Tuesday, April 29, 2014

Easier Said Than Done

In light of the upcoming close of the comment period for the Egyptian MOU, at least one in the archaeological blogosphere has engaged in a disinformation campaign to suggest that complying with MOUs is no big deal, and to imply that anyone saying otherwise is a liar.

Never mind that individual has presumably never tried to import cultural goods into the United States, nor is there any suggestion that he has consulted with anyone who has actually imported artifacts themselves or represented those who do.

In any case, this is how a former top Customs official described the process at a recent public forum in New York City:

Page 11

One of the things that customs does when an object comes in from one of the 14 countries that has a bilateral agreement under the CPIA, the CPIA says that if an object is imported without a permit from the source country then the import can be allowed under the statute by providing “satisfactory information” that the object was out of the country before the imposition of the bilateral, or has been out of the country for more than ten years. And there are two paragraphs that quote what that satisfactory evidence consists of and what it should state. It was out of the country for 10 years prior to import - it was out of the country before the imposition of the bilateral, and so on. Just to show you what happens in that case. An affidavit that satisfies this should be sufficient for the piece to be released, but it is not. You can literally lift that language right out of the law and have your client sign an affidavit that attests to that. Because it states exactly what the statute requires it should be sufficient. The shipment should be released, right? No. The CPIA does not put limitations on customs and homeland security to stop asking for more. The agent or inspector comes back and says, I want more. They say, I don’t like that affidavit, give me another. I don’t know that person, give me one from another person. They continually ask for more and create, at a whim, what they want. The question is do you feed the government more? If you don’t give them more, they seize it. If you do give them more, they ask for more again. Maybe they are looking for you to establish that you made a false statement and take you down the path you never intended to go down. Then the case goes from civil to criminal. Don't forget that behind the scenes, any document you give them, they are sending collateral requests to the agents in foreign countries to verify the document. And if they can catch you with a false document or a false statement, intentionally or unintentionally now you have a criminal problem. There is no limitation on what is called quote unquote satisfactory evidence. I have a client who had an object seized in April 2011 – this is April 2014, and I still haven’t got it released. This could go on for another 30 years. Again, there is no limitation on what they can ask for and what is satisfactory evidence and that is what is wrong with the CPIA.

And this is how another customs law practitioner who has represented clients in the area has described the process at an earlier public forum in Washington, D.C.:

Page 69

16    Generally speaking, the act requires that if you're
17 importing an object that could possibly be import restricted,
18 it can be imported if you can show that the object was
19 outside of the state party before the date the MOU was
20 signed. The act is clear that all that is required is a
21 statement from the exporter and a statement from the importer
22 confirming that the object was outside the state party before

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1 the date the MOU was signed. That object is outside of the
2 act. The act is not retroactive.
3 The problem is that although the act is clear, and Jim
4 could probably speak to this better than me, it is my belief
5 that that was the negotiated settlement that because many
6 objects don't have a documented provenance, the affidavit or
7 the declarations would be enough to import the object without
8 any other information.
9 MR. FITZPATRICK: Ashton Hawkins spent a year on behalf
10 of the museum community negotiating that with the
11 archeologist community and with the State Department.
12 MR. MCCULLOUGH: And on the enforcement side, I could
13 tell you today that that requirement is ignored. The
14 declarations are collected. However, the importer is asked
15 to provide additional documentation supporting those
16 declarations, at least in the trade that's true. I don't
17 know if that's true in the museum community, but in the
18 trade, for dealers and collectors, they are required to show
19 documentary proof that the object was outside the country.
20 The declarations are not enough.
21 And last, on the ICE side, so we have CBP or the cargo
22 people who deal with the entry of the object at the time it

Page 71
1 shows up at the airport. We then have Immigration and
2 Customs Enforcement, which is a law enforcement branch of
3 Homeland Security.
4 They are very aggressive. We've heard a lot of stories
5 of seizures, detainments. There has been a de facto sort of
6 rule at ICE that we seize first and we ask questions later.

So who is more believable?  An archaeo-blogger with an axe to grind or those who have actually practiced in the area and have real, hands on experience?

So, sure, if you think complying with MOUs is no big deal and you will still be able to easily purchase coins for your collection, by all means take this archaeological blogger's advice and sit back and do nothing.  On the other hand, if you are concerned about the prospect of new import restrictions on Egyptian cultural goods and the cumulative impact these and other import restrictions are having on our hobby, please comment to CPAC "prejudged" MOU or not by the May 14, 2014 close date.


John H said...

Given that anything the cut-and-paste artist Barford would have the world believe is factual, then I for one am obliged and will always take the opposing view!

There is no way that I can see that anyone even with a modicum of common sense, given his past nonsensical propaganda -- his artifact erosion counter being the laughable and prime example -- would even decorate Barford's views of the heritage or collecting with anything other than utter scorn. It's not even that his views are important...he's a non-runner!

It seems to me that he wants to bring the entire debate to his level...the gutter. We must rise above this, Mr Tompa,

Best avoid this numpty!


John Howland

Cultural Property Observer said...

Thanks. I've decided to no longer accept comments from Mr. Barford on this blog and I will no longer post any comments on his blog either. He sometimes makes good points, but they are inevitably accompanied by insulting language and illustrations. I do note, however, he did honor my request to take down an altered picture of me. I do hope he sticks to the issues in the future when discussing my posts on his own blog, but suspect that won't happen. So be it.

Cultural Property Observer said...

Not that anyone should really care, but I now see Mr. Barford is stating that I "threatened him" because I didn't like his characterizations of my arguments. What I did say is that the photo-shopped image of me he placed on his blog placed me in a false light, which is an actionable tort in Washington, D.C. I also noted that he has gone ballistic when others have posted unaltered images of him on their blogs. Anyway, he's taken down that image for which I thank him. Still, I don't think its worth the time or aggregation to respond to any more comments he may make on this blog so I'm not going to post them any longer. And of course, I won't post on his blog either. Overall, as mentioned above, I do think he sometimes makes good points, but the problem is that they are inevitably accompanied by an insult and perhaps some altered image. Look at his posts today for example.

John H said...

Welcome aboard, Mr Tompa. You are in excellent company!

I and Mr Stout have previously been accused by him and his loudmouthed vacuous pal in England of inciting violence and such things. He even accuses Polish detectorists of threatening him ....allegedly!

Given his past history and insulting manner, I wouldn't be surprised and given his ability to gild the lily, that if any Poles really did threaten him ...may originate from the days when he lorded it over them during his communist sojourn.

Frankly,given his arrogant, bullying manner, and the insults he hurls at those he perceives as his intellectual inferiors, I can't say I'd blame them! Old scores being settled?

He's obviously never heard the old adage: Be nice to people on the way up, for you'll meet the same people on the way down.

Best regards

John Howland

kyri said...

i personally have had no problem importing from the us into the uk.i have bought flintlock weapons and some important antiquities from the us but the import duty and the dreaded "held at customs"when tracking the piece sometimes,for months, is a big put off.as for the artifact erosion counter that everyone seems to think is poppycock,even the PAS website states "that flos are selective in what they record"
so for all we know there may be 100k artifacts shown to flos but not recorded each year,never mind the 1000s of pieces found and not reported to flos for one reason or another.i have seen hundreds of metal detector finds at auctions,coins,brooches none with a PAS number.at my local auction in southgate this week[monday]they had a lot with about 20 roman bronze coins and one brooch labeled "metal detector finds " another 21 that got away.

kyri said...

hi peter,i just asked daniel pett one of the top people at the PAS if there were any figures or estimates for how many reported finds are rejected by flos and not recorded and he says "there is no estimates"so there could be 100k pieces found, reported, but not recorded for all we know.

Cultural Property Observer said...

Hi Kyri, this is a bit off topic to this post, but while I agree with you to a point, the same thing happens at archaeological sites-- not every single thing is recorded, there is some discretion involved. Best, Peter