145 Notarial act performed for remotely located individual. (1) In this section:

SB317-SSA1,21,12 (a) “Communication technology” means an electronic device or process that satisfies all of the following:

SB317-SSA1,21,14 1. The device or process allows a notary public and a remotely located individual to communicate with each other simultaneously by sight and sound.

SB317-SSA1,21,17 2. When necessary and consistent with other applicable law, the device or process facilitates communication with a remotely located individual who has a vision, hearing, or speech impairment.

SB317-SSA1,21,19 (b) “Foreign state” means a jurisdiction other than the United States, a state, or a federally recognized Indian tribe.

SB317-SSA1,21,22 (c) “Identity proofing” means a process or service by which a 3rd person provides a notary public with a means to verify the identity of a remotely located individual by a review of personal information from public or private data sources.

SB317-SSA1,22,2 (d) “Outside the United States” means a location outside the geographic boundaries of the United States, Puerto Rico, the U.S. Virgin Islands, and any territory, insular possession, or other location subject to the jurisdiction of the United States.

SB317-SSA1,22,4 (e) “Remotely located individual” means an individual who is not in the physical presence of the notary public who performs a notarial act under sub. (3).

SB317-SSA1,22,7 (1m) For purposes of determining the jurisdiction in which a notarial act is performed for a remotely located individual, the location of the notary public shall be determinative.

SB317-SSA1,22,9 (2) A remotely located individual may comply with s. 140.06 by using communication technology to appear before a notary public.

SB317-SSA1,22,12 (3) Except for the administration of an oath before a witness at a deposition, a notary public located in this state may perform a notarial act using communication technology for a remotely located individual if all of the following apply:

SB317-SSA1,22,13 (a) The notary public has any of the following:

SB317-SSA1,22,14 1. Personal knowledge under s. 140.07 (1) of the identity of the individual.

SB317-SSA1,22,17 2. Satisfactory evidence of the identity of the remotely located individual by oath or affirmation from a credible witness appearing before the notary public under s. 140.07 (2) or this section.

SB317-SSA1,22,19 3. Obtained satisfactory evidence of the identity of the remotely located individual by using at least 2 different types of identity proofing.

SB317-SSA1,22,22 (b) The notary public is able reasonably to confirm that a record before the notary public is the same record in which the remotely located individual made a statement or on which the individual executed a signature.

SB317-SSA1,22,24 (c) The notary public, or a person acting on behalf of the notary public, creates an audio-visual recording of the performance of the notarial act.

SB317-SSA1,23,2 (d) For a remotely located individual located outside the United States, all of the following are satisfied:

SB317-SSA1,23,3 1. The record satisfies any of the following requirements:

SB317-SSA1,23,6 a. The record 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.

SB317-SSA1,23,9 b. The record involves property located in the territorial jurisdiction of the United States or involves a transaction substantially connected with the United States.

SB317-SSA1,23,11 2. 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.

SB317-SSA1,23,14 (4) If a notarial act is performed under this section, the certificate of notarial act required by s. 140.15 and the short form certificate provided in s. 140.16 must indicate that the notarial act was performed using communication technology.

SB317-SSA1,23,16 (5) A short form certificate provided in s. 140.16 for a notarial act subject to this section is sufficient if any of the following applies:

SB317-SSA1,23,17 (a) The certificate complies with rules promulgated under sub. (8) (a).

SB317-SSA1,23,20 (b) The certificate is in the form provided in s. 140.16 and contains a statement substantially as follows: “This notarial act involved the use of communication technology.”

SB317-SSA1,24,2 (6) A notary public, a guardian, conservator, or agent of a notary public, or a personal representative of a deceased notary public shall retain the audio-visual recording created under sub. (3) (c) or cause the recording to be retained by a repository designated by or on behalf of the person required to retain the recording. Unless a different period is required by rule promulgated under sub. (8) (d), the recording must be retained for a period of at least 7 years after the recording is made.

SB317-SSA1,24,9 (7) Before a notary public performs the notary public's initial notarial act under this section, the notary public must notify the department that the notary public will be performing notarial acts with respect to remotely located individuals and identify the technologies the notary public intends to use. If the department has established standards under sub. (8) and s. 140.27 for approval of communication technology or identity proofing, the communication technology and identity proofing must conform to the standards.

SB317-SSA1,24,12 (8) In addition to promulgating rules under s. 140.27, the department shall promulgate rules under this section regarding performance of a notarial act. The rules may do any of the following:

SB317-SSA1,24,14 (a) Prescribe the means of performing a notarial act involving a remotely located individual using communication technology.

SB317-SSA1,24,15 (b) Establish standards for communication technology and identity proofing.

SB317-SSA1,24,17 (c) Establish requirements, including registration, or procedures to approve providers of communication technology and the process of identity proofing.

SB317-SSA1,24,19 (d) Establish standards and a period for the retention of an audio-visual recording created under sub. (3) (c).

SB317-SSA1,24,21 (e) Establish any other requirement, not inconsistent with this chapter, relating to the performance of a notarial act for a remotely located individual.

SB317-SSA1,24,24 (9) Before promulgating, amending, or repealing a rule governing performance of a notarial act with respect to a remotely located individual, the department must consider all of the following:

SB317-SSA1,25,4 (a) The most recent standards regarding the performance of a notarial act with respect to a remotely located individual promulgated by national standard-setting organizations and the recommendations of the National Association of Secretaries of State or any successor organization.

SB317-SSA1,25,6 (b) Standards, practices, and customs of other jurisdictions that have laws substantially similar to this section.

SB317-SSA1,25,8 (c) The views of governmental officials and entities and other interested persons.

SB317-SSA1,25,10 (10) This section does not apply to a transaction to the extent it is governed by any of the following:

SB317-SSA1,25,12 (a) Any law governing the creation and execution of wills, codicils, or testamentary trusts.

SB317-SSA1,25,15 (b) Any law governing the creation and execution of living trusts or trust amendments for personal use, not including a transaction, as defined in s. 137.11 (15).

SB317-SSA1,25,17 (c) Any law governing the creation and execution of powers of attorney, not including a transaction, as defined in s. 137.11 (15).

SB317-SSA1,25,19 (d) Any law governing the creation and execution of marital property agreements.

SB317-SSA1,25,22 (e) Any law governing the creation and execution of powers of attorney for health care, declarations to physicians (living wills), and authorizations for use and disclosure of protected health care information.

SB317-SSA1,25,25 (11) (a) The remote notary council shall adopt standards to implement this section. The department shall promulgate by rule the standards adopted, amended, or repealed by the council under this paragraph.

SB317-SSA1,26,7 (b) To keep the standards and practices of notaries public in this state in harmony with the standards and practices of notaries public in other jurisdictions that enact substantially this section and to keep the technology used by notaries public in this state compatible with technology used by notaries public in other jurisdictions that enact substantially this section, the remote notary council, so far as is consistent with the purposes, policies, and provisions of this section, in adopting, amending, and repealing standards shall consider all of the following:

SB317-SSA1,26,8 1. Standards and practices of other jurisdictions.

SB317-SSA1,26,10 2. The most recent standards promulgated by national standard-setting bodies.

SB317-SSA1,26,11 3. The views of interested persons and governmental officials and entities.

SB317-SSA1,26,14 4. The need for security protection to ensure that notarial acts for remotely located individuals are accurate, authentic, adequately preserved, and resistant to tampering.

SB317-SSA1,26,17 (c) The remote notary council shall review the statutes related to notarial acts for remotely located individuals and shall recommend to the legislature any changes in the statutes that the council finds necessary or advisable.

SB317-SSA1,46 Section 46 . 140.15 of the statutes is created to read:

SB317-SSA1,26,20 140.15 Certificate of notarial act. (1) A notarial act must be evidenced by a certificate. The certificate must satisfy all of the following:

SB317-SSA1,26,21 (a) Be executed contemporaneously with the performance of the notarial act.

SB317-SSA1,26,23 (b) Be signed and dated by the notarial officer and, if the notarial officer is a notary public, be signed in the same manner as on file with the department.

SB317-SSA1,26,24 (c) Identify the jurisdiction in which the notarial act is performed.

SB317-SSA1,26,25 (d) Contain the title of office of the notarial officer.

SB317-SSA1,27,2 (e) If the notarial officer is a notary public, indicate the date of expiration, if any, of the officer's commission.

SB317-SSA1,27,10 (2) If a notarial act regarding a tangible record is performed by a notary public, an official stamp must be affixed to or embossed on the certificate. If a notarial act is performed regarding a tangible record by a notarial officer other than a notary public and the certificate contains the information specified in sub. (1) (b), (c), and (d), an official stamp may be affixed to or embossed on the certificate. If a notarial act regarding an electronic record is performed by a notarial officer and the certificate contains the information specified in sub. (1) (b), (c), and (d), an official stamp may be attached to or logically associated with the certificate.

SB317-SSA1,27,12 (3) A certificate of a notarial act is sufficient if it meets the requirements of subs. (1) and (2) and satisfies any of the following:

SB317-SSA1,27,13 (a) Is in a short form set forth in s. 140.16.

SB317-SSA1,27,14 (b) Is in a form otherwise permitted by the law of this state.

SB317-SSA1,27,16 (c) Is in a form permitted by the law applicable in the jurisdiction in which the notarial act was performed.

SB317-SSA1,27,19 (d) Sets forth the actions of the notarial officer and the actions are sufficient to meet the requirements of the notarial act as provided in ss. 140.05, 140.06, and 140.07 or law of this state other than this chapter.

SB317-SSA1,27,22 (4) By executing a certificate of a notarial act, a notarial officer certifies that the officer has complied with the requirements and made the determinations specified in ss. 140.04, 140.05, and 140.06.

SB317-SSA1,27,24 (5) A notarial officer may not affix the officer's signature to, or logically associate it with, a certificate until the notarial act has been performed.