Haw. Rev. Stat. § 456-23

Current through Act 239 of the 2021 Legislative Session
Section 456-23 - Notarial act performed for remotely located individual
(a) A remotely located individual may comply with any law requiring the individual to appear personally before, or be in the presence of, a notary public at the time of the performance of a notarial act by using communication technology to appear before a remote online notary public.
(b) A remote online notary public located in this State may perform a notarial act for a remotely located individual using communication technology if:
(1) The remote online notary public has:
(A) Personal knowledge of the identity of the individual;
(B) Satisfactory evidence of the identity of the remotely located individual by oath or affirmation from a credible witness appearing before the remote online notary public under this chapter; or
(C) Obtained satisfactory evidence of the identity of the remotely located individual by using at least two different types of identity proofing;
(2) The remote online notary public is reasonably able to confirm that a document before the remote online notary public is the same document in which the remotely located individual made a statement or on which the remotely located individual executed a signature;
(3) The remote online notary public, or a person acting on behalf of the remote online notary public, creates an audiovisual recording of the performance of the notarial act; and
(4) For a remotely located individual located outside the United States:
(A) The document to be notarized:
(i) 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;
(ii) Involves property located in the territorial jurisdiction of the United States or involves a transaction substantially connected with the United States; or
(iii) Involves a transaction with a bank, the deposits of which are insured by the Federal Deposit Insurance Corporation, including a bank so insured and that is located in the Federated States of Micronesia, Republic of the Marshall Islands, or Republic of Palau; and
(B) 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.
(c) If a notarial act is performed under this section, any certificate of notarial act required by this chapter or other laws of this State shall indicate that the notarial act was performed using communication technology.
(d) A form of certificate of notarial act subject to this section and authorized by the laws of this State, including a certificate of acknowledgment provided in section 502-41, is sufficient if it:
(1) Complies with rules adopted under this section; or
(2) Is in the form authorized by the laws of this State and contains a statement substantially as follows: "This notarial act involved the use of communication technology".
(e) A remote online notary public; guardian, conservator, or agent of a remote online notary public; or personal representative of a deceased remote online notary public shall retain any audiovisual recording created under 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. Unless a different period is required by a rule adopted under this section, the recording shall be retained for a period of no less than ten years after the recording is made.
(f) Prior to performing any initial notarial act under this section, the remote online notary public shall notify the attorney general that the remote online notary public will be performing notarial acts with respect to remotely located individuals and identify the technologies that the remote online notary public intends to use. The technologies selected by a remote online notary public to perform notarial acts for remotely located individuals shall conform to the attorney general's standards developed for this chapter.
(g) In addition to adopting, amending, or repealing rules under sections 456-1.5 and 456-8, the attorney general may adopt, amend, or repeal rules pursuant to chapter 91 regarding the performance of notarial acts under this section, including:
(1) Prescribing the means of performing a notarial act involving a remotely located individual using communication technology;
(2) Establishing standards for communication technology and identity proofing;
(3) Establishing requirements and procedures to approve providers of communication technology and the process of identity proofing; and
(4) Establishing standards for, and a period of retention of, any audiovisual recording created under this section.
(h) Prior to adopting, amending, or repealing a rule governing the performance of a notarial act with respect to a remotely located individual, the attorney general shall consider:
(1) 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;
(2) The standards, practices, and customs of other jurisdictions that have laws substantially similar to this section; and
(3) The views of governmental officials and entities and other interested persons.
(i) For purposes of this section:

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

(1) Allows a remote online notary public and a remotely located individual to communicate with each other simultaneously by sight and sound; and
(2) When necessary and consistent with other applicable laws, facilitates communication between a remote online notary public and a remotely located individual who has a vision, hearing, or speech impairment.

"Foreign state" means a jurisdiction other than the United States, a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, any territory or insular possession subject to the jurisdiction of the United States, or a federally recognized Indian tribe.

"Identity proofing" means a process or service by which a third person provides a remote online notary public with a means to verify the identity of a remotely located individual by a review of the remotely located individual's personal information from public or private data sources.

"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.

"Remote online notary public" means an individual commissioned by the attorney general to perform notarial acts for remotely located individuals.

"Remotely located individual" means an individual who is not in the physical presence of the remote online notary public performing a notarial act for that individual under this section.

HRS § 456-23

Added by L 2020, c 54,§ 2, eff. 1/1/2021.