Protecting Cultural Heritage by Revising the Customs Entry Form

Customs Entry Form 6059B

When people become aware of the rampant looting, smuggling, and destruction of cultural property, they show concern about preserving humanity's shared cultural heritage. And when U.S. Customs and Border Protection (CBP) officers are able to identify specific cultural objects imported into America, they are better positioned to interdict at-risk archaeological, ethnological, religious, and other cultural heritage material at the border.

It is for these reasons that the Customs Entry Form should be revised slightly.

Those who have flown back home from a trip overseas undoubtedly have spotted a flight attendant strolling down the aircraft aisle handing out the ubiquitous blue paper known as Form 6059B, the double-sided document used by travelers to declare goods that they are bringing into the United States.

By checking off the simple “Yes” or “No” boxes found at question #11, travelers easily notify CPB upon their arrival whether they have:

• fruits, vegetables, plants, seeds, food, insects;
• meats, animals, animal/wildlife products;
• disease agents, cell cultures, snails;
• soil or have been on a farm/ranch/pasture.

But, surprisingly, the Entry Form does not include an interrogatory that covers regulated cultural heritage goods. There is no “Yes” or “No” box for travelers to check when carrying an ancient Greek vase, Roman coin, Maya wall art, Byzantine mosaic panel, Tellem textile, Khmer statue, Tyrannosaurus bataar fossil, or the like. That is why a new line under #11 should be added on the Customs Entry Form to say:

I am (We are) bringing...

antiquities/antiques, archaeological material/artifacts, ancient coins, tribal objects, fossils
Yes __  No __

This new Q and A would alert travelers about the existence of regulations that govern imported cultural goods. Such laws include the Convention on Cultural Property Implementation Act; the Pre-Columbian Monumental or Architectural Sculpture or Murals Act; the Protect and Preserve International Cultural Property Act; the National Stolen Property Act; and many more.

A person checking the "Yes" box would prompt CBP officers to inquire further about whether a particular cultural heritage object could be imported legally or whether its entry was subject to restriction. A false "No" response might trigger CBP to contact Homeland Security Investigations to examine if someone was knowingly concealing an illegal import.

In addition to the questions found under #11, the Customs Entry Form currently directs travelers to “[d]eclare all articles on this declaration form and show the value in U.S. dollars.” It cautions them about bringing potentially prohibited objects into America like agricultural and wildlife products, controlled substances, obscene articles, toxic substances, and merchandise that infringes intellectual property rights. "Failure to declare such items ... can result in penalties and the items may be subject to seizure," Form 6059B warns. By adding specific language about legally protected cultural property to this part of the Form, travelers would be alerted further about their duty to declare a variety of protected cultural heritage objects.

Retired customs officer Domenic DiGiovanni, who worked extensively with cultural heritage material when he was with CBP, tweeted that these changes to the Form would be a "great idea" because customs officers would ask follow-up questions in person that "could elicit a behavioral response" from the traveler, which in turn could "lead to more questions."

There is plenty of space remaining on Form 6059B to improve the paperwork, and the small changes would go a long way toward protecting cultural heritage.

Text and original photos copyrighted by Cultural Heritage Lawyer, a blog commenting on matters of cultural property law, art law, cultural heritage policy, antiquities trafficking, and museum risk management. Blog url: culturalheritagelawyer.blogspot.com. Any unauthorized reproduction or retransmission of any blog post without the express written consent of CHL is prohibited. CHL is a service of Red Arch Cultural Heritage Law & Policy Research, Inc.

One Side of the Coin: ACCG Re-Argues Previously Decided Legal Issues in Baltimore Test Case

Some of the ancient coins in dispute in U.S. v. 3 Knife-Shaped Coins.

Court decisions in 2014 and 2015 rejected the Ancient Coin Collectors Guild’s (ACCG) demand to revisit legal issues already quashed by the courts in the forfeiture case of U.S. v. Three Knife-Shaped Coins Et al. and the related case of Ancient Coin Collectors Guild v. U.S. Customs and Border Protection; U.S. Department of State; Assistant Secretary of State, Educational and Cultural Affairs. Nevertheless, the Guild continues to re-argue the same issues.

The litigation stems from the ACCG’s aim to strike down or erode customs regulations that regulate the import of specific types of ancient coins that have been determined to be in jeopardy of looting. The group minted a test case seven years ago when it intentionally imported undocumented and unprovenanced ancient Chinese and Cypriot coins to the United States. The Guild imported the archaeological materials from a London dealer and shipped them to Baltimore on a British Airways flight. The ancient coins had no accompanying documentation and offered no record of chain of custody or provenance.

Repeated losses suffered by the ACCG in the federal district court, the court of appeals, and the U.S.Supreme Court have not deterred the Guild from continuing its blitz on the import controls, which were erected under authority of the Convention on Cultural Property Implementation Act (CPIA) and are designed to curb transnational trafficking of at-risk archaeological material.

The latest round of ACCG court filings is a motion for summary judgment that repeats many arguments that already have failed to win judicial support. In its July 2016 motion, the Guild insists that it “has either rebutted the government’s prima facie case and/or the government has failed to meet its own burden. Accordingly, the Court should grant the Guild Summary Judgment, order the return of the Guild’s coins, and require the Government to pay the Guild’s attorney’s fees and costs.”

While the ACCG litigates the Three Knife-Shaped Coins case in federal district court in Maryland, it is expected that the Missouri-based group simultaneously will press the matter when the Cultural Property Advisory Committee (CPAC) meets in Washington, DC on October 25. That is when CPAC will hear public testimony about whether the White House should renew import controls to protect pre-classical and classical archaeological objects and Byzantine and post-Byzantine ecclesiastical and ritual ethnological materials from Cyprus, Docket No.DOS-2016-0054.

So far the ACCG’s defeats in the federal courts have produced favorable case law that strengthens law enforcement efforts to disrupt cultural heritage trafficking. The Fourth Circuit Court of Appeals, for example, decided that federal authorities properly listed the kinds of ancient Chinese and Cypriot coin artifacts that may be subject to CPIA import controls.

The appeals court also ruled that U.S. Customs and Border Protection (CBP) properly detained the ACCG's undocumented coins. The court explained that the burden therefore shifts to the Guild to prove that its actions were lawful, plainly articulating the clear rule that "[t]he importer need not document every movement of its articles since ancient times. It need demonstrate only that the articles left the country that has requested import restrictions before those restrictions went into effect or more than ten years before the date of import.” “In short,” the court added, “CBP need not demonstrate that the articles are restricted; rather, the statute ‘expressly places the burden on importers to prove that they are importable.’”

The ACCG rejects this standard. Rather than offering information to show that the ancient archaeological materials qualify as a legal import, the ACCG instead filed motions for discovery and a motion for summary judgment attacking the validity of the import regulations themselves. Meanwhile, the Guild maintains that the government bears the high burden to prove that the restricted ancient coins were first discovered in and subject to the export controls of China and Cyprus.

At a motions hearing held earlier this year, Assistant U.S. Attorney Molissa Farber, representing the government, told the Maryland district court that the Guild's line of argument is “essentially an attack on the government's ability to classify the coins by type and category, which has already been well-settled that we can do.” “And I understand that Claimants [ACCG] disagree with that process,” the prosecutor said, “but that's already been litigated. That’s not at issue here. That part is done.”

AUSA Farber reminded the court that “the Fourth Circuit rejected the notion that the government was going to have to fight a case coin-by-coin. The Fourth Circuit said that the statutory structure allows us to list coins by type and category.”

She emphasized that “the evidence that the Guild seeks to introduceis not evidence pertaining to the specific defendant property here. They’re not seeking to introduce any kind of evidence that relates to these 22 defendant coins as far as when these specific 22 coins left China and Cyprus.What they want to introduce is general evidence that coins of this type of category circulated broadly and may have left China and Cyprus outside of the regulated period.”

Peter Tompa, attorney for the ACCG and the organization's current president, countered, “The coins at issue here are typical in the market. So we don't know where they were found or too much about them. And there’s nothing nefarious about that, Your Honor. It’s a situation where there’s just low value items, and it was not important until recently that such things would be -- that such things should have a documentary history. But we do know something about the coins, we know something at least. We know that they were exported from the UK by Spink, a well-regarded firm that's been around since the 1600s, and in compliance with both UK and EU law in April,19 2009.”

Attorney Tompa continued, “Well, assuming the government has established first discovery just by listening, we’re entitled to rebut that. And how we’re trying to do that here with regard [to] these specific coins is by offering the opinions of two experts, Mr. [Douglas] Mudd, who is the Curator at the American Numismatic Association in Colorado, and Mr. [Michael] McCullough, who’s an expert in the international exchange of cultural artifacts.”

Declaring that “scholarly evidence” can be used by the ACCG to show that the coins left their countries of origin before the enactment of U.S. import restrictions, Attorney Tompa offered that “Mr. Mudd's opinion is that the ancient coins at issue here are of a sort that circulated in significant numbers outside of China or Cyprus for thousands of years[,] first as currency and then as collectibles. So it’s unlikely and cannot be assumed that they left Cyprus or China after the date restrictions were imposed.”

“So because these things circulated for thousands of years first as collectibles -- first as currency, then as collectibles," Attorney Tompa reasoned that "it’s unlikely that they exited Cyprus or China after the date of the restrictions, just given the numbers outside of those two countries.”

“Mr. McCullough's report is that UK and EU law did not require expert [sic] certificates for the coins at issue in this case, or the Cypriot -- well, any of the coins at issue in this case. And such with respect to the Cypriot coins, that would satisfy Cypriot law, because, after all, Cyprus is a member the EU as well. Mr. McCullough also opines that the Chinese coins here could have exited Hong Kong legally without documentation in that export would satisfy Chinese law under both the laws of China and Hong Kong.”

AUSA Farber countered this argument by rejoining, “The most salient point I think to take away from this particular dispute over the scholarly evidence at least is the distinction between specific and general. And I believe what we just heard from Claimant [ACCG] was a lot of purported evidence regarding general coin circulation. The coins are of the sort that circulated broadly. I mean, Your Honor raised the point, what’s the ultimate implication here? And the implication is that if that argument is allowed, it undermines the CPIA, undermines the statutory structure, because it essentially holds the coins shouldn't have been listed in the first place based on their type of category. And that’s not permitted.”

U.S. District Judge Catherine Blake agreed. In a ruling dated February 11, 2016, Judge Blake pronounced “that the Ancient Coin Collector’s Guild (“the Guild”) seeks discovery not relevant to the issues the court will have to decide in this forfeiture action.” In particular, she highlighted that the ACCG “apparently will seek to prove that the export of these coins from Cyprus or China to England was lawful under EU law. It is unlikely that the export control status of the coins under foreign law will be a proper defense in this forfeiture action.” The judge added pointedly, “Further, to the extent the Guild argues that the government must prove ‘first discovery,’ beyond demonstrating that the coins at issue appear on the designated list, that argument is foreclosed by the CPIA and the Fourth Circuit opinion in Ancient Coin Collectors Guild v. U.S. Customs and Border Protection, 698 F.3d 171 (4th Cir. 2012). Listing by type and category is proper under the CPIA.”

Judge Blake also granted a protective order shielding two State Department employees from ACCG depositions, explaining that they “do not appear to have relevant personal knowledge.” Over the objections of Attorney Tompa, AUSA Farber attributed “ulterior motives” to the Guild's attempt to depose the purported witnesses, presenting the court with, what the federal lawyer called, an “Internet post written by a former director of the Coin Collectors Guild" criticizing one of the witnesses. Judge Blake remarked, “I'm more interested in probably the relevance than in motive.”

In June, Judge Blake issued a further order rebuking the ACCG's discovery requests, stating, “I will not at this time direct the government to provide any additional 30(b)(6) deposition testimony.”

Soon afterward, the ACCG filed its motion for summary judgment and, on July 29, the court adopted a schedule that allows the parties to fully brief their positions. Once completed in mid-October, CHL expects to review the parties’arguments.

Text and original photos copyrighted by Cultural Heritage Lawyer, a blog commenting on matters of cultural property law, art law, cultural heritage policy, antiquities trafficking, and museum risk management. Blog url: culturalheritagelawyer.blogspot.com. Any unauthorized reproduction or retransmission of any blog post without the express written consent of CHL is prohibited. CHL works in cooperation with Red Arch Cultural Heritage Law & Policy Research, Inc.

Senate Committee Rejects Cultural Property Czar; Supports Restrictions on Syrian Antiquities

The Senate Foreign Relations Committee met last week to consider the Protect and Preserve International Cultural Property Act (H.R. 1493). It favorably reported the measure for full consideration by the senate, but rejected the legislation's creation of a cultural property czar.

The original bill passed by the House of Representatives last June called for the appointment of an Assistant Secretary of State as the new United States Coordinator for International Cultural Property Protection. The senate committee stripped this position from H.R. 1493 in a comprehensive substitute amendment that members adopted last Thursday. Generally speaking, a substitute amendment makes substantive changes to a bill and replaces significant portions of an original bill's language.

The idea for a cultural property czar first emerged in similar legislation introduced in the House in 2014. But the substitute amendment instead recommends "that the President should establish an interagency coordinating committee to coordinate and advance the efforts of the executive branch to protect and preserve international cultural property at risk." Because the amendment's language declares that "the President should" rather than "the President shall", the White House is not obligated to form the interagency committee should the measure be enacted into law.

The substitute amendment suggests that the interagency committee be chaired by an assistant secretary at the State Department and that it work to protect and preserve international cultural property, prevent and disrupt looting and trafficking, protect sites of cultural and archaeological significance, and provide for the lawful exchange of international cultural property.

The substitute amendment calls on the President to provide annual reports, over a six year period, about "the efforts of the executive branch ... to protect and preserve international cultural property, including whether an interagency coordinating committee ... has been established and, if such a committee has been established, a description of the activities undertaken by such committee, including a list of the entities participating in such activities." Senators added a specific provision so that the White House would describe "actions to implement and enforce ... the Emergency Protection for Iraqi Cultural Antiquities Act of 2004 ... including measures to dismantle international networks that traffic illegally in cultural property."

The Foreign Relations Committee embraced the second crucial part of H.R. 1493's original language, calling for emergency import protections to be placed on at-risk Syrian cultural property within 90 days of the law's passage, as opposed to the 120 days sought by the House. According to the senate committee's substitute amendment, import restrictions would be placed on Syrian archaeological and ethnological material under authority granted by the Cultural Property Implementation Act (CPIA), "without regard to whether Syria is a State Party" to the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property. The CPIA is the federal law that implements key terms of the 1970 UNESCO Convention in the United States.
 
Photo credit: Rabi Samuel

Text copyrighted 2016 by Cultural Heritage Lawyer, a blog commenting on matters of cultural property law, art law, cultural heritage policy, antiquities trafficking, and museum risk management. Blog url: culturalheritagelawyer.blogspot.com. Any unauthorized reproduction or retransmission of any blog post without the express written consent of CHL is prohibited. CHL is a service of Red Arch Cultural Heritage Law & Policy Research, Inc.

State Department Extends Cultural Property MoU with Nicaragua Despite AAMD Opposition

Earlier this year the Association of Art Museum Directors (AAMD) shifted its stance on bilateral agreements authorized by the Cultural Property Implementation Act (CPIA) when the group decisively opposed the renewal of U.S. import restrictions covering endangered archaeological material coming from Nicaragua. The State Department disagreed with the AAMD, and today backed a fresh memorandum of understanding (MoU) that extends these protective trade barriers for another five years.

Writing in opposition to Nicaragua's petition for a rejuvenated MoU, the AAMD argued in January that the Central American nation "simply fails to protect its own cultural property in the manner required by the CPIA."

The CPIA is the federal law that authorizes the enactment of heritage protection measures consistent with the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property.

"Refusing to extend the MOU could be the very wake-up call Nicaragua needs to undertake real and substantial efforts at a critical time in its history," the AAMD contended in a statement submitted to the Cultural Property Advisory Committee (CPAC), the group that reviews MoU requests.

The State Department's Assistant Secretary for Educational and Cultural Affairs, however, "determined that factors continue to warrant the imposition of import restrictions and no cause for suspension exists," the Federal Register reported. "Accordingly, these import restrictions will remain in effect for an additional 5 years, and the CBP [Customs and Border Protection] regulations are being amended to reflect this extension until October 20, 2020."

The import controls cover pre-Hispanic artifacts including ceramics, vessels, statues, mace heads, jewelry, and more. Similar barriers were first erected fifteen years ago in an effort to deter the looting of archaeological objects.

Text copyrighted 2015 by Cultural Heritage Lawyer. Blog url: culturalheritagelawyer.blogspot.com. Any unauthorized reproduction or retransmission of this post without the express written consent of CHL is prohibited. CHL is a project of Red Arch Cultural Heritage Law & Policy Research, Inc.

House Passes Protect and Preserve International Cultural Property Act

On Monday afternoon, the U.S. House of Representatives passed H.R. 1493, the Protect and Preserve International Cultural Property Act.

CHL has prepared a video snippet of the debate and vote, courtesy of C-Span. Watch below or click here if you are experiencing difficulty.

House Bill Calls for Cultural Property Protection Czar and for Import Restrictions on Syrian Heritage in Jeopardy

“The fight to preserve our common cultural heritage, as well as to deny extremists such as ISIL [Islamic State in Iraq and Syria] resources from the sale of blood antiquities, is yet another front on the global war against terror,” proclaimed Congressman Chris Smith (R-N.J.-4) in a press statement issued last week.

Congressmen Eliot Engel and Chris Smith, sponsors of the
Protect and Preserve International Cultural Property Act.

Rep. Smith, together with Rep. Eliot Engel (D-N.Y.-16), introduced the Protect and Preserve International Cultural Property Act (H.R. 5703) in the U.S. House of Representatives on Thursday. The bill would create a cultural property protection czar and set up import restrictions to prevent looted and smuggled Syrian heritage material from crossing America's borders.

Rep. Engel, the lead sponsor of the bill, emphasized its importance: “Since World War II, the United States has been a leader in protecting cultural property. Today, ISIL and other terrorist organizations have found a lucrative source of revenue in artifacts they traffic out of areas of conflict. America must respond by denying terrorists and criminals the ability to profit from instability by looting the world of its greatest treasures.”

The proposed legislation would advance four articulated U.S. policy goals designed to

(1) protect and preserve international cultural property at risk of destruction due to political instability, armed conflict, or natural or other disasters;

(2) protect international cultural property pursuant to its obligations under the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict and customary international law in all conflicts to which the United States is a party; 

(3) prevent, in accordance with existing laws, importation of cultural property pillaged, looted, or stolen during political instability, armed conflict, or natural or other disasters; and 

(4) ensure that existing laws and regulations, including import restrictions imposed through the Office of Foreign Asset Control (OFAC) of the Department of the Treasury, are fully implemented to prevent the trafficking in stolen or looted cultural property.

To promote these objectives, the lawmakers want the White House to appoint a Coordinator for International Cultural Property Protection who will

(1) coordinate and promote efforts to address international cultural property protection activities that involve multiple Federal agencies, including diplomatic activities, military activities, law enforcement activities, import restrictions, and the work of the Cultural Antiquities Task Force established pursuant to the Consolidated Appropriations Act, 2004 (Public Law 108-199); 

(2) submit to the appropriate congressional committees an annual report on interagency efforts to protect international cultural property based on information required under section 5 of this Act; 

(3) provide policy recommendations, if necessary; 

(4) resolve interagency differences in a timely, efficient, and effective manner; and 

(5) work and consult with domestic and international actors such as foreign governments, nongovernmental organizations, museums, educational institutions, research institutions, and the U.S. Committee of the Blue Shield on efforts to promote and protect international cultural property.

Under the terms of the legislative proposal, the Secretary of State, Attorney General, Secretary of Defense, and United States Agency for International Development Administrator would be required to submit reports to the cultural property protection czar that describe each department’s efforts to protect cultural property from the threats of armed conflict, political unrest, crime, construction activities, and natural disaster.

The bill curiously omits any duties that might have been placed on the Secretaries of Treasury, Interior, or Homeland Security to supply reports directly to the Coordinator. These cabinet officials supervise agencies that have an impact on international cultural property policy—agencies like the the Office of Terrorism and Financial Assistance, the Financial Crimes Enforcement Network, the Internal Revenue Service, U.S. Fish and Wildlife, and Immigration and Customs Enforcement's Homeland Security Investigations and Customs and Border Protection divisions. At best, the proposed legislation would have the Attorney General simply offer a report "in consultation with the Secretary of Homeland Security."

Reps. Engel and Smith also want to implement safeguards to protect endangered Syrian cultural property. Their bill would mandate the President to immediately enact emergency import restrictions under the terms of the Convention on the Cultural Property Implementation Act (CPIA) 19 U.S.C. 2603 in order to stop looted and smuggled antiquities from entering the American marketplace.

The legislation attempts to offer a solution to the CPIA's cumbersome statutory framework, which currently requires Syria’s government—under whatever form that might be at present—to first ask the State Department for American import controls restricting cultural objects. Recall that the White House recognized the rebels as the legitimate governing authority of the Syrian Arab Republic in 2012.

The proposed Protect and Preserve International Cultural Property Act, in both substance and procedure, mirrors the Emergency Protection of Iraqi Cultural Antiquities Act of 2004 as well as CHL’s 2013 recommendation for an Emergency Protection of Egyptian Cultural Antiquities Act.

It remains to be seen whether the 113^th Congress will take up these critical requests for a cultural property policy coordinator or for import controls to protect threatened heritage. Congress is in a lame duck session following the GOP's sweeping election victory earlier this month. Yet the proposed legislation already has been referred to the House Committees on Foreign Affairs, Ways and Means, Armed Services, and Judiciary. The bill's sponsors, more importantly, are well-known fixtures in the House. They hail from from safe districts where constituents regularly vote them back in office by wide margins.

Rep. Engel is the ranking minority member of the Committee on Foreign Affairs. He is a liberal Democrat who recently earned a fourteenth term after facing no opponent in a district that encompasses New York’s Westchester County and the Bronx. Rep. Engel is known for his sponsorship of the Syria Accountability and Lebanese Sovereignty Restoration Act.

Rep. Smith, meanwhile, first arrived on Capitol Hill following the election of 1980. He is a popular conservative Republican representing Trenton and central New Jersey. He possesses expertise on the topics of foreign affairs and organized crime, serving as senior member of the House Committee on Foreign Affairs; chair of the Commission on Security and Cooperation in Europe; chair of the Subcommittee on Subcommittee on Africa, Global Health, Global Human Rights, and International Organizations; and chairman of the Congressional Human Trafficking Caucus. Last year Rep. Smith introduced a resolution to establish a Syrian war crimes tribunal.

The full text of H.R. 5703, the Protect and Preserve International Cultural Property Act, can be found here.

Photo credit: House.gov

By Rick St. Hilaire Text copyrighted 2014 by Cultural Heritage Lawyer. Blog url: culturalheritagelawyer.blogspot.com. Any unauthorized reproduction or retransmission of this post without the express written consent of CHL is prohibited.

CPAC to Hold Hearing on El Salvador's MoU Extension Request

The government of El Salvador has asked for an extension of its Memorandum of Understanding (MoU) with the United States.

The MoU would authorize five more years of U.S. import controls under the Convention on Cultural Property Implementation Act to protect jeopardized archaeological and ethnological heritage originating from the central American nation.

The Cultural Property Advisory Committee (CPAC) will consider El Salvador's request during a public hearing that is scheduled for October 7 at 10:30 a.m. at 2200 C St. NW., Washington, DC (pictured here). To attend the hearing, call the State Department at 202-632-6301.

Public comments may be submitted to CPAC by clicking here.

By Rick St. Hilaire Text copyrighted 2014 by Cultural Heritage Lawyer. Blog url: culturalheritagelawyer.blogspot.com. Any unauthorized reproduction or retransmission of this post without the express written consent of CHL is prohibited.

Ivory Ban Relaxed A Little - Museums Should Take Note

The federal government in February issued a ban on on the commercial sale of African elephant ivory. The administrative action came about quickly and was soon met by several complaints, including from museums that could no longer import objects made of ivory. See here for background.

USFWS Director Daniel Ashe

Last week, U.S. Fish and Wildlife Service (USFWS) Director Daniel Ashe responded to these complaints by issuing revised rules. Director's Order 210, Amendment 1 and revisions to the regulations under the Convention on International Trade in Endangered Species of Wild Fauna and Flora now now offer some relief to museums, musicians, heirs, and some others.

Under the revisions, museums are advised that carved African elephant ivory—not raw ivory—may be imported for a show so long as the ivory was properly acquired before February 26, 1976. That is the date of the African elephant's entry on Appendix I of CITES, the treaty’s most protective category of endangered species. To qualify, there must also be no commercial transfer of the ivory after February 25, 2014. A valid CITES traveling exhibition certificate must be issued as well.

USFWS explained on its web site, "This is a common sense revision that ... will allow for the import of museum specimens and certain other items not intended for sale."

Last week's change also addressed issues surrounding antiques. "On May 15, 2014, we revised Director’s Order 210 to allow the sale of certain 100-year-old items that were either created in the United States or imported prior to September 22, 1982—the date that antique ports were designated. Prior to this decision to allow enforcement discretion, items imported before September 22, 1982, would not be able to be sold." The USFWS went on to say that, "This is a common sense revision to allow for the sale of items that are 100 years old or older but could not have been imported through a designated antique port." Antique ports are specific U.S. ports where antiques made from endangered animals are imported.

Photo credit: USFWS

By Rick St. Hilaire Text copyrighted 2010-2014 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Blog url: culturalheritagelawyer.blogspot.com. Any unauthorized reproduction or retransmission of this post is prohibited. CONTACT INFORMATION: www.culturalheritagelawyer.com

The Cultural Property Implementation Act Covers Ancient Coins

The Convention on Cultural Property Implementation Act (CPIA) classifies designated ancient coin artifacts as archaeological material. That ancient coins serve as evidentiary sources of the past makes perfect sense. Ancient coins that have been scientifically excavated, observed, and documented in their original context can absolutely date ancient sites of human activity, tell archaeologists about the available currencies that circulated during different time periods, and offer material evidence about the societies that used these artifacts. As a result, ancient coins are significant cultural objects..

The Fourth Circuit Court of Appeals agrees. In the case of Ancient Coin Collectors Guild v. U.S. Customs and Border Protection et al., the court acknowledged that "[c]oins are portable objects," but added, "that is not the whole story." In a unanimous ruling the judges wrote, "The often worn and mysterious beauty of ancient coins renders them invaluable cultural artifacts, helpful not only in dating archaeological finds but in revealing how distant civilizations once conducted their civic and commercial life.”

Tearing artifacts from the ground without concern for their evidentiary value and without regard for the archaeological sites from which they were stripped irreparably destroys critical evidence of the past. That is why there are strong legal, political, and social efforts to stop looters from engaging in this malicious activity.

The CPIA’s defines “cultural property” as “articles described in article 1(a) through (k) of the [1970 UNESCO] Convention whether or not any such article is specifically designated as such by any State Party for the purposes of such article.” 19 U.S.C. § 2601(6).

Turning to Article 1 of the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property shows that “cultural property” includes ancient coins, which are "(c) products of archaeological excavations (including regular and clandestine) or of archaeological discoveries; [and] ... (e) antiquities more than one hundred years old, such as inscriptions, coins and engraved seals[.]" (Emphasis added).

Import controls enacted under the CPIA must regulate cultural property that is "archaeological material." By the terms of 19 U.S.C. §2601(2)(C), that is material

which was first discovered within, and is subject to export control by, the State Party.For purposes of this paragraph—(i) no object may be considered to be an object of archaeological interest unless such object—(I) is of cultural significance; (II) is at least two hundred and fifty years old; and (III) was normally discovered as a result of scientific excavation, clandestine or accidental digging, or exploration on land or under water; and

Ancient coins covered under currently enacted CPIA import protections include what is described in the definition above, namely those that are dug up and at least 250 years old. They are also artifacts of cultural significance because of their archaeological value. The Federal Register(Jan. 19, 2011), for example, chronicled the CPIA bilateral agreement with Italy by reporting, “Coins constitute an inseparable part of the archaeological record of Italy, and, like other archaeological objects, they are vulnerable to pillage and illicit export.”

The Ancient Coin Collectors Guild (ACCG) unsuccessfully argued to the federal courts that the U.S. State Department and Customs and Border Protection "acted ultra vires [outside the law] by placing import restrictions on all coins of certain types without demonstrating that all coins of those types were 'first discovered within'' the countries of origin. A federal appeals court struck down this assertion saying “We are not persuaded.” The Fourth Circuit explained that "State and CBP are under no obligation to list restricted items with more specificity than the [CPIA] statute commands, and they are certainly not required to impose restrictions on a coin-by-coin basis. Such a requirement would make the statutory scheme utterly unworkable in practice.”

In the same case, the ACCG complained that collectors do not always have documents supporting the import of most ancient coins. The Fourth Circuit acknowledged that there may be cultural property imported into the U.S. that lack provenance or export permits, but pointed out that there is a process allowing importers to show that the objects are legal. The court observed:

In those cases, the [CPIA] statute expressly provides that CBP may seize the articles at the border: ‘If the [importer] of any designated archaeological or ethnological material is unable to present to the customs officer” the required documentation, the “officer concerned shall refuse to release the material from customs custody ... until such documentation or evidence is filed with such officer.’ 19 U.S.C. § 2606(b). In short, CBP need not demonstrate that the articles are restricted; rather, the statute “expressly places the burden on importers to prove that they are importable.”

The court highlighted that, under the CPIA, "[t]he importer need not document every movement of its articles since ancient times. It need demonstrate only that the articles left the country that has requested import restrictions before those restrictions went into effect or more than ten years before the date of import."

The customs law, pursuant to 19 U.S.C. § 1484, obliges the importer of record to use reasonable care when entering, classifying and determine the value of imported items. That includes the importer’s duty to list the country of origin of any ancient coins imported into the U.S. More about the importer's responsibility can be found here.

Photo credit: Patrick Moore

By Rick St. Hilaire Text copyrighted 2010-2014 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Blog url: culturalheritagelawyer.blogspot.com. Any unauthorized reproduction or retransmission of this post is prohibited. CONTACT INFORMATION: www.culturalheritagelawyer.com

True Grit: Monica Hanna Defends Heritage in Egypt, Receives SAFE's Prize

(C) SAFE. Used with permission.

Khaemwaset was a royal prince who lived during the 13th century B.C. He became the first Egyptologist and was greatly revered in his time for conserving Egypt's monuments.

Now a 21st century Egyptologist has been honored for preserving the past. She is archaeologist Dr. Monica Hanna, who actively searches the desert sands and the Nile banks to defend Egypt's rich heritage against looters and vandals.

Saving Antiquities for Everyone (SAFE) presented the Beacon Award to Dr. Hanna Thursday night, calling her "an outstanding archaeologist and social media advocate whose work has raised public awareness about the illicit antiquities trade and the fight to protect cultural heritage." SAFE's distinguished prize has been presented since 2006 to recognize individuals who bring attention to the global crime of heritage trafficking.

Dr. Hanna has replaced Khaemwaset's chariot, papyrus roll, and royal title with a car, a Twitter account, and true grit. She uses modern-day tools along with old-fashioned courage to travel to heritage sites under attack and tweet for help. Dr. Hanna now has close to 30,000 followers on Twitter's social networking site. The internet-savvy archaeologist also the founded the online community known as Egypt’s Heritage Task Force. 

Prior to receiving the Beacon Award, Dr. Hanna addressed an auditorium of engaged listeners about "Saving Ancient Egypt, One Tweet at a Time." She passionately described the destruction affecting Egypt's heritage since the Arab Spring, and her photographs of armed looters and dynamited sites belied the fact that her daily work remains fraught with danger as she confront criminals, government officials, and civil unrest. She has even been shot at.

Dr. Hanna's determination has paid off, nevertheless. With modesty and enthusiasm, the Egyptologist explained how she rallied her countrymen to clear trash from an archaeological site, inspired local protests against unplanned urban expansion, and gathered help to clean up the mess left behind by thieves and vandals who stole practically everything from the Malawi museum and burning and destroying whatever they could not haul off.

Those in attendance at last week's ceremony in New York learned about three significant perils to cultural heritage in Egypt as Dr. Hanna recited many incidents of looting, land grabbing, and smuggling that have occurred since 2011.

Dr. Monica Hanna's slide showing a large looter's pit
near the Black Pyramid at Dashur, Egypt.

Explaining that there is "looting with machine guns," the archaeologist described plundering that has taken place at Abusir, Dashur, Memphis, and several other historic locations throughout the country.

Dr. Hanna chronicled artifact thefts near the Black Pyramid, facilitated by diggers who greatly expanded the number of illegal looter's pits during the first 30 days after the revolution.

The area of Dashur--a royal necropolis that is home to the Black Pyramid, the Red Pyramid, the Bent Pyramid, and many other important monuments--witnessed an astounding 300% increase in thieves' holes. Dr. Hanna presented satellite images of the pockmarked landscape, which has swelled across the archaeologically rich desert in recent years.

The Egyptologist lamented about the destruction caused by bulldozers that "rummage like cats in a trash bin," irretrievably shredding archaeological material. Blasting too has wiped out evidence of the past, documented by photographs depicting the devastating aftermath caused by freshly exploded dynamite.

Dr. Hanna pointed out the differences between the "organized mafia" and the local villagers who steal antiquities. Organized criminals use four wheel drive vehicles, bulldozers, and weapons smuggled from Libya. They hire locals to dig and give them lunch boxes. More importantly, they often target specific objects of interest like those from the Amarna period, the New Kingdom, and the Old Kingdom. The looting demonstrates that "they have archaeological knowledge," Dr. Hanna warily observed. Local villagers and families, by contrast, use simple rope and shovels.

Decrying unplanned urban expansion, Dr. Hanna described this growing harm with slides depicting a new parking lot built over an old temple site and a soccer field pitched atop an ancient 26th Dynasty burial. Land grabbers and the "land mafia," meanwhile, have wrested control of heritage locations by "hacking out" traces of archaeology and by building modern cemeteries to claim dominion, she said.

Dr. Hanna spoke about "clear channels for smuggling" that menace the country as Egypt continues to be stripped of artifacts that are illegally sold abroad. Antiquities trafficked from the Sinai Peninsula to Gaza eventually fly from Israel to European markets, the Egyptologist disclosed. Artifacts also find their way from the Gulf of Suez seaport of Ein El Sokhna to Dubai, Doha, and other destinations.

Amid the descriptions of endangered cultural heritage, Dr. Hanna expressed concern for the welfare and education of the children of Egypt. Illegal digging, for example, has caused deaths. At Abusir el-Malaq, a site where thieves have created heaps of human bones and fragmented mummies, Dr. Hanna gave an account of how approximately 20 children were killed while unearthing artifacts.

She highlighted that Egypt's children would not have a vested interest in protecting local culture if they failed to embrace the heritage as their own. One teenage boy, whom Dr. Hanna spotted running away from the ransacked Malawi museum, told her it was okay to attack the artifacts because the museum belonged to the government. She implored that a "mistake we need to address is that belief that heritage belongs to the government and not to the people." Dr. Hanna expressed appreciation to the other young people who arrived to help save what was left of the Malawi museum's collection.

Dr. Hanna concluded her remarks to the SAFE audience by offering several suggestions about how Americans could help. She encouraged support for academics who publish scholarly articles documenting archaeological site looting. She emphasized that the illegal sale of artifacts must be reported to authorities. She also expressed strong support for the adoption of import barriers to block pillaged and smuggled Egyptian artifacts from entering the United States.

There will be more heritage to protect as the resilient Dr. Hanna returns home to Egypt. To track her ongoing preservation efforts and to learn more about cultural heritage under threat, readers can follow the modern-day Khaemwaset's Twitter feed here.

By Rick St. Hilaire Text copyrighted 2010-2014 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Blog url: culturalheritagelawyer.blogspot.com. Any unauthorized reproduction or retransmission of this post is prohibited. CONTACT INFORMATION: www.culturalheritagelawyer.com

With All Deliberate Speed: Implementing Emergency Import Controls on Cultural Objects from Egypt

Import controls must be implemented with all deliberate speed, particularly now that a potential request to protect endangered Egyptian artifacts has been announced publicly.

Cultural heritage watchers over the last few years have witnessed the destruction to cultural heritage that has been inflicted on archaeological sites, storehouses, museums, and places of worship in Egypt. The crisis has been severe, prompting the International Council of Museums in 2012 to issue its Emergency Red List of Egyptian Cultural Objects at Risk.

But the lack of comprehensive action to stem the looting and smuggling of cultural heritage has afforded heritage traffickers the advantage of a three year head start to move their ill-gotten gains to the United States. Calls by CHL in January 2011 and July 2013 for emergency import protections were not received with urgency.

Last week, however, Tom Mashberg of The New York Times reported that the State Department and the Egyptian Minister of State for Antiquities spoke about implementing American emergency import measures. By the terms of the Convention on Cultural Property Implementation Act (CPIA), the State Department must receive a formal request from the Egyptian government for that process to officially begin. The Federal Register has not yet reported such a formal request, although Mashberg writes that Egypt is looking "for fast action on the restrictions."

Now that the prospect of emergency restrictions on the importation of Egyptian artifacts appears real, traffickers are likely to increase shipments of heritage contraband to the U.S. before barriers are raised. And that is why emergency import measures must be implemented immediately.

Photo credit: Leonardo Barbosa

By Rick St. Hilaire Text copyrighted 2010-2014 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Blog url: culturalheritagelawyer.blogspot.com. Any unauthorized reproduction or retransmission of this post is prohibited. CONTACT INFORMATION: www.culturalheritagelawyer.com

U.S.-Honduras MoU Extended, Ecclesiastical Ethnological Heritage Added to Import Rules

Copán archaeological site in Honduras.

The Treasury Department and Customs and Border Protection today issued final rules in support of a five year extension of the cultural property Memorandum of Understanding (MoU) between the U.S. and Honduras.

The import rules, which protect endangered cultural heritage from Honduras, were finalized in response to the State Department's conclusion that "conditions continue to warrant the imposition of import restrictions on the archaeological materials from Honduras...."

The renewed MoU contains added import protections covering threatened ecclesiastical ethnological material dating from Honduras' Colonial Period. Sculpture, paintings, and metalwork such as chalices and crucifixes are now objects subject to American import controls.

A complete list outlining the full range of archaeological and ethnological objects subject to import restrictions may be found here.

Voices from the collecting and museum communities last year expressed concern or outright opposition to a renewed agreement that would have protected Colonial and Republican cultural heritage objects. The Association of Art Museum Directors, for example, offered support for the Honduran MoU but cautioned that care should be taken to define exactly what objects should be protected and what dates should be used. The final rules issued today appear to have responded to these concerns by specifying ecclesiastical ethnological goods dating from c.1502-1821 A.D.

The U.S. first entered into a bilateral agreement with Honduras in 2004 after the cultural patrimony found in that Central American nation was found to be in jeopardy from pillage, particularly from archaeological site looting. The U.S. later renewed the MoU in 2009 for another five years, the time frame allowed by the Convention on Cultural Property Implementation Act (CPIA), which gives legal force to the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property.

Cultural objects covered by the MoU's import rules may legally pass through American borders when accompanied by either an export permit or proof showing that they left Honduras prior to the adoption of the restrictions. Prohibited cultural material may be detained, seized, and forfeited by customs authorities as contraband, and smugglers could face criminal prosecution.

Importers would do well to remember that the 1973 Pre-Columbian Monumental or Architectural Sculpture or Murals Statute still applies, permitting import of the goods designated in the law so long as the importer produces a valid export certificate or offers proof that the imported heritage objects left Honduras before June 1, 1973.

Photo credit: Krzysztof Szkurlatowsi

By Rick St. Hilaire Text copyrighted 2010-2014 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Blog url: culturalheritagelawyer.blogspot.com. Any unauthorized reproduction or retransmission of this post is prohibited. CONTACT INFORMATION: www.culturalheritagelawyer.com