[Federal Register Volume 59, Number 197 (Thursday, October 13, 1994)]
[Unknown Section]
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From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-25357]


[[Page Unknown]]

[Federal Register: October 13, 1994]


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DEPARTMENT OF THE INTERIOR

Indian Arts and Crafts Board

25 CFR PART 309

RIN 1090-AA45

 

Protection for Products of Indian Art and Craftsmanship

AGENCY: Indian Arts and Crafts Board (IACB), DOI.

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: This rule will establish regulations to implement Pub. L. 101-
644, the Indian Arts and Crafts Act of 1990. The proposed regulations 
define the nature and Indian origin of products embraced by the law and 
specify procedures for carrying out the law. The trademark provisions 
of the Act are not included in this proposed rulemaking, and will be 
treated at a later time.

DATES: Written comments must be received on or before February 10, 
1995.

ADDRESSES: Comments on the proposal should be marked ``Docket No. 1090-
AA45'' and mailed or delivered in duplicate to: Indian Arts and Crafts 
Board, Room 4004-MIB, 1849 C Street, NW., Washington, DC 20240. 
Commenters who want the Indian Arts and Crafts Board to acknowledge 
receipt of their comments on this notice must submit with those 
comments a self-addressed, stamped postcard on which the following 
statement is made: ``Comments to Docket to Docket No. 1090-AA45.'' The 
postcard will be date stamped and returned to the commenter.
    Comments may be inspected at room 4004, 1849 C Street, NW., 
Washington, DC, on weekdays, except Federal holidays, between 8:30 a.m. 
and 5 p.m.

FOR FURTHER INFORMATION CONTACT: Meridith Z. Stanton or Geoffrey E. 
Stamm, Indian Arts and Crafts Board, Room 4004-MIB, 1849 C Street, NW., 
Washington, DC 20240, telephone 202-208-3773 (not a toll-free call).

SUPPLEMENTARY INFORMATION:

Background

    The Indian Arts and Crafts Board was established by the Act of 
August 27, 1935 (49 Stat. 891; 25 U.S.C. 305a), and is responsible for 
promoting the development of American Indian and Alaska Native arts and 
crafts, improving the economic status of members of Federally 
recognized tribes, and establishing and expanding marketing 
opportunities for arts and crafts produced by American Indians and 
Alaska Natives.
    The 1935 Act established criminal penalties for selling goods with 
misrepresentations that they were Indian-produced. These original 
provisions, in section 1159 of title 18, United States Code, provided 
for fines not to exceed $500 or imprisonment not to exceed six months 
or both. Although this law was in effect for many years, it provided no 
meaningful deterrent to those who misrepresent imitation Indian arts 
and crafts. In addition, it required ``willfulness'' and ``intent'' to 
prove a violation, and very little enforcement took place.
    In recent years, the Congress notes that the Indian arts and crafts 
market, with several hundred million dollars in annual sales, was 
expanding and experiencing a greater frequency of fraudulent sales. The 
Congress requested a special report from the Department of Commerce, 
which in 1985 determined that significant losses were incurred by the 
domestic Indian arts and crafts market due to unmarked imported 
imitations. As a result, the Congress included in the 1988 Omnibus 
Trade Bill, Pub. L. 100-418, a direction to the Customs Service to 
address the issue of misrepresentation. This led to the promulgation of 
regulations to require permanent country-of-origin marking on imported 
Indian-style jewelry and other arts and crafts products. Thereafter, 
the Congress shifted its attention to problems originating in the 
domestic market and passed Pub. L. 101-644, the Indian Arts and Crafts 
Act of 1990.
    The Indian Arts and Crafts Act of 1990 is essentially a truth-in-
advertising law designed to prevent products from being marketed as 
``Indian made,'' when the products are not, in fact, made by Indians as 
defined in the Act. Because of the truth-in-advertising nature of the 
Act, the drafters of the proposed regulations have tried not to 
restrict truthful statements that might be made in marketing a product.
    In respect of tribal sovereignty, the drafters do not require 
uniform criteria or procedures or documentation forms for tribal 
certification of individuals as Indian artisans, although such 
uniformity would be a great convenience to businesses and consumers in 
the market.

Section-by-Section Analysis

Section 309.1

    This section outlines the purpose of the regulations.

Section 309.2

    This section defines terms used throughout the regulations.
    The definition of ``Indian product'' is central to these 
regulations. It explicitly includes handcrafts because the core of the 
market consists of such products, and the term ``handcraft'' carries 
substantial economic value when attached to a product. It excludes 
products made before 1935 because, in passing the Indian Arts and 
Crafts Act of 1990, the Congress was concerned with fraudulent sales in 
the contemporary market. The Indian Arts and Crafts Board's mission as 
an agency is to promote the development of the contemporary market. The 
1935 cutoff date was chosen because that was the founding year of the 
Indian Arts and Crafts Board, and the Act is an amendment to the 
Board's organic act.
    Definitions of ``Indian,'' ``Indian arts and crafts organization,'' 
and ``Indian tribe'' are provided in the statute. A current list of 
Federally-recognized Indian tribes was published in the Federal 
Register on October 21, 1993 (58 FR 54364), by the Bureau of Indian 
Affairs, U.S. Department of the Interior. The Department of the 
Interior does not maintain a list of state recognized tribes that 
qualify under subsection (b)(2).

Section 309.3

    Subsection (a) of this section is particularly important because it 
states how the unmodified use of the word ``Indian'' or the unmodified 
name of an Indian tribe will be construed by the Indian Arts and Crafts 
Board as a representation of an Indian product for enforcement 
purposes.
    The Act specifically addresses the situation of people of various 
degrees of Indian ancestry who are active in the art market, but are 
not members of tribes for whatever reason. The Congress provided in the 
Act that tribes could decide to certify such people as Indian artisans. 
There may be instances in which a person is not a member of a tribe and 
has not been certified as an Indian artisan, but nonetheless is of 
Indian ancestry. A different identification issue arises among people 
who make products that may appear Indian-made, or may be intentionally 
styled after Indian products, but who have no intention of 
misrepresenting them as Indian-made.
    The regulations need to identify a reasonable boundary between 
marketing statements that are simply truthful, and should be permitted, 
and statements that are clearly misleading, and should be prohibited. 
Comments are especially encouraged about what is reasonable and how 
best to establish a boundary. As proposed, the regulations provide that 
the unmodified use of the word ``Indian'' or of the name of a tribe in 
connection with a product would necessarily be misleading if the maker 
was not a member or certified artisan of a tribe.
    Foreign products have been a major concern of the Congress, and the 
fundamental purpose of the Act is to protect Indians, as defined, who 
are resident in the United States. Subsection (b) clarifies how certain 
marketing conduct related to products of Indians of foreign tribes will 
be construed by the Indian Arts and Crafts Board for enforcement 
purposes.

Section 309.4

    This section states the statutory prohibition against a tribe 
imposing a fee for certifying an Indian artisan.

Section 309.5

    This section states where the statutory criminal and civil 
penalties for violations may be found.

Section 309.6

    This section provides the address where complaints about alleged 
violations of the Act may be submitted.

Public Participation

    Any person may obtain a copy of this NPRM by mailing a request to 
the Indian Arts and Crafts Board, Room 4004-MIB, 1849 C Street, NW., 
Washington, DC 20240, or by calling 202-208-3773 (not a toll-free 
call).
    Interested persons are invited to participate in this proposed 
rulemaking by submitting such written data, views, or arguments as they 
may desire. Comments relating to the effects that might result from the 
adoption of the proposals contained in this notice are invited. 
Communications should identify the docket number and be submitted in 
duplicate to the address listed above. Commenters who want the Indian 
Arts and Crafts Board to acknowledge receipt of their comments on this 
notice must submit with those comments a self-addressed, stamped 
postcard on which the following statement is made: ``Comments to Docket 
No. 1090-AA45.'' The postcard will be date stamped and returned to the 
commenter. All communications received on or before the closing date 
for comments will be considered by the Commissioners of the Indian Arts 
and Crafts Board before taking action on the proposed rule. The 
proposals contained in this notice may be changed in light of comments 
received. All comments submitted will be available for examination in 
the rule docket both before and after the closing date for comments.

Drafting Information

    These proposed regulations were prepared by Geoffrey E. Stamm 
(Acting General Manager, Indian Arts and Crafts Board) and Meridith Z. 
Stanton (Advisory Services Specialist, Indian Arts and Crafts Board).

Compliance With Other Laws

    This rule was not subject to Office of Management and Budget review 
under E.O. 12866.
    There is no collection of information in this rule requiring 
approval by the Office of Management and Budget under 44 U.S.C. 3504.
    The Department of the Interior certifies that this rule 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.). 
An unknown number of individuals, small businesses, and tribal 
governments may be affected in some way, but they do not exceed several 
thousand in aggregate. These possible effects, such as increased demand 
on tribal governments from some of their members to document their 
status, stem from the statute itself rather than the proposed 
regulations, as the preponderance of the proposed regulations does not 
exceed the non-discretionary statutory requirements.
    The Department of the Interior has determined that these proposed 
regulations will not have a significant effect on the human environment 
under the National Environmental Policy Act (42 U.S.C. 4321-4347). In 
addition, the Department of the Interior has determined that these 
proposed regulations are categorically excluded from the procedural 
requirements of the National Environmental Policy Act by Departmental 
regulations in 516 DM 2. As such, neither an Environmental Assessment 
nor an Environmental Impact Statement has been prepared.

List of Subjects in 25 CFR Part 309

    Indians-Arts and crafts.

    For the reasons set out in the preamble, 25 CFR Chapter II is 
proposed to be amended as follows:
    Part 309 is added to read as follows:

PART 309--PROTECTION FOR PRODUCTS OF INDIAN ART AND CRAFTSMANSHIP

Sec.
309.1  Purpose.
309.2  Definitions.
309.3  Enforcement.
309.4  Certification of Indian artisans.
309.5  Penalties.
309.6  Complaints.

    Authority: 18 U.S.C. 1159, 25 U.S.C. 305


Sec. 309.1  Purpose.

    These regulations define the nature and Indian origin of products 
protected by the Indian Arts and Crafts Act of 1990 (18 U.S.C. 1159, 25 
U.S.C. 305e) from false representations, and specify how the Indian 
Arts and Crafts Board will interpret certain conduct for enforcement 
purposes. The Act makes it unlawful to offer or display for sale or 
sell any good in a manner that falsely suggests it is Indian produced, 
an Indian product, or the product of a particular Indian or Indian 
Tribe or Indian arts and crafts organization resident within the United 
States.


Sec. 309.2  Definitions.

    (a) Indian means any individual who is a member of an Indian tribe 
or is certified as an Indian artisan by an Indian tribe.
    (b) Indian artisan means an individual who is certified as such by 
an Indian tribe.
    (c) Indian arts and crafts organization means any legally 
established arts and crafts marketing organization composed of members 
of Indian tribes.
    (d) Indian product means any art or craft product made by an 
Indian, other than a product made before 1935.
    (1) This includes, but is not limited to:
    (i) Products that are in a traditional Indian style or traditional 
Indian medium;
    (ii) Products that are in a non-traditional Indian style or non-
traditional Indian medium;
    (iii) Handcrafts, i.e. objects created with the help of only such 
devices as allow the manual skill of the maker to condition the shape 
and design of each individual product.
    (2) This does not include industrial products.
    (e) Indian tribe means--
    (1) Any Indian tribe, band, nation, Alaska Native village, or any 
organized group or community which is recognized as eligible for the 
special programs and services provided by the United States to Indians 
because of their status as Indians; or
    (2) Any Indian group that has been formally recognized as an Indian 
tribe by a state legislature or by a state commission or similar 
organization legislatively vested with state tribal recognition 
authority.
    (f) Product of a particular Indian tribe or Indian arts and crafts 
organization means that the source of an Indian product is identified 
as a named Indian tribe or named Indian arts and crafts organization.


Sec. 309.3  Enforcement.

    (a) Indian products. The unmodified word ``Indian'' or an 
unmodified name of an Indian tribe, used in connection with an art or 
craft product, is interpreted to mean--
    (1) That the maker is a member of an Indian tribe, or of the 
particular Indian tribe named; and
    (2) That the tribe is resident in the United States; and
    (3) That the art or craft product is an Indian product; unless
    (4) The name of the foreign country of tribal ancestry is also used 
with the product.


Sec. 309.4  Certification of Indian artisans.

    As provided in section 305e, title 25, United States Code, a tribe 
may not impose a fee for certifying an Indian artisan.


Sec. 309.5  Penalties.

    (a) Criminal. A person is subject to the penalties specified in 
section 1159, title 18, United States Code.
    (b) Civil. A person is subject to the penalties specified in 
section 305e, title 25, United States Code.


Sec. 309.6  Complaints.

    Complaints about protected products alleged to be offered or 
displayed for sale or sold in a manner that falsely suggests they are 
Indian should be made in writing and addressed to the General Manager, 
Indian Arts and Crafts Board, Room 4004-MIB, 1849 C Street NW., 
Washington, DC 20240.

    Dated: October 5, 1994.
Bonnie R. Cohen,
Assistant Secretary--Policy, Management and Budget.
[FR Doc. 94-25357 Filed 10-12-94; 8:45 am]
BILLING CODE 4310-RK-M