Indian Land Title and Records, 45631-45644 [2021-17377]

Agencies

• DEPARTMENT OF THE INTERIOR
• Bureau of Indian Affairs

[Federal Register Volume 86, Number 155 (Monday, August 16, 2021)]
[Rules and Regulations]
[Pages 45631-45644]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-17377]


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DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs

25 CFR Part 150

[212A2100DD/AAKC001030/A0A501010.999900]
RIN 1076-AF56


Indian Land Title and Records

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Final rule.

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SUMMARY: This final rule revises Bureau of Indian Affairs (BIA) 
regulations governing the Land Title and Records Office (LTRO) to 
reflect modernization of the LTRO. The LTRO maintains title documents 
for land held in trust or restricted status for individual Indians and 
Tribes (Indian land). This rule replaces outdated provisions and allows 
for more widespread efficiencies by reflecting current practices, while 
creating a framework for future LTRO operations.

DATES: This rule is effective September 15, 2021.

FOR FURTHER INFORMATION CONTACT: Elizabeth Appel, Director, Office of 
Regulatory Affairs & Collaborative Action, (202) 273-4680; 
[email protected].

SUPPLEMENTARY INFORMATION:
I. Background and Summary of Rule
II. Changes from Proposed Rule to Final Rule
III. Response to Comments
IV. Procedural Requirements
    A. Regulatory Planning and Review (E.O. 12866 and E.O. 13563)
    B. Regulatory Flexibility Act
    C. Small Business Regulatory Enforcement Fairness Act
    D. Unfunded Mandates Reform Act
    E. Takings (E.O. 12630)
    F. Federalism (E.O. 13132)
    G. Civil Justice Reform (E.O. 12988)
    H. Consultation With Indian Tribes (E.O. 13175)
    I. Paperwork Reduction Act
    J. National Environmental Policy Act
    K. Effects on the Energy Supply (E.O. 13211)
    L. Clarity of this Regulation
    M. Public Availability of Comments

I. Background

    The LTRO maintains title documents for land that the United States 
holds in trust or restricted status for individual Indians or Tribes 
(Indian land), roughly similar to how counties and other localities 
maintain title documents for fee land within their jurisdictions. 
Several Acts authorize BIA maintenance of these title records. See, 
e.g., 25 U.S.C. 5, 9; 64 Stat. 1262; 34 Stat. 137; 35 Stat. 312; and 38 
Stat. 582, 598.
    The LTRO has several physical offices throughout the country. These 
LTRO offices are the successors to the ``title plants'' that were 
established by regulation in 1965 to serve what were then BIA ``area 
offices.'' See 30 FR 11676 (September 11, 1965). Updates to the 
regulations in 1981 defined the role of the LTRO and assigned each LTRO 
office a geographic service area, containing certain BIA area offices 
or Tribal reservations. See 46 FR 47537 (September 29, 1981), later 
redesignated at 47 FR 13327 (March 30, 1982).

[[Page 45632]]

    The Department published a proposed rule on December 11, 2020 (85 
FR 79965) and accepted comments on the proposed rule until February 9, 
2021. Section II of this document provides an overview of the final 
rule. Section III of this document summarizes the comments received on 
the proposed rule and responds to those comments. Section IV of this 
document details changes made from the proposed rule to the final rule 
stage.

II. Overview of Final Rule

    The regulations being finalized today replace those that have been 
in place since 1981 (though redesignated from 25 CFR part 120 to 25 CFR 
part 150). Now, 40 years later, BIA ``area offices'' are BIA Regions, 
and the LTRO maintains title documents primarily through an electronic 
system: The Trust Asset Accounting Management System (TAAMS). Each LTRO 
office records land title documents that are primarily within its 
designated geographic area; however, it is BIA's vision that, 
eventually, all title documents will be electronically stored and 
accessible to LTRO offices regardless of geographic area.
    The rule modernizes the LTRO regulations to provide a framework for 
continued operations and future electronic maintenance of most title 
documents. This approach will more efficiently address title-related 
actions that support Indian land transactions (such as a title 
examination to take land into trust) by allowing workloads to be 
shifted among LTRO offices to promptly address each request and prevent 
the risk of any backlogs. The rule continues to provide that each LTRO 
office is primarily responsible for certain geographic areas, but 
rather than specifying those LTRO offices in the rule, it instead 
points to a web page where BIA can keep the list accurately updated.
    The rule also addresses changes that have evolved over the past 40 
years that have removed requirements for Secretarial approval of 
certain title documents in support of Tribal self-governance and self-
determination (e.g., individual leases under approved Helping Expedite 
and Advance Responsible Tribal Homeownership (HEARTH) Act regulations) 
by clarifying that these documents must still be recorded in the LTRO 
because the documents affect who is authorized to use Indian land.
    The rule also makes more transparent the LTRO's role as a support 
office to BIA and, with respect to title-related matters related to 
probate, the Office of Hearings and Appeals (OHA). Generally, the 
Realty staff in BIA are the primary liaison to the LTRO, as the Realty 
staff are responsible for processing land transactions requested by 
Indian and Tribal landowners. Similarly, the rule would clarifies the 
LTRO's role with respect to any defects to title: The LTRO provides a 
notation of the defect in the record of title, but the originating 
office is responsible for providing the LTRO with a corrected title 
document for the LTRO to record.
    Finally, the rule allows the BIA Director to delegate recording 
responsibilities to another office for certain transactions on an as-
needed basis. This capability provides flexibility to facilitate future 
electronic recording capabilities for efficiency.
    The following table shows changes from the current regulation to 
the final rule.

------------------------------------------------------------------------
                                                        Description of
      Current 25 CFR Sec.          New 25 CFR Sec.          changes
------------------------------------------------------------------------
150.1 Purpose and scope.........  150.1 What is the   Provides more
                                   purpose of this     general
                                   part?               description of
                                                       responsibilities
                                                       (e.g., to account
                                                       for other types
                                                       of reports beyond
                                                       land title status
                                                       reports that LTRO
                                                       provides).
150.2 Definitions...............  150.2 What terms    Alphabetizes
                                   do I need to        terms.
                                   know?              Adds definitions
                                                       for ``certify,''
                                                       ``certified
                                                       copy,''
                                                       ``Certifying
                                                       Officer,''
                                                       ``defect'' or
                                                       ``title defect,''
                                                       ``I'' or ``you''
                                                       (for plain
                                                       language
                                                       purposes),
                                                       ``inherently
                                                       Federal
                                                       function,''
                                                       ``land,''
                                                       ``Office of
                                                       Hearings and
                                                       Appeals (OHA),''
                                                       ``Probate
                                                       Inventory
                                                       Report,''
                                                       ``record of
                                                       title,''
                                                       ``Region,'' and
                                                       ``title.''
                                                      Deletes
                                                       definitions of
                                                       ``Administrative
                                                       Law Judge,''
                                                       ``Commissioner,''
                                                       ``land,'' and
                                                       ``Superintendent.
                                                       ''
                                                      Revises definition
                                                       of ``Agency'' to
                                                       clarify that
                                                       contracting and
                                                       compacting Tribes
                                                       are included.
                                                      Revises definition
                                                       of ``Indian
                                                       land'' to limit
                                                       to trust or
                                                       restricted land
                                                       only, in
                                                       accordance with
                                                       other regulatory
                                                       definitions,
                                                       while moving
                                                       provisions
                                                       regarding other
                                                       categories of
                                                       land to proposed
                                                       Sec.
                                                       150.201(c).
                                                      Revises definition
                                                       of ``recording''
                                                       to move
                                                       substantive
                                                       statement as to
                                                       the significance
                                                       of recording a
                                                       document to the
                                                       body of the
                                                       regulation at
                                                       proposed Sec.
                                                       150.101.
                                                      Revises definition
                                                       of ``title
                                                       document'' to
                                                       provide examples.
                                                      Revises definition
                                                       of ``title
                                                       examination'' to
                                                       add detail.
                                                      Revises definition
                                                       of ``Tribe'' to
                                                       cite the List Act
                                                       of 1994.
                                  150.3 May Tribes    New section to
                                   administer this     address that
                                   part on LTRO's      Tribes may
                                   behalf?             compact or
                                                       contract for LTRO
                                                       functions under
                                                       Tribal self-
                                                       governance and
                                                       self-
                                                       determination
                                                       compacts and
                                                       contracts.
                                  150.101 What is     New section to
                                   the purpose of      address the
                                   the record of       significance of
                                   title?              recording a
                                                       document in the
                                                       record of title.
150.3 Maintenance of land         150.102 Who         No substantive
 records and title documents.      maintains the       change.
                                   record of title?
                                  150.103 What        New section to
                                   services does the   provide a list of
                                   LTRO perform to     services that the
                                   maintain the        LTRO performs.
                                   record of title?
                                  150.104 How does    New section to
                                   the LTRO maintain   address that the
                                   the record of       LTRO primarily
                                   title?              maintains the
                                                       record of title
                                                       electronically.

[[Page 45633]]

 
150.4 Locations and service       150.105 Are         Revises to provide
 areas for land titles and         certain LTRO        flexibility to
 records offices.                  offices             allow for
                                   responsible for     workload sharing
                                   certain             across LTRO
                                   geographic areas?   offices while
                                                       noting LTRO
                                                       offices have
                                                       primary
                                                       responsibility
                                                       for certain
                                                       geographic areas.
                                                       Replaces the list
                                                       of addresses for
                                                       each LTRO office
                                                       with a webpage
                                                       for a more
                                                       frequently
                                                       updated list of
                                                       each LTRO
                                                       office's area of
                                                       primary
                                                       geographic area.
150.5 Other Bureau offices with   ..................  Deleted because
 title service responsibility.                         this section is
                                                       no longer
                                                       necessary.
150.6 Recordation of title        150.201 What is     Removes language
 documents.                        recorded in the     assuming hard
                                   record of title?    copy transmission
                                                       of documents.
                                                      Adds language to
                                                       account for the
                                                       need to record
                                                       certain documents
                                                       that are not
                                                       subject to
                                                       Secretarial
                                                       approval.
                                                      Adds that LTRO
                                                       offices may also
                                                       maintain
                                                       documents
                                                       demonstrating the
                                                       rights of use,
                                                       occupancy, and/or
                                                       benefit of
                                                       certain Tribes to
                                                       non-Indian land
                                                       and certain
                                                       documents related
                                                       to Indian land
                                                       that are not
                                                       title documents.
                                  150.202 Must I      New section to
                                   check with any      specify that in
                                   other               some instances,
                                   governmental        due diligence may
                                   office to find      require
                                   title documents     examination of
                                   for Indian land?    other records of
                                                       title for Indian
                                                       land.
                                  150.203 Who may     Clarifies the role
                                   submit a title      of the LTRO as a
                                   document for        service office
                                   recording?          for BIA Agencies,
                                                       Regions, and OHA,
                                                       who act as the
                                                       primary liaison
                                                       to Indian and
                                                       Tribal
                                                       landowners.
                                  150.204 Who         Clarifies that the
                                   records title       BIA Director may
                                   documents?          delegate the
                                                       recording
                                                       function to other
                                                       Agency offices by
                                                       documenting the
                                                       delegation and
                                                       types of
                                                       transactions to
                                                       which it applies
                                                       in the Indian
                                                       Affairs Manual.
                                  150.205 What are    New section to
                                   the minimum         clarify what must
                                   requirements for    be included in a
                                   recording a title   title document
                                   document?           that is approved
                                                       by the Secretary
                                                       and what must be
                                                       included in title
                                                       documents that
                                                       are deemed
                                                       approved.
150.7 Curative action to correct  150.206 What        Revises to provide
 title defects.                    actions will LTRO   that LTRO offices
                                   take if it          will no longer
                                   discovers a title   complete
                                   defect?             administrative
                                                       modifications;
                                                       rather they will
                                                       put a notation in
                                                       the record of
                                                       title and contact
                                                       the originating
                                                       office for
                                                       correction.
150.8 Title status reports......  ..................  Incorporated into
                                                       new Sec.
                                                       150.302.
150.9 Land status maps..........  ..................  Incorporated into
                                                       new Sec.
                                                       150.302.
150.10 Certification of land      150.301 How does    Revised for plain
 records and title documents.      LTRO certify        language.
                                   copies of title
                                   documents?
                                  150.302 What        Lists the universe
                                   reports does the    of reports that
                                   LTRO provide?       the LTRO may
                                                       provide for
                                                       Indian land.
150.11 Disclosure of land         150.303 Who may     Revises to include
 records, title documents, and     request and         the categories of
 title reports.                    receive copies of   persons/entities
                                   title documents     that may obtain
                                   in the record of    information under
                                   title or reports    current laws
                                   from LTRO without   including the
                                   filing a Freedom    American Indian
                                   of Information      Probate Reform
                                   Act request?        Act of 2004, 25
                                                       U.S.C. 2204.
                                  150.304 Where do I  New section to
                                   request copies of   clarify that the
                                   title documents     BIA Agency or
                                   or reports from     Region is the
                                   LTRO?               liaison to the
                                                       LTRO.
                                  150.305 What        New section to
                                   information must    list what
                                   I provide when      information BIA
                                   requesting copies   will require in
                                   of title            order to identify
                                   documents and       the land for
                                   reports?            which a report is
                                                       being requested.
                                  150.306 Will I be   New section to
                                   charged a fee for   provide that the
                                   obtaining copies    LTRO may charge
                                   of records?         fees in
                                                       accordance with
                                                       the Freedom of
                                                       Information Act
                                                       fee schedule, but
                                                       will not charge
                                                       fees to Indian or
                                                       Tribal
                                                       landowners.
                                  150.401 Who owns    New section to
                                   the records         clarify what
                                   associated with     records are
                                   this part?          Federal records
                                                       as opposed to
                                                       Tribal records in
                                                       cases where a
                                                       Tribe has
                                                       contracted or
                                                       compacted for
                                                       LTRO functions.
                                  150.402 How must    New section
                                   records             regarding
                                   associated with     preservation
                                   this part be        requirements for
                                   preserved?          Federal records.
                                  150.403 How does    New section
                                   the Paperwork       required because
                                   Reduction Act       the regulation
                                   affect this part?   imposes an
                                                       information
                                                       collection by
                                                       requiring
                                                       individuals to
                                                       provide certain
                                                       information in
                                                       order to obtain
                                                       copies of
                                                       records.
------------------------------------------------------------------------

III. Response to Comments

    The Department hosted two Tribal consultation sessions on this 
proposed rule and received written submissions from 12 Tribes. During 
the public comment period, the Department also received nine comments 
from individuals, Indian housing and homeownership organizations, title 
companies, and capital companies. Of the 21 total written submissions, 
several, including half of the Tribes who commented, expressed general 
support for the regulatory revisions as necessary for the proper 
functioning of LTROs and to account for technological improvements and 
policy changes throughout Indian country. All provided additional 
comments and suggestions. The Department appreciates this input

[[Page 45634]]

and provides its responses organized by subpart, below.

A. Comments on Subpart A--Purpose and Definitions

1. Definition of ``Indian Land''
    One title insurance company that commented asked that the phrase 
``or in Federal law'' be removed from the definition of ``Indian land'' 
because, according to the commenter, that phrase could be construed to 
mean the Non-Intercourse Act at 25 U.S.C. 177. The commenter stated 
that the consequence of that interpretation would be that ``Indian 
land'' would include title documents to Tribal fee land and, arguably, 
could allow LTRO to take the position that the world has constructive 
notice of that Tribal fee land recorded in the Indian land record of 
title, even if it is not recorded in the county record of title.
    Response: The phrase ``or in Federal law'' captures restrictions on 
alienation for certain Tribes that may not be stated in the conveyance 
instrument but apply as a matter of Federal law due to court order or 
otherwise. The clear trend in the case law is that the Non-Intercourse 
Act does not apply to fee land, whether on-reservation or off-
reservation. This trend is consistent with BIA's authority for 
approving transactions that affect title.
    A Tribe requested clarification that Indian land includes mineral 
(subsurface) interests, pointing out that the current regulations 
include a definition for ``land'' as meaning real property and without 
that specification, the term ``Indian land'' is ambiguous as to whether 
it includes the subsurface or mineral estate and whether ``title'' 
encompasses mineral estates that have been severed from surface 
estates.
    Response: The final rule adds the definition for land as including 
surface and/or subsurface interests.
2. ``Title Document''
    One Tribe stated their agreement with the proposed rule's inclusion 
of examples of title documents in the definition of ``title document'' 
as adding clarity. This Tribe also agreed with the proposed rule's 
removal of the provision in ``title document'' as including only 
documents required to be recorded by regulation or Bureau policy as 
appropriate to accord a full and accurate depiction of Indian land in 
the chain of title.
    Response: The final rule includes the proposed rule's definition of 
``title document.''
3. Comments Requesting New Definitions
a. ``Inherently Federal Function''
    A few Tribes and one title insurance company commenter requested a 
definition be added for ``inherently Federal function.'' On Tribe 
requested that the term be interpreted to exclude certain items (i.e., 
FOIA and records management).
    Response: The final rule adds a definition of ``inherently Federal 
function'' to match the definition of the term provided in the Indian 
Self-Determination and Education Assistance Act (ISDEAA). More 
specificity on what constitutes an inherently Federal function is 
necessarily a case-by-case examination because different laws apply to 
different Tribes.
b. ``Individual Indian''
    An individual commenter requested a new definition for ``individual 
Indian'' or ``Indian owner'' because individuals may own Indian land 
and their rights to challenge decisions related to title should be 
acknowledged. This commenter also stated that the regulations imply 
that individual Indians' fiduciary protections and rights are 
subordinated to Tribes because, for example, the term ``Tribe'' is 
defined while the term ``individual Indian'' is not.
    Response: The term ``individual Indian'' is not defined in the 
regulation because it appears only in the definition of ``Indian land'' 
and the definition of ``Probate Inventory Report,'' both of which can 
be understood without defining ``individual Indian.'' Individual 
Indians' rights as landowners to challenge Federal decisions regarding 
title are governed by different regulations, such as 25 CFR part 2, 
Appeals from Administrative Actions. Nothing in the final rule for 25 
CFR part 150 subordinates individual Indians' fiduciary protections and 
rights to Tribes. The term ``Tribe'' is defined because that term 
appears in provisions relating to Tribes as sovereign governments 
(e.g., provisions relating to compacting or compacting Federal 
functions of an LTRO, provisions relating to recordation of leases 
between Tribes and Tribal Energy Development Organizations).

B. Comments on Subpart B--Record of Title

1. Purpose of the Record of Title
    Two title insurance company commenters asked how constructive 
notice works in the context of an LTRO, as far as whether the 
recordation of a title document in the LTRO gives the real property 
interest priority over interests recorded later or whether notice 
impacts priority of interests.
    Response: Recordation of title documents for Indian land is 
different from recordation of title documents for fee land in county 
records. Priority is not generally an issue in recordation of title 
documents for Indian land because the Department conducts a title 
examination before taking land into trust or restricted status, and the 
LTRO relies upon the date of Departmental approval (or other applicable 
date when Departmental approval is not required) as the valid and 
effective date of the transaction. In other words, there is no 
significance to the date of recording in the LTRO the way there may be 
significance to the date of recording title documents to fee land in 
county records. In response to this comment, the final rule deletes the 
statement from Sec.  150.101 that the record of title provides the 
public with constructive notice; rather, only certain entities/
individuals have access to information in the record of title. See 
Sec.  150.303.
2. LTRO Services
    Two title insurance company commenters requested the regulations 
include a specific timeframe for LTRO to issue title status reports 
(TSRs). Another commenter stated that the rule should impose timeframes 
on the LTRO and provide recourse for delays.
    Response: The LTRO processes mortgage title requests for TSRs 
within two working days of receipt from the BIA agency. This timeframe 
is included in policy but not the regulations to allow flexibility to 
change as circumstances require for internal management of the LTRO, 
without undergoing a rulemaking. Requestors should coordinate with 
their BIA agency contact to ensure that a request for a TSR has been 
submitted to LTRO.
    Two title insurance company commenters suggested including 
uncertified TSRs in addition to certified TSRs in Sec.  150.103 to be 
consistent with the language in Sec.  150.302(b).
    Response: The final rule adds ``uncertified Title Status Reports'' 
for consistency with Sec.  150.302(b).
    One individual commenter recommended adding a subpart for LTRO to 
record title transfers resulting from historic sales where a ``reserve 
period'' is included for the original ``provisional sale'' only upon 
assurance that the buyer and seller negotiated the final disposition 
upon expiration of the ``reserve period.''
    Response: This comment appears to relate to terms of a title 
transfer, which

[[Page 45635]]

is beyond the scope of this regulation. The commenter should raise this 
comment with their local BIA agency staff.
    An individual commenter asked whether it would be LTRO's or the BIA 
agency's responsibility to notify previously recognized owners that a 
correction to a probate inventory report is being proposed.
    Response: If LTRO discovers an error in a probate inventory report 
that impacts Indian land ownership, then the LTRO notifies the BIA 
agency realty staff in writing, and the BIA agency works with the 
Office of Hearings and Appeals, to notify landowners and make a 
correction as appropriate.
3. Maintaining the Record of Title
    Two title insurance company commenters requested that the 
Department address any efforts to digitize physical copies and confirm 
that physical documents are historical documents only. These commenters 
and a homeownership organization requested clarification that the LTRO 
is currently digitizing all documents it now receives.
    Response: The LTRO has digitized nearly all Indian land title 
records; however, there remain some non[hyphen]imaged (i.e., non-
digitized) records. The LTRO digitizes all documents it currently 
receives so that they can be stored electronically in the record of 
title and will work with BIA Realty to ensure all known remaining non-
digitized records are digitized.
    One Tribe described the history of its agency's recordkeeping on 
well locations and lease information.
    Response: The Tribe's comment has been shared with the relevant 
agency.
4. LTRO Responsibility for Certain Geographic Areas
    Section 150.105 of the proposed rule provided that staff at each 
LTRO office has primary responsibility to maintain the record of title 
for Indian land under that LTRO office's assigned geographic area, and 
that LTRO offices may assist other LTRO offices in maintaining the 
record of title for Indian land not under that office's assigned 
geographic area as needed. A homeownership organization stated its 
support for a fully accessible electronic system across all LTRO 
offices to allow workloads to be shifted and prevent backlogs. Two 
title insurance company commenters asked what the process is for 
ensuring documents are timely and correctly transmitted among LTRO 
offices, how sharing workloads would impact recordation times, and 
whether there is a tracking option to determine where submitted 
documents are.
    Response: All title documents are digitized (scanned into 
electronic versions) and uploaded to a database that is accessible to 
all LTRO offices, regardless of geographic area. Having one LTRO office 
assist another in performing functions would have no impact on 
recording timeframes, as all LTRO offices are subject to the same 
standards. LTRO uses a system for tracking workloads to determine where 
submitted documents are pending at any given point.
    A Tribe expressed concern that LTRO offices outside the Tribe's 
assigned geographic area may lack the knowledge and expertise to 
process title documents unique to the geographic region. This Tribe 
requested granting Tribes the option to have their title document 
requests completed by their local LTRO or tasking local LTROs with 
reviewing any reports produced by a secondary LTRO or outside BIA 
office. Another Tribe requested clarity on what it means for a non-
assigned LTRO office to assist others, the process by which they would 
provide assistance, and the types of functions or services that the 
assistance would include. This Tribe suggested establishing a 
standardized process for providing as-needed assistance and clarifying 
whether a Tribe that has contracted or compacted to perform LTRO 
functions on its reservation may also carry out the function for lands 
located in other geographic areas.
    Response: While there may be variations in types of title documents 
among regions, title documents are encoded by the knowledgeable BIA 
realty staff familiar with potential unique variations. The LTRO 
functions do not vary across geographic areas. LTRO has determined that 
it is more appropriate to set out in policy the details of the process 
by which LTRO offices would provide assistance and types of functions 
or services the assistance would include, as a matter of internal 
management that does not have any effect on landowners or others, 
except as a method of ensuring that LTRO continues to perform its 
functions expeditiously. The final rule also clarifies that this 
provision does not apply to Tribes that are contracting or compacting 
the LTRO function, because under the Indian Self-Determination and 
Education Assistance Act, those contacting or compacting Tribes would 
first need to obtain authorization from each Tribe to be benefitted by 
the proposed contract or compact before assuming operation of any 
program, function, service, or activity (PFSA). 25 CFR 900.8(d)(1).

C. Comments on Subpart C--Recording Documents

1. Documents LTRO Records (Sec.  150.201)
    An individual commenter suggested adding a provision to require 
LTRO to record when title changes from trust to fee and title 
recordation responsibilities are transferred to State or local 
jurisdictions.
    Response: When a tract is transferred to fee status, it is no 
longer ``Indian land'' and is inactivated in the record of title.
    A Tribe stated that the requirement to record subleasehold 
mortgages under 25 CFR 150.201(a) ensures the record of title is 
accurate, complete, and up to date, but could constrain current 
staffing and resources for LTRO offices that handle a significant 
number of leases, noting that this requirement triples the number of 
instruments the LTRO records and maintains for its reservation.
    Response: Including subleasehold mortgages as recordable documents 
reflects a regulatory requirement that already exists in 25 CFR part 
169.
    Another Tribe noted that the list in Sec.  150.201 of documents for 
which Secretarial approval is not required, but must be recorded, does 
not include Tribal utility lines crossing Tribal lands.
    Response: The list included in Sec.  150.201 is not exhaustive; 
however, the final rule adds this item to the list for clarity.
    A title insurance company commenter asked what the phrase ``certain 
Tribes'' is referencing in Sec.  150.201(c)(1).
    Response: The final rule replaces the phrase ``certain Tribes'' 
with ``a Tribe.''
    This same title insurance company commenter requested a global 
statement be added to the regulations confirming that nothing prohibits 
recording title in county records with the consent of the landowner.
    Response: While it is true that nothing prohibits recording title 
to Indian land in county records with the consent of the landowner, the 
final rule does not include this statement because that statement could 
cause confusion regarding the official record of title for Indian land.
2. Checking With Other Governmental Land Records (Sec.  150.202)
    A Tribe expressed concern that the regulatory provision saying that 
due diligence may require examination of other Federal, State, and 
local records is unclear and distorts the role LTRO offices play in 
maintaining the official record of title for Indian land. The Tribe 
asserts that the regulation should be clear on this point, to eliminate 
any

[[Page 45636]]

misconception that the record of title for all lands, including Indian 
lands, is maintained at the State or local level.
    Response: The final rule clarifies in Sec.  150.202 that LTRO 
maintains current and historical title documents to Indian land in the 
system of record.
    A homeownership organization suggested that Sec.  150.202 should 
give examples of circumstances in which due diligence may require 
examination in other records of title.
    Response: Examples of circumstances in which due diligence may 
require examination in other records of title include: Archives for 
original land patents may require examination in other Federal records 
of titles; and fee-to-trust transactions for undivided fee interests in 
a tract in which other undivided interests are owned in trust or 
restricted status may require examination in State and local records of 
title. The final rule does not include these examples in the regulatory 
text because doing so may give the impression that these examples 
constitute the entire universe of documents for which due diligence may 
require examination in other records of title.
3. Who May Submit for Recording (Sec.  150.203)
    Two title insurance company commenters requested the regulations 
include a timeframe for recording upon submission.
    Response: As mentioned above, the LTRO does abide by internal 
timeframes. LTRO has an internal timeframe of two business days for 
recording any document upon receipt from the Agency, Region, or OHA. 
The timeframe for the Agency, Region, or OHA to prepare and transmit a 
document to LTRO is outside the scope of this rule.
4. Delegation of the Recording Function (Sec.  150.204)
    One Tribe commented on Sec.  150.204, which states that the BIA 
Director may delegate authority to record title documents to another 
BIA office by documenting the delegation and types of transactions to 
which it applies in the Indian Affairs Manual. The Tribe stated their 
support for the flexibility to allow workload sharing across LTRO 
offices, so long as the primary LTRO primarily maintains the record of 
title. The Tribe also requested that Tribes be given notice of any 
long-term delegations so the Tribe may discuss the delegation with the 
Regional Director. An individual commenter expressed concern with 
allowing BIA to delegate authority to another office.
    Response: The final rule retains this provision to provide 
flexibility for workload sharing. Any long-term delegation that has 
potential Tribal implications would be subject to Executive Order 13175 
requirements for Tribal consultation.
    A Tribe asked that privacy concerns be addressed through best 
practices to ensure that documents are only accessed by designated and 
authorized personnel for BIA purposes.
    Response: The Privacy Act applies to records within the record of 
title and, under its system of record, access to the record of title is 
limited to designated and authorized personnel for official purposes.
5. Minimum Requirements for Recording (Sec.  150.205)
    An individual commenter described past sales that reserved part of 
the interests (such as the mineral rights) for transfer at a later 
date, and stated they require affirmative title actions.
    Response: This section, Sec.  150.205(b), sets out the minimum 
requirements for recording documents. Actions required to obtain BIA 
approval of a transfer are addressed in separate regulations.
    A title insurance company commenter requested clarification as to 
whether the ``proper notarization or other acknowledgment of the 
signatures of the parties'' must be pursuant to State law.
    Response: The applicable law depends upon the document, and where 
it was signed. Notaries are commissioned under State law. Other 
acknowledgments may include those authorized for military members to 
acknowledge other military members' signatures, social workers or 
wardens to acknowledge the signatures of incarcerated individuals, and 
foreign country notary equivalents. The LTRO does not scrutinize the 
notary commission authority, beyond checking to ensure notary's name 
appears on the stamp and the commission has not expired.
    Another commenter asked whether notarization pursuant to remote 
online notarization laws is considered ``proper notarization or other 
acknowledgment of the signatures of the parties.''
    Response: Notarial acts follow State laws where the notary is 
physically located. While the Department of the Interior continues to 
monitor remote online notarization capabilities, the Department does 
not currently recognize remote online notarization for Federal 
purposes, even when permitted under State notarial laws. Some State 
laws have included language that simultaneous live audio/video would 
constitute ``in-person'' acknowledgment. For these reasons, the final 
rule specifies in Sec.  150.205(a)(3) that ``traditional in-person'' 
notarization or other ``in-person'' acknowledgment of the parties' 
signatures, if appropriate, is a minimum requirement for recording.
    Two title insurance company commenters requested more specificity 
about when a tract number is required in addition to the legal 
description to record a document.
    Response: The final rule revises the proposed rule by stating that 
the tract number should be included ``if available,'' rather than ``if 
required.'' See Sec.  150.205(a)(1).
    A Tribe pointed out that the current Part 150 states that title 
documents must be submitted to the appropriate LTRO for recording 
immediately after final approval, issuance, or acceptance, but the new 
proposed rule at Sec.  150.205 deletes any reference to a timeframe. 
This Tribe also asked whether the requirement to record documents that 
may not have been recorded in the past is retroactive.
    Response: Any applicable timeframes for agencies to submit 
documents for recording are found in the regulations governing the 
underlying realty transactions. For example, regulations governing 
leasing provide that BIA will record the lease documents immediately 
upon approval of the transaction. See, e.g., 25 CFR 162.217, 162.246, 
162.343, 162.443, 162.533, 162.568.
6. Title Defects (Sec.  150.206)
    An individual commenter requested that a statement be added to 
Sec.  150.206 to clarify that corrections to title documents are made 
after the BIA adjudicates the defect under appropriate regulations, 
including notice to potential owners/heirs or impacted lenders 
regarding the corrections that are being requested or proposed. Several 
title insurance company commenters had similar comments, stating that 
there is no process to notify the parties of a need for correction and 
asked how they would know that a document is being corrected.
    Response: This regulation focuses on LTRO's role, which is to 
record title documents. The BIA Region or Agency is the liaison to the 
parties to the transaction and is responsible for notifying them. The 
responsibility to notify potential owners/heirs of corrections is 
outside the scope of this regulation.
    Title insurance company commenters asked whether a document will be 
disclosed on a TSR if LTRO has discovered a title defect during a title 
examination, requested the originating

[[Page 45637]]

office correct the defect, and added a notation in the record of title.
    Response: If a document meets the minimum requirements for 
recording, LTRO records the document and puts a notation on title, in 
which case the title document will appear on the TSR. If the document 
does not meet the minimum requirements for recording, such as when 
there is a fatal defect or required information is omitted, then LTRO 
sends the document back to the original office for a correction, in 
which case the title document generally would not appear on the TSR.
    A few commenters suggested adding timelines for curing defects or 
omissions in title documents.
    Response: The agency who is the originating office is responsible 
for curing any omission or error. When LTRO discovers a defect, LTRO 
sends the documents electronically in real time to the LTRO for 
correction. Once LTRO receives the corrected document, the timeframes 
applicable to recording of any document applies.

D. Comments on Subpart D

1. Certifying Copies (Sec.  150.301)
    A Tribe questioned whether there is, in fact, an ``official seal'' 
and stated that they have not yet received one even though they have 
compacted LTRO functions.
    Response: BIA will follow up with the Tribe to provide a stamp that 
serves as the official seal.
2. LTRO Reports (Sec.  150.302)
    An individual commenter requested clarification on who and to whom 
``uncertified reports'' may be made.
    Response: LTRO provides uncertified reports for the agency to 
provide to those authorized to receive the documents (for example, 
Tribal and individual Indian landowners). Uncertified reports are often 
provided to assist lenders in preparing mortgage documents, and then 
when LTRO records the finalized mortgage, LTRO provides a certified 
TSR.
3. Who May Obtain Title Documents Without FOIA (Sec.  150.303)
    An individual commenter requested that this section specify that 
owners whose ownership interests have been removed by the BIA and are 
appealing that removal may obtain copies of title documents without 
filing a Freedom of Information Act (FOIA) request.
    Response: The Indian Land Consolidation Act, as amended by the 
American Indian Probate Reform Act of 2004 (AIPRA) explicitly states 
who may have access to title documents. AIPRA's list of those who may 
have access does not include individuals who no longer qualify as 
owners. If the individual is appealing, as the commenter states, then 
the provisions of 25 CFR part 2 and 43 CFR part 4 may apply.
    Multiple commenters requested that title insurance companies, 
lenders, and government agencies have access to title documents to 
support Tribal development and housing through their insurance products 
and support mortgage processes in Indian Country. Two title insurance 
company commenters asked whether a ``legally authorized 
representative'' would include a title company.
    Response: ``Legally authorized representatives'' refer to those 
holding powers of attorney or serving as guardians for the Indian land 
owners. Title companies, lenders, and government agencies involved in 
the mortgage process are entitled to access to the appropriate title 
documents and reports under Sec.  150.303(c), because they are 
effectively applying to lease, use, or consolidate Indian land; the BIA 
agency would verify that they are entitled to access and serve as the 
liaison to LTRO. The usual path for title companies to access records 
is through the BIA agency realty staff that are handling the underlying 
realty transaction. The agency realty staff have access to the record 
of title and provide the title company with appropriate records, and 
then request any certified copies from LTRO. Likewise, lenders and 
others work through the BIA agency, who would access the record of 
title and obtain the appropriate documents and reports from LTRO. In 
accordance with a recommendation from the Housing and Urban Development 
(HUD), the final rule also adds clarifying language to Sec.  150.303 to 
specify that Federal agencies administering Native American 
homeownership programs, and lenders participating in these programs, 
are able to request and receive copies of title documents for Indian 
land without additional justification regarding leasing, using, or 
consolidating land.
    A title insurance company commenter requested that the regulations 
precisely address any forms needed to authorize access to title 
documents.
    Response: LTRO does not have any forms for accessing title 
documents; instead, BIA agency realty staff will contact LTRO by email 
to obtain the appropriate title documents and reports, and work with 
the requestor and LTRO.
    A Tribe stated that the regulations should specify that any person 
or entity seeking records based on applying to lease, use, or 
consolidate Indian land must also be required to submit written proof 
of consent for the disclosure by the owners of the Indian land or Tribe 
with jurisdiction.
    Response: In practice, the BIA agency realty staff serves as the 
gatekeeper and works with anyone seeking to lease, use, or consolidate 
Indian land to obtain the necessary title documents or reports from 
LTRO for the transaction. The final rule adds language to clarify that 
the BIA realty staff are the primary points of contact for anyone 
requesting information from the LTRO.
    A Tribe commented on its need to have timely and unencumbered 
access to oil and gas records.
    Response: This comment is beyond the scope of the regulations. The 
Federal records the Osage Mineral Council references in its comments 
are maintained by the BIA Osage Agency in relation to leasing of the 
Osage Mineral Estate for oil and gas mining and are not title records. 
Accordingly, the records are not governed by the LTRO regulations at 
issue.
4. How To Request Copies (Sec.  150.304)
    An individual commenter requested adding a provision to allow 
individuals to request records directly from the LTRO when requesting 
them through their local agency would be sensitive (e.g., because they 
are evaluating their legal options).
    Response: A direct request to LTRO would need to provide 
justification for not going through the BIA Agency or Region, including 
a case number if there is a challenge in progress. The final rule does 
not provide directions for requesting information directly from the 
LTRO because, in nearly all cases, requests should be made through the 
BIA Agency or Region.
    A Tribe requested ``title documents'' be deleted so that only the 
LTRO with jurisdiction over the specified lands can provide copies. The 
Tribe pointed to a situation where an LTRO may know that there are 
probates pending on a certain parcel of land and check the status of 
the probate to see it has been adjudicated and an update to the records 
is necessary.
    Response: Title documents do not reflect pending transactions, only 
those that are approved. Regardless of whether the LTRO is aware of a 
pending probate or other transaction, the pending probate or other 
transaction does not affect the title until approved. The LTRO updates 
title as soon as a transaction is approved, and each LTRO office has 
the same access to that record of title, so there is no benefit to 
limiting the ability to provide copies to only the LTRO with 
jurisdiction over the specified land.

[[Page 45638]]

5. Fees (Sec.  150.306)
    A Tribe commented that if they were to charge fees in carrying out 
LTRO functions under its self-governance compact, that they should not 
be bound by Federal standards because those standards are out of touch 
with ``rush'' orders and other demands.
    Response: In fulfilling Federal functions as an LTRO, Tribes are 
bound by Federal regulations and statutes.
    Another Tribe commented that the fee schedule is outdated and not 
representative of geographical differences and recommended that BIA 
authorize LTRO offices to develop their own fee schedules that are 
indexed to CPI and account for geographical differences.
    Response: The final rule continues to use the fee schedule 
established at 43 CFR part 2, Appendix A, for consistency across the 
Department, to avoid ``forum shopping'' for the lowest fees and for 
administrative efficiency to prevent each of the 12 LTRO offices from 
having to individually publish and update their fees.
    A Tribe opposed charging a fee to a Tribe with jurisdiction to 
obtain copies of records concerning land under its jurisdiction.
    Response: The final rule deletes the provision allowing for Tribes 
with jurisdiction to be charged a fee for copies of documents related 
to land under their jurisdiction.
    A title insurance company commented that paying for documents adds 
another hurdle for development by increasing the expense of doing 
business in Indian County.
    Response: The fees required under this rule are nominal and are an 
expected cost of doing business, given that companies charge for title 
searches and counties and localities often charge fees, as well.
    HUD recommended adding an exception from paying fees for Federal 
agencies administering Native American homeownership programs and 
lenders participating in the programs.
    Response: The final rule does not require LTRO to charge fees and 
provides that LTRO may waive the fees. LTRO generally will not charge 
fees to Federal agencies administering Native American homeownership 
programs and lenders participating in these programs for specific 
transactions.

E. Comments on Subpart E

    A Tribe disagreed with the proposed rule's provision for 
determining whether a record is the property of the United States, 
stating that ownership should depend on an analysis of the BIA's 
ability to fulfill trust obligations if documents are ``owned'' by the 
United States, statutes, case law, and how agencies have treated 
similar documents in the past.
    Response: The rule restates existing statutory law regarding the 
ownership of Federal records. See Federal Records Act, 44 U.S.C. 
chapters 29, 31, 33.
    Another comment was that it is not realistic for a party who 
``makes or receives records'' to preserve them in accordance with 
Departmental records retention procedures.
    Response: The rule restates existing law regarding contractors' 
obligation to preserve records under the Federal Records Act. See 36 
CFR 1222.32.
    Title insurance company commenters stated that the rule should 
address what happens to title documents when property is transferred 
out of trust or restricted status.
    Response: The rule does not address what happens to title documents 
when property is transferred out of trust or restricted status, because 
at that point, it is no longer LTRO's responsibility to maintain title 
to the property. Once property is transferred out of trust or 
restricted status, responsibility for maintenance of title to that 
property shifts to the county or locality.

F. Miscellaneous

    Several comments addressed Realty functions, rather than LTRO 
functions, including expressing concerns with mortgages and other 
transaction timelines, and requesting a more transparent process on 
land transactions. One commenter requested published listings and 
organization charts for identifying the correct person to contact. A 
commenter also requested the addition of a BIA Realty ombudsman to 
assist Tribes in prioritizing residential mortgage approval packages 
and certified TSRs.
    Response: These comments are not directly related to the current 
rulemaking, but the Department will work with BIA Realty staff to 
address these comments, as appropriate.
    One Tribe stated that the rule should address records or 
encumbrances that are missing from TAAMS and detail a process for 
Tribes to report, and the Department to resolve, data gaps in TAAMS, 
and establish deadlines for the Department to resolve missing records.
    Response: LTRO will work with BIA to identify whether there are any 
data gaps in TAAMS.
    At least one commenter stated that the LTRO needs additional staff 
and resources to perform their duties.
    Response: The Department is working with the appropriate Federal 
agencies to increase staff.
    One Tribe requested the Department revise and reissue a more 
expansive proposed rule. Another commenter also requested reopening the 
comment period because the public comment period occurred over the 
holidays and through a change in Administration.
    Response: The Department has considered this request and determined 
that the issues addressed by the Tribe could not be remedied by changes 
to this regulation because the issues relate to BIA realty functions, 
rather than LTRO functions. The Department has determined that 
finalization of these regulations at this time is important to replace 
the outdated regulations.
    One Tribe commented that Tribes should have open access to TAAMS to 
conduct their own uncertified TSRs and accessing other trust records, 
which would increase transparency and improve processing time for 
LTROs.
    Response: Title documents to Indian land are Federal and trust 
records, so access is subject to Privacy Act and other restrictions. 
For Tribes that are carrying out the Federal functions of the LTRO, 
Tribal staff must obtain the appropriate access credentials and Federal 
equipment.
    On Tribe stated that LTRO should manage title to water, as well as 
land, and suggested further consultation on the lack of a comprehensive 
water management system by BIA.
    Response: LTRO is not currently equipped to track water rights; 
however, the suggestion that a comprehensive water management system to 
track water user rights may be appropriate for future discussion and 
consultation.
    One commenter urged that any changes in this rule be coordinated 
with those eventually adopted under the probate regulations.
    Response: The Department is coordinating updates to both these 
regulations to ensure they are substantively consistent.
    A title insurance commenter requested an explanation of BIA 
oversight and standards for Tribal LTROs.
    Response: Tribes compacting or contracting the LTRO functions are 
subject to the same standards as Federal LTROs in that they must follow 
the same statutes and regulations.
    A commenter stated that any regulatory updates should include a 
training effort to inform agency and LTRO staff.
    Response: BIA will conduct training regarding following 
finalization.

[[Page 45639]]

IV. Changes From Proposed Rule to Final Rule

    The final rule includes several changes from the proposed rule to 
address comments received on the proposed rule and for clarity. The 
following table lists each of the changes made from proposed to final:

------------------------------------------------------------------------
                                      Description of changes final rule
           25 CFR Sec.                     makes to proposed rule
------------------------------------------------------------------------
150.1 What is the purpose of this   No changes to proposed rule.
 part?.
150.2 What terms do I need to       Adds definitions for ``inherently
 know?.                              Federal function'' and ``land.''
150.3 May Tribes administer this    No changes to proposed rule.
 part on LTRO's behalf?.
150.101 What is the purpose of the  Deletes reference to the public
 record of title?.                   being provided with constructive
                                     notice, because only certain
                                     individuals/entities have access to
                                     information in the record of title.
150.102 Who maintains the record    No changes to proposed rule.
 of title?.
150.103 What services does the      Adds to paragraph (b) ``in
 LTRO perform to maintain the        accordance with applicable law'' to
 record of title?.                   clarify that only certain
                                     individuals/entities may obtain
                                     certified copies of title documents
                                     in the record of title.
                                    Clarifies that LTRO may provide
                                     uncertified Title Status Reports,
                                     in addition to certified Title
                                     Status Reports.
150.104 How does the LTRO maintain  Deletes ``system of record'' as an
 the record of title?.               unnecessary phrase that could be
                                     confused with ``record of title.''
150.105 Are certain LTRO offices    Clarifies that only LTRO offices
 responsible for certain             that are operated by BIA may assist
 geographic areas?.                  in maintaining the record of title
                                     for Indian land not under their
                                     assigned geographic area. Tribes
                                     compacting or contracting LTRO
                                     functions would be subject to the
                                     Indian Self-Determination and
                                     Education Assistance Act
                                     requirements to obtain authorizing
                                     resolutions from each Tribe to be
                                     benefitted by the contract or
                                     contract. See 25 CFR 900.8(d)(1).
150.201 What is recorded in the     Deletes phrase ``approved by the
 record of title?.                   Secretary'' when referring to
                                     Tribal Energy Resource Agreements
                                     (TERAs) under 25 CFR 224 as
                                     superfluous because TERAs must by
                                     definition be Secretarially
                                     approved under 25 CFR 224.
                                    Adds Tribal authorizations for
                                     Tribal utility lines crossing
                                     Tribal lands as an example of title
                                     documents that do not require
                                     Secretarial approval but must be
                                     recorded.
                                    No changes are made to paragraph
                                     (c), but please note that examples
                                     of documents that are not title
                                     documents that LTRO may record are
                                     documents related to: off-
                                     reservation BIE schools, Indian
                                     irrigation projects, off-
                                     reservation treaty fishing access
                                     sites, Federal public works placed
                                     on Indian land, and Tribal land
                                     assignments.
150.202 Must I check with any       Adds that LTRO maintains current and
 other governmental office to find   historical title documents for
 title documents for Indian land?.   clarification.
150.203 Who may submit a title      No changes to proposed rule.
 document for recording?.
150.204 Who records title           No changes to proposed rule.
 documents?.
150.205 What are the minimum        Clarifies that a legal description
 requirements for recording a        of the Indian land that is
 title document?.                    encumbered by the title document
                                     must be included for the title
                                     document to be recorded.
                                    Revises to provide that the tract
                                     number must be included only if
                                     available.
                                    Adds that notarization or
                                     acknowledgment of the signatures of
                                     the parties must be in person,
                                     because the Department does not at
                                     this time accept remote
                                     notarization for Federal purposes.
150.206 What actions will LTRO      Clarifies that LTRO will take the
 take if it discovers a title        actions in paragraphs (a) and (b)
 defect?.                            if it discovers an omission or
                                     error, respectively, prior to
                                     recording a title document.
                                    Clarifies that LTRO does not record
                                     the title document if the defect is
                                     fatal.
150.301 How does LTRO certify       No changes to proposed rule.
 copies of title documents?.
150.302 What reports does the LTRO  No changes to proposed rule.
 provide?.
150.303 Who may request and         Clarifies that individuals and
 receive copies of title documents   entities request copies of title
 in the record of title or reports   documents and reports through their
 from LTRO without filing a          Region or Agency office, rather
 Freedom of Information Act          than from the LTRO directly.
 request?.                          Adds that Federal agencies
                                     administering Native American
                                     homeownership programs and Federal
                                     lenders participating in the
                                     programs have access to title
                                     documents and reports without
                                     filing a Freedom of Information Act
                                     (FOIA) request.
150.304 Where do I request copies   No changes to proposed rule.
 of title documents or reports
 from LTRO?.
150.305 What information must I     No changes to proposed rule.
 provide when requesting copies of
 title documents and reports?.
150.306 Will I be charged a fee     Deletes Tribes from list of parties
 for obtaining copies of records?.   that may be charged a fee for
                                     copies of records for Indian land
                                     subject to the Tribe's
                                     jurisdiction.
150.401 Who owns the records        No changes to proposed rule.
 associated with this part?.
150.402 How must records            No changes to proposed rule.
 associated with this part be
 preserved?.
150.403 How does the Paperwork      No changes to proposed rule.
 Reduction Act affect this part?.
------------------------------------------------------------------------


[[Page 45640]]

V. Procedural Requirements

A. Regulatory Planning and Review (E.O. 12866)

    Executive Order (E.O.) 12866 provides that the Office of 
Information and Regulatory Affairs (OIRA) at the Office of Management 
and Budget (OMB) will review all significant rules. OIRA has determined 
that this rule is not significant.
    E.O. 13563 reaffirms the principles of E.O. 12866 while calling for 
improvements in the Nation's regulatory system to promote 
predictability, to reduce uncertainty, and to use the best, most 
innovative, and least burdensome tools for achieving regulatory ends. 
The E.O. directs agencies to consider regulatory approaches that reduce 
burdens and maintain flexibility and freedom of choice for the public 
where these approaches are relevant, feasible, and consistent with 
regulatory objectives. E.O. 13563 emphasizes further that regulations 
must be based on the best available science and that the rulemaking 
process must allow for public participation and an open exchange of 
ideas. We have developed this rule in a manner consistent with these 
requirements.

B. Regulatory Flexibility Act

    The Department of the Interior certifies that this document will 
not have a significant economic effect on a substantial number of small 
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). 
The rule addresses how Indian land title and records are maintained.

C. Small Business Regulatory Enforcement Fairness Act

    This rule is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act. This rule:
    (a) Will not have an annual effect on the economy of $100 million 
or more.
    (b) Will not cause a major increase in costs or prices for 
consumers, individual industries, Federal, State, or local government 
agencies, or geographic regions.
    (c) Will not have significant adverse effects on competition, 
employment, investment, productivity, innovation, or the ability of the 
U.S.-based enterprises to compete with foreign-based enterprises.

D. Unfunded Mandates Reform Act

    This rule does not impose an unfunded mandate on State, local, or 
Tribal governments or the private sector of more than $100 million per 
year. The rule does not have a significant or unique effect on State, 
local, or Tribal governments or the private sector. A statement 
containing the information required by the Unfunded Mandates Reform Act 
(2 U.S.C. 1531 et seq.) is not required.

E. Takings (E.O. 12630)

    This rule does not affect a taking of private property or otherwise 
have taking implications under Executive Order 12630. A takings 
implication assessment is not required.

F. Federalism (E.O. 13132)

    Under the criteria in section 1 of Executive Order 13132, this rule 
does not have sufficient federalism implications to warrant the 
preparation of a federalism summary impact statement. A federalism 
summary impact statement is not required.

G. Civil Justice Reform (E.O. 12988)

    This rule complies with the requirements of Executive Order 12988. 
Specifically, this rule:
    (a) Meets the criteria of section 3(a) requiring that all 
regulations be reviewed to eliminate errors and ambiguity and be 
written to minimize litigation; and
    (b) Meets the criteria of section 3(b)(2) requiring that all 
regulations be written in clear language and contain clear legal 
standards.

H. Consultation With Indian Tribes (E.O. 13175)

    The Department of the Interior strives to strengthen its 
government-to-government relationship with Indian Tribes through a 
commitment to consultation with Indian Tribes and recognition of their 
right to self-governance and Tribal sovereignty. We have evaluated this 
rule under the Department's consultation policy and under the criteria 
in Executive Order 13175 and have determined that Tribal consultation 
is appropriate because the rule addresses maintenance of land held in 
trust or restricted status for Tribes. The Department hosted 
consultation sessions on January 12 and 14, 2021 by telephone, and 
provided access on its website to a Powerpoint presentation setting out 
the proposed rule's provisions. Twelve Tribes submitted written 
comments during the consultation period. Summaries of those comments 
and responses to the comments are provided in Section III, above.

I. Paperwork Reduction Act

    This rule contains new information collections. All information 
collections require approval under the Paperwork Reduction Act of 1995 
(44 U.S.C. 3501 et seq.). We may not conduct or sponsor and you are not 
required to respond to a collection of information unless it displays a 
currently valid Office of Management and Budget (OMB) control number. 
The Department is seeking approval of a new information collection, as 
follows.
    Brief Description of Collection: The Bureau of Indian Affairs (BIA) 
Land Title and Records Office (LTRO) maintains title documents for land 
that the United States holds in trust or restricted status for 
individual Indians or Tribes (Indian land), much like counties and 
other localities maintain title documents for fee land within their 
jurisdictions. Individuals or entities that are requesting information 
regarding title documents--either for property they own or for property 
they seek to lease or encumber--must provide certain information to the 
LTRO in order for LTRO to accurately identify the property for which 
they are seeking information. LTRO uses the information provided by 
individuals or entities in order to identify the property so that they 
can retrieve the appropriate title documents and produce reports for 
that property. The collection of information is found in Sec.  150.305, 
which provides that anyone requesting title documents or reports must 
provide certain information, such as the name of the reservation where 
the land is located and the tract number or legal description.
    Title: Requests for Indian Land Title and Records Information.
    OMB Control Number: 1076-0196.
    Form Number: None.
    Type of Review: Existing collection in use without an OMB Control 
Number.
    Respondents/Affected Public: Individuals, Private Sector, 
Government.
    Total Estimated Number of Annual Respondents: 36.
    Total Estimated Number of Annual Responses: 36.
    Estimated Completion Time per Response: 0.5 hours.
    Total Estimated Number of Annual Burden Hours: 19 hours (consisting 
of 10 hours for private sector respondents, 3 hours for individual 
respondents--rounded up from 2.5 hours, and 6 hours for government 
respondents--rounded up from 5.5 hours).
    Respondents' Obligation: Required to obtain a benefit.
    Frequency of Response: Occasionally.
    Total Estimated Annual Non-Hour Burden Cost: $500.
    As part of our continuing effort to reduce paperwork and respondent 
burdens, we invite the public and other

[[Page 45641]]

Federal agencies to comment on any aspect of this information 
collection, including:
    (1) Whether or not the collection of information is necessary for 
the proper performance of the functions of the agency, including 
whether or not the information will have practical utility;
    (2) The accuracy of our estimate of the burden for this collection 
of information, including the validity of the methodology and 
assumptions used;
    (3) Ways to enhance the quality, utility, and clarity of the 
information to be collected; and
    (4) Ways to minimize the burden of the collection of information on 
those who are to respond, including through the use of appropriate 
automated, electronic, mechanical, or other technological collection 
techniques or other forms of information technology, e.g., permitting 
electronic submission of response.
    Written comments and recommendations for the proposed information 
collection should be sent within 30 days of publication of this notice 
to www.reginfo.gov/public/do/PRAMain. Find this particular information 
collection by selecting ``Currently under 30-day Review--Open for 
Public Comments'' or by using the search function. Please provide a 
copy of your comments to [email protected]. Please reference OMB 
Control Number 1076-0196 in the subject line of your comments.

J. National Environmental Policy Act

    This rule does not constitute a major Federal action significantly 
affecting the quality of the human environment. A detailed statement 
under the National Environmental Policy Act of 1969 (NEPA) is not 
required because the environmental effects of this proposed rule are 
too speculative to lend themselves to meaningful analysis and will 
later be subject to the NEPA process, unless covered by a categorical 
exclusion. (For further information see 43 CFR 46.210(i)). We have also 
determined that the rule does not involve any of the extraordinary 
circumstances listed in 43 CFR 46.215 that would require further 
analysis under NEPA.

K. Effects on the Energy Supply (E.O. 13211)

    This rule is not a significant energy action under the definition 
in Executive Order 13211. A Statement of Energy Effects is not 
required.

List of Subjects in 25 CFR Part 150

    Indians--lands.

    For the reasons given in the preamble, the Department of the 
Interior amends 25 CFR chapter I, subchapter H, by revising part 150 to 
read as follows:

PART 150--RECORD OF TITLE TO INDIAN LAND

Subpart A--Purpose and Definitions
Sec.
150.1 What is the purpose of this part?
150.2 What terms do I need to know?
150.3 May Tribes administer this part on LTRO's behalf?
Subpart B--Record of Title to Indian Land
150.101 What is the purpose of the record of title?
150.102 Who maintains the record of title?
150.103 What services does the LTRO perform to maintain the record 
of title?
150.104 How does the LTRO maintain the record of title?
150.105 Are certain LTRO offices responsible for certain geographic 
areas?
Subpart C--Procedures and Requirements to Record Documents
150.201 What is recorded in the record of title?
150.202 Must I check with any other governmental office to find 
title documents for Indian land?
150.203 Who may submit a title document for recording?
150.204 Who records title documents?
150.205 What are the minimum requirements for recording a title 
document?
150.206 What actions will the LTRO take if it discovers a title 
defect?
Subpart D--Disclosure of Title Documents and Reports
150.301 How does LTRO certify copies of title documents?
150.302 What reports does LTRO provide?
150.303 Who may request and receive copies of title documents in the 
record of title or reports from LTRO without filing a Freedom of 
Information Act request?
150.304 Where do I request copies of title documents and reports 
from LTRO?
150.305 What information must I provide when requesting title 
documents or reports?
150.306 Will I be charged a fee for obtaining copies of records?
Subpart E--Records
150.401 Who owns the records associated with this part?
150.402 How must records associated with this part be preserved?
150.403 How does the Paperwork Reduction Act affect this part?

    Authority:  5 U.S.C. 301; 5 U.S.C. 552a; 25 U.S.C. 2; 25 U.S.C. 
5; 25 U.S.C. 7; 25 U.S.C. 9; 25 U.S.C. 14b; 25 U.S.C. 25; 25 U.S.C. 
199; 25 U.S.C. 343; 25 U.S.C. 355; 25 U.S.C. 413; 25 U.S.C. 2201 et. 
seq.; 44 U.S.C. 2901 et. seq.; 44 U.S.C. 3101 et. seq.; and 44 
U.S.C. 3301 et. seq.

Subpart A--Purpose and Definitions


Sec.  150.1   What is the purpose of this part?

    This part describes the BIA repository of title documents for 
Indian land and responsibilities for recording title documents, 
maintaining the repository, and providing reports on title to Indian 
land.


Sec.  150.2   What terms do I need to know?

    Agency means the BIA agency or field office with jurisdiction over 
a particular tract of Indian land or another BIA office through 
delegation and documentation of responsibilities in the Indian Affairs 
Manual. This term also means any Tribe acting on behalf of the 
Secretary or BIA under a contract or compact under the Indian Self-
Determination and Education Assistance Act (25 U.S.C. 5301 et seq.).
    BIA means the Bureau of Indian Affairs within the Department of the 
Interior.
    Certified copy means a copy of a title document that is a true and 
correct copy of the title document as recorded in the record of title 
and evidenced by an official seal.
    Certify for the purposes of certifying Title Status Reports, 
probate inventory reports, title status maps, and findings of title 
examinations means that an LTRO Certifying Officer has determined that 
the report, map, or examination of land title status is complete, 
correct, and current, based on the record of title.
    Certifying Officer means the LTRO Manager or another properly 
authorized or delegated Federal official who certifies the status of 
title to Indian lands or copies of title documents.
    Defect or title defect means an error contained within, or created 
by, a title document that makes the title to Indian land uncertain.
    I or you means the person to whom these regulations directly apply.
    Indian land means land, or an interest therein, that is:
    (1) Held in trust by the United States for one or more individual 
Indians or Tribes; or
    (2) Owned by one or more individual Indians or Tribes and can only 
be alienated or encumbered by the owner with the approval of the 
Secretary because of restrictions or limitations in the conveyance 
instrument or in Federal law.
    Inherently Federal function means Federal function that may not 
legally be delegated to an Indian Tribe.
    Land is real property, including any interests, benefits, and 
rights inherent in the ownership of the real property. Land may include 
surface and/or subsurface interests.

[[Page 45642]]

    LTRO means the Land Title and Records Office within the BIA, which 
is responsible for recording title documents, maintaining the record of 
title, and providing certified copies of title documents and reports. 
The term LTRO, as used herein, includes any Tribe acting on behalf of 
the Secretary or BIA under Sec.  150.3.
    Manager is the designated officer in charge of a LTRO office or his 
or her designated representative.
    OHA means the Office of Hearings and Appeals within the Department 
of the Interior.
    Probate Inventory Report means a report of Indian land owned by an 
individual Indian at the time of his or her death.
    Record of title means the BIA's repository of title documents for 
Indian land.
    Recording is the acceptance of a title document and entry into the 
record of title of a title document by LTRO. An official LTRO stamp 
affixed to the title document provides evidence that the title document 
has been recorded.
    Region means a BIA regional office.
    Secretary means the Secretary of the Interior or his or her 
authorized representative.
    Title means ownership of Indian land.
    Title document means any document that affects the title to or 
encumbers Indian land, including but not limited to conveyances, 
probate orders, encumbrances (such as mortgages, liens, permits, 
covenants, leases, easements, rights-of-way), plats, cadastral surveys, 
and other surveys.
    Title examination means a review and evaluation by the LTRO of: (1) 
title documents submitted to it for recording, and (2) the status of 
title for a particular tract of Indian land based on the record of 
title, and a finding, certified by the LTRO Manager, that title is 
complete, correct, current, and without defect, or identifies defects 
that must be corrected.
    Title Status Report means a report issued after a title examination 
that shows the proper legal description of a tract of Indian land; 
current ownership, including any applicable conditions, exceptions, 
restrictions or encumbrances of record; and whether interests in the 
land are in unrestricted, restricted, trust, and/or other status as 
indicated by the record of title in the LTRO.
    Tribe means an Indian Tribe under section 102 of the Federally 
Recognized Indian Tribe List Act of 1994, 25 U.S.C. 5129(a).


Sec.  150.3   May Tribes administer this part on LTRO's behalf?

    A Tribe may contract or compact under the Indian Self-Determination 
and Education Assistance Act (25 U.S.C. 5301 et seq.) to administer on 
LTRO's behalf any portion of this part that is not an inherently 
Federal function.

Subpart B--Record of Title to Indian Land


Sec.  150.101   What is the purpose of the record of title?

    The record of title provides the BIA with a record of title 
documents to Indian land and provides constructive notice that the 
title documents exist.


Sec.  150.102   Who maintains the record of title?

    The LTRO is designated as the office responsible for maintaining 
the record of title.


Sec.  150.103   What services does the LTRO perform to maintain the 
record of title?

    The LTRO is responsible for performing the following services to 
maintain the record of title:
    (a) Recording title documents submitted by an Agency, Region, or 
OHA;
    (b) Providing certified copies of the title documents in the record 
of title in accordance with applicable law;
    (c) Examining the record of title and certifying the findings of 
title examinations;
    (d) Providing certified and uncertified Title Status Reports;
    (e) Preparing, maintaining, and providing land status maps;
    (f) Providing and certifying probate inventory reports; and
    (g) Providing other services and reports based upon the information 
in the record of title.


Sec.  150.104   How does the LTRO maintain the record of title?

    The LTRO maintains the record of title electronically. However, 
certain title documents may exist only as physical copies and not 
electronically.


Sec.  150.105   Are certain LTRO offices responsible for certain 
geographic areas?

    Staff at each LTRO office will have primary responsibility to 
maintain the record of title for Indian land under that LTRO office's 
assigned geographic area, based on BIA Region, Tribal reservation, or 
otherwise, as prescribed by BIA through internal procedures. BIA will 
keep an updated list of each LTRO office's assigned geographic area of 
responsibility on www.bia.gov/bia/ots/dltr. LTRO offices operated by 
BIA (as opposed to a Tribe acting on behalf of the Secretary) may 
assist in maintaining the record of title for Indian land not under 
their assigned geographic area as needed.

Subpart C--Procedures and Requirements To Record Documents


Sec.  150.201   What is recorded in the record of title?

    (a) All title documents for Indian land must be recorded in the 
record of title, regardless of whether the document reflects a 
transaction that required Secretarial approval. For example, the 
following do not require Secretarial approval, but are title documents 
required to be recorded:
    (1) Service line agreements must be recorded under 25 CFR 169.56;
    (2) Individual leases under approved Helping Expedite and Advance 
Responsible Tribal Homeownership (HEARTH) Tribal regulations must be 
recorded under the Indian Affairs Manual (IAM) at 52 IAM 13;
    (3) Individual leases, business agreements, and rights-of-way under 
Tribal Energy Resource Agreements under 25 CFR 224 must be recorded;
    (4) Leases between a Tribe and a Tribal energy development 
organization under 25 CFR 224 must be recorded;
    (5) Leases of Tribal land by a 25 U.S.C. 477 corporate entity under 
its charter to a third party for a period not to exceed 25 years must 
be recorded under 25 CFR 162.006(b)(3)(i);
    (6) Tribal authorization for Tribal utility lines crossing Tribal 
lands must be recorded under Sec.  169.4(b)(3)(iii); and
    (7) Subleasehold mortgages under 25 CFR 162.009 must be recorded.
    (b) The requirement in paragraph (a) of this section does not 
eliminate or supersede any Federal statute or regulation requiring the 
recording of title documents for Indian land in other records of title, 
including title documents for Indian land within the jurisdiction of 
the Five Civilized Tribes or the Osage Nation.
    (c) LTRO may also record:
    (1) Documents that demonstrate the rights of use, occupancy, and/or 
benefit of a Tribe to U.S. Government land or other non-Indian lands; 
and
    (2) Certain documents regarding Indian lands that are not title 
documents.


Sec.  150.202   Must I check with any other governmental office to find 
title documents for Indian land?

    LTRO maintains current and historical title documents to Indian 
land but in certain circumstances, due diligence may require 
examination of other Federal, State, and local records of title.


Sec.  150.203   Who may submit a title document for recording?

    Only an Agency, Region, or OHA may submit title documents to the 
LTRO for

[[Page 45643]]

recording. All other government offices and individuals must submit 
title documents to the Agency, Region, or OHA, as appropriate, for that 
Agency, Region, or OHA to submit to the LTRO.


Sec.  150.204   Who records title documents?

    The LTRO is the designated office to record title documents. The 
BIA Director may delegate the authority to record title documents to 
another BIA office by documenting the delegation and the types of 
transactions to which it applies in the Indian Affairs Manual.


Sec.  150.205   What are the minimum requirements for recording a title 
document?

    (a) A title document must include the following information to be 
recorded in the record of title, except as provided in paragraph (b) of 
this section:
    (1) A legal description of the Indian land encumbered by the title 
document and, if available, the tract number;
    (2) The signatures of the parties to the document;
    (3) Proper traditional in-person notarization or other in-person 
acknowledgment of the signatures of the parties, if applicable;
    (4) Signature and citation to the authority of the approving 
official, if applicable; and
    (5) Approval date.
    (b) If the title document reflects a transaction that was deemed 
approved under a statute or regulation providing that a transaction is 
deemed approved after a certain period of time without Secretarial 
action to approve or deny, then, at a minimum, the title document must 
include the following items:
    (1) A legal description of the Indian land encumbered by the title 
document and, if required, the tract number;
    (2) The signatures of the parties to the document;
    (3) Proper acknowledgement or authentication of the signatures of 
the parties, if applicable; and
    (4) A citation to the statutory or regulatory authority for the 
transaction to be deemed approved.


Sec.  150.206   What actions will the LTRO take if it discovers a title 
defect?

    (a) If prior to recording a title document, the LTRO discovers that 
the title document omits one or more of the items required for 
recording by Sec.  150.205(a) or (b), then the LTRO will notify the 
originating office to request correction. Once the omission is 
corrected, the LTRO will record the title document.
    (b) If prior to recording a title document, the LTRO discovers 
there is an error in one or more of the items required for recording by 
Sec.  150.205(a) or (b), then the LTRO will record the title document, 
unless the defect is fatal, with a notation on title and notify the 
originating office to request correction. Once the error is corrected, 
the LTRO will record the corrected title document and remove the 
notation.
    (c) If the LTRO discovers a title defect during a title 
examination, the LTRO will notify the originating office of the defect, 
request correction, and make a notation in the record of title. Once 
the defect is corrected, the LTRO will record the corrected title 
document or other legal instruments to correct the title document and 
remove the notation.
    (d) If the defect is contained in a probate record, the LTRO will 
notify the Agency or Region to initiate corrective action with the OHA.

Subpart D--Disclosure of Title Documents and Reports


Sec.  150.301   How does the LTRO certify copies of title documents?

    The Certifying Officer certifies copies of title documents in the 
record of title by affixing an official seal to the copy of the title 
document. The official seal attests that the certified copy is a true 
and correct copy of the recorded title document.


Sec.  150.302   What reports does the LTRO provide?

    The LTRO provides the following types of reports for Indian land to 
those persons or entities authorized to receive such information:
    (a) Certified reports, including a Title Status Report, Land Status 
Map, and, as part of the probate record, the Probate Inventory Report; 
and
    (b) Uncertified reports or other reports based upon the information 
in the record of title.


Sec.  150.303   Who may request and receive copies of title documents 
in the record of title or reports from the LTRO without filing a 
Freedom of Information Act request?

    The following individuals and entities may request and receive, 
through the Region or Agency office, copies of title documents in the 
record of title or reports for Indian land from the LTRO without filing 
a Freedom of Information Act request to the extent that disclosure 
would not violate the Privacy Act or other law restricting access to 
such records, for example, 25 U.S.C. 2216(e):
    (a) Owners of an interest in Indian land (or their legally 
authorized representative) may request copies of title documents in the 
record of title or reports for the Indian land in which they own an 
interest;
    (b) The Tribe with jurisdiction over the Indian land may request 
title documents or reports for Indian land subject to the Tribe's 
jurisdiction;
    (c) Any person (or their legally authorized representative) or 
entity who is leasing, using, or consolidating Indian land or is 
applying to lease, use, or consolidate Indian land may request title 
documents or reports for such Indian land; and
    (d) Federal agencies administering Native American homeownership 
programs and Federal lenders participating in these programs who need 
information on specific Indian land to provide funding.


Sec.  150.304   Where do I request copies of title documents or reports 
from the LTRO?

    You may request LTRO information, such as copies of title documents 
or reports, at any Region or Agency office with access to the record of 
title, regardless of geographic location. If the Region or Agency 
office does not have access to the title documents or the ability to 
generate the reports requested, it will refer the request to the office 
with access to the title documents or ability to generate the reports 
requested.


Sec.  150.305   What information must I provide when requesting copies 
of title documents and reports?

    (a) Except as provided in paragraph (b), to request title documents 
or reports, you must provide only one of the following items of 
information:
    (1) If you are inquiring about your own interest in the tract, then 
your name and date of birth, or identification number; or
    (2) The name of the reservation where the land is located and 
either the tract number or legal description; or
    (3) The Agency name and either the tract number or legal 
description; or
    (4) A legal description of the tract; or
    (5) A title document number pertaining to the tract; or
    (6) The allotment number including the Tribe or land area code; or
    (7) The name of the original allottee.
    (b) Individuals and entities described in Sec.  150.303(c) must 
also provide documents showing that they are entitled to the 
information they are requesting from the LTRO because they are leasing, 
using, or consolidating Indian land or the interests in Indian land, or 
because they are applying to lease, use, or consolidate Indian land or 
the interests in Indian land.


Sec.  150.306   Will I be charged a fee for obtaining copies of 
records?

    (a) The LTRO may charge a fee to any of the parties listed in Sec.  
150.303 (c) for each copy of recorded title documents, Title Status 
Reports, and land status

[[Page 45644]]

maps to cover the costs in reviewing, preparing, or processing the 
documents.
    (b) The fee will be at the rate established by 43 CFR 2, Appendix 
A.
    (c) The LTRO may waive all or part of these fees, at its 
discretion.
    (d) Paid fees are non-refundable.

Subpart E--Records


Sec.  150.401   Who owns the records associated with this part?

    (a) The records associated with this part are the property of the 
United States if they:
    (1) Are made or received by the Secretary or a Tribe or Tribal 
organization in the conduct of a Federal trust function under 25 U.S.C. 
5301 et seq., including the operation of a trust program; and
    (2) Evidence the organization, functions, policies, decisions, 
procedures, operations, or other activities undertaken in the 
performance of a Federal trust function under this part.
    (b) Records not covered by paragraph (a) of this section that are 
made or received by a Tribe or Tribal organization in the conduct of 
business with the Department of the Interior under this part are the 
property of the Tribe.


Sec.  150.402   How must records associated with this part be 
preserved?

    (a) Tribes, Tribal organizations, and any other organization that 
make or receives records described in Sec.  150.401(a) must preserve 
the records in accordance with approved Departmental records retention 
procedures under the Federal Records Act, 44 U.S.C. chapters 29, 31 and 
33. These records and related records management practices and 
safeguards required under the Federal Records Act are subject to 
inspection by the Secretary and the Archivist of the United States.
    (b) A Tribe or Tribal organization should preserve the records 
identified in Sec.  150.401(b) for the period of time authorized by the 
Archivist of the United States for similar Department of the Interior 
records in accordance with 44 U.S.C. chapter 33.


Sec.  150.403   How does the Paperwork Reduction Act affect this part?

    The information collections contained in this part have been 
approved by the Office of Management and Budget under 44 U.S.C 3301 et 
seq. and assigned OMB Control Number 1076-0196. Response is required to 
obtain a benefit. A Federal agency may not conduct or sponsor, and you 
are not required to respond to, a collection of information unless the 
form or regulation containing the collection of information has a 
currently valid OMB Control Number.

Bryan Newland,
Assistant Secretary--Indian Affairs.
[FR Doc. 2021-17377 Filed 8-13-21; 8:45 am]
BILLING CODE 4337-15-P