Indian Land Title and Records

Published date16 August 2021
Citation86 FR 45631
Record Number2021-17377
SectionRules and Regulations
CourtIndian Affairs Bureau
Federal Register, Volume 86 Issue 155 (Monday, August 16, 2021)
[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 This rule replaces outdated provisions and allows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. 113563)
                B. Regulatory Flexibility Act
                 C. Small Business Regulatory Enforcement Fairness Act
                 D. Unfunded Mandates Reform Act
                 E. Takings (E.O. 112630)
                F. Federalism (E.O. 113132)
                G. Civil Justice Reform (E.O. 112988)
                H. Consultation With Indian Tribes (E.O. 113175)
                I. Paperwork Reduction Act
                 J. National Environmental Policy Act
                 K. Effects on the Energy Supply (E.O. 113211)
                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
                

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