[Federal Register Volume 68, Number 113 (Thursday, June 12, 2003)]
[Rules and Regulations]
[Pages 35164-35172]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-14827]


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DEPARTMENT OF THE INTERIOR

Indian Arts and Crafts Board

25 CFR Part 309

RIN 1076-AE16


Protection of Products of Indian Art and Craftsmanship

AGENCY: Indian Arts and Crafts Board (IACB), Department of the 
Interior.

ACTION: Final rule.

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SUMMARY: This rule implements the Indian Arts and Crafts Enforcement 
Act of 2000, an amendment to the Indian Arts and Crafts Act of 1990. 
The rule provides guidance to persons who produce, market, or purchase 
arts and crafts marketed as Indian products. The rule clarifies the 
regulatory definition of ``Indian product,'' as defined under the 
Indian Arts and Crafts Act of 1990, by including specific examples of 
``Indian product,'' as well as examples of what is not an ``Indian 
product.''

EFFECTIVE DATE: September 10, 2003.

FOR FURTHER INFORMATION CONTACT: Meridith Z. Stanton, Director, Indian 
Arts and Crafts Board, Room 4004-MIB, 1849 C Street, NW., Washington, 
DC 20240, telephone 202-208-3773 (not a toll-free call), fax 202-208-
5196, or e-mail [email protected].

SUPPLEMENTARY INFORMATION:

Background

    The Indian Arts and Crafts Board (IACB) was created by Congress 
pursuant to the Act of August 27, 1935 (49 Stat. 891; 25 U.S.C. 305 et 
seq.; 18 U.S.C. 1158-59) (``1935 Act''). The IACB is responsible for 
carrying out the Indian Arts and Crafts Act of 1990, promoting the 
development of American Indian and Alaska Native arts and crafts, 
improving the economic status of members of federally recognized 
Tribes, and helping to establish and expand marketing opportunities for 
arts and crafts produced by American Indians and Alaska Natives.
    The Indian Arts and Crafts Act of 1990, Public Law 101-644, 104 
Stat. 4662 (hereinafter the ``1990 Act'') is essentially a truth-in-
marketing law designed to prevent, through both civil and criminal 
sanctions, marketing of products in a manner that falsely suggests such 
products are produced by Indians when the products are not, in fact, 
made by an Indian as defined by the 1990 Act. As used herein, 
``marketing'' occurs when a person offers or displays for sale or sells 
a good. Under section 104(a) of the 1990 Act (18 U.S.C. 1159(c)(2)), 
``the terms `Indian product' and 'product of a particular Indian tribe 
or Indian arts and crafts organization' have the meaning given such 
term in regulations which may be promulgated by the Secretary of the 
Interior.''
    Under the Secretary's implementing regulations for the 1990 Act, at 
25 CFR part 309, prior to these amendments, the term ``Indian product'' 
was defined as:
    ``(1) In general. ``Indian product'' means any art or craft product 
made by an Indian.
    ``(2) Illustrations. The term Indian product includes, but is not 
limited to:
    ``(i) Art works that are in a traditional or non-traditional Indian 
style or medium;
    ``(ii) Crafts that are in a traditional or non-traditional Indian 
style or 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.
    ``(3) Exclusion for products made before 1935. The provisions of 
this part shall not apply to any art or craft products made before 
1935.''
    This definition reflects the IACB's determination that ``Indian 
product'' under the 1990 Act applies to Indian arts and crafts, and not 
all products generally. This determination is consistent with the 
IACB's organic legislation enacted in 1935, the IACB's primary mission 
as established by Congress, and the Congressional intent of the 1990 
Act. The 1935 cut-off date for products regulated by the 1990 Act is in 
keeping with the Congressional intent of the 1990 Act and the 
legislated mission of the IACB--economic growth through the development 
and promotion of contemporary Indian arts and crafts.
    The ``Indian product'' definition under the 1990 Act's implementing 
regulations, at 25 CFR part 309, focused on the nature and Indian 
origin of products covered by the 1990 Act, and did not provide 
specific arts and crafts examples. The Indian Arts and Crafts 
Enforcement Act of 2000, (hereinafter the ``2000 Act''), an amendment 
to the 1990 Act, was enacted on November 9, 2000. Under this amendment, 
Congress sought to strengthen the cause of action for misrepresentation 
of Indian arts and crafts. Section 2 of the 2000 Act directed the IACB 
to ``promulgate regulations to include in the definition of the term 
'Indian product' specific examples of such product to provide guidance 
to Indian artisans as well as to purveyors and consumers of Indian arts 
and crafts, as defined under this Act.''

[[Page 35165]]

    This final rule carries out the 2000 Act by clarifying the 
definition of ``Indian product.'' It also provides specific examples of 
items that may be marketed as Indian products and those that may not, 
thereby informing the public as to when an individual may be subject to 
civil or criminal penalties for falsely marketing a good as an ``Indian 
product.''

Public Participation

    Prior to drafting regulations for the 2000 Act, in early January, 
2001, the IACB sent out individual letters to the Tribal leaders of all 
federally recognized Tribes informing them of the 2000 Act and 
providing them with copies of the legislation. The letters invited the 
Tribal leaders to designate a member of their staff or Tribal member 
from their arts and crafts community with whom the IACB could discuss 
their Tribe's interest in specific language for consideration in the 
further clarification of ``Indian product.'' This Tribal involvement 
was intended to ensure that the amended definition properly encompasses 
Indian art and craft products that should be protected by the 1990 Act.
    Following written and telephone communications and subsequent 
teleconference consultations with designated representatives from a 
broad range of interested Tribes, the IACB published the proposed 
rulemaking for the 2000 Act on May 21, 2001. 66 Fed. Reg. 27915-27920. 
In addition to publication, several thousand copies of the proposed 
rulemaking were distributed to interested parties, including every 
federally recognized Tribe, members of the Indian arts and crafts 
industry, key offices within the Department of Justice, including U.S. 
Attorneys and the Federal Bureau of Investigation, State Governors, 
State Attorneys General, and State Arts Councils.
    The IACB received 25 public comments on the proposed rulemaking, 
and each was carefully reviewed, analyzed, and considered. These 
comments are grouped in the following summary.

Summary and Analysis of Public Comments

    A broad range of Tribal, federal, State, and Indian arts and crafts 
industry comments were received in response to the proposed rulemaking 
for the 2000 Act. The respondents provided a variety of comments, 
including concern for the protection of Indian artists and artisans' 
economic livelihood, suggestions for changes to the proposed product 
categories, product items, and descriptions, as well as requests to 
further clarify that the labor component of the Indian art or craft 
product must be entirely Indian.

Overall Comments

Definition of ``Indian''
    One respondent requested that a working definition of ``Indian'' be 
developed to assist in the definition of ``Indian product,'' while 
another respondent questioned whether State-recognized Tribes met the 
definition of ``Indian.'' One comment proposed that, under the 
``Background'' section's definition of ``Indian product,'' the terms 
``American Indian or Alaska Native'' be substituted for ``Indian.'' 
Another respondent requested that the definition of Indian be expanded 
to permit people of Indian descent, yet who are not enrolled in State 
or federally recognized Tribes, to sell their work as Indian art.
    The final rule has not adopted these comments. The term ``Indian'' 
and the interrelated term ``Indian Tribe'' are defined by Congress by 
statute in the 1990 Act and may not be changed by regulation. As 
defined by the 1990 Act, however, the terms ``Indian'' and ``Indian 
Tribe'' already include, for purposes of sections 104, 105, and 107 of 
the 1990 Act, members of State-recognized Tribes and Alaska Natives, as 
well as members of federally recognized Tribes.
    Sections 104 and 105 of the 1990 Act define ``Indian'' and ``Indian 
Tribe'' as follows:

``The term `Indian' means any individual who is a member of an Indian 
tribe, or for the purposes of this section is certified as an Indian 
artisan by an Indian tribe;''
``The term `Indian tribe' means--
``Any Indian tribe, band, nation, Alaska Native village, or other 
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
``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.''

    In response to the comment regarding the sale of art by individuals 
who are not members of federally or State-recognized Tribes, but are of 
Indian descent, it should be noted that such individuals may market 
their goods as an Indian, provided they are certified as an ``Indian 
artisan'' by an Indian Tribe. Certification is at the option of the 
Tribe. Certification by a Tribe, under 25 CFR 309.4, requires that the 
individual be of the Indian lineage of one or more members of that 
Tribe. As a result, it is not necessary to adopt this comment. 
Furthermore, neither the 1990 Act nor the 2000 Act prohibit any 
statements about a person's Indian heritage in the marketing of his or 
her art or craft work that are truthful and that do not falsely suggest 
the individual is a member of an Indian Tribe, as defined by the 1990 
Act.
Materials Used To Make Indian Arts and Crafts
    One respondent expressed concerns regarding the use and 
representation of stabilized turquoise in Indian jewelry, as well as 
the need for information regarding the 1990 Act to reach markets and 
businesses violating the 1990 Act. Issues regarding the use and 
representation of stabilized turquoise in Indian jewelry are beyond the 
scope of the 1990 Act, which focuses on Indian labor, not on art and 
craft base materials. While the IACB welcomes any suggestions to 
improve its efforts to educate the industry and public about the 1990 
Act, as well as any information regarding potential violations of the 
1990 Act, these comments have not been adopted in the final rule as 
they do not address the 2000 Act's statutory mandate to further clarify 
the definition of ``Indian product.''
    One respondent recommended that the Lanham Act language, 15 U.S.C. 
1125(a), which addresses strict liability for misleading words and 
markings, be adopted to further clarify what kind of conduct the IACB 
will interpret as ``falsely suggests'' that products are Indian for 
purposes of civil action. Another comment requested that the statutory 
language ``In a manner that `falsely suggests' it is Indian produced,'' 
18 U.S.C. 1159(a), be changed to ``In a manner that `falsely states' it 
is Indian produced,'' to narrow the gap in the proof of criminal 
intent. Another respondent recommended that the term ``falsely 
suggests'' be used consistently throughout the regulations, rather than 
the word ``misrepresented'' to avoid confusion.
    The final rule has not incorporated the first comment recommending 
adoption of the Lanham Act's strict liability language to clarify 
conduct that ``falsely suggests'' an art or craft is an Indian product 
or the second comment regarding a change in statutory language. Both of 
these recommendations are beyond the scope of IACB's Congressional 
mandate under the 2000 Act to promulgate regulations to further clarify 
the definition of Indian product. However, the third

[[Page 35166]]

recommendation regarding consistent use of ``falsely suggests'' has 
been adopted to mirror the use of these terms in the 1990 Act.

Section-by-Section Comments

Section 309.2 What Are the Key Definitions for Purposes of the Act?

Definition of ``Indian Product,'' Sec.  309.2(d)
    In light of comments to Sec. Sec.  309.6 and 309.7, the final rule 
contains additional clarification that ``made by an Indian'' includes 
products in which the Indian has provided the labor necessary to 
implement an artistic design through a substantial transformation of 
materials to produce the art or craft work. The labor component of the 
product must be entirely Indian and is what makes the Indian art or 
craft object an ``Indian product.''
    One comment requested that the requirement in Sec.  309.7(h) note 
2--that the labor component of an ``Indian product'' must be entirely 
Indian--be stated boldly in a prominent location at the beginning of 
the final rule to emphasize its paramount importance. This comment has 
been adopted and incorporated in the key definitions of Indian product 
under Sec.  309.2(d).
    Several respondents requested that a range of items, such as food 
and agricultural products, music, poetry, and stories, be included as 
examples of Indian products. Two of these respondents also requested 
that ``Indian product'' be defined in the broadest way possible. One 
respondent stated that ``Indian product'' includes any ``typically 
Indian product'' designed and produced by Indians. One respondent 
requested that ``Indian product'' be defined as any product made by an 
Indian, while another respondent requested that the definition of 
``Indian product'' be narrowed.
    The final rule has not adopted these comments. As explained in the 
``Section-by-Section Comments--Definition of Indian Product, Sec.  
309.2'' of the preamble to the 1990 Act's regulations, the 
``Supplementary Information; Background'' for the 2000 Act's Notice of 
Proposed Rulemaking, and the Background section of this document, the 
IACB has determined that the 1990 and 2000 Acts apply to Indian arts 
and crafts and not all products generally. This determination is based 
upon the IACB's 1935 organic legislation, IACB's primary mission as 
established by Congress, and the language and Congressional intent of 
the 1990 and 2000 Acts.
    One respondent requested that the final rule add sacred and 
traditional Indian cultural symbols, patterns, and designs used in 
traditional Indian weavings under the definition of ``Indian product'' 
to protect against imported products that appropriate Indian cultural 
symbols.
    Under the 1990 Act, the IACB oversees the receipt, analysis, and 
referral of complaints of art and craft work offered or displayed for 
sale or sold within the United States 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. While the IACB 
acknowledges the significant concerns cited by the respondent, the 
protection of Indian cultural symbols, patterns, and designs, and 
related cultural property of an Indian Tribe, clan, or moiety is a 
matter of cultural patrimony and beyond the scope of the 1990 Act, 
unless misrepresentation is involved. Therefore, the final rule has not 
incorporated this request. Of course, if the art or craft work 
depicting the Indian cultural symbols is marketed in the United States 
in a manner that falsely suggests that it is the product of a 
particular Tribe or as Indian made, then a violation of the 1990 Act 
would occur.
Illustration of ``Handcrafts,'' Sec.  309.2(d)(1)(iii)
    Two respondents requested that, under Sec.  309.2(d)(1)(iii), the 
terms ``Indian handmade arts and crafts'' be substituted for 
`handcrafts' made by an Indian.'' This request has not been adopted as 
it does not improve the understanding of Sec.  309.2(d)(1).
Exclusions From Definition of Indian Product, Sec.  309.2(d)(2)(iii)
    Two comments expressed concern that, under Sec.  309.2(d)(2)(iii), 
bronze castings reproduced from an original Indian stone sculpture in a 
commercial foundry by non-Indians would be prohibited from being sold 
as an Indian product. The respondents requested clarification regarding 
limited editions of original Indian art works. The final rule has not 
incorporated these comments. Under the regulations, a product in the 
style of Indian arts and crafts that is designed by an Indian but 
produced by non-Indian labor is not an Indian product under the 1990 
Act. The original stone sculpture is an Indian product. The limited 
edition bronze casting by non-Indian labor is a non-Indian reproduction 
of an original Indian stone sculpture.
Exclusions, Sec.  309.2(d)(2)(v)
    One respondent requested clarification regarding the use of the 
term ``without a `substantial handcraft element' provided by Indian 
labor'' under Sec.  309.2(d)(2)(v), to describe a product in the style 
of Indian arts and crafts that does not meet the definition of Indian 
product. The respondent viewed this definition in conflict with the 
definition of `handcrafts' made by an Indian'' under Sec.  
309.2(d)(1)(iii), ``objects created with the help of such devices as 
allow the manual skill * * *'' For clarification, the term 
``substantial transformation'' has been substituted for ``substantial 
handcraft element'' under Sec.  309.2(d)(2)(v).
Exclusions, Sec.  309.2(d)(2)(vi)
    One comment requested that Sec.  309.2(d)(2)(vi), excluding 
industrial products from the definition of Indian products, be removed 
from the final rule. This request has not been adopted because it is 
inconsistent with the scope and intent of the 1990 Act.
Exclusions, Sec.  309.2(d)(2)(vii)
    One respondent requested that Sec.  309.2(d)(2)(vii) regarding 
assembly line production of a product in the style of Indian arts and 
crafts be further clarified. It was suggested the example provided as 
``not an Indian product,'' a pipe in the style of an Indian product, be 
changed to another example that focused more on the requirement of 
entirely Indian labor for Indian products. While the previous example 
remains valid, the final rule has adopted the respondent's recommended 
language to eliminate potential confusion.

Section 309.6 When Does a Commercial Product Become an Indian Product?

    One commenter requested that beadwork on commercially available 
items, such as medicine bottles and combs, not be considered authentic 
``Indian products.'' The subject of transforming commercial products 
into Indian art or craft products is addressed in Sec. Sec.  309.6, 
309.7, and 309.14. By adding sufficient art and craft work to a 
commercial product through Indian labor, the qualities and appearance 
of the commercial product can be substantially transformed into an art 
or craft work. Therefore, this request has not been adopted in the 
final rule.
    One respondent expressed concern that the provisions provided under 
Sec.  309.6 exhibited a lack of support for non-traditional art forms. 
To the contrary, the proposed rulemaking and the final rule state, in 
Sec.  302.2(d)(1)(ii),

[[Page 35167]]

that the key definitions of Indian product include ``crafts made by an 
Indian that are in a traditional or non-traditional style or medium.'' 
Furthermore, Sec.  309.22 clarifies that the definition of Indian 
product includes ``art forms to be developed in the future.'' The final 
rule therefore has not incorporated this comment regarding non-
traditional art forms.
    One respondent requested clarification about when a commercial 
product becomes an Indian product. For example, if an Indian artisan 
were to use industrial steel, bottles, and cans in a sculpture, at what 
point does it change from an industrial or commercial product into an 
Indian product? The final rule clarifies that once commercial items, 
such as cups and bottles, kitchen utensils, or marble components, are 
substantially transformed entirely by Indian labor into an art or craft 
object, such as a sculpture, the result is an Indian product.
    One comment requested clarification between the definition of 
commercial and industrial products. This comment has been adopted in 
part by adding explanatory language to Sec.  309.6 of the final rule. 
The rule now states that commercial products are goods designed for 
profit and mass distribution that lend themselves to Indian 
embellishment, for example clothing and accessories. For purposes of 
the final rule, industrial products, on the other hand, are goods that 
have an exclusively functional purpose, do not serve as a traditional 
artistic medium, and that do not lend themselves to Indian 
embellishment, such as appliances and vehicles. An industrial product 
may not become an Indian product. This comment has been adopted in part 
by adding descriptive language to Sec.  309.6 of the final rule.

Section 309.7 How Should a Seller Disclose the Nature and Degree of 
Indian Labor When Selling, Offering, or Displaying Art or Craft Work 
for Sale?

    A comment requested that the terms ``Indian style,'' ``Indian 
design,'' ``Indian inspired,'' and ``Indian assembled'' be removed from 
Sec.  309.7 and throughout the final rule to avoid confusion among 
consumers and to avoid substantial interpretive problems. The final 
rule makes various revisions to Sec.  309.7(d), which incorporate the 
comments in part.

Section 309.7(a) Indian Production of an Indian Product

    Two respondents expressed concern that Sec.  309.7 may lead people 
to believe that in order for an Indian product to be marketed as such, 
it must be conceived and designed by an Indian. We believe, however, 
that Sec.  309.6 makes it clear that when an item is ``substantially 
transformed'' by Indian artistic or craft work labor, it becomes an 
Indian product. Design or conception by an Indian alone is insufficient 
to constitute substantial transformation. The Indian labor must 
substantially transform the materials, such as beads, precious metals, 
and other base materials, into an Indian product. Thus, even commercial 
products featuring Indian arts and crafts embellishments done by Indian 
labor that sufficiently transform the nature, qualities, and appearance 
of the original commercial item are considered ``Indian products.'' The 
final rule has not incorporated the comment.

Section 309.7(d) Indian Designed and Non-Indian Made Products

    One commenter requested that an Indian designed and non-Indian made 
product, and therefore not an Indian product, be sold as ``not an 
Indian product,'' without the option to market it as ``Indian 
designed.'' This comment has not been adopted in the final rule because 
dictating how products that are not Indian products may be marketed is 
outside the scope of this rule. Also, we will retain the suggestion to 
market items as ``Indian designed'' because we believe that providing 
suggested alternatives to marketing products as Indian products will 
enhance compliance with the rule.

Section 309.7(e) A Product Assembled From a Substantial Amount of Non-
Indian Made Materials

    Several respondents requested clarification regarding guidelines 
for characterizing art and craft work when those products were made 
from a substantial amount of non-Indian made products, such as beads, 
gold, silver, and purchased basketry materials. Although Sec. Sec.  
309.11 through 309.22 address a vast range of ``Indian products,'' 
including beadwork, gold and silver jewelry and crafts, basketry, and 
textile products, the respondents point out that Sec.  309.7(e) could 
create confusion.
    A wide variety of Indian arts and crafts products may be made from 
non-Indian made materials, such as beads, precious metals, and other 
base materials, provided that Indian artistic creation and labor--as 
opposed to assembly line work--substantially transforms these materials 
into Indian products. For example, a piece of silver artistically 
designed, shaped, and finely engraved by an Indian becomes a 
handcrafted Indian bracelet. By contrast, the type of products under 
Sec.  309.7(e) are essentially those products that are simply assembled 
from ``fit together parts'' kits and related products. For example, 
assembled jewelry that requires non-artistic Indian labor, such as 
stringing overseas mass-produced fetishes or heshi and attaching a 
clasp, is not an Indian product. Conversely, for example, Indian 
artistically-crafted beadwork products, regardless of where the beads 
were manufactured and the amount of non-Indian materials, such as 
beaded medallion necklaces, pouches, and hair clips, as well as gold 
engraved bracelets, and silver and turquoise crafted rings, do not fall 
under the ``assembled'' category of Sec.  309.7(e) and are Indian 
products.
    The respondent's requests for clarification have been adopted in 
the final rule. Section 309.7(e) has been revised to read ``A product, 
such as jewelry, made with non-artistic Indian labor, from assembled or 
`fit together parts,' does not meet the definition of Indian product.''
    One comment recommended that Sec.  309.7(e) note 1 eliminate the 
term ``Indian assembled'' as a marketing guideline and replace it with 
the phrase ``not an Indian product.'' The comment has not been adopted 
in the final rule. The product addressed in Sec.  309.7(e) note 1 is 
not an Indian product under the 1990 Act, but it may be marketed as 
``Indian assembled'' without violating the 1990 Act. Thus, rather than 
attempting to dictate affirmative marketing representations for the 
manner in which such a product should be marketed, the final rule only 
provides an example of how it may be marketed. (The 1990 Act only 
prohibits falsely suggesting that a product is an Indian product. It 
does not affect the marketing of non-Indian products.)
    One respondent requested that ``kachina'' be removed, under Sec.  
309.7(e) note 1, and another product be substituted as an example of 
kit assembled products. The intent of this request was to prevent the 
generic use of a religious and culturally sensitive item in the 
rulemaking. This request has been adopted by removing the kachina 
example and inserting ``dream catcher'' under Sec.  309.7(e) note 1.

Section 309.7(f) A Product Assembled by Non-Indian Labor From Kits

    In keeping with the request for further clarification to Sec.  
309.7(f), the guidelines state that a product assembled by non-Indian 
labor from a kit, that is made in the style of an Indian product, is 
not an Indian product.

[[Page 35168]]

Section 309.8 Identifying Authentic Indian Products

    A respondent asked that an individual's enrollment number be 
incorporated in the recommended method of identifying authentic Indian 
products, under Sec.  309.8. The final rule has incorporated this 
recommendation. The addition of an Indian artist's or artisan's 
enrollment number under the recommended methods of identifying 
authentic Indian products, along with the name of the artist or artisan 
and the name of his or her Tribe, will assist consumers in identifying 
authentic Indian products, contribute to consumer confidence, and help 
raise consumer appreciation of authentic Indian arts and crafts.

Sections 309.8 and 309.9 Marketing Products by ``Certified Indian 
Artisans''

    A respondent requested that Sec.  309.8, regarding identifying 
authentic Indian products, include reference to how a ``certified 
Indian artisan'' should identify his or her art work. The respondent 
also requested that Sec.  309.9, regarding how non-Indians can market 
products in the style of Indian arts and crafts, take the ``certified 
Indian artisan'' issue into consideration. The request to address how a 
``certified Indian artisan'' should identify his or her art work has 
been adopted in the text of Sec.  309.8. The request to include the 
``certified Indian artisan'' issue under Sec.  309.9, regarding non-
Indian products, has not been adopted. The 1990 Act's definition of 
``Indian,'' under Sections 104 and 105, includes any individual 
certified as an Indian artisan by an Indian Tribe. As the art and craft 
work of certified Indian artisans meet the definition of Indian 
product, it would be inappropriate to include their art and craft work 
under non-Indian products.

Section 309.9 Is it Illegal for a Non-Indian to Make and Sell Indian 
Style Art and Craft Products?

    Two respondents recommended that the heading of Sec.  309.9 be 
changed to the format of the related sections. The final rule has 
adopted one of the two recommendations. The former heading for Sec.  
309.9, ``Is it illegal . . .,'' is replaced with the current heading 
``When can non-Indians make and sell products in the style of Indian 
art and craft products?''
    One respondent commented that, under Sec.  309.9, products in the 
style of Indian art and craft products that are not Indian made should 
be offered for sale as ``non-Indian made'' only, and not ``Indian 
inspired.'' The request has been adopted in part. In response to this 
comment, and a previously addressed comment, ``Indian inspired'' has 
been struck from the last sentence of Sec.  309.9, as well as the 
entire text of the final rule, to reduce or alleviate consumer 
confusion.

Section 309.11 What Are Examples of Jewelry That Are Indian Products?

    One respondent suggested adding seashells and abalone as 
descriptive jewelry examples under Sec.  309.11. These two examples 
have not been adopted, as shell jewelry is listed under Indian jewelry 
products.

Section 309.12 What Are Examples of Basketry That Are Indian Products?

    One respondent suggested a variety of descriptive terms be added to 
this section on basketry, including cedar capes and dresses. A number 
of the recommended descriptive terms have been adopted in Sec.  309.12 
of the final rule.

Sections 309.12 and 309.13 What Are Examples of Basketry, Weaving, and 
Textile Indian Products?

    One comment requested that all references to hemp be removed from 
the final rule, which occurred under Sec. Sec.  309.12 and 309.13. In 
line with federal law (the Controlled Substances Act, 21 U.S.C. 801 et 
seq.) the final rule has adopted this request by substituting fiber for 
hemp under Sec. Sec.  309.12 and 309.13.

Section 309.15 What Are Examples of Apparel That Are Indian Products?

    One respondent requested that wording be added under Sec.  309.15 
to include the specific reference to apparel items made from both 
traditional materials and designs and from modern textiles. The final 
rules have not adopted this comment. The key definitions of Indian 
product, under Sec.  309.2, describe art works and crafts as ``made by 
an Indian that are in a traditional or non-traditional style or 
medium.'' Therefore, it is understood that traditional and modern 
apparel, as well as other traditional and modern art and craft works, 
are included in the range of Indian products provided as examples.

Section 309.17 What Are Examples of Woodwork That Are Indian Products?

    One comment requested additional descriptive terms be incorporated 
under Sec.  309.17, including red and yellow cedar seagoing canoe 
paddles and broad leaf maple ladles, spoons, and soup bowls. This 
request has been adopted in part.
    One comment requested that traditional ceremonial Indian structures 
be included under Sec.  309.17. The final rule has not adopted this 
request. While what constitutes an Indian art or craft product is 
potentially very broad, the range of examples of woodwork products 
currently listed under Sec.  309.17 is sufficient.

Section 309.21 What Are Examples of Dolls and Toys That Are Indian 
Products?

    A respondent requested that kachina dolls be removed from Sec.  
309.21, listing examples of dolls, and moved to Sec.  309.20, listing 
examples of carvings. This request has been adopted.

Section 309.22 What Are Examples of Painting and Other Fine Art Forms 
That Are Indian Products?

    One respondent requested a new section, Sec.  309.23, be added to 
the final rule to give ``art forms to be developed in the future'' its 
own section, rather than included in Sec.  309.22. The request has not 
been adopted, as a separate category for work yet to be defined is 
unwarranted. The current categories of art and craft work are 
sufficiently broad to reflect evolution of art forms.

Section 309.23 Does This Part Apply to Products Made Before 1935?

    On comment suggested adding a new Sec.  309.23 for other Indian 
products, such as pouches, animal fetishes, and pipes, and moving Sec.  
309.23 on pre-1935 products to Sec.  309.24. The final rule has not 
adopted this suggestion as the other Indian products are sufficiently 
covered in Sec. Sec.  309.11-309.22.

Drafting Information

    This final rule was prepared by Meridith Z. Stanton (Director, 
Indian Arts and Crafts Board).

Compliance With Other Laws and Directives

1. Regulatory Planning and Review (Executive Order 12866)
    This document is not a significant rule and is not subject to 
review by the Office of Management and Budget under Executive Order 
12866.
    (1) This rule will not have an effect of $100 million or more on 
the economy. It will not adversely affect in a material way the 
economy, productivity, competition, jobs, the environment, public 
health, or safety, or State, local, or tribal governments or 
communities. The rule is simply a Congressionally mandated further 
clarification of an existing regulatory definition of ``Indian 
product.''

[[Page 35169]]

    (2) This rule will not create a serious inconsistency or otherwise 
interfere with an action taken or planned by another agency. The rule, 
the further clarification of an existing regulatory definition of 
``Indian product,'' does not involve another agency.
    (3) This rule does not alter the budgetary effects of entitlements, 
grants, user fees, or loan programs or the rights or obligations of 
their recipients. This rule does not involve any budgetary or 
entitlements issues.
    (4) This rule does not raise novel legal or policy issues. Again, 
it is simply the further clarification of an existing regulatory 
definition of ``Indian product.''
2. 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.) A 
number of individuals, small businesses, and tribal governments may be 
affected in some way. As this rule simply clarifies an existing 
regulatory definition, however, it will not have a significant economic 
effect on any of these small entities, either through increasing 
compliance costs or otherwise.
3. Small Business Regulatory Enforcement Fairness Act (SBREFA)
    This rule is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act. This rule:
    (a) Does not have an annual effect on the economy of $100 million 
or more. The annual effect is insignificant.
    (b) Will not cause a major increase in costs or prices for 
consumers, individual industries, Federal, State, or local government 
agencies, or geographic regions. Clarification of the term ``Indian 
product'' and guidance on how to represent Indian products in the 
marketplace will not cause any significant increase in the costs or 
prices for consumers, individual industries, Federal, State, or local 
government agencies, or geographic regions.
    (c) Does 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. 
Through the clarification of the term ``Indian product,'' the ability 
of U.S.-based enterprises to compete with foreign-based enterprises 
will not be significantly affected. In fact, it should assist U.S. 
Indian arts and crafts producers to compete with counterfeit Indian 
arts and crafts produced overseas.
4. 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. It simply clarifies 
an existing regulatory definition of ``Indian product.'' A statement 
containing the information required by the Unfunded Mandates Reform Act 
(2 U.S.C. 1531 et seq.) is not required.
5. Takings (Executive Order 12630)
    In accordance with Executive Order 12630, the rule does not have 
significant takings implications. This rule does not involve government 
action or interference with Constitutionally protected rights.
6. Federalism (Executive Order 12612)
    In accordance with Executive Order 12612, the rule does not have 
sufficient federalism implications to warrant the preparation of a 
Federalism Assessment. This rule does not affect the relationship 
between State and federal governments. A Federalism Assessment is not 
required.
7. Civil Justice Reform (Executive Order 12988)
    In accordance with Executive Order 12988, the Office of the 
Solicitor has determined that this rule does not unduly burden the 
judicial system and meets the requirements of sections 3(a) and 3(b)(2) 
of the Order.
8. Paperwork Reduction Act
    This regulation does not require an information collection from 10 
or more parties and a submission under the Paperwork Reduction Act is 
not required. An OMB form 83-I is not required.
9. National Environmental Policy Act
    This rule does not constitute a major Federal action significantly 
affecting the quality of the human environment.

List of Subjects in 25 CFR 309

    Indians--arts and crafts, Penalities, Trademarks.

0
For the reasons set out in the preamble, part 309 of 25 CFR Chapter II 
is amended as follows:

PART 309--PROTECTION OF INDIAN ARTS AND CRAFTS PRODUCTS

0
1. The authority citation for part 309 continues to read as follows:

    Authority: 18 U.S.C. 1159; 25 U.S.C. 305 et seq.


0
2. In Sec.  309.2, paragraph (d) is revised to read as follows:


Sec.  309.2  What are the key definitions for purposes of the Act?

* * * * *
    (d) Indian product--(1) In general. The term ``Indian product'' 
means any art or craft product made by an Indian. For this purpose, the 
term ``made by an Indian'' means that an Indian has provided the 
artistic or craft work labor necessary to implement an artistic design 
through a substantial transformation of materials to produce the art or 
craft work. This may include more than one Indian working together. The 
labor component of the product, however, must be entirely Indian for 
the Indian art or craft object to be an ``Indian product.''
    (2) Illustrations. The term ``Indian product'' includes, but is not 
limited to:
    (i) Art made by an Indian that is in a traditional or non-
traditional style or medium;
    (ii) Craft work made by an Indian that is in a traditional or non-
traditional style or medium;
    (iii) Handcraft made by an Indian, i.e. an object 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.
    (3) Examples of non-qualifying products. An ``Indian product'' 
under the Act does not include any of the following, for example:
    (i) A product in the style of an Indian art or craft product made 
by non-Indian labor;
    (ii) A product in the style of an Indian art or craft product that 
is designed by an Indian but produced by non-Indian labor;
    (iii) A product in the style of an Indian art or craft product that 
is assembled from a kit;
    (iv) A product in the style of an Indian art or craft product 
originating from a commercial product, without substantial 
transformation provided by Indian artistic or craft work labor;
    (v) Industrial products, which for this purpose are defined as 
goods that have an exclusively functional purpose, do not serve as a 
traditional artistic medium, and that do not lend themselves to Indian 
embellishment, such as appliances and vehicles. An industrial product 
may not become an Indian product.
    (vi) A product in the style of an Indian art or craft product that 
is produced in an assembly line or related production line process 
using multiple workers not all whom are Indians. For

[[Page 35170]]

example, if twenty people make up the labor to create the product(s), 
and one person is not Indian, the product is not an ``Indian product.''
* * * * *


Sec. Sec.  309.3-309.6  [Redesignated as Sec. Sec.  309.24-309.27]

0
3. Sections 309.3 through 309.6 are redesignated as Sec. Sec.  309.24 
through 309.27

0
4. Sections 309.6 through 309.23 are added to read as follows:


Sec.  309.6  When does a commercial product become an Indian product?

    In addressing Indian embellishments to originally commercial 
products, the Indian labor expended to add art or craft work to those 
objects must be sufficient to substantially transform the qualities and 
appearance of the original commercial item. ``Commercial products,'' 
under this part, are consumer goods designed for profit and mass 
distribution that lend themselves to Indian embellishment, for example 
clothing and accessories. Through substantial transformation due to 
Indian labor, a product changes from a commercial product to an Indian 
product. Examples of formerly commercial products that become Indian 
products include tennis shoes to which an Indian applies beadwork and 
denim jackets to which an Indian applies ribbon appliqu[eacute]s.


Sec.  309.7  How should a seller disclose the nature and degree of 
Indian labor when selling, offering, or displaying art and craft work 
for sale?

    The Indian Arts and Crafts Act is a truth-in-marketing law. Those 
who produce and market art and craft work should honestly represent and 
clarify the degree of Indian involvement in the production of the art 
and craft work when it is sold, displayed or offered for sale. The 
following guidelines illustrate the way in which art and craft work may 
be characterized for marketing purposes and gives examples of products 
that may be marketed as Indian products.

------------------------------------------------------------------------
                If . . .                            then . . .
------------------------------------------------------------------------
(a) An Indian conceives, designs, and    it is an ``Indian product.''
 makes the art or craft work.
(b) An Indian produces a product that    it can be marketed as such and
 is ``handcrafted,'' as explained in      it meets the definition of
 309.3(d)(iii).                           ``Indian product.''
(c) An Indian makes an art or craft      it is ``Indian made'' and meets
 work using some machine made parts.      the definition of ``Indian
                                          product.''
(d) An Indian designs a product, such    it does not meet the definition
 as a bracelet, which is then produced    of ``Indian product'' under
 by non-Indians.                          the Act.
(e) A product, such as jewelry, is made  it does not meet the definition
 with non-artistic Indian labor, from     of ``Indian product'' under
 assembled or ``fit together parts''.     the Act.\1\
(f) A product in the style of an Indian  it does not meet the definition
 product is assembled by non-Indian       of ``Indian product'' under
 labor from a kit.                        the Act.
(g) A product is in the style of an      it does not meet the definition
 Indian art or craft product, but not     of ``Indian product'' under
 made by an Indian.                       the Act.
(h) An Indian and a non-Indian jointly   less than all of the labor is
 undertake the art or craft work to       Indian and hence it does not
 produce an art or craft product, for     meet the definition of
 example a concho belt.                   ``Indian product'' under the
                                          Act.\2\
------------------------------------------------------------------------
\1\ For example, a necklace strung with overseas manufactured fetishes
  or heshi. If an Indian assembled the necklace, in keeping with the
  truth-in-marketing focus of the Act, it can be marketed as ``Indian
  assembled.'' It does not meet the definition of ``Indian product''
  under the Act. Similarly, if a product, such as a dream catcher is
  assembled by an Indian from a kit, it can be marketed as ``Indian
  assembled.'' It does not meet the definition of ``Indian product''
  under the Act.
\2\ In order to be an ``Indian product,'' the labor component of the
  product must be entirely Indian. In keeping with this truth-in-
  marketing law, a collaborative work should be marketed as such.
  Therefore, it should be marketed as produced by ``X'' (name of artist
  or artisan), ``Y'' (Tribe of individual's enrollment) or (name of
  Tribe providing official written certification the individual is a non-
  member Indian artisan and date upon which such certification was
  issued by the Tribe), and ``Z'' (name of artist or artisan with no
  Tribe listed) to avoid providing false suggestions to consumers.

Sec.  309.8  For marketing purposes, what is the recommended method of 
identifying authentic Indian products?

    (a) The recommended method of marketing authentic Indian products 
is to include the name of the artist or artisan, the name of the Tribe 
in which the artist or artisan is enrolled, and the individual's Tribal 
enrollment number. If the individual is a certified non-member Indian 
artisan, rather than an enrolled Tribal member, the product 
identification should include the name of the Tribe providing official 
written certification that the individual is a non-member Indian 
artisan and the date upon which such certification was issued by the 
Tribe. In order for an individual to be certified by an Indian Tribe as 
a non-member Indian artisan, the individual must be of Indian lineage 
of one or more members of such Indian Tribe and the certification must 
be issued in writing by the governing body of an Indian Tribe or by a 
certifying body delegated this function by the governing body of the 
Indian Tribe.
    (b) For example, the Indian product should include a label, 
hangtag, provenance card, or similar identification that includes W 
(name of the artist or artisan), and X (name of the Tribe in which the 
individual is enrolled) and Y (individual's Tribal enrollment number), 
or a statement that the individual is a certified non-member Indian 
artisan of Z (name of the Tribe providing certification and the date 
upon which the certification was issued by the Tribe).


Sec.  309.9  When can non-Indians make and sell products in the style 
of Indian arts and crafts?

    A non-Indian can make and sell products in the style of Indian art 
or craft products only if the non-Indian or other seller does not 
falsely suggest to consumers that the products have been made by an 
Indian.


Sec.  309.10  What are some sample categories and examples of Indian 
products?

    What constitutes an Indian product is potentially very broad. 
However, to provide guidance to persons who produce, market, or 
purchase items marketed as Indian products, Sec. Sec.  309.11 through 
309.22 contain a sample listing of ``specific examples'' of objects 
that meet the definition of Indian products. There is some repetition, 
due to the interrelated nature of many Indian products when made by 
Indian artistic labor. The lists in these sections contain examples and 
are not intended to be all-inclusive. Additionally, although the Indian 
Arts and Crafts Act of 1990 and the Indian Arts and Crafts Enforcement 
Act of 2000 do not address materials used in Indian products, some 
materials are included for their descriptive nature only. This is not 
intended to restrict

[[Page 35171]]

materials used or to exclude materials not listed.


Sec.  309.11  What are examples of jewelry that are Indian products?

    (a) Jewelry and related accessories made by an Indian using a wide 
variety of media, including, but not limited to, silver, gold, 
turquoise, coral, lapis, jet, nickel silver, glass bead, copper, wood, 
shell, walrus ivory, whale baleen, bone, horn, horsehair, quill, seed, 
and berry, are Indian products.
    (b) Specific examples include, but are not limited to: ivory and 
baleen scrimshaw bracelets, abalone shell necklaces, nickel silver 
scissortail pendants, silver sand cast bracelets, silver overlay bolos, 
turquoise channel inlay gold rings, cut glass bead rosette earrings, 
wooden horse stick pins, and medicine wheel quilled medallions.


Sec.  309.12  What are examples of basketry that are Indian products?

    (a) Basketry and related weavings made by an Indian using a wide 
variety of media, including, but not limited to, birchbark, black ash, 
brown ash, red cedar, yellow cedar, alder, vine maple, willow, 
palmetto, honeysuckle, river cane, oak, buck brush, sumac, dogwood, 
cattail, reed, raffia, horsehair, pine needle, spruce root, rye grass, 
sweet grass, yucca, bear grass, beach grass, rabbit brush, fiber, 
maidenhair fern, whale baleen, seal gut, feathers, shell, devil's claw, 
and porcupine quill, are Indian products.
    (b) Specific examples include, but are not limited to: double weave 
river cane baskets, yucca winnowing trays, willow burden baskets, 
honeysuckle sewing baskets, black ash picnic baskets, cedar capes and 
dresses, pine needle/raffia effigy baskets, oak splint and braided 
sweet grass fancy baskets, birchbark containers, baleen baskets, rye 
grass dance fans, brown ash strawberry baskets, sumac wedding baskets, 
cedar hats, fiber basket hats, yucca wicker basketry plaques, and 
spruce root tobacco pouches.


Sec.  309.13  What are examples of other weaving and textiles that are 
Indian products?

    (a) Weavings and textiles made by an Indian using a wide variety of 
media, including, but not limited to, cornhusk, raffia, tule, 
horsehair, cotton, wool, fiber, linen, rabbit skin, feather, bison fur, 
and qiviut (musk ox) wool, are Indian products.
    (b) Specific examples include, but are not limited to: corn husk 
bags, twined yarn bags, cotton mantas, willow cradle boards, horsehair 
hatbands, Chiefs Blankets, Two Grey Hills rugs, horse blankets, finger 
woven sashes, brocade table runners, star quilts, pictorial 
appliqu[eacute] wall hangings, fiber woven bags, embroidered dance 
shawls, rabbit skin blankets, and feather blankets.


Sec.  309.14  What are examples of beadwork, quillwork, and moose hair 
tufting that are Indian products?

    (a) Beadwork, quillwork, and moose hair tufting made by an Indian 
to decorate a wide variety of materials, including, but not limited to, 
bottles, baskets, bags, pouches, and other containers; belts, buckles, 
jewelry, hatbands, hair clips, barrettes, bolos, and other accessories; 
moccasins, vests, jackets, and other articles of clothing; and dolls 
and other toys and collectibles, are Indian products.
    (b) Specific examples include, but are not limited to: quilled pipe 
stems, loom beaded belts, pictorial bags adorned with cut glass beads, 
deer skin moccasins decorated with moose hair tufting, beaded miniature 
dolls, and quilled and beaded amulets.


Sec.  309.15  What are examples of apparel that are Indian products?

    (a) Apparel made or substantially decorated by an Indian, 
including, but not limited to, parkas, jackets, coats, moccasins, 
boots, slippers, mukluks, mittens, gloves, gauntlets, dresses, and 
shirts, are Indian products.
    (b) Specific examples include, but are not limited to: seal skin 
parkas, ribbon appliqu[eacute] dance shawls, smoked moose hide 
slippers, deer skin boots, patchwork jackets, calico ribbon shirts, 
wing dresses, and buckskin shirts.


Sec.  309.16  What are examples of regalia that are Indian products?

    (a) Regalia are ceremonial clothing, modern items with a 
traditional theme, and accessories with historical significance made or 
significantly decorated by an Indian, including, but not limited to, 
that worn to perform traditional dances, participate in traditional 
socials, used for dance competitions, and worn on special occasions of 
tribal significance. If these items are made or significantly decorated 
by an Indian, they are Indian products.
    (b) Specific examples include, but are not limited to: hide 
leggings, buckskin dresses, breech cloths, dance shawls, frontlets, 
shell dresses, button blankets, feather bustles, porcupine roaches, 
beaded pipe bags, nickel silver stamped armbands, quilled breast 
plates, coup sticks, horse sticks, shields, headdresses, dance fans, 
and rattles.


Sec.  309.17  What are examples of woodwork that are Indian products?

    (a) Woodwork items made by an Indian, including, but not limited 
to, sculpture, drums, furniture, containers, hats, and masks, are 
Indian products.
    (b) Specific examples include, but are not limited to: hand drums, 
totem poles, animal figurines, folk carvings, kachinas, embellished 
long house posts, clan house carved doors, chairs, relief panels, 
bentwood boxes, snow goggles, red and yellow cedar seagoing canoe 
paddles, hunting hats, spirit masks, bows and arrows, atlatls, redwood 
dug out canoes, war clubs, flutes, dance sticks, talking sticks, shaman 
staffs, cradles, decoys, spiral pipe stems, violins, Native American 
Church boxes, and maple ladles, spoons, and soup bowls.


Sec.  309.18  What are examples of hide, leatherwork, and fur that are 
Indian products?

    (a) Hide, leatherwork, and fur made or significantly decorated by 
an Indian, including, but not limited to, parfleches, tipis, horse 
trappings and tack, pouches, bags, and hide paintings, are Indian 
products.
    (b) Specific examples include, but are not limited to: narrative 
painted hides, martingales, saddles, bonnet cases, drapes, quirts, 
forelocks, rosettes, horse masks, bridles, head stalls, cinches, saddle 
bags, side drops, harnesses, arm bands, belts, and other hand crafted 
items with studs and tooling.


Sec.  309.19  What are examples of pottery and ceramics that are Indian 
products?

    (a) Pottery, ceramics, and related arts and crafts items made or 
significantly decorated by an Indian, including, but not limited to, a 
broad spectrum of clays and ceramic material, are Indian products.
    (b) Specific examples include, but are not limited to: ollas, pitch 
vessels, pipes, raku bowls, pitchers, canteens, effigy pots, wedding 
vases, micaceous bean pots, seed pots, masks, incised bowls, blackware 
plates, redware bowls, polychrome vases, and storytellers and other 
figures.


Sec.  309.20  What are examples of sculpture, carving, and pipes that 
are Indian products?

    (a) Sculpture, carving, and pipes made by an Indian, including, but 
not limited to, wood, soapstone, alabaster, pipestone, argillite, 
turquoise, ivory, baleen, bone, antler, and shell, are Indian products.
    (b) Specific examples include, but are not limited to: kachina 
dolls, fetishes, animal figurines, pipestone pipes, moose antler combs, 
argillite bowls,

[[Page 35172]]

ivory cribbage boards, whalebone masks, elk horn purses, and clamshell 
gorgets.


Sec.  309.21  What are examples of dolls and toys that are Indian 
products?

    Dolls, toys, and related items made by an Indian, including, but 
not limited to, no face dolls, corn husk dolls, patchwork and palmetto 
dolls, reindeer horn dolls, lacrosse sticks, stick game articles, 
gambling sticks, gaming dice, miniature cradle boards, and yo-yos, are 
Indian products.


Sec.  309.22  What are examples of painting and other fine art forms 
that are Indian products?

    Painting and other fine art forms made by an Indian including but, 
not limited to, works on canvas, photography, sand painting, mural, 
computer generated art, graphic art, video art work, printmaking, 
drawing, bronze casting, glasswork, and art forms to be developed in 
the future, are Indian products.


Sec.  309.23  Does this part apply to products made before 1935?

    The provisions of this part do not apply to any art or craft 
products made before 1935.

    Dated: March 26, 2003.
Lynn Scarlett,
Assistant Secretary--Policy, Management, and Budget.
[FR Doc. 03-14827 Filed 6-11-03; 8:45 am]
BILLING CODE 4310-84-P