[Federal Register Volume 59, Number 241 (Friday, December 16, 1994)]
[Unknown Section]
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From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-30748]


[[Page Unknown]]

[Federal Register: December 16, 1994]


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DEPARTMENT OF STATE

Bureau of Consular Affairs

22 CFR Part 92

[Public Notice 2138]

 

Notarial and Related Services

AGENCY: Bureau of Consular Affairs, Department of State.

ACTION: Proposed rule.

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SUMMARY: The Bureau of Consular Affairs plans to amend its notarial 
regulations to authorize certain U.S. citizen employees of the 
Department of State who are not diplomatic or consular officers, but 
who have been designated by the Deputy Assistant Secretary for Overseas 
Citizen Services, to perform notarial services overseas. All consular 
officers, other foreign service officers and designated U.S. citizen 
employees authorized to perform such notarials shall be identified, for 
notarial purposes, as ``notarizing officers.'' The extension of this 
authority to designated U.S. citizen State Department employees will 
enable foreign service posts to provide enhanced notarial service to 
the public. Consular officers assisted by designated U.S. citizen 
employees will be able to concentrate on managing consular resources, 
although they will still be available, as needed, to provide notarial 
services to U.S. citizens. Notarization by a designated U.S. citizens 
State Department employee will generally have the same effect as 
notarization by a consular officer. This proposed rule does not, 
however, permit designated U.S. citizen State Department employees to 
perform authentications, perform a notarial service for a patent 
application or take a deposition pursuant to a commission, as 
prescribed under 18 U.S.C. 3492, nor does it in itself ensure that 
notarials performed by the designated employees will be acceptable to 
every state. With these qualifications, the State Department believes 
that notarials performed by designated U.S. citizen employees will be 
acceptable for all purposes (particularly for federal law purposes).

DATES: Comments due: January 17,1995.

FOR FURTHER INFORMATION CONTACT:
Carmen A. DiPlacido, or Michael Meszaros, Office of Citizens Consular 
Services, Department of State, 202-647-3666 or 202-647-4994.

SUPPLEMENTARY INFORMATION: This rule implements section 127(b) of the 
Foreign Relations Authorization Act, Fiscal Years 1994-1995, P. Law 
103-236, April 30, 1994. Section 127(b) authorizes the Secretary of 
State to designate State Department employees who are U.S. citizens to 
perform in foreign countries notarial services authorized to be 
performed by consular officers. Under section 24 of the Act of August 
18, 1856, 11 Stat. 61, now generally cited as 22 U.S.C. 4221, consular 
officers are authorized to administer to or take from any person an 
oath, affirmation, affidavit, or deposition, and to perform any other 
notarial act which any notary public is required or authorized by law 
to do within the United States. Section 7 of the Act of April 5, 1906, 
34 Stat. 101, now generally referred to as 22 U.S.C. 4215, made the 
performance of notarial services by consular officers mandatory, and 
mandated that a fee be charged for notarial services. The Department's 
new authority under Section 127(b) will allow it to supplement the 
staff available to perform notarial services at posts abroad with 
designated U.S. citizen State Department employees who are not consular 
officers, thereby providing prompt, efficient service to the public and 
freeing consular officers to also focus more of their efforts on other 
demands on our overseas posts. Consular and other diplomatic officers 
will still perform notarial functions as needed.
    Section 127(b) authorizes the Secretary of State to promulgate 
regulations providing for the designation of U.S. citizen employees of 
the Department of State to perform notarial functions as provided 
therein. The Secretary's authority was delegated to the Assistant 
Secretary for Consular Affairs on September 20, 1994. These proposed 
regulations will further delegate to the Deputy Assistant Secretary for 
Overseas Citizens Services the authority to designate the United States 
citizen State Department employees who may perform these notarial 
functions.
    The regulations implementing Section 127(b) will define the term 
``notarizing officer.'' This term will include consular officers, 
diplomatic officers encompassed by the term ``secretary of embassy or 
ligation'' in 22 U.S.C. 4221, and U.S. citizen employees of the 
Department of State designated by the Deputy Assistant Secretary. The 
Bureau of Consular Affairs expects that the bulk of the U.S. citizen 
designees will be comprised of civil service visa examiners, part-time 
intermittent, temporary foreign service (PIT) employees, when actually 
employed individuals (WAE's, generally retired Foreign Service Officers 
temporarily serving), consular associates (all the above being assigned 
overseas) and civil service employees ordinarily assigned to the 
Department of State but temporarily serving overseas. The Deputy 
Assistant Secretary will insure that all designees are qualified to 
perform notarials, mormally by satisfactory completion of the Basic 
Consular Course offered by the Foreign Service Institute at the 
National Foreign Affairs Training Center.
    This proposed regulation will not provide for designated U.S. 
citizen State Department employees to perform authentications, but the 
Department hopes to be able to extend the rule to encompass 
authentications in the future. The authentication of documents for use 
in civil proceedings in the federal courts is currently governed by 
Rule 44(e)(2) of the Federal Rules of Civil Procedure. It is unclear 
whether that rule can be read to include authentications performed by 
non-consular officer U.S. citizens designated by the Department to 
perform notarial services. The Bureau for Consular Affairs plans to 
initiate consultations with the appropriate judicial officials to 
clarify the interpretation of Rule 44 and, if necessary, to ask that 
Rule 44 be amended to encompass all notarial officials under this 
proposal rule, thereby permitting further amendments to the 
Department's notarial regulations to include authentications.
    Similarly, the regulation will not allow the designated employees 
to perform notarial services in connection with patents and patent 
applications. The taking to oaths regarding patent applications is 
governed by 35 U.S.C. 115, which provides for patent application oaths 
to be administered by ``diplomatic and consular officers.'' The Bureau 
of Consular Affairs plans to initiate consolations with the appropriate 
officials to clarify the scope of 35 U.S.C. 115 and, if necessary, to 
seek amendments to permit notarial officers to accept patent 
applications, thereby permitting further amendments to these 
regulations to include patent applications.
    Another service which designated employees will be unable to 
perform is the taking of testimony in any criminal action or proceeding 
pursuant to a commission issued by a court in the United States. Such 
testimony is governed by 18 U.S.C. 3492, which authorizes consular 
officers to receive commissions to take testimony. Again, the Bureau of 
Consular Affairs plans to initiate consultations with the appropriate 
officials to clarify the scope of 18 U.S.C. 3492 and, if necessary, to 
seek amendments to permit notarial officers to receive commissions to 
authenticate documents and take testimony.
    The acceptability of notarials performed by designated U.S. citizen 
State Department employees for State law purposes is of course governed 
by the laws of the various states. The Department hopes that any State 
laws that do not allow acceptance of such notarials will be amended as 
necessary to achieve this result, and will be inviting consultations to 
this end. The Department also invites comments from state and local 
governments as well as members of the public bar on the proposed rule 
and its relationship to state notarial laws.
    The Department believes that, with these qualifications, notarials 
performed by designated U.S. citizen State Department employees will be 
acceptable for all purposes, and particularly for all Federal law 
purposes. The Bureau of Consular Affairs will be consulting with other 
interested federal agencies to ensure this result to the extent 
possible consistent with current statutory authorities.
    The Bureau of Consular Affairs is also proposing herein to make 
Sections 92.5 and 92.31 more concise by eliminating superfluous 
material from both sections.
    This regulation is not expected to have a significant economic 
impact on a substantial number of small entities under the criteria of 
the Regulatory Flexibility Act. It will not impose information 
collection requirements under the provisions of the Paperwork Reduction 
Act of 1980. This rule has been reviewed as required under E.O. 12778 
and certified to be in compliance therewith. This rule is exempt from 
review under E.O. 12866 but is consistent therewith and is being shared 
with potentially interested federal agencies to ensure that they are 
aware of the changes it will entail in consular operations.

List of Subjects in 22 CFR Part 92

    Notarial and related services.

    For the reasons set out in the preamble, 22 CFR Part 92 is proposed 
to be amended as follows:

PART 92--NOTARIAL AND RELATED SERVICES

    1. The authority citation for Part 92 is revised to read as 
follows:

    Authority: 22 U.S.C. 2658.

    2. Section 92.1(d) is added to read as follows:


Sec. 92.1  Definitions.

* * * * *
    (d) For purposes of this part, except Secs. 92.36 through 92.42 
relating to the authentication of documents, the term ``notarizing 
officer'' includes consular officers, officers of the Foreign Service 
who are secretaries of embassy or legation under section 24 of the Act 
of August 18, 1856, 11 Stat. 61, as amended (22 U.S.C. 4221), and such 
U.S. citizen Department of State employees as the Deputy Assistant 
Secretary of State for Overseas Citizens Services may designate for the 
purpose of performing notarial acts overseas pursuant to Section 127(b) 
of the Foreign Relations Authorization Act, Fiscal Years 1994-1995, 
Pub. L. 103-236, April 30, 1994 (``designated employees''). The 
authority of designated employees to perform notarial services shall 
not include the authority to perform authentications, to notarize 
patent applications, or take testimony in a criminal action or 
proceeding pursuant to a commission issued by a court in the United 
States, but shall otherwise encompass all notarial acts, including but 
not limited to administering or taking oaths, affirmations, affidavits 
or depositions. The notarial authority of a designated employee shall 
expire upon termination of the employee's assignment to such duty and 
may also be terminated at any time by the Deputy Assistant Secretary 
for Overseas Citizen Services.
    3. Section 92.2 is revised to read as follows:


Sec. 92.2  Description of overseas notarial functions of the Department 
of State, record of acts.

    The overseas notarial function of notarizing officers of the 
Department of State is similar to the function of a notary public in 
the United States. See section 22.5(b) of this chapter concerning the 
giving of receipts for fees collected and the maintenance of a register 
serving the same purposes as the record which notaries are usually 
expected or required to keep of their official acts.
    4. In Sec. 92.4 the title and paragraphs (a), (b) and (c) are 
revised to read as follows:


Sec. 92.4  Authority of notarizing officers of the Department of State 
under Federal law.

    (a) All notarizing officers are required, when application is made 
to them within the geographic limits of their consular district, to 
administer to and take from any person any oath, affirmation, 
affidavit, or deposition, and to perform any notarial act which any 
notary public is required or authorized by law to perform within the 
United States. With respect to notarial acts performed by notarizing 
officers away from their office, see 92.7. Notarial acts shall be 
performed only if their performance is authorized by treaty provisions 
or is permitted by the laws or authorities of the country wherein the 
notarizing officer is stationed.
    (b) These acts may be performed for any person regardless of 
nationality so long as the document in connection with which the 
notarial service is required is for use within the jurisdiction of the 
Federal Government of the United States or within the jurisdiction of 
one of the States or Territories of the United States. (However, see 
also 92.6.). Within the Federal jurisdiction of the United States, 
these acts, when certified under the hand and seal of office of the 
notarizing officer are valid and of like force and effect as if 
performed by any duly authorized and competent person within the United 
States. Documents bearing the seal and signature of a secretary of 
embassy or legation, consular officer (including consul general, vice 
consul or consular agent) are admissible in evidence within the Federal 
jurisdiction without proof of any such seal or signature being genuine 
or of the official character of the notarizing officer.
    (c) Every notarizing officer may perform notarial acts for use in 
countries occupied by the United States or under its administrative 
jurisdiction, provided the officer has reason to believe that the 
notarial act will be recognized in the country where it is intended to 
be used. These acts may be performed for United States citizens and for 
nationals of the occupied or administered countries, who reside outside 
such countries, except in areas where another government is protecting 
the interests of the occupied or administered country.
* * * * *
    5. Section 92.5 is revised to read as follows:


Sec. 92.5  Acceptability of notarial acts under State or territorial 
law.

    The acceptability within the jurisdiction of a State or Territory 
of the United States of a certificate of a notarial act performed by a 
notarizing officer depends upon the laws of the State or Territory.
    6. Section 92.6 introductory paragraph and paragraph (b) are 
revised to read as follows:


Sec. 92.6  Authority of notarizing officers under international 
practice.

    Although such services are not mandatory, notarizing officers may, 
as a courtesy, perform notarial acts for use in countries with which 
the United States has formal diplomatic and consular relations. 
Generally the applicant for such service will be a United States 
citizen or a national of the country in which the notarized document 
will be used. The notarizing officer's compliance with a request for a 
notarial service of this type should be based on the reasonableness of 
the request and the absence of any apparent irregularity. When a 
notarizing officer finds it advisable to do so, the officer may 
question the applicant to such extent as may be necessary to be assured 
of the the reasonableness of the request and the absence of 
irregularity.
* * * * *
    (b) That the notarial service is legally necessary and cannot be 
obtained otherwise than through a United States notarizing officer 
without loss or serious inconvenience to the applicant; and
* * * * *
    7. In Sec. 92.7, the title and paragraph (b) are revised to read as 
follows:


Sec. 92.7  Responsibility of notarizing officers of the Department of 
State.

* * * * *
    (b) As indicated in sections 92.4, 92.5, and 92.6, the authority of 
secretaries of embassy or legation as well as consular officers to 
perform notarial acts is generally recognized. However, the function is 
essentially consular, and notarial powers are in practice exercised by 
diplomatic officers only in the absence of a consular officer or U.S. 
citizen State Department employee designated to perform notarial 
functions as provided in Section 92.1(d). Performance of notarial acts 
by an officer assigned in dual diplomatic and consular capacity shall 
be performed in his/her consular capacity, except in special 
circumstances.
    8. In Sec. 92.31, paragraph (a), the third sentence is revised to 
read as follows:


Sec. 92.31  Taking an acknowledgement.

    (a) * * * Therefore, notarizing officers and consular agents who 
are called upon to perform this notarial act should consult the 
applicable State or territorial law to ascertain whether certificates 
of acknowledgement will be acceptable.
* * * * *
    9. Section 92.51 is revised to read as follows:


Sec. 92.51  Methods of taking depositions in foreign countries.

    Rule 28(b) of the Rules of Civil Procedure for the District Courts 
of the United States provides that depositions may be taken in foreign 
countries by any of the following four methods:
    (a) Pursuant to any applicable treaty or convention, or
    (b) Pursuant to a letter of request (whether or not captioned a 
letter rogatory), or
    (c) On notice before a person authorized to administer oaths in the 
place in which the examination is held, either by the law thereof or by 
the law of the United States. Notarizing officials as defined by 22 CFR 
92.1 are so authorized by the law of the United States, or
    (d) Before a person commissionedP by the court, and a person so 
commissioned shall have the power by virtue of the commission to 
administer any necessary oath and take testimony.
    10. Section 92.52 is revised to read as follows:


Sec. 92.52  ``Deposition on notice'' defined.

    A ``deposition on notice'' is a deposition taken before a competent 
official after reasonable notice has been given in writing by the party 
or attorney proposing to take such deposition to the opposing party or 
attorney of record. Notarizing officers, who are authorized to 
administer oaths pursuant to 22 U.S.C. 4221, are competent officials 
for taking depositions on notice in foreign countries (see Sec. 92.51). 
This method of taking a deposition does not necessarily involve the 
issuance of a commission or other court order.
    11. Section 92.55 is revised to read as follows:


Sec. 92.55  Consular authority and responsibility for taking 
depositions.

    (a) Requests to take depositions or designations to execute 
commissions to take depositions. Any United States notarizing officer 
may be requested to take a deposition on notice, or designated to 
execute a commission to take depositions. A commission or notice 
should, if possible, identify the officer who is to take the 
depositions by his official title only in the following manner: ``Any 
notarizing officer of the United States of America at (name of 
locality)''. The notarizing officer responsible for the performance of 
notarial acts at a post should act on a request to take a deposition on 
notice, or should execute the commission, when the documents are drawn 
in this manner, provided local law does not preclude such action. 
However, when the officer (or officers) is designated by name as well 
as by title, only the officer (or officers) so designated may take the 
depositions. In either instance, the officer must be a disinterested 
party. Rule 28(c) of the Rules of Civil Procedure for the district 
courts of the United States prohibits the taking of a deposition before 
a person who is a relative, employee, attorney or counsel of any of the 
parties, or who is a relative or employee of such attorney or counsel, 
or who is financially interested in the action.
    (b) Authority in Federal law. The authority for the taking of 
depositions, charging the appropriate fees, and imposing the penalty 
for giving false evidence is generally set forth in 22 U.S.C. 4215 and 
4221. The taking of depositions for federal courts of the United States 
is further governed by the Federal Rules of Civil Procedure. For the 
provisions of law which govern particularly the taking of depositions 
to prove the genuineness of foreign documents which it is desired to 
introduce in evidence in any criminal action or proceeding in a United 
States federal court, see 18 U.S.C. 3491 through 3496.
    (c) Procedure where laws of the foreign country do not permit the 
taking of depositions. In countries where the right to take depositions 
is not secured by treaty, notarizing officers may take depositions only 
if the laws or authorities of the national government will permit them 
to do so. Notarizing officers in countries where the taking of 
depositions is not permitted who receive notices or commissions for 
taking depositions should return the documents to the parties from whom 
they are received explaining why they are returning them, and 
indicating what other method or methods may be available for obtaining 
the depositions, whether by letters rogatory or otherwise.
    12. In Sec. 92.66, paragraphs (a) and (b) are revised to read as 
follows:


Sec. 92.66  Depositions taken before foreign officials or other persons 
in a foreign country.

    (a) Customary practice. Under Federal law (Rule 28 (b), Rules of 
Civil Procedure for the District Courts of the United States) and under 
the laws of some of the States, a commission to take depositions can be 
issued to a foreign official or to a private person in a foreign 
country.
    However, this method is rarely used; commissions are generally 
issued to U.S. notarizing officers. In those countries where U.S. 
notarizing officers are not permitted to take testimony (see 
Sec. 92.55(c)) and where depositions must be taken before a foreign 
authority, letters rogatory are usually issued to a foreign court.
* * * * *
    (d) Transmission of commissions to foreign officials or other 
persons. A commission to take depositions which is addressed to an 
official or person in a foreign country other than a United States 
notarizing officer may be sent directly to the person designated. 
However, if such a Commission is sent to the United States diplomatic 
mission in the country where the depositions are intended to be taken, 
it should be forwarded to the Foreign Office for transmission to the 
person appointed in the commission. If sent to a United States consular 
office, the commission may be forwarded by that office direct to the 
person designated, or, if the notarial officer deems it more advisable 
to do so, he may send the commission to the United States diplomatic 
mission for transmission through the medium of the foreign office.


Secs. 92.3, 92.8, 92.9, 91.10, 92.11, 92.12, 92.15, 92.17, 92.23, 
92.24, 92.27, 92.29, 92.31, 92.32, 92.33, 92.35, 92.56, 92.57, 92.58, 
92.60, 92.61, 92.62, and 92.64  [Amended]

    13. In 22 CFR Part 92 remove the words ``consular officer'' or 
``consular officers'' and add, in their place, the words ``notarizing 
officer'' or ``notarizing officers'' in the following places:
    (a) Section 92.3;
    (b) Section 92.8;
    (c) Section 92.9(a) and 92.9(b);
    (d) Section 92.10;
    (e) Section 92.11(a) and 92.11(b);
    (f) Section 92.12;
    (g) Section 92.15;
    (h) Section 92.17;
    (i) Section 92.23;
    (j) Section 92.24;
    (k) Section 92.27(a) and 92.27(b);
    (l) Section 92.29;
    (m) Section 92.31;
    (n) Section 92.32b;
    (o) Section 92.33;
    (p) Section 92.35;
    (q) Section 92.56;
    (r) Section 92.57;
    (s) Section 92.58;
    (t) Section 92.60;
    (u) Section 92.61;
    (v) Section 92.62;
    (w) Section 92.64(b).


Sec. 92.63  [Amended]

    14. In Sec. 92.63(d), remove the words ``consular officer's'' and 
add in their place the words ``notarizing officer's''.

    Dated: November 23, 1994.
Mary A. Ryan,
Assistant Secretary for Consular Affairs.
[FR Doc. 94-30748 Filed 12-15-94; 8:45 am]
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