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. 

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

Import Restrictions Without End

The drafters of the CPIA contemplated that import restrictions would give breathing space for source countries to get their own house in order, but they were never supposed to go on forever.  Yet, the State Department and US Customs have extended import restrictions on Peruvian goods for the fourth time.  So, Americans have been limited in their ability to import Peruvian goods from third countries for yet another 5 years.

The extension expands restrictions to colonial era manuscripts although it is dubious that they meet the definition of ethnological objects under the CPIA.  Presumably, the restrictions were put into place to keep Peruvian citizens from selling off old manuscripts to foreigners.  Materials within Peruvian institutions are already restricted from entry in the US under the CPIA's stolen property provisions.

Cultural Property Advisory Committee Meeting on Renewals of Cypriot and Peruvian MOUs

On October 25, 2016, the United States Cultural Property Advisory Committee met to discuss the renewals of the current MOUs with Cyprus and Peru.   The following members were present: (1) Nina Achabal (NA) (Museum Representative); (2) Lothar von Falkenhausen (LVF) (Archaeological Representative); (3) Patty Gerstenblith (PG) (Public Representative-Chair); (4) Jane Levine (JL) (Trade Representative); (5) Thomas Murray (TM) (Trade Representative); (6) Katherine Reid (KR) (Museum Representative); (7) Marta de La Torre (MDLT) (Public Representative); and (8) Nancy Wilkie (NW) (Archaeological Representative).  This will be the last meeting for Patty Gerstenblith and several other CPAC members who have been replaced late in President Obama’s term.

The following speakers appeared to discuss the MOU with Cyprus:  (1) Josh Knerly (JK) (Association of Art Museum Directors) (JK); (2) Carmen Arnold-Biucchi (CAB) (Harvard); (3) Jane DeRose Evans (CDE) (Temple); (4) Peter K. Tompa (PKT)  (International Association of Professional Numismatists/Professional Numismatics Guild); (5) Nathan Elkins (NE) (Baylor); (6) Paul Keen (PK) (University of Massachusetts); (7) Andrew McCarthy (AM) (Cyprus American Archaeological Research Institute) (CAARI); (8) Bryan Wilkins (BW) (CAARI); and (9) Joan Connelly (JC) (New York University), a former CPAC member representing the interests of the archaeological community.

The following speakers appeared to discuss the Peruvian MOU: (1) Brian Bauer (BB) (University of Illinois); and (2) Josh Knerly (JK) (AAMD)

There were also representatives of the State Department, and the Cypriot and Peruvian governments present in the room to hear the testimony. 

Josh Knerly (JK)- Thanks PG for her service. AAMD supports the renewal with qualifications.  There needs to be benchmarks to address problems in both the Northern Turkish Republic and Republic of Cyprus itself.  JK refers to his paper and asks for questions.  MDLT asks about inventories.  JK says inventories should be done to protect the contents of all structures, including mosques.

Carmen Arnold Biucchi (CAB)-Thinks all statutory criteria met.  Designated list should be extended to Byzantine coins.  Coins struck in Cyprus mainly stayed there.  CAB advocates that Cyprus adopt Treasure Act and Portable Antiquities Scheme.  TM applauds her suggestion about the creation of a legal market in Cyprus.  There is no need to hold redundant material in basements.  NW asks about Byzantine coins.  CAB maintains the Byzantine coins struck on the Island did not circulate off the Island in great quantities.   They were not mainly gold coins, which did circulate. NA and PG ask about the archaeological value of coins which CAB confirms. 

Jane DeRose Evans (JDE)-The Antiquities Department promptly investigates looting.  Coins found by metal detectors are easily smuggled.  Agrees with suggestion for restrictions on Byzantine coins.  Says selling coins found on state controlled archaeological sites won’t make much money because their value is minimal.  JDE emphasizes she is not against collecting well provenance coins.  JVF opines that looting of coins causes huge damage to the archaeological record.  ASOR wants to promote responsible collecting. TM notes that partage was a good system that has allowed artifacts to be displayed in museums.  KR indicates times have changed since partage and now long term loans are desirable.

Peter K. Tompa (PKT)-  Unfortunately, the system appears to be rigged.  When the CPIA was being discussed, a top State Department lawyer represented to Congress that import restrictions on coins would be unlikely.  This changed with the Cypriot MOU in 2007.  Two CPAC members have stated under oath that the change was made against CPAC’s recommendations and that the State Department sought to mislead the Congress and the public about it.  More troublingly, it was recently determined that the decision maker made the decision after accepting a job with Goldman Sachs, where she was recruited by and works for a top Goldman Sachs partner who is married to an AIA Trustee and well known heritage lobbyist.  Moreover, things have not changed.  Just recently, the AIA also awarded the current State Department decision maker at a swank gala hosted by this power couple.

Substantively, PKT notes that Cyprus is an Island astride major trade routes so of course coins circulated as proved in a scholarly paper attached to PKT’s submission.  In any event, the governing statute only authorizes restrictions on coins that were first discovered within and are hence subject to the export control of Cyprus.  Thus, the standard is whether such coins are “exclusively” found in Cyprus, not generally found or some lesser standard.  Only coins actually found in Cyprus can be subject to Cypriot export controls.  Paying archaeological workers a fair living wage and better site security in the long off season should be investigated.  Finally, Cyprus should consider instituting a Treasure Act or Portable Antiquities Scheme.

PKT's full oral comments can be found here.  IAPN/PNG's written comments can be found here.

PG and NW maintain that the AIA Trustee was not a Trustee back in 2007.  PKT responds that no one just comes out of nowhere to become a Trustee and there was likely some related work beforehand.  In any case, better transparency on how these decisions are made may help clear up such suspicions.

PG asks PKT about NE’s claim that 80% of Cypriot coins are found on Cyprus.  PKT notes this must be an aggregate figure and that presumably coins from the Ptolemaic and Roman Empires circulated within those Empires.  He notes that Roman Provincial coins from Cyprus are struck on the same standard as the Imperial issues and would have circulated in places like Turkey.

MDLT notes that CPAC’s recommendations are advisory. PKT notes that is true but if State rejects them, State is obliged to justify the change in official government reports which was not done and that the decision maker making her decision after taking a job at Goldman Sachs was troubling. 

NW asks if State Department Lawyer’s statement to Congress was made before metal detectors become prevalent.  PKT indicates they were in use in the 1970’s before the CPIA was passed.

JL asks about collectors maintaining provenance.  PKT says this is easier for expensive items like those at auction at Sotheby’s.  He notes some collectors have thousands of low value coins.

Nathan Elkins (NE) discusses unprovenanced coins on eBay. He maintains the IAPN’s data is selective.  Discusses his own data that led to his conclusion that 80% of Cypriot coins found in Cyprus.  States that a US District Court has rejected PKT’s “first discovered within” argument.  (Note, context is important, that decision was made under a very limited “ultra vires” review of government decision making.)

Paul Keen (PK) discusses coins as archaeological artifacts and their importance in dating sites.  He also maintains Cypriot coins did not travel.  PK talks about a commercial hoard from Jordan he reconstituted that was sold in parcels in London, Paris and Malibu.  The original hoard had 1000 coins.  NW asks whether the hoard would have more value as a whole.  PK says yes, but buyers more likely to purchase piecemeal. 

Andrew McCarthy (AM) is director of CAARI.  Notes US Government support for his organization. Cypriot Government very welcoming host to American archaeologists.  Government addresses looting promptly.  KR asks about accusations of Paphos Mayor that local Antiquities Department personnel had stolen artifacts from storage.  AM says this is a smokescreen because the antiquities authority is holding up local road construction.  He produces documents from excavators and police that purport to exonerate the antiquities service.

Bryan Wilkins (BW) is President of CAARI. Maintains MOUs have helped in a decline in looting.  Notes US State Department support including a $100,000 grant per year for the purpose of funding two scholars.  Notes outreach efforts to local communities to enlighten them about the dangers of looting.  Discussion of shipwreck now in Northern Cyprus.  KR discusses long term loans.  NA notes some of the Cesnola collection now on display in Nicosia.

Joan Connelly (JC) attributes all Cyprus’ problems to Turkish invasion.  Sets forth her close relationship with the Cypriot Antiquities service and her long work on the Island. (Note:  Perhaps IAPN/PNG’s 2007 request that she be recused from voting on the Cyprus MOU request should have been granted after all.) Discusses 15 American digs on Island.  Calls for AAMD to apologize for suggesting the Turkish Republic for Northern Cyprus is a recognized political entity.  Attacks the AAMD’s suggestion that benchmarks be set for the renewal of the next MOU as “neo-colonialist.”  In response to question from NA, attacks PAS and Treasure Act.

JL indicates her belief that JC is misconstruing JK discussion of benchmarks.  JC notes she is an honorary citizen of Paphos, decries reckless attacks of Paphos Mayor on antiquities service.

Brian Brauer (BB) states Peru has met the criteria for renewal.  He notes that greater efforts must be made to ensure that site guards get a living wage.   He requests new restrictions on Colonial documents and fossils.  PG says that CPIA may not allow restrictions on fossils.  She asks for more detail on colonial era documents.  BB says now families who own old documents can sell them on eBay.  They should stay in Peru.  BB defers to AAMD on loans and does not express concern about benchmarks proposed by AAMD. 

Josh Knerly (JK) notes he is gratified that not all proposals for benchmarks are controversial.  He notes that all the issues raised by AAMD 5 years ago, especially regarding long term loans have yet to be addressed.  There is some discussion of on-line inventories so that items may be selected for loans. PG expresses concern that these only be made available to museums so that thieves will not get valuable information.  

Peruvian Officials Look the Other Way

The Peruvian cultural bureaucracy has made a big show of going after smugglers using the mails, demanding the repatriation artifacts long held by "Yanqui" institutions like Yale, and even seeking its cut of Spanish treasure.  On the other hand, the same Peruvian cultural bureaucracy seems unwilling or unable to stop the bulldozing of major archaeological sites within the country in the name of development.  Should Peru be branded a "malefactor source country" and be denied further U.S. taxpayer assistance to finance the U.S. State Department's repatriation efforts?  CPO believes so.