Summary of October 5, 2021, Cultural Property Advisory Committee Meeting to Address Emergency Import Restrictions Request on Behalf of the “Former Government of Afghanistan,” Proposed Renewals of MOUs with Cyprus and Peru.

                On October 5, 2021, the US Cultural Property Advisory Committee (“CPAC”) met to consider proposed emergency import restrictions on behalf of the “former government of Afghanistan” as well as proposed renewals of MOUs with Peru and Cyprus.  The following members were present: (1) Stefan Passantino (Chairman- Public); (2) Steven Bledsoe (Public); (3) Karol Wight (Museums); (4) J.D. Demming (Public); (5) Ricardo St. Hilaire (Archaeology); (6) Joan Connelly (Archaeology); Rachael Fulton Brown (Archaeology?); (7) Anthony Wisniewski (Collector-Sale of International Cultural Property); Mark Hendricks (Sale of International Cultural Property?); and David Tamasi (International Sale of Cultural Property?).  Allison Davis, CPAC’s State Department Executive Director, and Michele Prior, also of ECA, were also present.

                It appears that the State Department has seated last minute Trump Appointees in slots reserved to represent the interests of archaeology and the international trade of cultural property, but that has not yet been confirmed on the State Department website.   Rachael Fulton Brown is an associate professor of History at the University of Chicago.  David Tamasi is a Founding Partner and Managing Director of Chartwell Strategy Group, a Washington based government relations and strategic communications firm.  Mark C. Hendricks is a principal at Taradin Service Ltd., a private equity firm.  Messrs. Tamasi’s and Hendricks’ background in the international sale of cultural property is unclear.

Chairman Passantino welcomed the speakers.  He indicated that the Committee had read all the comments, and speakers could only be allotted 4 minutes time given the busy schedule.  He also indicated that due to the addition of Afghan emergency import restrictions to the schedule, the Committee’s consideration of the Cypriot renewal would be tabled until a January meeting.  Nonetheless, speakers were free to discuss Cyprus if they were prepared to do so.  Alternatively, they could defer their comments until January. 

The following speakers addressed the Committee: (1) Kate FitzGibbon (Committee for Cultural Policy/Global Heritage Alliance); (2) Josh Knerly (Association of Art Museum Directors); (3) Dr. Elizabeth Greene (Archaeological Institute of America); (4) Dr. Brian Bauer (University of Illinois); (5) Dr. Karen Olsen Bruhns (San Francisco State University); (6) Peter Tompa (International Association of Professional Numismatists/Professional Numismatists Guild; (7) Dr. Brian Daniels (Archaeological Institute of America); (8) Tess Davis (Antiquities Coalition); (9)  Allen Berman (Author, Professional Numismatist); and (10) Randolph Myers (Ancient Coin Collectors Guild).

Kate FitzGibbon (KFG) spoke first on behalf of the Committee for Cultural Policy (CCP) and Global Heritage Alliance (GHA).  Although she also put in a paper on Peru, she will focus her comment on Afghanistan.  KG lived in Afghanistan from the 1970s to early 1980s writing about the culture and dealing in ethnographic art.   She had to flee the country in 1982 after the Soviet invasion.  The real issue today is not looting but the fear that the Taliban will intentionally destroy cultural heritage either intentionally to score jihadist propaganda points or to exploit Afghanistan’s mineral wealth.  Section 1216 of the National Defense Authorization Act does not provide a basis for safe harbor for Afghan antiquities. ECA should forget about emergency import restrictions and instead work with the trade and museums in protecting Afghan cultural heritage and extracting Afghan archaeologists from the country. 

The CCP’s and GHA’s testimony on Afghanistan can be found here:  https://www.regulations.gov/comment/DOS-2021-0032-0068

Their testimony on the proposed renewal of a MOU with Cyprus can be found here:

https://www.regulations.gov/comment/DOS-2021-0032-0077

Their testimony on the proposed renewal of a MOU with Peru can be found here:

https://www.regulations.gov/comment/DOS-2021-0032-0097

                Josh Knerly (JK) spoke next on behalf of the Association of Art Museum Directors (AAMD).  The request of the “former Government of Afghanistan” raises some serious legal issues.  The government that made the request no longer exists and there was insufficient information provided about the proposal within a short five (5) day comment period to make intelligent comment or for CPAC to have a full grasp of the issues.  The effect of import restrictions may be to freeze objects in place in Afghanistan where they may be destroyed by the Taliban. CPAC needs to consider the consequences of any import restrictions carefully. Section 1216 of the National Defense Authorization Act is not a safe harbor provision.  It only immunizes from seizure institutional loans already covered by an Afghan Government export certificate.  It would make far more sense to defer consideration of the matter until the situation on the ground is clearer.  JK next discussed the Peruvian renewal.  He criticizes the State Department’s replacement of tailored language for each MOU with generic language in Article II of the Agreement.  This generic language does not help AAMD members negotiate with State Parties on museum loans.   The terms and conditions of each MOU should encourage source countries to provide such loans with reasonable fees.  Peru’s loan fees are very high. 

                The AAMD’s written testimony regarding Peru and Cyprus can be found here:

https://www.regulations.gov/comment/DOS-2021-0032-0105

                Dr. Elizabeth Greene (EG) is the president elect of the Archaeological Institute of America (AIA).  She focuses her comments on the Fourth Determination that any import restrictions are consistent with the general interest of the international community in the international exchange of cultural property.   She indicates the AIA’s 200,000 members (this figure derives from the number of subscribers to the AIA’s “Archaeology” Magazine) have benefitted from the MOU.  Many have taken AIA sponsored trips to Peru to view Peruvian cultural heritage.  Peru has been generous with loans, including one recent loan of 200 items. Dr. Greene specializes in the study of transport amphora.  They may appear to be duplicates but have manufacturing marks that makes each unique.  MOUs can protect duplicate objects like amphora and coins as well as ensure the market only contains legitimate material.  They are not perfect, but they do help reduce looting. 

                Dr. Brian Bauer (BB) appreciates the fact that Spanish Colonial era documents have been added to MOUs.  He now asks CPAC to recommend changes to Article II of the MOU with Peru to ensure that archaeological samples can be exported for further study.  There are no labs within Peru which can do this work, but the Peruvian cultural bureaucracy, especially on a provincial level, have made it a bureaucratic nightmare to export such material.  Only material shepherded through the system with the help of Peruvian colleagues gets exported.   Many times requests for export get lost or simply stay in limbo so long that the researcher just gives up.  The MOU needs to be modified to encourage Peruvian authorities to fix this problem.

                Dr. Karen Olsen Bruhns (KOB) believes MOUs are essential to fight illicit networks.  She has been involved in the fight against looting since 1963.  She has seen the depredations of looters in Latin America firsthand.  She assists U.S. Customs in repatriating artifacts.  She names US dealers she claims sell looted goods.  She attacks US Museums as being filled with looted material.  She views collectors as no better than looters.

                Peter Tompa (PT) spoke on behalf of the International Association of Professional Numismatists (IAPN) and the Professional Numismatists Guild (PNG).  He defers his comments on Cyprus to focus attention on Peru and Afghanistan.  Spanish Colonial and Republican era coinage of Peru do not fit the statutory definitions for archaeological or ethnological material.  They cannot be considered archaeological material because they are not normally found underground and/or do not meet the 250-year-old threshold.  Such coins were also produced by Europeans using sophisticated industrial processes that churned out thousands of virtually identical coins.  As such, they cannot be ethnological material either. PT then turns to Afghanistan.  He indicates that is should weigh heavily on CPAC that import restrictions could have the perverse effect of requiring US Customs to “claw back” undocumented Bactrian coins imported from Europe and hand them over to the Taliban who could resell, or even worse, melt them.  The CPIA does not contain a “safe harbor” provision to keep that from happening, and Section 1216 of the National Defense Reauthorization Act will provide no help.  Items will be repatriated when diplomatic relations are reestablished, a decision that will be made based on considerations other than the Taliban’s treatment of cultural heritage.  Restrictions are especially problematic for coin collectors since they are applied not as prospective restrictions on illicitly excavated coins but as embargoes to coins already on legal markets within our major trading partners in the EU, UK, and Switzerland. 

                PT’s oral testimony can be found here:  https://culturalpropertyobserver.blogspot.com/2021/10/the-cpia-cannot-support-import.html

                IAPN’s and PNG’s written testimony on Afghanistan can be found here:

https://www.regulations.gov/comment/DOS-2021-0032-0088

                IAPN’s and PNG’s written testimony on Cyprus can be found here:

https://www.regulations.gov/comment/DOS-2021-0032-0038

                IAPN’s and PNG’s written testimony on Peru can be found here:

https://www.regulations.gov/comment/DOS-2021-0032-0021

Dr. Brian Daniels (BD) spoke for the Archaeological Institute of America (AIA).  The request for a MOU by the former government of Afghanistan allows the Committee to consider emergency import restrictions.   There is looting of crisis proportions in Afghanistan.  Research has shown that 170 sites have suffered looting from 2000-2017.   In 2019, there was an uptick in looting of inscriptions.  Customs has seized archaeological material which appears to be from Tillya Tepe.  In the past decades, US archaeologists have worked on capacity building with their Afghan colleagues. BD acknowledges Section 1216 of the National Defense Reauthorization Act would only have helped evacuating Afghan material when the former government was in power.  Now emergency import restrictions are necessary not only to keep looted material off the market but to support Afghan colleagues.  Customs has inherent authority to hold onto such items until it is safe to return them to Afghanistan. 

The AIA’s submission on Afghanistan can be found here:

https://www.regulations.gov/comment/DOS-2021-0032-0069

                Tess Davis (TD) spoke on behalf of the Antiquities Coalition (AC).  The Antiquities Coalition supports emergency import restrictions on Afghan cultural goods.  It is important to take decisive action now given the warning from the Afghan National Museum that looters and smugglers are taking advantage of political instability following the Taliban take over.   Emergency restrictions are not MOUs, but they can protect cultural heritage and collections.  They do not vest title of artifacts in the government.  No concerted international response is necessary.  The US did not adopt emergency restrictions on Cambodian artifacts in the 1970s and we are now seeing the consequences with investigations into Latchford’s sales of Cambodian conflict antiquities to US collectors and museums. 

                AC’s submission on Afghanistan can be found here:

https://www.regulations.gov/comment/DOS-2021-0032-0082

                AC’s submission about Cyprus can be found here:

https://www.regulations.gov/comment/DOS-2021-0032-0080

AC’s submission on Peru can be found here:

https://www.regulations.gov/comment/DOS-2021-0032-0081

                Allen Berman (AB) is an author, publisher and the American Numismatic Association’s instructor on medieval coinage.  He believes that the law of unintended consequences may apply to import restrictions on coins.  Provenanced coins already cost more, but there are very few comparatively on the market because there was no reason historically to keep the provenance of most coins.  On Peru, 95% of coins produced there was made for export.  On Afghanistan, the last time the Taliban were in control, they not only dynamited the Bamiyan Buddhas; they also smashed artifacts in the National Museum.  AB is horrified by the prospect that the US Government may hand over Bactrian coins to the Taliban.  All these coins feature pagan images the Taliban find offensive.  As to Cyprus, thousands of Crusader era coins are documented as having been found outside of Cyprus so you cannot assume such coins were found there.  It would be better for Cyprus and other countries to try systems akin to the United Kingdom’s Portable Antiquity Scheme and Treasure Act.  This system encourages people to report their finds and allows the government the right of first refusal to buy them.

AB’s written testimony on Afghanistan can be found here:

https://www.regulations.gov/comment/DOS-2021-0032-0037

                His written testimony on Cyprus can be found here:

https://www.regulations.gov/comment/DOS-2021-0032-0035

                Randolph Myers appeared on behalf of the Ancient Coin Collectors Guild (ACCG).  Given the time, he indicated he would defer his comments on Cyprus until January.

                The ACCG’s written testimony on Afghanistan can be found here:

https://www.regulations.gov/comment/DOS-2021-0032-0040

The ACCG’s written testimony on Cyprus can be found here:

https://www.regulations.gov/comment/DOS-2021-0032-0025

Question and Answer Period:

Ricardo St. Hilaire asked JK about Article II in the Peru agreement.  JK indicated that standardized Article IIs do not work.  Peru charges high fees for loans which need to be addressed on an individualized basis in Article II of any renewal.

 Karol Wight asks JK if AAMD museums have faced the same bureaucratic obstacles to loans as BB has experienced with exports of archaeological samples.  JK responds that loans with Peru take an inordinate amount of time to negotiate and that loan fees are high.

J.D. Demming asks if instead of keeping Afghan artifacts in Afghanistan it would be better if they escaped the country given Taliban control.  KOB states that providing a market for antiquities encourages looting.  The real problem is antiquities dealers in the US which now have a “bad odor.”  Sotheby’s now avoids selling antiquities in the US to avoid this perception.  KFG indicates that KOB has an outdated view of the antiquities market based on practices of decades ago.  The art market today takes pains to ensure that what it sells is legal.  Complicating the situation here is that it was quite legal to sell and export antiquities from Afghanistan for decades.  Therefore, one cannot assume items on the market are the products of recent, illicit digs.   Repatriating items to Taliban Afghanistan will not help protect them.  The real issue is the danger of Taliban intentional destruction or destruction of artifacts through mining.  BD indicates that import restrictions will protect items currently in the ground within Afghanistan because there will be less incentive to loot them.  US Customs and the State Department have ample authority to provide safe harbor to any antiquities that are seized.  PT appreciates what BD says about import restrictions protecting unexcavated artifacts within Afghanistan, but the problem is that Customs applies them far too broadly and will repatriate artifacts that have been out of Afghanistan for decades merely because they do not have solid provenances. 

Anthony Wisniewski gets the last word.  He has spent over 500 hours on his CPAC duties.  He has seen lots of conflict between the parties, but thinks all sides believe in cultural property preservation.  He will be working to bring people together to find common ground which promotes both transparency and protects private collections. 

The CPIA Cannot Support Import Restrictions on Spanish Colonial and Republican Era Coins or Any Restrictions that Could Benefit the Taliban

 Here is what I said more or less at today's CPAC meeting:  

        Thank you for the opportunity to speak on behalf of IAPN and PNG.  I am available to answer questions on all our written submissions but will defer my comments on Cyprus until CPAC’s January meeting.   Let me discuss any proposed import restrictions on Peruvian coins first.  CPAC has looked at and rejected prior efforts to impose import restrictions on Latin American coins.  Spanish colonial and Republican era coinage simply do not fit the statutory definitions of “archaeological” or “ethnological” material.  Such coins do not meet the 250-year-old threshold for “archaeological” material.  Nor are they normally found within the ground.  European settlers ran Peru’s mints.  The coins were produced using sophisticated industrial processes churning out thousands of virtually identical objects.  As such, they cannot be deemed “ethnological” material either.  Nor can one assume that Peruvian coins imported into the United States from third countries were ever “first discovered within” or “subject to” Peruvian export control.  Spanish Colonial and Republican era Peruvian coins circulated widely in international commerce, and even served as legal tender in the United States until 1857.

          Now let me address Afghanistan.  It should weigh heavily on CPAC that any emergency import restrictions could very well have the perverse effect of requiring U.S. Customs to “claw back” undocumented Bactrian coins imported from Europe, so they can be handed over to the Taliban who could resell, or even worse, melt them for bullion.  CPAC should be skeptical of any claims this can’t happen because forfeited artifacts will be given “safe harbor” in the United States.  There is no “safe harbor” provision in the CPIA, which instead requires forfeited items to be offered to the State Party, here Afghanistan, now under Taliban control.   Section 1216 of the National Defense Authorization Act of 2021, cited by the Archaeological Institute of America, only applies to institutional loans that the Afghan government has authorized.  The reality is that objects forfeited under the CPIA must be repatriated when diplomatic relations are reinstated, and that decision will be based on factors other than the Taliban’s abysmal treatment of pre-Islamic cultural heritage.

          Finally, let me emphasize that import restrictions are especially problematical for coin collectors because they are applied as embargoes on all “designated” coins imported from legal markets of our major trading partners in the E.U., U.K. and Switzerland rather than as prospective restrictions only placed on “designated” coins illicitly exported from the State Party after the effective date of the governing regulations.  While we agree with the Antiquities Coalition on how the CPIA should operate, we know from hard experience that Customs and the State Department rely on the deference Courts have afforded the government in “foreign policy matters” to green light such confiscatory practices.  We therefore urge CPAC to be especially wary of approving of any new import restrictions on coins, particularly where the Taliban may be their primary beneficiary.  Thank you. 

State Department Adds Afghanistan to Oct. 5, 2021 Agenda-Any Comments due on September 26, 2021!

Incredibly, the State Department now has agreed to entertain a request supposedly from the former Government of Afghanistan that would by necessity have to be negotiated with the new Taliban regime.

The State Department has amended its notice for a Cultural Property Advisory Committee Meeting for October 5, 2021 for CPAC to also address a request for import restrictions supposedly made by the "former government of Afghanistan."  Applicable Federal Register notices can be found here:  

https://www.federalregister.gov/documents/2021/09/21/2021-20339/cultural-property-advisory-committee-additional-meeting-agenda-item

and https://www.federalregister.gov/documents/2021/09/21/2021-20341/notice-of-receipt-of-request-from-the-former-government-of-the-islamic-republic-of-afghanistan-under

 Comments made before the September 26th deadline may be made here:

https://www.federalregister.gov/documents/2021/09/13/2021-19670/cultural-property-advisory-committee-notice-of-meeting

or here:https://www.regulations.gov/document/DOS-2021-0032-0001

Afghan specific comments should be marked as such.

As a threshold matter, CPO questions the legality of the State Department Cultural Heritage Center negotiating with a government that includes globally designated terrorists, including Sirrajudin Haqqani, Afghanistan's new interior minister. There is a push by Congress to designate the Taliban as a foreign terrorist organization.  Should that happen, it would be explicitly illegal to negotiate with them on cultural heritage.

 Additionally, such a proposal raises serious concerns on its merits given the Taliban’s history of intentionally destroying pre-Islamic cultural heritage, which will not be properly vetted because the public is only being given until Sunday, September 26^th to comment.

Please comment before the close. Individual comments are best, but here are model comments for coin collectors:

RE Afghanistan

I am a collector of ancient coins who is very concerned that CPAC will entertain a request for import restrictions supposedly made on behalf of the former government of Afghanistan which by necessity will require the State Department to negotiate with the Taliban regime.  

This request should be denied given the Taliban's long history of destroying pre-Islamic cultural heritage.  Alternatively, no restrictions should be placed on coins which would allow that regime to claw back coins which have been out of Afghanistan for years if not centuries. Given their history, the Taliban are just as likely to resell or even melt such coins for their bullion value as they are to protect them.  

 Import restrictions assume types of items found on the designated list were found in a specific country for which import restrictions were granted.  However, that rarely holds true for ancient coins.  Afghan restrictions will assume all items made in ancient “Bactria” were found there.  However, ancient Bactria also included parts of Tajikistan and Uzbekistan.   Moreover, coins from ancient Bactria circulated not only in Afghanistan but nearby Uzbekistan, Tajikistan, Pakistan and India.  They have also been widely collected at least since the 19^th century, but few have much provenance information attached to them because not required in the past.

Sincerely,

xxx

Please Comment on a Proposed Renewals of MOUs with Cyprus and Peru

 The State Department has announced a proposed renewal and amendment of a Cultural Property Agreement or Memorandum of Understanding (MOU) with the Republic of Cyprus.  The State Department has also announced a proposed renewal with the Republic of Peru.  Import restrictions under the current MOU with Cyprus cover all ancient coins struck in Cyprus through 235 A.D.  Roman or Byzantine coins of Imperial types and other types that circulated in Cyprus are not subject to import restrictions.  Because this MOU is subject to amendment, there is a chance that the State Department may seek to extend current restrictions to other types of coins, particularly those issued by the Crusaders.  The current MOU with Peru does not include colonial or early Republican era coins, but there has been some “chatter” that restrictions should be extended to them too. 

Further information about the October 5, 2021 public meeting of the  Cultural Property Advisory Committee (CPAC)  can be found here:   https://www.federalregister.gov/documents/2021/09/13/2021-19670/cultural-property-advisory-committee-notice-of-meeting   To comment, go to the regulations.gov website and enter the docket DOS-2021-0032 to comment or comment from this link here:  https://www.regulations.gov/document/DOS-2021-0032-0001  Alternatively, the Federal Register page listed above should be modified to include a “comment here” button.   The comment period ends on September 26, 2021.

A.  Background for Coin Collectors

There are large numbers of coin collectors and numismatic firms in the US.  Very few collectors do so to “invest.”  Most collect out of love of history, as an expression of their own cultural identity, or out of interest in other cultures.  All firms that specialize in ancient coins in the US are small businesses. Private collectors and dealers support much academic research into coins.  For example, an American collector collaborated with academics to produce an extensive study of Seleucid coins. A further clamp down on collecting will inevitably lead to less scholarship.

While what became the Cultural Property Implementation Act (CPIA) was being negotiated, one of the State Department’s top lawyers assured Congress that “it would be hard to imagine a case” where coins would be restricted.   In 2007, however, the State Department imposed import restrictions on Cypriot coins, against CPAC’s recommendations, and then misled the public and Congress about it in official government reports.  What also should be troubling is that the decision maker, Assistant Secretary Dina Powell, did so AFTER she had accepted a job with Goldman Sachs where she was recruited by and worked for the spouse of the founder of the Antiquities Coalition, an archaeological advocacy group that has lobbied extensively for import restrictions.  Since that time, additional import restrictions have been imposed on coins from Algeria, Bulgaria, China, Egypt, Greece, Iraq, Italy, Jordan, Libya, Morocco, Syria, Turkey, and Yemen. 

1.        Current Cypriot Import Restrictions

Current import restrictions apply to the following coin types:

 

1.      Issues of the ancient kingdoms of Amathus, Kition, Kourion, Idalion, Lapethos, Marion, Paphos, Soli, and Salamis dating from the end of the 6th century B.C. to 332 B.C.;

 

2.       Issues of the Hellenistic period, such as those of Paphos, Salamis, and Kition from 332 B.C. to c. 30 B.C.;

 

3.       Provincial and local issues of the Roman period from c. 30 B.C. to 235 A.D. Often these have a bust or head on one side and the image of a temple (the Temple of Aphrodite at Palaipaphos) or statue (statue of Zeus Salaminios) on the other.

               

See 72 Fed. Reg. at 38,471-73 (July 13, 2007).

With respect to the wording of the restrictions themselves, Customs has issued restrictions based on place of manufacture rather than find spot.

This is significant because such restrictions ignore evidence that demonstrates that Cypriot mint coins are regularly discovered outside of Cyprus.  Indeed, in a document released under the Freedom of Information Act, a Cypriot cultural official admitted as much in a communication with the State Department:

It is true that Cypriot coins shared the same destiny as all other coins of the ancient world. As a standard media of exchange they circulated all over the       ancient world due to their small size, which facilitated their easy transport… The continuous circulation of coins for many centuries amongst collectors and between collectors and museums make any attempt to locate their exact find spot extremely difficult.

Under current Customs procedures, the above types can only be imported into the United States with: (a) an export certificate issued by Cyprus (which do not exist);   (b) “satisfactory evidence” demonstrating that the coins were exported from or were outside of Cyprus at least 10 years prior to importation into the U.S.; or (c) “satisfactory evidence” demonstrating that the coins were exported from or were outside of Cyprus before restrictions were announced on July 13, 2007.  What constitutes “satisfactory evidence” is ultimately left to the discretion of Customs, but usually takes the form of a declaration by the importer and a statement by the consigner.

The current restrictions do not extend to Roman or Byzantine coins of widely circulating Imperial types or later coins that circulated in Cyprus that are popular with collectors. However, we cannot afford to take this for granted; we simply cannot assume that the archaeological lobby—which actively opposes private collecting—will not press for “more” this time around particularly because the Federal Register indicates that Cyprus itself seeks not just a renewal, but an amendment of the current agreement.  Accordingly, if one feels strongly about their continued ability to collect such coins, they should comment on the regulations.gov website.  Why?  Because silence will only be spun as acquiesce.  So, serious collectors should oppose restrictions on coins or their expansion to widely circulating trade coins as unnecessary and detrimental to the appreciation of ancient culture and the people-to-people contacts collecting brings. 

2.       Proposed Peruvian MOU Renewal

The proposed renewal of the MOU with Peru could also possibly impact collectors of popular Spanish Colonial and Peruvian Republican era coins.  To date, the State Department has not imposed import restrictions on such coins, presumably because they circulated so widely that they were legal tender in the US before 1857.

3.       The Negative Impact of Import Restrictions on People-to-People Contacts Collecting Brings

The cumulative impact of import restrictions has been very problematical for collectors since outside of some valuable Greek coins, most coins simply lack the document trail necessary for legal import under the “safe harbor” provisions of 19 U.S.C. § 2606.  The CPIA only authorizes the government to impose import restrictions on coins and other artifacts first discovered within and subject to the export control of Italy. (19 U.S.C. § 2601). Furthermore, seizure is only appropriate for items on the designated list exported from the State Party after the effective date of regulations.  (19 U.S.C. § 2606).  Unfortunately, the State Department and Customs view this authority far more broadly.  Designated lists have been prepared based on where coins are made and sometimes found, not where they are actually found and hence are subject to export control.  Furthermore, restrictions are not applied prospectively solely to illegal exports made after the effective date of regulations, but rather are enforced against any import into the U.S. made after the effective date of regulations, i.e., an embargo, not targeted, prospective import restrictions.  While it is true enforcement has been spotty, we know of situations where coins have been detained, seized, and repatriated where the importer cannot produce information to prove his or her coins were outside of a country for which import restrictions were granted before the date of restrictions.

      B.  What You Can Do

Admittedly, CPAC seems to be little more than a rubber stamp.  Still, to remain silent is to give the cultural bureaucrats and archaeologists with an ax to grind against collectors exactly what they want-- the claim that any restrictions will not be controversial. 

As discussed above, further information about the upcoming CPAC hearing and how to comment can be found here::   https://www.federalregister.gov/documents/2021/09/13/2021-19670/cultural-property-advisory-committee-notice-of-meeting and https://www.regulations.gov/document/DOS-2021-0032-0001  Please note comments must be made on or before the September 26, 2021 close date.  

Please also note comments submitted in electronic form are not private. They will be posted on http://www.regulations.gov. Because the comments cannot be edited to remove any identifying or contact information, the Department of State cautions against including any information in an electronic submission that one does not want publicly disclosed (including trade secrets and commercial or financial information that is privileged or confidential pursuant to 19 U.S.C. 2605(i)(1)).

C.  What Should You Say?

 What should you say?  Provide a brief, polite explanation about how import restrictions impact you or your business and/or the cultural understanding and people to people contacts collecting provides.   Ancient coin collectors should add it makes no sense to expand current restrictions when the State Department already determined which coins were typically “first discovered within” and “subject to the export control” of Cyprus.  Finally, collectors can point out that Cyprus, as an EU member, must respect the rights of other EU members to export coins of types on the Cypriot designated list, and so should the U.S.  Comments about Peruvian coins should focus on the fact that they circulated widely and that they were even legal tender in the US before 1857.  Comments from collectors outside the US are also welcome. 

 Personalized comments are best, but feel free to use this submission as a model: 

RE Cyprus MOU Renewal

 Dear CPAC:

Please either end the current restrictions on coins, or, at least, do not expand them.  It makes no sense to expand current restrictions when the State Department already determined Roman Imperial and Byzantine coins did not primarily circulate within Cyprus.  Moreover, other EU countries are allowed to export Cypriot coins  on the current designated list.   So, any MOU renewal with Cyprus should recognize that a legal export of any item on the Cypriot  designated list from a sister EU country will be treated as a legal export from Cyprus itself.

Sincerely,

X

 

RE: Peru MOU Renewal

Dear CPAC:

Please do not use this MOU renewal as an excuse to extend import restrictions to Spanish Colonial and Republican era coins that were struck or circulated within Peru.  Such coins are neither archaeological nor ethnological in nature.  They are not archaeological because coins this late are not only or often found in the ground.  They are not ethnological because they are not the products of tribal society, but of what were then considered sophisticated industrial processes.  Such coins also circulated widely elsewhere so one cannot assume they are found in the country.  Indeed, they ever were US legal tender before 1857.

Sincerely,

X

Satterfield Disappoints Representatives of Displaced Minority Populations

Lee Satterfield's confirmation hearing before the Senate Foreign Relations Committee suggests that the Cultural Heritage Center is a minor part of the Assistant Secretary ECA’s portfolio.  It also confirms that the incoming Assistant Secretary likely will not change the "archaeology over all" status quo found at the Bureau.  CPO found her answer to Senator Markey’s question touching on minority rights to be nonresponsive, and understands that representatives of displaced minorities from the MENA region feel the same way. 

Senator Markey  1:11:12

Thank you, Mr Chairman Ms. Satterfield, your position at the Bureau of Educational and Cultural Affairs will allow you to establish import restrictions on cultural goods from foreign countries through the authorization of memorandums of understanding. Cultural property MOUs [use] have the power to impact the cultural heritage of ethnic and religious minority populations which the United States should aim to protect. If confirmed, will you urge the administration to appoint an advocate for religious and ethnic minorities as a public representative to the cultural property advisory committee to ensure that minority populations are properly represented?

 Lee Satterfield  1:11:57

Thank you Senator. ECA is very proud of the work of the Cultural Heritage Center to protect and preserve global heritage. It is critically important work, as you said. ECA can and should play a strong role particularly in cooperating with law enforcement to prevent the financing of transnational terrorism through looting and trafficking of antiquities. If I'm confirmed I look forward to working with Congress, other parts of the department, and private entities, particularly through the advisory committee to ensure a diversity of perspective when continuing the important work, as it was laid out originally by Congress.

 It’s particularly concerning that Satterfield evidently thinks throwing around the archaeological lobby's “terrorist financing” narrative (which RAND and others have largely debunked) can shut off any serious consideration of  the concerns of Greek and Jewish groups about how recent MOU’s recognize the rights of authoritarian MENA governments to the cultural heritage of displaced minorities. CPO thanks American Hellenic Institute for transcribing the event.  You can listen to the whole  confirmation hearing here. 

Putting a Price on the Priceless: Measuring the Illicit Antiquities Trade in Data and Dollars

On July 26, 2021, the Antiquities Coalition and George Mason University Terrorism, Transnational Crime and Corruption Center (TrrACC) conducted an on-line discussion about measuring the illicit trade in antiquities.

 The participants included Louis Shelly (LS) (TrrACC), Neil Brodie (NB) (Oxford), Layla Hashemi (LH) (TrrACC), and Ute Wartenberg-Kagan (UWK) (American Numismatic Society).  Patrick Costello (PC) (Council on Foreign Relations) served as the moderator.

 LS explained the discussion is part of a “big data analysis” performed by TrrACC under a State Department contract.  It looked at both the low end and high-end markets using methods including advanced technologies developed by DARPA to review the Dark Web. 

 Their findings evidently will be published in a book by Rutledge.

 In 2013, NB valued the antiquities market at $64-300 million.  The coin market is valued at $56-$300 million.  RAND’s study did not value the coin market.

 UWK indicates that the coin market comprises of a low-end and a high-end market.  The low-end market found on eBay is huge with over 2 million pieces offered valued at $40-$100 million.  The low-end market represents a significant problem that collectors, archaeologists and the trade should address.

 NB says valuing the trade is a fool’s errand and we should instead focus on the damage the trade causes.  There are ways to estimate the values of artifacts extracted from archaeological sites. 

 LH indicates one must also assess tangible and intangible impacts to cultural heritage, links to terrorism, and funding conflicts.  Technology lowers the barriers to entry into the market meaning gray market participants can act with impunity.

 There is some discussion of free ports.  However, coin traders do not appear to use free ports.

 LH indicates the total illicit trade of all goods (not just antiquities and coins) is $2-$3 trillion.

 NB indicates looting during conflicts does not only harm cultural heritage directly, but the conflicts also drive qualified academics out of countries where they could assess the damage.

 UWK indicates that it is difficult to explain to villagers why it is not a good idea to loot.  In places like Turkey this is even more difficult because those who work the land often do so for absentee landlords.

 UWK indicates the coin trade still purchases fresh coins where it believes it is legal to do so under U.S. law.  She also indicates there are disagreements whether the proper date to assess the provenance for a coin should be the 1970 date of the UNESCO Convention or the date of a Memorandum of Understanding with a source country.  She indicates the focus should be to keeping coins that have been illicitly excavated recently off the market.

 LS indicates that the antiquities trade will soon be subject to Anti-Money laundering regulations, but the art and coin trade should also be subject to such regulations. 

 NB indicates that he is doubtful that established antiquities dealers sell recently looted artifacts, but he indicates that they regularly sell artifacts looted decades ago.

 LH indicates that much of the low-end market is sold on Facebook despite rules against selling antiquities on that platform.

 There are not many antiquities on the Dark Web, but that is because they are sold openly on other platforms. If there is a crackdown on these platforms, it is possible business will move onto the Dark Web.

 There also is some use of crypto currency to purchase antiquities which may raise some issues.

 NB indicates it is hard to get people motivated to protect sites unless tourist dollars are at issue.  Farmers typically aren’t interested in preserving sites.  It is difficult enough to convince people not to loot, but impossible when there is a conflict and people are desperate.

 Prosecutions are helpful to disincentivize unlawful activity.  There are members of DHS law enforcement on the zoom call. 

 NB believes training the military about cultural heritage is a waste of resources. 

 UWK indicates a major problem is the lack of resources directed at enforcement.  She is pessimistic eBay or Facebook can be convinced to stop allowing their platforms to sell coins.

 NB believes antiquities sales should be taxed with the funds going to enforcement.

 LS again states her belief that art in addition to antiquities should be subject to anti-money laundering regulations. 

 LH states her belief that there are some unsavory actors behind the trade on Facebook.

 UWK indicates that Covid has made it harder to move illicit goods. 

 NB does not believe the Portable Antiquities Scheme or Treasure Act is an answer.  He maintains that finds in the UK are grossly underreported, and that the PAS encourages looting.

 Comment:  Very little new information came out of this presentation.  All the participants except for UWK seemed generally hostile to collecting.  LH seemed to be reading Antiquities Coalition talking points throughout much of the presentation.  The content of this seminar should raise fundamental questions about how studies with inputs solely from activists are prepared.  Additionally, one suspects funding considerations may also impact how problems are viewed.  Here, all the focus on discouraging demand for antiquities and coins is not surprising because a holistic approach focused primarily on addressing the causes for looting at the source would require an acknowledgement that source country practices are often a major part of the problem.  No wonder TraCCC came up with a series of excuses why its staff could not to meet with representatives of the coin trade to discuss these issues from a different perspective while its study was ongoing.

Biden Administration Implements Last Minute Trump MOU with Turkey; Coins, Religious Artifacts of Displaced Greek, Jewish, Armenian, and Kurdish Minorities Included

Today’s Federal Register announced regulations implementing the Trump Administration’s January 19, 2021, Memorandum of Understanding (MOU) with the Republic of Turkey.   This MOU is the latest in a series of recent agreements with authoritarian Middle Eastern and North African (MENA) Governments engineered with behind the scenes help from archaeological advocacy groups.  

Following a pattern established in these other recent MENA MOUs, the restrictions being imposed are of exceptional breadth, including virtually all Turkish archaeological and ethnological material dating from 1.2 million B.C. to the founding of the Turkish Republic in 1924.

In a blow to advocacy groups representing displaced religious and ethnic Greek, Jewish, Armenian, and Kurdish minorities, the regulations explicitly list religious artifacts associated with these groups that were either forcibly deported and/or encouraged to leave Turkey during the troubled 20^th century.  The import restrictions explicitly apply to:

I. Archaeological Material

…

B. Metal

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7. Ceremonial Objects – Ritual and ceremonial objects pertaining to Turkey’s religious communities, in bronze, copper, gold, silver, electrum, iron, and lead. This type includes libation vessels, ritual cauldrons and pitchers, rhytons, masks, chalices, plates, censers, candelabras, crosses, pendants, bells, reliquaries, liturgical spoons, Kiddush cups, book covers and boxes, decorated book spines, Torah pointers, finials, andampoules. Approximate date: 5th millennium B.C. to the 18th century A.D.

…

 II.  Ethnological Material

 ...

C. Ritual and Ceremonial Objects – This category includes objects for use in religious services (Christian, Islamic, Jewish, and others) or for imperial use by the state (Byzantine Empire, Seljuk Empire, Anatolian Beyliks, and Ottoman Empire). Examples of ritual and ceremonial objects covered in the Agreement include, but are not limited to, the following objects:

1. Religious Objects – This category includes objects in all materials such as lamps, libation vessels, pitchers, chalices, plates, censers, candelabra, crosses and cross pendants, pilgrim flasks, tabernacles, boxes and chests, carved diptychs, liturgical spoons, Kiddush cups, bells, ampoules, Torah pointers and finials, prayer beads, icons,amulets, and Bektashi surrender stones. This type also includes reliquaries and reliquary containers, which may or may not include human remains. Often engraved or otherwise decorated.

 D. Paintings – This category includes works of paint on plaster, wood, or ceramic from religious or public contexts. Paintings from these periods provide information on social and religious history of the people of Turkey that may be absent from written records. Examples of paintings include, but are not limited to:

 1. Wall Paintings – This category includes paintings on various types of plaster, which generally portray religious images and/or scenes of Biblical events. Types may also include simple applied color, bands and borders, animal, floral, and geometric motifs.

2. Panel Paintings (Icons) – Icons are smaller versions of the scenes on wall paintings, and may be partially covered with gold or silver, sometimes encrusted with semiprecious or precious stones and are usually painted on a wooden panel, often for inclusion in a wooden screen. May also be painted on ceramic.

3. Works on Paper – Paintings may be on papyrus, parchment, and paper. Images depicted may include religious scenes, representations of imperial court life, simple applied color, bands and borders, animal, floral, and geometric motifs.

Additional materials associated with religious and ethnic minorities are covered more generally.  See, e.g., I. Archaeological Material, A. Stone, 1. Sculpture, b. Monuments and Stelae, c. Sarcophagi and Ossuaries, d. Large Statuary, e. Small Statuary, 2. Vessels, 4. Seals and Stamps, 5. Jewelry and Beads, B. Metal, 1. Sculpture, a. Large Statuary and Portraits, b. Small Statuary, c. Reliefs, d. Inscribed and Decorated Metal Sheets and Plates, 2. Vessels, 3. Jewelry and Personal Adornment, 6. Seals and Stamps, 8. Musical Instruments, C. Ceramic, Terracotta, and Faience, 1. Sculpture, a. Architectural Elements, b. Sarcophagi and Ossuaries, c. Large Statuary, d. Small Statuary, e. Terracotta Plaques, 2. Vessels, 4. Seals, Stamps, and Tablets, D. Bone, Ivory, and Other Organic Material, 1. Small Statuary and Figurines, 3. Seals and Stamps, E. Wood, 1. Architectural Elements, F. Glass, 1. Architectural Elements, 2. Vessels, 3. Beads and Jewelry, G. Plaster and Stucco, H. Textile, I. Leather, Parchment, and Paper, J. Rock Art, Painting, and Drawing, K. Mosaics, II. Ethnological Material, A. Architectural Elements, B. Funerary Objects, C. Ritual and Ceremonial Objects, 2. Imperial, 3. Furniture, 4. Textiles, 5. Musical Instruments, E. Written Records.

The prospect of such broad import restrictions on such artifacts raises two distinct concerns. First, as a practical matter, such import restrictions will allow Turkey to “claw back” the religious and community property of Turkey’s displaced Greek, Armenian, Jewish and Kurdish populations living in exile on import into the United States. Second, and perhaps of even more concern, the MOU provides de facto U.S. Government recognition to the claims of the authoritarian Erdogan Government to the cultural patrimony of Turkey’s ancient Greek civilization and the religious and community property of Turkey’s small Greek, Armenian, and Jewish population. Even worse, Erdogan can spin such a MOU as reflecting Department of State support for his conversion of Hagia Sophia and other former Greek Orthodox churches into mosques.

The regulations will also have a significant impact on millions of coin collectors and thousands of small businesses here and abroad that trade in historical coins.   The restrictions on coins are as follows: 

I. Archaeological Material

…

B. Metal

…

9. Coins

a. Greek coins – Archaic coins, dated to 640 – 480 B.C., in electrum, silver and billon, that circulated primarily in Turkey; Classical coins, dated to 479 – 332 B.C., in electrum, silver, gold, and bronze, that circulated primarily in Turkey; and Hellenistic coins, dated to 332 – 31 B.C., in gold, silver, bronze and other base metals, that circulated primarily in Turkey. Greek coins were minted by many authorities for trading and payment and often circulated all over the ancient world, including in Turkey. All categories are based on find information provided in Thompson, M., Mørkholm, O., Kraay, C., Inventory of Greek Coin Hoards, 1973 (available online at http://coinhoards.org/) and the updates in Coin Hoards I-X as well as other hoard and single find publications. Mints located in Turkey and surrounding areas are found in Head, B. V., Historia Numorum, A Manual of Greek Numismatics, 1911 (available online at http://snible.org/coins/hn/).

b. Roman provincial coins – Roman provincial coins, dated from the end of 2nd century B.C. to the early 6th century A.D., in gold, silver, and bronze and copper that circulated primarily in Turkey.

c. Byzantine period coins – Byzantine period coins, in gold, silver, bronze, copper coins, and sometimes electrum, dating from the early 6th century to the 15th century A.D., that circulated primarily in Turkey, (e.g., coins produced at mints in Nicaea and Magnesia under the Empire of Nicaea).

d. Medieval and Islamic coins – Medieval and Islamic coins, in gold, silver,bronze, and copper coins from approximately A.D. 1077 – 1770, that circulated primarily in Turkey.

While the regulations continue a current exemption for widely collected Roman Imperial coins, everything else down to 1770 is included, subject to the qualification that the coin type “circulated primarily in Turkey.”   This qualification apparently stems from the acknowledgement  found in the regulations themselves that ancient coins as a general rule circulated far from where they were minted.  Before the controversial decision to first impose import restrictions on Cypriot coins in 2007, the wide circulation of such coins, as well as the fact that individual types have often come down to us in hundreds or thousands of examples, was enough to keep ancient and early modern coins from being placed on the designated lists. Since that time, coins have usually been included, often misleadingly simply based on the fact that they were minted within the confines of what is today a modern nation state.  

If the phraseology here is meant to better comply with the Cultural Property Implementation Act’s (CPIA’s) language, it still only pays “lip service” to the statutory provisions.  Indeed, the “plain meaning” of the CPIA requires far more.  Import restrictions only apply to “designated archaeological material” under 19 U.S.C. §   2606.  This “designated archaeological material” is that “covered by an agreement” and “listed” under Section 2604.  19 U.S.C. § 2601 (7).  Section 2604 states that U.S. Customs and Border Protection (CBP) and/or the Treasury Department “may list this such material by type or other appropriate classification, but each listing made under this section shall be sufficiently specific and precise to insure that (1) the import restrictions under Section 2606 are applied only to the archaeological . . . material covered by the agreement . . . ; and (2) fair notice is given to importers . . . as to what material is subject to such restrictions.”  19 U.S.C. § 2604 (emphasis added).  The word “only” emphasizes the requirement that “designated archaeological material” must be only that covered by the agreement, i.e., “first discovered within” and “subject to export control by, the State Party.”   19 U.S.C. § 2601 (2).   The word “shall” emphasizes the mandatory nature of this Congressional direction; there is simply no discretion allowed.     See, e.g., Black's Law Dictionary 1407 (8th ed. 2004) (defining "shall" as "has a duty to; more broadly, is required to").  Therefore, under the CPIA, the proper standard is not whether a coin type “primarily” circulated within the confines of a given, modern nation state, but whether it can only be found there.  Moreover, even assuming the “circulated primarily” phraseology were correct, the regulation’s failure to identify which coins “circulated primarily in Turkey” raises the question whether the regulation may be constitutionally void for vagueness. 

In any event, the real problem with such a broad MOU with Turkey is that in seeking to “protect” any and all “Turkish Cultural Patrimony” from looting, the U.S. Government will further harm minority communities living abroad as well as the legitimate trade in “Turkish” artifacts with our major trading partners in the European Union and the United Kingdom.  The cumulative impact of import restrictions on behalf of authoritarian MENA governments has been very problematical because most minor artifacts (like coins) and family keepsakes simply lack the document trail necessary for legal import under the “safe harbor” provisions of CPIA, 19 U.S.C. § 2606. The CPIA only authorizes the government to impose import restrictions on artifacts first discovered within and subject to the export control of a particular country. (19 U.S.C. § 2601.) Furthermore, seizure is only appropriate for items on the designated list exported from the State Party after the effective date of regulations. (19 U.S.C. § 2606.) Unfortunately, the Department of State and CBP view this authority far more broadly. CBP has promulgated designated lists based on where items are made and sometimes found, not where they are actually found and hence are subject to export control. Additionally, restrictions are not applied prospectively solely to illegal exports made after the effective date of regulations, but rather are enforced against any import into the U.S. made after the effective date of regulations, i.e., an embargo, not targeted, prospective import restrictions.

What can be done?  Advocates for displaced minorities and trade and collector groups need to engage with their elected representatives.  Our elected representatives need to be sensitized to these concerns and asked for help in ensuring that any import restrictions are only be applied to archaeological or ethnological objects illicitly exported from Turkey after the June 16, 2021 effective date of the implementing regulations.  Otherwise, the U.S. Government will become Erdogan’s enforcer in clawing back virtually every object that can be considered “Turkish” on entry to the United States, and we will all be poorer for it.