An Act to revise certain provisions regarding remote notarization.

Be it enacted by the Legislature of the State of South Dakota:

Section 1. That § 18-1-1.1 be AMENDED.

18-1-1.1. Definitions.

Terms in this chapter mean:

(1) "Acknowledgment," a declaration by a person before a notarial officer that the person has signed a document for the purpose stated in the document and, if the document is signed by a representative who is:

(a) An authorized officer, agent, partner, trustee, or other representative of a person other than a natural person;

(b) A public officer, personal representative, guardian, or other representative in the capacity stated in a document;

(c) An attorney-in-fact for a natural person; or

(d) An authorized representative of another person in any other capacity, that the representative signed the document with proper authority and signed it as the act of the person identified in the document;

(2) "Communication technology," an electronic device or process that allows a notarial officer and a person not in the physical presence of the notarial officer to communicate with each other simultaneously by sight and sound

(2) "Document" or "record," information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form;

(3) "Electronic," any technology using electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities;

(4) "Electronic document" or "electronic record," a document created, generated, sent, communicated, received, or stored by electronic means;

(5) "Identity proofing," a process or service by which a third party provides a notarial officer with a reasonable means to verify the identity of an individual by a review of personal information from public or proprietary data sources;

(3)(6) "Notarial act," an act performed with respect to a tangible or electronic record that a notarial officer may perform under the laws of this state. The term includes taking an acknowledgment, administering an oath or affirmation, taking a verification on oath or affirmation, witnessing or attesting a signature, certifying or attesting a copy, and noting a protest of a negotiable instrument;

(4)(3)(7) "Notarial officer," a notary public or other person authorized to perform a notarial act;

(8) "Official stamp," a seal or physical image affixed to or embossed on a tangible record or an electronic image attached to or logically associated with an electronic record;

(9) "Person," an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, governmental agency, public corporation, or any other legal or commercial entity;

(5)(4)(10) "Personal knowledge," a notarial officer has personal knowledge of the identify identity of an individual appearing before the officer if either:

(a) The individual is personally known to the officer through dealings sufficient to provide reasonable certainty that the individual has the identity claimed. The notarial officer must have known and had regular interactions with the individual for an extended period of time. A mere acquaintance does not amount to personal knowledge for purposes of this definition; or

(b) The notarial officer represents, or is employed by the firm or business that represents, the individual as their attorney, real estate agent, auctioneer, or public accountant, or any combination thereof; or

(c) The notarial officer can reasonably identify the individual via identity proofing;

(11) "Remotely located individual," a person who is not in the physical presence of the notary;

(12) "Stamping device," a physical device capable of affixing to or embossing on a tangible record an official stamp or an electronic device or process capable of attaching to or logically associating with an electronic record or an official stamp;

(5)(13) "Verification on oath or affirmation," a declaration, made by a person on oath or affirmation before a notarial officer, that a statement in a document is true;

(6)(14) "Video communication technology," an electronic device or process that allows a notarial officer physically located in this state and a remotely located person not in the physical presence of the notarial officer to communicate with each other simultaneously by sight and sound and that, as necessary, makes reasonable accommodation for individuals with vision, hearing, or speech impairments.

Section 2. That § 18-1-3 be AMENDED.

18-1-3. Seal, Official stamp, oath, and bond filed with secretary of state.

Every notary public before entering upon the duties of his office, shall provide an official seal stamp and file an impression of the same, together with his the notary public's oath and bond, in the Office of the Secretary of State.

Section 3. That § 18-1-3.1 be AMENDED.

18-1-3.1. Requirements of seal--Commission expiration date required below seal.

A notarial officer shall have a seal an official stamp that shall be used for the purpose of acknowledging a document. The seal official stamp shall be of a type approved by the secretary of state and shall contain at least:

(1) The notarial officer's name;

(2) The words, South Dakota;

(3) The words, notary public; and

(4) A border surrounding the imprint.

A seal may be a rubber stamp or a physical device capable of affixing to or embossing on a tangible document. A rubber stamp seal shall contain the word, seal.

A notarial officer shall indicate the date on which the notarial officer's commission expires below the seal official stamp under this section.

Section 4. That § 18-1-11.1 be AMENDED.

18-1-11.1. Notarial act--Video communication technology--Requirements.

A notarial officer in this state, while located in this state, may perform by means of communication technology a notarial act executed on a tangible document by a person who appears before, but is not in the physical presence of the notarial officer, but observed by the notarial officer through means of video communication technology, if the notarial officer:

(1) Has personal knowledge of the identity of a person through dealings sufficient to provide reasonable certainty that the person has the identity being claimed;

(2) Affixes the notarial officer's signature to the electronic or original tangible document executed by the person;

(3) Indicates in the notarial certificate the remote location of the person executing the document;

(4) Indicates in the notarial certificate that the notarial act involved a statement made or a signature executed by a person not in the physical presence of the notarial officer, but appearing by means of video communication technology; and

(5) Is able reasonably to confirm that the document before the notarial officer is the same document in which the person made the statement or on which the person executed a signature; and

(6) The notarial officer, or a person acting on behalf of the notarial officer, creates an audio-visual recording of the performance of the notarial act.

Section 5. That a NEW SECTION be added:

18-1-11.2. Notarial act--Video communication technology--Retention of notarial act recording.

The notarial officer shall retain an electronic audio-visual recording of the performance of each notarial act involving the use of communication technology for ten years from the date of performance. Upon suspension or revocation of a notarial officer’s commission or upon death or incapacity, the notarial officer or guardian, conservator, or personal representative of an incapacitated or deceased notarial officer shall retain a copy of the notarial act for ten years. In lieu of retaining copies as required by this section, the copies may be held by a repository designated by or on behalf of the notarial officer.

Section 6. That a NEW SECTION be added:

18-1-11.3. Video communication technology--Tamper-evident technologies.

A notarial officer may select one or more tamper-evident technologies to perform notarial acts. A person may not require a notarial officer to perform a notarial act with respect to an electronic document with a technology that the notarial officer has not selected.

Section 7. That a NEW SECTION be added:

18-4-29. Form--Certificate of acknowledgement--Video communication technology.

The certificate of acknowledgment of a document executed under § 18-1-11.1 shall be substantially in the following form:

State of South Dakota

County of _____ ss

On this _____ day of _____, in the year_____, before me, _____ (Notary's Name), the undersigned officer appeared _____ (Signer's Name) with a remote location of _____ (City/State), whom I have personal knowledge of because of my relationship as _____ and whom I positively identified as the person whose name is subscribed to the within instrument, appeared before me not in my physical presence but by means of video communication technology, and I observed his/her execution of the same for the purposes contained therein and confirm that I affix my seal to the same instrument so executed.