[Federal Register Volume 60, Number 191 (Tuesday, October 3, 1995)]
[Rules and Regulations]
[Pages 51719-51723]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-24588]
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DEPARTMENT OF STATE
22 CFR Part 92
[Public Notice 2265 ]
Bureau of Consular Affairs; Notarial and Related Services
AGENCY: Bureau of Consular Affairs, Department of State.
ACTION: Final rule.
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SUMMARY: The Bureau of Consular Affairs is amending 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.
EFFECTIVE DATE: This rule takes effect October 3, 1995.
FOR FURTHER INFORMATION CONTACT:
Carmen A. DiPlacido, or Michael Meszaros, Overseas Citizens 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, Pub. L.
103-236, April 30, 1994. 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 in foreign
countries notarial services authorized to be performed by consular
officers. 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
services to the public and freeing consular officers to focus more of
their efforts on other demands on our overseas posts. Consular and
other diplomatic officers will still perform notarial functions as
needed.
The Secretary's authority providing for the designation of the
officers was delegated to the Assistant Secretary for Consular Affairs
on September 20, 1994. The final rule will further delegate that
authority to the Deputy Assistant Secretary for Overseas Citizens
Services.
The rule was published as a proposed rule on December 16, 1994,
with public comments due by January 17, 1995 (59 FR 64,881). In
addition to publication in the Federal Register, the Department of
State mailed copies of the proposed regulations to appropriate notarial
officials in the states and territories. Copies were also mailed to
private organizations which may have had an interest in the proposed
regulations, such as the National Notary Association and the
International Law section of the American Bar Association.
Discussion of Comments and Changes
The Department of State received two public comments on the
proposed regulations. The National Notary Association pointed out an
issue concerning the proposed Sec. 92.4's requirement that all
notarizing officers ``perform any notarial act which any notary public
is required or authorized by law to perform within the United States.''
The Association suggested that this provision:
May prove problematic, since Notaries in Maine, Florida and
South Carolina have authority to perform marriages, and, in
Louisiana, they have essentially the same duties and authority as
attorneys. Further, in some states Notaries have certain peculiar
duties which the State Department's notarizing officers may not be
prepared to perform, including protests and the certification of an
event or act.''
The Association suggested that Sec. 92.4 be further amended to
specify exactly the notarial acts that notarizing officers may perform:
``* * * to administer, take or execute oaths, affirmations,
acknowledgments, proofs, affidavits and depositions, except as limited
by Sec. 92.1.''
The Department thanks the National Notary Association for taking
the time and effort to review our proposed regulations. The language it
is concerned about in fact predates the proposed amendments, however,
and closely tracks the actual wording of 22 U.S.C. 4215 and 22 U.S.C.
4221, which are the statutes that authorize employees of the State
Department to perform notarial acts. Moreover, the Department has
always understood these two authorizing statutes to use the term
``notarial act'' in the traditional sense of the word. Thus the
Department believes that the statutes encompass notarial acts as
specified by statute in a
[[Page 51720]]
majority of the States, but not all the acts that a notary may perform
in every state. In some states (under common law) the duties of the
notary public were expanded over time, so that notaries basically
performed the functions of a justice of the peace. A minority of these
states (Maine, Florida and South Carolina, according to the
Association) then codified some of these functions, one of them being
the celebration of a marriage. The Department understands, however,
that in effect these few States have authorized notaries to perform
acts that are not notarial, at least not in the traditional sense or
the sense authorized in the majority of the states or by 22 U.S.C. 4215
and 4221. Thus, the Department does not believe that 22 U.S.C. 4215 and
4221 or its notarial regulations provide a basis to authorize its
consular or other notarial officers to perform such extraordinary acts
that are more typically associated with Justices of the Peace or
attorneys. Support for this view is found in the definition of a notary
public in one commonly cited source:
A notary public is defined as a public, civil, or ministerial
officer, and an impartial agent of the state, who in the performance
of his duties, exercises a delegation of the state's sovereign
power, as in attesting the genuineness of any deeds or writings in
order to render them available as evidence of the facts therein
contained, and in administering oaths and attesting to the
authenticity of signatures.
58 AM. JUR. 2D Notaries Public section 1 (1995).
We do agree, however, that a change in the wording of the
Department's regulations would be useful to ensure that there is no
misunderstanding of the notarial authorities of Department officials.
Given our understanding that 22 U.S.C. 4215 and 4221 authorize the
performance of oaths, affirmations and other ministerial duties of
notaries, not extraordinary acts (such as celebrating a marriage) which
are not traditional notarial acts and which are authorized by a
minority of the states, we have substituted for the first sentence of
Section 92.4(a) the following three sentences:
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. The term ``notarial act'' as used herein shall not
include the performance of extraordinary acts, such as marriages, that
have not been traditionally regarded as notarial, notwithstanding that
notary publics may be authorized to perform such acts in some of the
states of the United States. If a request is made to perform an act
that the notarizing officer believes is not properly regarded as
notarial within the meaning of this regulation, the officer shall not
perform the act unless expressly authorized by the Department upon its
determination that the act is a notarial act within the meaning of 22
U.S.C. 4215 and 4221.
Another comment was received from the Office of Inspection of
Notarial Deeds, Tribunal Supremo, Puerto Rico:
We foresee no difficulties with the implementation of this rule
with the exceptions provided. However, [it is] respectfully
requested [that the Department] consider in the rule whether the
documents which bear the signature of a designated employee in his
official capacity similar to a consular officer, require or not to
be accompanied by a certification stating that the signature of the
designated employee is genuine and that the signer has the official
capacity to sign the document.
The issue of whether a certification would need to accompany any
notarial act performed by a designated State Department employee has
been considered. Due to the fact that our designated employees will
have the same statutory authority as a consular officer, the Department
has concluded that attaching such certificates to notarial acts
performed by designated employees will not be necessary. The Department
will maintain records of employees designated under these regulations
to ensure that their official acts can subsequently be verified if
questioned, for example, in litigation.
As noted when this rule was first proposed, the new regulation does
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(a)(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. citizen
employees 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 proposed rule, thereby permitting
further amendments to the Department's notarial regulations to include
authentications.
Similarly, the regulation does not allow the designated employees
to perform notarial services in connection with patents and patent
applications. The taking of 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
Department of State is now seeking an amendment to the statute to
permit notarial officers to accept patent applications.
Another service which designated employees are 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 Department is now
seeking an amendment to the statute to permit notarial officers to
permit notarizing 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 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.
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.
[[Page 51721]]
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 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, unless otherwise noted.
Sec. 92.1 [Amended]
2. Section 92.1(d) is added to read as follows:
* * * * *
(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 Sec. 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. Section 92.4 is amended by revising the heading and paragraphs
(a), (b) and (c) 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. The term ``notarial act'' as used herein shall not
include the performance of extraordinary acts, such as marriages, that
have not been traditionally regarded as notarial, notwithstanding that
notary publics may be authorized to perform such acts in some of the
states of the United States. If a request is made to perform an act
that the notarizing officer believes is not properly regarded as
notarial within the meaning of this regulation, the officer shall not
perform the act unless expressly authorized by the Department upon its
determination that the act is a notarial act within the meaning of 22
U.S.C. 4215 and 4221. The language ``within the limits of the
consulate'' is construed to mean within the geographic limits of a
consular district. With respect to notarial acts performed by
notarizing officers away from their office, see Sec. 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 Sec. 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 with 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. In Sec. 92.6, introductory text 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 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. Section 92.7 is amended by revising the heading and paragraph
(b) to read as follows:
Sec. 92.7 Responsibility of notarizing officers of the Department of
State.
* * * * *
[[Page 51722]]
(b) As indicated in Secs. 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 Sec. 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. Section 92.31 is amended by revising the third sentence of
paragraph (a) to read as follows:
Sec. 92.31 Taking an acknowledgment.
(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 acknowledgment 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 commissioned 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, as defined by 22 CFR 92.1, 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 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 is 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. Section 92.66 is amended by revising paragraphs (a) and (d) 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) Transmissions 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 directly 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(a) and 92.9(b), 92.10, 92.11(a) and 92.11(b),
92.12, 92.15, 92.17, 92.23, 92.24, 92.27(a) and 92.27(b), 92.29, 92.31,
92.32(b), 92.33, 92.35, 92.56, 92.58, 92.57, 92.60, 92.61, 92.62, and
92.64(b) [Amended]
12. In 22 CFR Part 92 remove the words ``consular officer,''
``consular officers'' or ``consular officer's'' and add, in their
place, as appropriate, the words ``notarizing officer'', ``notarizing
[[Page 51723]]
officers'' or ``notarizing officer's'' 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 92.32(b);
(o) Section 92.33;
(p) Section 92.35;
(q) Section 92.56, introductory text;
(r) Section 92.57;
(s) Section 92.59, concluding text;
(t) Section 92.60';
(u) Section 92.61;
(v) Section 92.62;
(w) Section 92.63, concluding text;
(x) Section 92.64(b)
Dated: August 29, 1995.
Mary A. Ryan,
Assistant Secretary for Consular Affairs.
[FR Doc. 95-24588 Filed 10-2-95; 8:45 am]
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