BEFORE THE SECRETARY OF STATE

OF THE STATE OF MONTANA

 

In the matter of the adoption of NEW RULE I and the amendment of ARM 44.15.101, 44.15.103, 44.15.105, 44.15.106, 44.15.108, and 44.15.109 pertaining to notaries public

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NOTICE OF PUBLIC HEARING ON PROPOSED ADOPTION AND AMENDMENT

 

TO: All Concerned Persons

 

            1. On July 26, 2019, at 10:00 a.m., the Secretary of State will hold a public hearing in the Secretary of State's Office Conference Room, Room 261 of the State Capitol, at Helena, Montana, to consider the proposed adoption and amendment of the above-stated rules.

 

2. The Secretary of State will make reasonable accommodations for persons with disabilities who wish to participate in this rulemaking process or need an alternative accessible format of this notice. If you require an accommodation, contact the Secretary of State no later than 5:00 p.m. on July 12, 2019, to advise us of the nature of the accommodation that you need. Please contact Austin James, Secretary of State's Office, P.O. Box 202801, Helena, Montana 59620-2801; telephone (406) 444-6197; fax (406) 444-3976; TDD/Montana Relay Service (406) 444-9038; or e-mail [email protected].

 

3. The rule proposed to be adopted is as follows:

 

            NEW RULE I NOTARY PUBLIC JOURNAL RETENTION  (1)  A notary public must retain the notary's journal(s) at all times while holding an active commission unless the notary has satisfied the requirements set forth by (a).

            (a)  A notary who transmits control of the notary's journal(s) to the notary's employer shall complete the form prescribed by the Secretary of State and signed by the notary and the notary's employer indicating:

            (i) the physical location where the journal(s) will be kept;

            (ii) the name, phone number, and email of the employer or the custodian of the records; and

            (iii)  the notary's authorization for the designated custodian to release the records in accordance with 1-5-618(6), MCA, and the custodian's agreement to accept the responsibility and conditions.

            (2)  When a notary voluntarily resigns or chooses not to renew a commission, the notary may choose to transmit the notary's journal(s) to an approved repository by submitting the form prescribed by the Secretary of State and signed by the notary indicating:

            (a) the physical location where the journal(s) will be kept;

            (b) the name, phone number, and email of the proposed custodian of the records; and

            (c)  the notary's authorization for the designated custodian to release the records in accordance with 1-5-618(6), MCA, and the custodian's agreement to accept the responsibility and conditions.

 

AUTH: 1-5-628, MCA

IMP: 1-5-618, MCA

 

REASON: NEW RULE I(1) and (2) are reasonably necessary to create a process allowing a notary, as the legal custodian of records, to delegate their responsibility to another custodian under certain conditions.  The proposed rule ensures the Secretary of State is aware and approved of the location of a notary's journals if not in the possession of the notary public.  Lastly, the rule ensures that the approved custodian will provide access to the journals if necessary.

 

4. The rules proposed to be amended are as follows, new matter underlined, deleted matter interlined:

 

            44.15.101  APPLICATION FOR A COMMISSION AS A NOTARY PUBLIC

            (1)  A person seeking a commission as a notary public shall make an application on a by submitting one or more of the requisite forms prescribed by the Secretary of State that includes the following information:

            (a)  applicant's name, which must consist of at least one initial and the notary's surname;

            (b) through (f) remain the same.

            (g)  applicant's work email address;

            (i) if the applicant is unemployed or self-employed, the applicant must submit an alternate contact person and the alternate contact's phone number or email address;

            (g) remains the same but is renumbered (h).

            (h)(i)  the name under which the applicant's previous commission was issued (if applicable); and

            (i)(j)  whether or not the applicant intends to provide remote and/or electronic notarization services, and, if so, the identification of the tamper-proof communication technology and/or the electronic notarization system(s) the applicant intends to use. and a copy of the certificate showing the notary has successfully completed an approved course of instruction and examination; and

            (k)  an exemplar of the applicant's official signature which must match the applicant's name as entered on the application and the surety bond and which must be used on all tangibly and electronically notarized records.

            (2)  The application shall indicate if the applicant:

            (a)  is at least 18 years old;

            (b)  is a citizen or permanent legal resident of the United States; and

(c) is a resident of or has a place of employment or practice in Montana;

            (c)  whether the applicant:

(i)  is a resident of Montana;

(ii)  has a place of employment or practice in Montana; or

            (iii)  is the spouse or legal dependent of military personnel assigned to active duty in Montana;

            (d)  can read and write English;

            (e)  has pled guilty, pled no contest, or been convicted of a felony or crime involving fraud, dishonesty, or deceit within the last 10 years;

            (f) and (g) remain the same.

            (3)  The applicant must affirm under oath that the information on the application is true and correct and that the applicant will support and defend the Constitutions of the United States and the State of Montana and uphold the duties of the office of notary public.

            (4)  An applicant who is not currently commissioned as a notary public shall submit with the application a certificate certification proving the applicant has completed the required education and passed a notary public examination approved by the Secretary of State.

            (a) New and renewing applicants must take and pass the examination no more than six months before submitting the application.

            (i)  A grade of 80% is considered passing.

            (ii)  If the applicant fails to achieve a passing score after three attempts, the applicant must wait three months before attempting to take the exam again.

 

AUTH: 1-5-628, MCA

IMP: 1-5-619, 1-5-620, MCA

 

REASON: Section (1) is reasonably necessary to ensure a notary public may be readily contacted if a question or issue arises about a notarial act performed by the notary public and that the Secretary of State has been notified of the notary's intent and qualification to perform remote notary services.  Section (2) is reasonably necessary to ensure that the notary public has complied with the residency requirements.  Section (3) is reasonably necessary to ensure the applicant has taken the notary public oath of office.  Section (4) is reasonably necessary to ensure that the notary has complied with the education and examination requirements and is qualified to perform notarial acts.

 

            44.15.103  NOTARY BOND  (1)  The applicant shall submit with the application and fee, a bond on the form prescribed by the Secretary of State from an approved bonding company in the amount of $10,000 25,000 for the duration of the period full four-year term of the notary commission.  The bonding company shall notify the Secretary of State's office within 30 business days if a claim is made against the bond or if the bond is canceled or otherwise not honored.

 

AUTH: 1-5-628, 2-4-201, MCA

IMP: 1-5-405, 1-5-619, MCA

 

REASON: Section (1) is reasonably necessary to ensure that a notary public has a compliant surety bond, for the correct amount, in effect for the entire term of the notary's commission.

 

            44.15.105  FOREIGN NOTARY, APOSTILLE FEES, AND FEDERAL CERTIFICATE OF AUTHORITY  (1)  The applicant A person requesting certificate of authority of a record for a foreign country shall submit a $10 nonrefundable application fee for each certification, together with a form as prescribed by the Secretary of State.

 

AUTH: 1-5-408, 1-5-628, MCA

IMP: 1-5-607, 1-5-608, MCA

 

REASON: Section (1) is reasonably necessary to clarify that the fee charged for a certification of authority is not an application fee and the order for a certificate of authority must be accompanied by a specific form.

 

            44.15.106  NOTIFICATION TO SECRETARY OF STATE OF CHANGE IN INFORMATION OR STATUS (1)  A notary public shall notify the Secretary of State within 30 calendar days of any change in the information on file with the Secretary of State, using the form prescribed by the Secretary of State, including the notary public's:

            (a) through (c) remain the same.

            (d)  personal or work e-mail address;

            (e) remains the same.

            (f) alternate phone number or contact person;

            (f)(g)  employer's name, address, or and telephone number; and

            (g)(h)  use of electronic notarization system or communications technology.

            (2)  When a notary public changes the notary name on file with the Secretary of State, the notary public shall file with the Secretary of State:

            (a) remains the same.

            (b)  an example exemplar of the notary's new official signature using the form prescribed by the Secretary of State.

            (3)  A notary public shall notify the Secretary of State within 14 30 calendar days of:

            (a)  being convicted of or entering a plea of guilty or no contest to a felony or crime involving fraud, dishonesty, or deceit;

            (b) and (c) remain the same.

            (4)  A notary public shall notify the Secretary of State within 30 calendar days on a form provided by the Secretary of State:

            (a)  if the notary public resigns an active commission prior to the expiration date;

            (b)  if the notary public moves out of state and no longer meets the residency requirements to hold a commission; or

            (c)  if the notary does not intend to renew the commission and include the following information:

            (i)  the date on which the resignation is effective;

            (ii)  the location where the notary's journals are to be stored; and

            (iii)  the notary's future contact information if different from the information on file with the Secretary of State.

 

AUTH: 1-5-628, MCA

IMP: 1-5-619, MCA

 

REASON: Sections (1) through (4) are reasonably necessary to ensure that the Secretary of State is informed of all relevant changes to a notary's name, status, and contact information in a timely manner and to ensure that the notary remains compliant with the qualifications for holding the office of notary public.

 

            44.15.108  REAL-TIME, TWO-WAY AUDIO-VIDEO NOTARIZATIONS (REMOTE AND REMOTE ONLINE NOTARIZATIONS)  (1)  Real-time, two-way audio-video notarizations (Remote and remote online notarizations) shall only be performed using technology that allows the individuals communicating to simultaneously see and speak to one another.

            (2)  When performing remote or remote online notarizations, the signal transmission shall be live, real time.

            (3)  All remote and remote online notarizations shall be recorded electronically.

            (4)  Prior to performing any remote or remote online notarization, the notary public shall inform all individuals participating in the notarization that the notarization will be electronically recorded.

            (5)  All recordings of remote and remote online notarizations shall include a recitation by the notary public that includes the following:

            (a) through (h) remain the same.

            (i)  whether how the individual for whom the notarial act is being performed is being has been identified by personal knowledge or credible witness; and

            (j) remains the same.

            (6)  All recordings of remote notarizations shall include a recitation by the individual for whom the notarial act is being performed that includes the following:

            (a) remains the same.

            (b)  the state in which where the individual legally resides;

            (c) remains the same.

            (d)  the date the individual signed the record being notarized; and

            (e)  a declaration that the signature made on the record being notarized was made by the individual knowingly or voluntarily; and

            (f)  if the individual is located outside of the United States at the time of the remote notarization, a declaration that the individual is unaware of any legal conflicts that prohibit the individual's participation in a remote notarization.

            (7) remains the same.

            (8)  If the individual for whom the notarial act is being performed is being identified by credible witness,:

            (a)  the credible witness shall be in the physical presence of the notary public; and

            (b)  the recording of the remote notarization shall include:

            (i)(a)  a statement by the notary public as to whether how the notary public identified the credible witness by personal knowledge or satisfactory evidence was identified; and

            (ii)(b)  an explanation by the credible witness as to how the credible witness has come to know the individual for whom the notarial act is being performed and the length of time the credible witness has known the individual; and

            (c)  a sworn statement by the credible witness identifying the principal.

            (9)  If the individual for whom the notarial act is being performed was identified by means of identification technologies, the notary shall state the two or more types of technologies used.

 

AUTH: 1-5-628, MCA

IMP: 1-5-603, 1-5-615, 1-5-618, MCA

 

REASON: These amendments are reasonably necessary to implement the requirements of Senate Bill 370 which was passed by the 2019 Montana Legislature and is effective October 1, 2019. That bill updated and revised the existing notarial laws.

 

            44.15.109  FEES FOR NOTARIAL ACTS  (1)  A notary public may charge a an additional fee in accordance with 1-5-626(2), MCA,:

            (a)  for traveling to perform a notarial act.;

            (b)  for performing a notarial act using an electronic notarization system or communications technology; or

            (c)  to recover the cost of providing a journal entry or audiovisual recording.

 

AUTH: 1-5-628, MCA

IMP:  1-5-626, MCA

 

REASON: These amendments are reasonably necessary to allow notaries to recover the additional costs associated with remote notarization and making copies of journal entries or recordings.

 

            5. Concerned persons may submit their data, views, or arguments either orally or in writing at the hearing. Written data, views, or arguments may also be submitted to: Austin James, Secretary of State's Office, P.O. Box 202801, Helena, Montana 59620-2801, or by emailing [email protected], and must be received no later than 5:00 p.m., August 2, 2019.

 

6. Austin James, Secretary of State's Office, P.O. Box 202801, Helena, Montana, has been designated to preside over and conduct this hearing.

 

7. The Secretary of State maintains a list of interested persons who wish to receive notices of rulemaking actions proposed by this agency. Persons who wish to have their name added to the list shall make a written request that includes the name, e-mail, and mailing address of the person to receive notices and specifies for which program the person wishes to receive notices. Notices will be sent by e-mail unless a mailing preference is noted in the request. Such written request may be mailed or delivered to the Secretary of State's Office, Administrative Rules Services, P.O. Box 202801, Helena, MT 59620-2801, faxed to the office at (406) 444-3976, or may be made by completing a request form at any rules hearing held by the Secretary of State's Office.

 

8. The bill sponsor contact requirements of 2-4-302, MCA, apply and have been fulfilled. The primary bill sponsor was contacted by email on June 17, 2019.

 

9. With regard to the requirements of 2-4-111, MCA, the Secretary of State has determined that the adoption and amendment of the above-referenced rules will not significantly and directly impact small businesses.

 

 

/s/ AUSTIN JAMES                         /s/ COREY STAPLETON

Austin James                                    Corey Stapleton

Rule Reviewer                                  Secretary of State                                                               

 

 

 Dated this 25th day of June, 2019.