[Federal Register Volume 59, Number 197 (Thursday, October 13, 1994)]
[Unknown Section]
[Page 0]
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]
=======================================================================
-----------------------------------------------------------------------
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).
-----------------------------------------------------------------------
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
