PART 92—NOTARIAL AND RELATED SERVICES Authority: 22 U.S.C. 2651a, 2656, 4215 and 4221. Source: 22 FR 10858, Dec. 27, 1957, unless otherwise noted. Introduction § 92.1 Definitions. (a) In the United States the term notary notary public (b) The term notarial act (c) The term notarial certificate (d) For purposes of this part, except §§ 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 Director or Deputy Directors, and regional Division Chiefs, Office of American Citizens Services and Crisis Management, Overseas Citizens Services, Bureau of Consular Affairs, U.S. Department of State 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, Public Law 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 Director or Deputy Directors, or regional Division Chiefs of the Office of American Citizen Services and Crisis Management, Overseas Citizens Services, Bureau of Consular Affairs, U.S. Department of State. [22 FR 10858, Dec. 27, 1957, as amended at 60 FR 51721, Oct. 3, 1995; 89 FR 85430, Oct. 28, 2024] § 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 § 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. [60 FR 51721, Oct. 3, 1995] § 92.3 Consular districts. Where consular districts have been established, the geographic limits of the district determine the area in which notarial acts can be performed by the notarizing officer. See § 92.41 (b) regarding authentication of the seals and signatures of foreign officials outside the consular district. [27 FR 12616, Dec. 20, 1962, as amended at 60 FR 51723, Oct. 3, 1995] § 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 § 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. (d) Chiefs of mission, that is, ambassadors and ministers, have no authority under Federal law to perform notarial acts except in connection with the authentication of extradition papers (see § 92.40). (e) Consular agents have authority to perform notarial services but acting consular agents do not. [22 FR 10858, Dec. 27, 1957, as amended at 27 FR 12616, Dec. 20, 1962; 60 FR 51721, Oct. 3, 1995] § 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. [60 FR 51721, Oct. 3, 1995] § 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. (a) That his notarial certificate may reasonably be expected to satisfy the legal requirements of the country in which the notarized document will be used; (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 (c) That the notarial certifcate will be used solely for a well-defined purpose, as represented by the applicant for the service. (See also § 92.4(c) regarding notarial services for use in countries occupied by the United States or under its administrative jurisdiction.) [22 FR 10858, Dec. 27, 1957, as amended at 60 FR 51721, Oct. 3, 1995] § 92.7 Responsibility of notarizing officers of the Department of State. (a) As a rule notarial acts should be performed at the consular office. Where required by the circumstances of a particular case and subject to the reasonableness of the request notarial acts may be performed elsewhere within the limits of the consulate subject to the assessment of the applicable fees under subheading “Services Rendered Outside of Office” of the Tariff of Fees (§ 22.1(a) of this chapter), as well as to payment by the interested party of the officer's expenses in going to the place where the service is performed and returning to his office (§ 22.1(b) of this chapter). (b) As indicated in §§ 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 § 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. [27 FR 12616, Dec. 20, 1962, as amended at 60 FR 51721, Oct. 3, 1995] General Notarial Procedures § 92.8 Compliance with request for notarial services. A notarizing officer should comply with all proper requests for the performance of notarial services within the limitations prescribed in this part. (See particularly §§ 92.3 to 92.7). Moreover, as a representative of the United States Government, the notarizing officer, when acting in a notarial capacity, should take great care to prevent the use of his official seal in furthering any unlawful or clearly improper purpose. (See § 92.9 regarding refusal to perform notarial services in certain cases.) [22 FR 10858, Dec. 27, 1957, as amended at 60 FR 51721, Oct. 3, 1995] § 92.9 Refusals of requests for notarial services. (a) A notarizing officer should refuse requests for notarial services, the performance of which is not authorized by treaty provisions or permitted by the laws or authorities of the country in which he is stationed. (See § 92.4(a).) Also, a notarizing officer should refuse to perform notarial acts for use in transactions which may from time to time be prohibited by law or by regulations of the United States Government such, for example, as regulations based on the “Trading With the Enemy Act of 1917,” as amended. (b) A notarizing officer is also authorized to refuse to perform a notarial act if he had reasonable grounds for believing that the document in connection with which his notarial act is requested will be used for a purpose patently unlawful, improper or inimical to the best interests of the United States. Requests for notarial services should be refused only after the most careful deliberation. [22 FR 10858, Dec. 27, 1957, as amended at 60 FR 51723, Oct. 3, 1995] § 92.10 Specific waiver in notarial certificate. If the notarizing officer has reason to believe that material statements in a document presented for notarization are false, and if no basis exists for refusing the notarial service in accordance with § 92.9, he may consider the advisability of informing the applicant that he will perform the service only with a specific waiver of responsibility included in the notarial certificate. Furthermore, a notarizing officer may, in his discretion, add to the specific waiver in the notarial certificate a statement of verifiable facts known to him, which will reveal the falsity of material in the document. However, normally a notarizing officer shall exercise great caution not to limit the general privilege of a United States citizen while abroad to execute under oath any statement he sees fit to make, including mistaken, unnecessary, and even frivolous statements: Provided, [22 FR 10858, Dec. 27, 1957, as amended at 60 FR 51723, Oct. 3, 1995] § 92.11 Preparation of legal documents. (a) By attorneys. (b) By notarizing officers. [22 FR 10858, Dec. 27, 1957, as amended at 60 FR 51723, Oct. 3, 1995] § 92.12 Necessity for certification of notarial acts. A notarizing officer must execute a written certificate attesting to the performance of a notarial act. This certificate may be inserted on or appended to the notarized document (see § 92.17 regarding the fastening of sheets). The certificate evidences the performance of the notarial act. Failure to execute this certificate renders the notarial act legally ineffective. Each notarial act should be evidenced by a separate certificate; two or more distinct notarial acts should not be attested to by one certificate. [22 FR 10858, Dec. 27, 1957, as amended at 60 FR 51721, Oct. 3, 1995] § 92.13 Form of notarial certificate. The form of a notarial certificate depends on the nature of the notarial act it attests. (See §§ 92.18 to 92.48 for discussions of the various forms of notarial certificates.) Rules pertaining to venue, and signing and sealing, are common to all notarial certificates. § 92.14 Venue on notarial certificates. (a) The term venue (1) Name of the country (or dominion, Territory, colony, island, as appropriate); (2) Name of province or major administrative region (if none, this may be omitted); (3) Name of local community (city, town, or village); (4) Name of the Foreign Service post. (b) When a notarial act is performed, and the notarial certificate executed, at a locality in a consular district other than the locality in which the Foreign Service office is situated, the venue should mention only the name of the country (or dominion, territory, colony, island, as appropriate), and the name of the consular district. (c) The venue used at a Foreign Service post which has not been officially designated as an embassy, legation, consulate general, consulate, or consular agency should bear the notation “American Consular Service” in place of the post name. § 92.15 Signing notarial certificate. The notarizing officer should sign a notarial certificate on the lower right-hand side. The name and full official title of the notarizing officer should by typed, stamped with a rubber stamp, or printed in ink on two separate lines immediately below his signature. When the notarizing officer is assigned to a Foreign Service post in both a diplomatic and consular capacity, he should use his consular title in the notarial certificate. (See § 92.7.) [22 FR 10858, Dec. 27, 1957, as amended at 60 FR 51723, Oct. 3, 1995] § 92.16 Sealing the notarial certificate. The notarizing officer should seal a notarial certificate with the impression seal of the post on the lower left-hand side of the certificate. A notarial certificate executed at a Foreign Service post which has not been officially designated as an embassy, legation, consulate general, consulate, or consular agency should be sealed with an impression seal bearing the legend “American Consular Service” and the name of the locality. § 92.17 Fastening of pages. When the instrument or document to which a notarial act relates consists of more than one sheet, or when the notarial certificate will be attached and not written on the document itself, the notarizing officer should bring all the sheets comprising the document together under his official seal. [22 FR 10858, Dec. 27, 1957, as amended at 60 FR 51723, Oct. 3, 1995] Specific Notarial Acts § 92.18 Oaths and affirmations defined. (a) Oath. (b) Affirmation. § 92.19 Administering an oath. The usual formula for administering an oath is as follows: The officer administering the oath requests the person taking the oath to raise his right hand while the officer repeats the following words: “You do solemnly swear that the statements set forth in this paper which you have here signed before me are true. So help you God.” Whereupon the person taking the oath answers, “I do.” § 92.20 Administering an affirmation. In administering an affirmation the procedure followed is generally the same as in the case of an oath, but the formula is varied by the use of the following words: “You do solemnly, sincerely, and truly affirm and declare that . . ., and this you do under the pains and penalties of perjury.” § 92.21 Notarial certificate to oath or affirmation. The written statement attesting to the administration of an oath or affirmation is known as a jurat. The jurat must be signed and sealed by the notarizing officer (see §§ 92.15 and 92.16 on signing and sealing notarial certificates). § 92.22 “Affidavit” defined. An affidavit is a written declaration under oath made before some person who has authority to administer oaths, without notice to any adverse party that may exist. One test of the sufficiency of an affidavit is whether it is so clear and certain that it will sustain an indictment for perjury, if found to be false. An affidavit differs from a deposition in that it is taken ex parte and without notice, while a deposition is taken after notice has been furnished to the opposite party, who is given an opportunity to cross-examine the witness. § 92.23 Taking an affidavit. The notarizing officer taking an affidavit should: (a) Satisfy himself, as far as possible, that his notarial act will be acceptable under the laws of the jurisdiction where the affidavit is to be used (see § 92.5); (b) Require the personal appearance of the affiant at the time the affidavit is taken; (c) Require satisfactory identification of the affiant; and (d) Administer the oath to the affiant before the affiant signs the affidavit. [22 FR 10858, Dec. 27, 1957, as amended at 60 FR 51723, Oct. 3, 1995] § 92.24 Usual form of affidavit. Affidavits are usually drawn by competent attorneys or are set out in established forms. The form and substantive requirements of an affidavit depend principally upon the purpose for which it is made and the statutes of the jurisdiction where it is intended to be used. When a notarizing officer finds it necessary in the discharge of his official duties to prepare an affidavit, or when he assists a private person in preparing an affidavit (see § 92.11(b)), he should, where possible, consult the pertinent statutory provisions. [22 FR 10858, Dec. 27, 1957, as amended at 60 FR 51723, Oct. 3, 1995] § 92.25 Title of affidavit. Generally an affidavit taken for use in a pending cause must be entitled in that cause so that it will show to what proceedings it is intended to apply, and may support an indictment for perjury in case it proves to be false. If there is no suit pending at the time the affidavit is taken or if the affidavit is not to be used in any cause in court, no title need be given. § 92.26 Venue on affidavit. The venue must always be given and should precede the body of the affidavit. (See § 92.14 regarding venue on notarial certificates generally.) § 92.27 Affiant's allegations in affidavit. (a) Substance of allegations. (1) Material facts within the personal knowledge of the affiant should be alleged directly and positively. Facts are not to be inferred where the affiant has it in his power to state them positively and fully. (2) If the matters stated in the affiant's affidavit rest upon information derived from others rather than on facts within his personal knowledge, he should aver that such matters are true to the best of his knowledge and belief. (3) If the allegations made on information and belief are material, the sources of information and grounds of belief should be set out and a good reason given why a positive statement could not be made. (4) If the conclusions of the affiant are drawn from the contents of documents, such contents should be set out or exhibited, so that the authority to whom the affidavit is presented may determine whether the affiant's deductions are well founded. (b) Veracity of allegations. [22 FR 10858, Dec. 27, 1957, as amended at 60 FR 51723, Oct. 3, 1995] § 92.28 Signature of affiant on affidavit. The signature of the affiant is indispensable. The affiant should always sign the affidavit in the presence of the notarizing officer. § 92.29 Oath or affirmation to affidavit. Affidavits made before notarizing officers must be sworn to or affirmed (see § 92.23(d)). [22 FR 10858, Dec. 27, 1957, as amended at 60 FR 51723, Oct. 3, 1995] § 92.30 Acknowledgment defined. An acknowledgment is a proceeding by which a person who has executed an instrument goes before a competent officer or court and declares it to be his act and deed to entitle it to be recorded or to be received in evidence without further proof of execution. An acknowledgment is almost never made under oath and should not be confused with an oath (see § 92.18(a) for definition of oath). Moreover, an acknowledgment is not the same as an attestation, the latter being the act of witnessing the execution of an instrument and then signing it as a witness. Instruments requiring acknowledgment generally are those relating to land, such as deeds, mortgages, leases, contracts for the sale of land, and so on. § 92.31 Taking an acknowledgment. (a) Officers' assurance of acceptability of notarial act. (b) Personal appearance of grantor(s). i.e. (c) Satisfactory identification of grantor(s). (d) Explanation of contents of instrument. (e) Acknowledgments of married women. [22 FR 10858, Dec. 27, 1957, as amended at 60 FR 51722, 51723, Oct. 3, 1995] § 92.32 Notarial certificate to acknowledgment. (a) Title. (b) Form. [22 FR 10858, Dec. 27, 1957, as amended at 60 FR 51723, Oct. 3, 1995] § 92.33 Execution of certificate of acknowledgment. (a) When certificate should be executed. (b) Venue. (c) Date. (d) Names of parties. (e) Additional statements. (f) Signing and sealing certificate. [22 FR 10858, Dec. 27, 1957, as amended at 60 FR 51723, Oct. 3, 1995] § 92.34 Fastening certificate to instrument. The proper place for the certificate of acknowledgment is after the signature of the parties to the instrument. If the instrument is a printed form, the certificate will almost invariably be a part of the form. When Form FS-88 is used or when the certificate must be prepared on a sheet separate from the instrument, it should be fastened to the instrument as the last sheet. The method of fastening notarial certificates is prescribed in § 92.17. § 92.35 Errors in certificate of acknowledgment. A notarizing officer having taken an acknowledgment of an instrument and made a certificate of that fact cannot afterwards amend or change his certificate for the purpose of correcting a mistake. This can be done only by the parties reacknowledging the instrument. However, typographical errors may be corrected by striking out the erroneous characters and inserting the correct ones above. Such changes should be initiated by the parties who executed the instrument and by the notarizing officer. [22 FR 10858, Dec. 27, 1957, as amended at 60 FR 51723, Oct. 3, 1995] § 92.36 Authentication defined. An authentication is a certification of the genuineness of the official character, i.e. § 92.37 Authentication procedure. (a) The consular officer must compare the foreign official's seal and signature on the document he is asked to authenticate with a specimen of the same official's seal and signature on file either in the Foreign Service office or in a foreign public office to which he has access. If no specimen is available to the consular officer, he should require that each signature and seal be authenticated by some higher official or officials of the foreign government until there appears on the document a seal and signature which he can compare with a specimen available to him. However, this procedure of having a document authenticated by a series of foreign officials should be followed only where unusual circumstances, or the laws or regulations of the foreign country require it. (b) Where the State law requires the consular officer's certificate of authentication to show that the foreign official is empowered to perform a particular act, such as administering an oath or taking an acknowledgment, the consular officer must verify the fact that the foreign official is so empowered. (c) When the consular officer has satisfactorily identified the foreign seal and signature (and, where required, has verified the authority of the foreign official to perform a particular act), he may then execute a certificate of authentication, either placing this certificate on the document itself if space is available, or appending it to the document on a separate sheet (see § 92.17 on the fastening of notarial certificates). § 92.38 Forms of certificate of authentication. The form of a certificate of authentication depends on the statutory requirements of the jurisdiction where the authenticated document will be used (see § 92.39 regarding the provisions of Federal law). Before authenticating a document for use in a State or Territory of the United States, a consular officer should consult the pertinent law digest to ascertain what specific requirements must be met, or he should be guided by any special information he may receive from the attorney or other person requesting the document with regard to the applicable statutory requirements. (See § 92.41(e) regarding material which should not be in the certificate of authentication.) If no provisions relating to authentications can be found in a particular State or Territorial law digest, and in the absence of any special information from the attorney or other person requesting the document, the officer should prepare the certificate of authentication in the form which seems best suited to the needs of the case. When in his opinion the circumstances seem to warrant, and always in connection with certificates of marriage or divorce decrees, a consular officer should include in the body of his certificate of authentication a qualifying statement reading as follows: “For the contents of the annexed document I assume no responsibility.” § 92.39 Authenticating foreign public documents (Federal procedures). (a) A copy of a foreign public document intended to be used as evidence within the jurisdiction of the Federal Government of the United States must be authenticated in accordance with the provisions of section 1 of the act of June 25, 1948, as amended (sec. 1, 62 Stat. 948, sec. 92(b), 63 Stat. 103; 28 U.S.C. 1741). This provision of Federal law provides that a copy of any foreign document of record, or on file in a public office of a foreign country or political subdivision thereof, if certified, by the lawful custodian thereof, may be admitted in evidence when authenticated by a certificate of a United States consular officer resident in the foreign country, under the seal of his office. (b) The consular officer's certificate should indicate that the copy has been certified by the lawful custodian. (c) In the absence of a consular officer of the United States as an officer resident in the State of the Vatican City, a copy of any document of record or on file in a public office of said State of the Vatican City, certified by the lawful custodian of such document may be authenticated by a consular officer of the United States resident in Rome, Italy (22 U.S.C. 1204). § 92.40 Authentication of foreign extradition papers. Foreign extradition papers are authenticated by chiefs of mission. § 92.41 Limitations to be observed in authenticating documents. (a) Unknown seals and signatures. (b) Foreign officials outside consular district. (c) Officials in the United States. (d) Photostat copies. (e) Matters outside consular officer's knowledge. (f) United States officials in foreign countries. (g) Officers of the Foreign Service in other countries. § 92.42 Certification of copies of foreign records relating to land titles. In certifying documents of the kind described in title 28, section 1742, of the United States Code, diplomatic and consular officers of the United States will conform to the Federal procedures for authenticating foreign public documents (§ 92.39), unless otherwise instructed in a specific case. § 92.43 Fees for notarial services and authentications. The fees for administering an oath or affirmation and making a certificate thereof, for the taking of an acknowledgment of the execution of a document and executing a certificate thereof, for certifying to the correctness of a copy of or an extract from a document, official or private, for authenticating a foreign document, or for the noting of a bill of exchange, certifying to protest, etc., are as prescribed under the caption Documentary services in the Schedule of Fees (§ 22.1 of this chapter), unless the service is performed under a “no fee” item of the same caption of the Schedule. If an oath or affirmation is administered concurrently to several persons and only one consular certificate (jurat) is executed, only one fee is collectible. If more than one person joins in making an acknowledgment but only one certificate is executed, only one fee shall be charged. [22 FR 10858, Dec. 27, 1957, as amended at 63 FR 6480, Feb. 9, 1998] Depositions and Letters Rogatory § 92.49 “Deposition” defined. A deposition is the testimony of a witness taken in writing under oath or affirmation, before some designated or appointed person or officer, in answer to interrogatories, oral or written. (For the distinction between a deposition and an affidavit see § 92.22.) § 92.50 Use of depositions in court actions. Generally depositions may be taken and used in all civil actions or suits. In criminal cases in the United States, a deposition cannot be used, unless a statute has been enacted which permits a defendant in a criminal case to have a deposition taken in his own behalf, or unless the defendant consents to the taking of a deposition by the State for use by the prosecution. (For exception in connection with the proving of foreign documents for use in criminal actions, see § 92.65.) § 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. [60 FR 51722, Oct. 3, 1995] § 92.52 “Deposition on notice” defined. A deposition on notice [60 FR 51722, Oct. 3, 1995] § 92.53 “Commission to take depositions” defined. A commission to take depositions [22 FR 10858, Dec. 27, 1957, as amended at 60 FR 51723, Oct. 3, 1995] § 92.54 “Letters rogatory” defined. In its broader sense in international practice, the term letters rogatory § 92.55 Consular authority and responsibility for taking depositions. (a) Requests to take depositions or designations to execute commissions to take depositions. (b) Authority in Federal law. (c) Procedure where laws of the foreign country do not permit the taking of depositions. [60 FR 51722, Oct. 3, 1995] § 92.56 Summary of procedure for taking depositions. In taking a deposition on notice or executing a commission to take depositions, a notarizing officer should conform to any statutory enactments on the subject in the jurisdiction in which the depositions will be used. He should also comply with any special instructions which accompany the request for a deposition on notice or a commission. Unless otherwise directed by statutory enactments or special instructions, the officer should proceed as follows in taking depositions: (a) Request the witnesses, whose testimony is needed, to appear before him; or, at the request of any party to the action or proceeding, request designated persons to supply him or the requesting party with needed records or documents in their possession, or copies thereof; (b) When necessary, act as interpreter or translater, or see that arrangements are made for some qualified person to act in this capacity; (c) Before the testimony is taken, administer oaths (or affirmations in lieu thereof) to the interpreter or translator (if there is one), to the stenographer taking down the testimony, and to each witness; (d) Have the witnesses examined in accordance with the procedure described in §§ 92.57 to 92.60; (e) Either record, or have recorded in his presence and under his direction, the testimony of the witnesses; (f) Take the testimony, or have it taken, stenographically in question-and-answer form and transcribed (see § 92.58) unless the parties to the action agree otherwise (rules 30(c) and 31(b), Rules of Civil Procedure for the District Courts of the United States); (g) Be actually present throughout the examination of the witnesses, but recess the examination for reasonable periods of time and for sufficient reasons; (h) Mark or cause to be marked, by identifying exhibit numbers or letters, all documents identified by a witness or counsel and submitted for the record. [22 FR 10858, Dec. 27, 1957, as amended at 60 FR 51723, Oct. 3, 1995] § 92.57 Oral examination of witnesses. When a witness is examined on the basis of oral interrogatories, the counsel for the party requesting the deposition has the right to conduct a direct examination of the witness without interruption except in the form of objection by opposing counsel. The opposing counsel has the same right on cross-examination. Cross-examination may be followed by redirect and recross-examinations until the interrogation is complete. The notarizing officer taking the deposition should endeavor to restrain counsel from indulging in lengthy colloquies, digressions, or asides, and from attempts to intimidate or mislead the witness. The notarizing officer has no authority to sustain or overrule objections but should have them recorded as provided in § 92.59. Instead of taking part in the oral examination of a witness, the parties notified of the taking of a deposition may transmit written interrogatories to the notarizing officer. The notarizing officer should then question the witness on the basis of the written interrogatories and should record the answers verbatim. (Rules 30 (c) and 31 (b), Rules of Civil Procedure for the District Courts of the United States.) [22 FR 10858, Dec. 27, 1957, as amended at 60 FR 51723, Oct. 3, 1995] § 92.58 Examination on basis of written interrogatories. Written interrogatories are usually divided into three parts: (a) The direct interrogatories or interrogatories in chief; (b) The cross-interrogatories; and (c) The redirect interrogatories. Recross-interrogatories sometimes follow redirect interrogatories. The notarizing officer should not furnish the witness with a copy of the interrogatories in advance of the questioning, nor should he allow the witness to examine the interrogatories in advance of the questioning. Although it may be necessary for the officer, when communicating with the witness for the purpose of asking him to appear to testify, to indicate in general terms the nature of the evidence which is being sought, this information should not be given in such detail as to permit the witness to formulate his answers to the interrogatories prior to his appearance before the notarizing officer. The officer taking the deposition should put the interrogatories to the witness separately and in order. The written interrogatories should not be repeated in the record (unless special instructions to that effect are given), but an appropriate reference should be made thereto. These references should, of course, be followed by the witness' answers. All of the written interrogatories must be put to the witness, even though at some point during the examination the witness disclaims further knowledge of the subject. When counsel for all of the parties attend an examination conducted on written interrogatories, the notarizing officer may, all counsel having consented thereto, permit oral examination of the witness following the close of the examination upon written interrogatories. The oral examination should be conducted in the same manner and order as if not preceded by an examination upon written interrogatories. [22 FR 10858, Dec. 27, 1957, as amended at 60 FR 51723, Oct. 3, 1995; 61 FR 14375, Apr. 1, 1996] § 92.59 Recording of objections. All objections made at the time of the examination to the qualifications of the officer taking the deposition, or to the manner of taking it, or to the evidence presented, or to the conduct of any party, and any other objection to the proceedings must be noted in the deposition. Evidence objected to will be taken subject to the objections. (Rules 30 (c) and 31 (b), Rules of Civil Procedure for the District Courts of the United States.) § 92.60 Examination procedures. (a) Explaining interrogatory to witness. (b) Refreshing memory by reference to written records. (c) Conferring with counsel. (d) Examining witness as to personal knowledge. (e) Witness not to leave officer's presence. [22 FR 10858, Dec. 27, 1957, as amended at 60 FR 51723, Oct. 3, 1995] § 92.61 Transcription and signing of record of examination. After the examination of a witness is completed, the stenographic record of the examination must be fully transcribed and the transcription attached securely to any document or documents to which the testimony in the record pertains. (See § 92.63 regarding the arrangement of papers.) The transcribed deposition must then be submitted to the witness for examination and read to or by him, unless such examination and reading are waived by the witness and by the parties to the action. Any changes in form or substance desired by the witness should be entered upon the deposition by the notarizing officer with a statement of the reasons given by the witness for making the changes. The witness should then sign the transcript of his deposition and should initial in the margin each correction made at his request. However, the signature and initials of the witness may be omitted if the parties to the action by stipulation waive the signing or if the witness is ill, refuses to sign, or cannot be found. If the deposition is not signed by the witness, the notarizing officer should sign it and should state on the record the reason for his action, i.e. [22 FR 10858, Dec. 27, 1957, as amended at 60 FR 51723, Oct. 3, 1995] § 92.62 Captioning and certifying depositions. The notarizing officer should prepare a caption for every deposition; should certify on the deposition that the witness was duly sworn by him and that the deposition is a true record of the testimony given by the witness; and should sign and seal the certification in the manner prescribed in §§ 92.15 and 92.16. (Rules 30 (f) (1) and 31 (b), Rules of Civil Procedures for the District Courts of the United States.) [22 FR 10858, Dec. 27, 1957, as amended at 60 FR 51723, Oct. 3, 1995] § 92.63 Arrangement of papers. Unless special instructions to the contrary are received, the various papers comprising the completed record of the depositions should usually be arranged in the following order from bottom to top: (a) Commission to take depositions (or notice of taking depositions), with interrogatories, exhibits, and other supporting documents fastened thereto. (b) Statement of fees charged, if one is prepared on a separate sheet. (c) Record of the responses of the various witnesses, including any exhibits the witnesses may submit. (d) Closing certificate. All of these papers should be fastened together with ribbon, the ends of which should be secured beneath the notarizing officer's seal affixed to the closing certificate. [22 FR 10858, Dec. 27, 1957, as amended at 60 FR 51723, Oct. 3, 1995] § 92.64 Filing depositions. (a) Preparation and transmission of envelope. (b) Furnishing copies. [22 FR 10858, Dec. 27, 1957, as amended at 60 FR 51723, Oct. 3, 1995] § 92.65 Depositions to prove genuineness of foreign documents. (a) Authority to execute commission. (b) Disqualification to execute commission. (c) Execution and return of commission. (2) Section 1 of the act of June 25, 1948 (sec. 1, 62 Stat. 835; 18 U.S.C. 3493) provides that every person whose testimony is taken should be cautioned and sworn to testify the whole truth and should be carefully examined. The testimony should be reduced to writing or typewriting by the consular officer, or by some person under his personal supervision, or by the witness himself in the presence of the consular officer, and by no other person. After it has been reduced to writing or typewriting, the testimony must be signed by the witness. Every foreign document with respect to which testimony is taken must be annexed to such testimony and must be signed by each witness who appears for the purpose of establishing the genuineness of such document. (3) When counsel for all of the parties attend the examination of any witness whose testimony will be taken on written interrogatories, they may consent that oral interrogatories, in addition to those accompanying the commission, be put to the witness. The consular officer taking the testimony should require an interpreter to be present when his services are needed or are requested by any party or his attorney. (Section 1, 62 Stat. 835, 18 U.S.C. 3493.) (4) Section 1 of the act of June 25, 1948 (sec. 1, 62 Stat. 835; 18 U.S.C. 3494) provides that the consular officer, who executes any commission authorized under the same section, as amended (sec. 1, 62 Stat. 834, sec. 53, 63 Stat. 96; 18 U.S.C. 3492) and who is satisfied, upon all the testimony taken, that a foreign document is genuine, should certify such document to be genuine under the seal of his office. This certification must include a statement that the officer is not subject to disqualification under the provisions of section 1 of the act of June 25, 1948, as amended (sec. 1, 62 Stat. 834, sec. 53, 63 Stat. 96; 18 U.S.C. 3492). For purposes of assessment of fees, the issuance of this certificate shall be regarded as a part of the consular service of executing the commission, and no separate fee shall be charged for the certificate. (5) The consular officer should then forward such foreign documents, together with the record of all testimony taken and the commission which has been executed, to the Department of State for transmission to the clerk of the court from which the commission issued. (Section 1, 62 Stat. 835; 18 U.S.C. 3494.) (See § 92.64 regarding the filing of depositions generally.) (Sec. 303, 60 Stat. 1002, 62 Stat. 836; 22 U.S.C. 843, 18 U.S.C. 3496, E.O. 10307; 16 FR 11907, 3 CFR 1949-1953 Comp., page 387) § 92.66 Depositions taken before foreign officials or other persons in a foreign country. (a) Customary practice. (b) Transmission of letters rogatory to foreign officials. i.e. (c) Return of letters rogatory executed by foreign officials. (2) If the executed letters rogatory are returned to the diplomatic mission from the Foreign Office in an envelope bearing the seals of the foreign judicial authority who took the testimony, that sealed envelope should not be opened at the mission. The responsible officer should place a certificate on the envelope showing the date it was received at his office and indicating that it is being forwarded in the same condition as received from the foreign authorities. He should then place that sealed envelope in a second envelope, sealed with the wax engraving seal of the post, and bearing the title of the action and the name and address of the American judicial body from which the letters rogatory issued. (3) Charges should be made for executing either of the certificates mentioned in paragraphs (c) (1) and (2) of this section, as prescribed by item 67 of the Tariff of Fees, Foreign Service of the United States of America (§ 22.1 of this chapter), unless the service is classifiable in a no-fee category under the exemption for Federal agencies and corporations (item 83 of the same Tariff). (4) The sealed letters rogatory should be transmitted by appropriate means to the court in which the action is pending. See title 28, section 1781, of the United States Code concerning the manner of making return to a court of the United States (Federal court). (d) Transmissions of commissions to foreign officials or other persons. [22 FR 10858, Dec. 27, 1957, as amended at 32 FR 11775, Aug. 16, 1967; 60 FR 51722, Oct. 3, 1995] § 92.67 Taking of depositions in United States pursuant to foreign letters rogatory. (a) Authority and procedure. (b) Formulation of letters rogatory. (c) Addressing letters rogatory. The U.S. District Court for the ______________________ (e.g. Northern, Southern) District of ____________________ (State) ____________________ (City) __________________, (State) In instances where it is not feasible to ascertain the correct form of address at the time of preparation of the letter rogatory, and it will be left for counsel in the United States, or a consul or agent in the United States of the nation of origin of the letter rogatory to effect its transmission to an appropriate court, the following form may be used: “To the Appropriate Judicial Authority at (name of locality).” (d) Submitting letters rogatory to courts in the United States. (1) The transmittal of a letter rogatory or request directly from a foreign or international tribunal to the tribunal, officer, or agency in the United States to whom it is addressed and its return in the same manner; or (2) The transmittal of a letter rogatory or request directly from a tribunal in the United States to the foreign or international tribunal, officer, or agency to whom it is addressed and its return in the same manner. [32 FR 11775, Aug. 16, 1967] § 92.68 Foreign Service fees and incidental costs in the taking of evidence. The fees for the taking of evidence by officers of the Foreign Service are as prescribed by the Tariff or Fees, Foreign Service of the United States of America (§ 22.1 of this chapter), under the caption “Services Relating to the Taking of Evidence,” unless the service is performed for official use, which comes under the caption “Exemption for Federal Agencies and Corporations” of the same Tariff. See § 22.6 of this chapter concerning the requirement for advance deposit of estimated fees. When the party on whose behalf the evidence is sought or his local representative is not present to effect direct payment of such incidental costs as postage or travel of witnesses, the advance deposit required by the officer shall be in an amount estimated as sufficient to cover these in addition to the fees proper. The same rule shall apply to charges for interpreting or for the taking and transcribing of a stenographic record when performed commercially rather than by staff members at Tariff of Fee rates. § 92.69 Charges payable to foreign officials, witnesses, foreign counsel, and interpreters. (a) Execution of letters rogatory by foreign officials. (b) Execution of commissions by foreign officials or other persons abroad. (c) Witness fees and allowances when depositions are taken pursuant to commission from a Federal court. § 92.70 Special fees for depositions in connection with foreign documents. (a) Fees payable to witnesses. (b) Fee payable to counsel. (c) Fees payable to interpreters and translators. (d) Time for paying fees. (e) Payment of fees by the United States. (f) Payment of fees by other parties. § 92.71 Fees for letters rogatory executed by officials in the United States. Arrangements for the payment of fees should be made directly with the court in the United States by the party in the foreign country at whose request the depositions are taken, either through his legal representative in the United States or through the appropriate diplomatic or consular officer of his country in the United States. (See § 92.67 regarding the execution of letters rogatory in the United States.) Miscellaneous Notarial Services § 92.72 Services in connection with patents and patent applications. (a) Affidavit of applicant. (b) Oath or affirmation of applicant Authority to administer oath or affirmation. (2) Form of oath or affirmation. (3) Execution of jurat. (c) Authentication of authority of foreign official Necessity for authentication. (2) Use of permanent ink. (d) Authority of a foreign executor or administrator acting for deceased inventor. (e) Assignments of patents and applications for patents. (f) Fees. § 92.73 Services in connection with trademark registrations. (a) Authority and responsibility. (b) Fees. § 92.74 Services in connection with United States securities or interests therein. (a) Authority and responsibility. (b) Fees. § 92.75 Services in connection with income tax returns. (a) Responsibility. (b) Fees. Copying, Recording, Translating and Procuring Documents § 92.76 Copying documents. (a) Consular authority. (b) Fees. § 92.77 Recording documents. (a) Consular authority. (b) Recording procedure. (1) By whom the document is presented for recording; (2) On whose behalf the service is requested; (3) Date and hour of presentation for recording; (4) How the authenticity of the document was proved (where appropriate); and (5) The name of the person by whom recorded (in his proper signature) and the name of the consular officer with whom compared (in his proper signature). (c) Certificate of recording. (d) Fees. § 92.78 Translating documents. Officers of the Foreign Service are not authorized to translate documents or to certify to the correctness of translations. (However, see § 92.56 with regard to interpreting and translating services which may be performed in connection with depositions.) They are authorized to administer to a translator an oath as to the correctness of a translation; to take an acknowledgment of the preparation of a translation; and to authenticate the seal and signature of a local official affixed to a translation. Separate fees should be charged for each of these services, as indicated under the caption “Notarial Services and Authentications” of the Tariff of Fees, Foreign Service of the United States of America (§ 22.1 of this chapter). § 92.79 Procuring copies of foreign public documents. (a) Nature of services. (b) Payment of expenses involved Official funds not to be used. (2) Payment of costs by Federal Government. (3) Payment of costs by State or municipal governments. (4) Payment of costs by private persons. § 92.80 Obtaining American vital statistics records. Individuals who inquire as to means of obtaining copies of or extracts from American birth, death, marriage, or divorce records may be advised generally to direct their inquires to the Vital Statistics Office at the place where the record is kept, which is usually in the capital city of the State or Territory. Legal directories and other published works of references at the post may be of assistance in providing exact addresses, information about fees, etc. An inquirer who is not an American citizen may write directly to the diplomatic or appropriate consular representative of his own country for any needed assistance in obtaining a desired document. Quasi-Legal Services § 92.81 Performance of legal services. (a) Legal services defined. (b) Performance usually prohibited General prohibition; exceptions. (2) Specific prohibitions and restrictions. (3) Acceptance of will for deposit prohibited. (c) Refusal of requests. (d) Waiver of responsibility. (e) Fees. § 92.82 Recommending attorneys or notaries. (a) Assistance in selecting American lawyers. (b) Assistance in selecting foreign attorneys or notaries. (c) Agreements for referral of legal business prohibited. § 92.84 Legal process defined. Legal process means a writ, warrant, mandate, or other process issuing from a court of justice. The term includes subpoenas, citations, and complaints. § 92.85 Service of legal process usually prohibited. The service of process and legal papers is not normally a Foreign Service function. Except when directed by the Department of State, officers of the Foreign Service are prohibited from serving process or legal papers or appointing other persons to do. [32 FR 11776, Aug. 16, 1967] § 92.86 Consular responsibility for serving subpoenas. When directed by the Department of State, officers of the Foreign Service will serve a subpoena issued by a court of the United States on a national or resident of the United States who is in a foreign country unless such action is prohibited by the law of the foreign country. [32 FR 11776, Aug. 16, 1967] § 92.87 Consular responsibility for serving orders to show cause. Officers of the Foreign Service are required to serve orders to show cause issued in contempt proceedings on a person who has failed or neglected to appear in answer to a subpoena served in accordance with the provisions of § 92.86. (Section 1, 62 Stat. 949; 28 U.S.C. 1784.) § 92.88 Consular procedure. With regard to the serving of subpoenas and orders to show cause referred to in §§ 92.86 and 92.87, section 1 of the act of June 25, 1948 (sec. 1, 62 Stat. 819, 28 U.S.C. 1783), provides that the subpoena shall designate the time and place for appearance before the court of the United States, and shall issue to any consular officer of the United States in the foreign country. The consular officer is required to make personal service of the subpoena and any order to show cause, rule, judgment or decree on the request of the Federal court or its marshal, and to make return thereof to such court after tendering to the witness his necessary travel and attendance expenses, which will be determined by the court and sent with the subpoena. When the subpoena or order is forwarded to the officer, it is usually accompanied by instructions directing exactly how service should be made and how the return of service should be executed. These instructions should be followed carefully. § 92.89 Fees for service of legal process. No charge should be made for serving a subpoena or order to show cause issuing out of Federal court under the procedures set forth in §§ 92.86 and 92.87. The taking of the affidavit of the officer effecting the service, or the performance of any other notarial act which may be involved in making the return, should be without charge, under the caption “Exemption for Federal Agencies and Corporations” of the Tariff of Fees, Foreign Service of the United States of America (§ 22.1 of this chapter). § 92.90 Delivering documents pertaining to the revocation of naturalization. Officers of the Foreign Service shall deliver, or assist in delivering, to designated persons, documents relating to proceedings in the cancellation of certificates of naturalization when such documents are forwarded by duly authorized officials of the Federal courts. The responsibility for furnishing detailed instructions on the procedure to be followed in delivering such documents rests with the court or with the United States attorney concerned, and officers should follow such instructions carefully. § 92.91 Service of documents at request of Congressional committees. Officers of the Foreign Service have no authority to serve upon persons in their consular districts legal process such as subpoenas or citations in connection with Congressional investigations. All requests for such service should be referred to the Department of State. § 92.92 Service of legal process under provisions of State law. It may be found that a State statute purporting to regulate the service of process in foreign countries is so drawn as to mention service by an American consular officer or a person appointed by him, without mention of or provision for alternate methods of service. State laws of this description do not operate in derogation of the laws of the foreign jurisdiction wherein it may be sought to effect service of legal process, and such State laws do not serve to impose upon American consular officers duties or obligations which they are unauthorized to accept under Federal law, or require them to perform acts contrary to Federal regulations (see § 92.85). § 92.93 Notarial services or authentications connected with service of process by other persons. An officer of the Foreign Service may administer an oath to a person making an affidavit to the effect that legal process has ben served. When an affidavit stating that legal process has been served is executed before a foreign notary or other official, an officer of the Foreign Service may authenticate the official character of the person administering the oath. The fee for administering an oath to a person making an affidavit or for an authentication, as the case may be, is as prescribed under the caption “Notarial Services and Authentications” in the Tariff of Fees, Foreign Service of the United States of America (§ 22.1 of this chapter), unless the case is of such nature as to fall under the caption, “Exemption for Federal Agencies and Corporations” of the same Tariff. § 92.94 Replying to inquiries regarding service of process or other documents. Officers should make prompt and courteous replies to all inquiries regarding the service of legal process or documents of like nature, and should render such assistance as they properly can to the court and to interested parties. Such assistance could include furnishing information as to the standard procedure of the locality for service of legal papers, with the name and address of the local office having a bailiff authorized to effect and make return of service; it could include furnishing a list of local attorneys capable of making necessary arrangements; or it could, where appropriate, include a suggestion that the request of the American court might be presented to the foreign judicial authorities in the form of letters rogatory (see definition, § 92.54, and procedures, § 92.66 (b)). If the person upon whom the process is intended to be served is known to be willing to accept service, or if it is clear that it would be in his interest at least to be informed of the matter, the consular officer may suggest to the interested parties in the United States the drawings up of papers for voluntary execution by such person, such as a waiver of service or a document which would be acceptable to the American court to signify the person's entering an appearance in the action pending therein. § 92.95 Transportation of witnesses to the United States. Officers of the Foreign Service may at times be called upon to assist in arranging for the transportation to the United States of persons in foreign countries whose testimony is desired by the Attorney General in a case pending in a Federal court. Requests that the travel of such persons be facilitated originate in the Department of Justice, and special instructions in each case are transmitted to the appropriate Foreign Service post by the Department of State.