[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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