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Tuesday, May 27, 2014

National Historic Preservation Act Diluted as Congress Adopts Military LAND Act, Opposed by Department of Defense

The Military Land and National Defense Act, more commonly known as the Military LAND Act, diminishes historic preservation. Immediately before the Memorial Day weekend, the House of Representative voted 325-98 to approve the National Defense Authorization Act for Fiscal Year 2015. That bill included the Military LAND Act, which is opposed by the defense department.

If enacted into law, the Military LAND Act would dilute the National Historic Preservation Act (NHPA) by allowing a federal agency head to single-handedly block an historic property from being classified as a culturally protected site.

The bill specifically would require the Secretary of the Interior to alert the House Committee on Natural Resources and the Senate Committee on Energy and Natural Resources anytime a federally owned property is reviewed for inclusion on the National Register of Historic Places for designation as a National Historic Landmark or for nomination to the World Heritage List.  Items that qualify would include those that are significant to American history, architecture, archaeology, engineering, and culture. The bill would allow the head of any federal agency managing historic properties to object on the grounds of national security.

Maureen Sullivan of the Office of the Deputy Undersecretary of Defense (Installations and Environment) and the Secretary of Defense’s representative to the Advisory Council on Historic Preservation told Congress that the NHPA has been working for the U.S. military. “We do not … believe that H.R. 3687 [the Military LAND Act] is currently needed to preserve our access to the lands we need to test and train,” she said. Sullivan testified:
The National Historic Preservation Act, as currently enacted, supports the warfighter by preserving our ability to effectively use our lands and built environment to support needed testing and training. The Act also protects the quality of life for our military men and women, their families, and the public by facilitating a strong connection to our shared history, culture, and traditions. Finally, it promotes efficiencies by encouraging partnerships with national, state, regional, tribal, and local agencies and organizations. 
The National Historic Preservation Act provides the foundation for the Department of Defense’s Cultural Resources Management Program. For almost 50 years, the Act has proven instrumental in helping our installations develop cooperative plans and projects that have benefited cultural resources on military lands and facilitated our mission. The current regulations implementing the Act, as well as the National Register of Historic Places and National Historic Landmark nomination processes, work well for DoD. Although managing the Department’s large inventory of historic properties requires vigilance, we have not found compliance with the NHPA to be an impediment to our ability to meet our military readiness obligations.
Lawmakers adopted the NHPA in 1966 and, forty years later, President George W. Bush enacted fresh amendments. First Lady Laura Bush marked the anniversary in 2006 at the Preserve America Summit by expressing support for preserving America’s heritage, characterizing it as the “soul of the United States.” The NHPA is one of several legislative descendants of President Theodore Roosevelt’s Antiquities Act of 1906.

Having been passed by the House, the Military LAND Act now will be considered by the Senate.

Photo credit: Ben Shafer

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

Monday, May 26, 2014

Museums Honor America's Soldiers with Free Admission

Cultural institutions throughout the country will offer free admission to active duty, National Guard, and Reserve soldiers, sailors, airmen, and marines from Memorial Day through Labor Day. These "Blue Star" museums and science centers will once again, as in past years, open their doors to the brave men and women who serve in America's armed forces.

Participants include some of the nations top institutions like the Museum of Fine Arts, Boston; the American Museum of Natural History in New York; the Art Institute of Chicago; and the Los Angeles County Museum of ArtFind a complete listing of all participating cultural institutions here.

Photo credit: Sheila VooDoo

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

Friday, May 23, 2014

Ivory Ban Relaxed A Little - Museums Should Take Note

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

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

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

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

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

Photo credit: USFWS

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

Wednesday, May 21, 2014

The Cultural Property Implementation Act Covers Ancient Coins

The Convention on Cultural Property Implementation Act (CPIA) classifies designated ancient coin artifacts as archaeological material. 

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

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

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

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

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


Import controls enacted under the CPIA must regulate cultural property that is "archaeological material." By the terms of 19 U.S.C. §2601(2)(C), that is material
which was first discovered within, and is subject to export control by, the State Party. For purposes of this paragraph—(i) no object may be considered to be an object of archaeological interest unless such object—(I) is of cultural significance; (II) is at least two hundred and fifty years old; and (III) was normally discovered as a result of scientific excavation, clandestine or accidental digging, or exploration on land or under water; and
Ancient coins covered under currently enacted CPIA import protections include what is described in the definition above, namely those that are dug up and at least 250 years old. They are also artifacts of cultural significance because of their archaeological value. The Federal Register (Jan. 19, 2011), for example, chronicled the CPIA bilateral agreement with Italy by reporting, “Coins constitute an inseparable part of the archaeological record of Italy, and, like other archaeological objects, they are vulnerable to pillage and illicit export.”

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

In the same case, the ACCG complained that collectors do not always have documents supporting the import of most ancient coins. The Fourth Circuit acknowledged that there may be cultural property imported into the U.S. that lack provenance or export permits, but pointed out that there is a process allowing importers to show that the objects are legal. The court observed:
In those cases, the [CPIA] statute expressly provides that CBP may seize the articles at the border: ‘If the [importer] of any designated archaeological or ethnological material is unable to present to the customs officer” the required documentation, the “officer concerned shall refuse to release the material from customs custody ... until such documentation or evidence is filed with such officer.’ 19 U.S.C. § 2606(b). In short, CBP need not demonstrate that the articles are restricted; rather, the statute “expressly places the burden on importers to prove that they are importable.”
The court highlighted that, under the CPIA, "[t]he importer need not document every movement of its articles since ancient times. It need demonstrate only that the articles left the country that has requested import restrictions before those restrictions went into effect or more than ten years before the date of import."

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

Photo credit: Patrick Moore

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

Thursday, May 15, 2014

UPDATED > Proposed U.S.-Egypt MoU Attracts Contrasting Comments from Heritage Preservationists and Ancient Coin Collectors

“Please exempt ancient coins. Don't ruin my hobby. Thanks[.]” That reaction summarizes many comments submitted to the Cultural Property Advisory Committee (CPAC) by dozens of ancient coin collectors worried about the adoption of a Memorandum of Understanding (MoU) between the United States and Egypt. The MoU, if recommended by CPAC and approved by the president, would restrict endangered Egyptian archaeological and ethnological objects from import into the U.S.

Egyptologists, archaeologists, and preservationists cited the increased looting of archaeology occurring in Egypt since 2011 as a prime reason to adopt the MoU. “Many major tourist sites have experienced intensified looting ...,” said the Society for American Archaeology in its public comment. And Egyptologist Dr. Monica Hanna offered several graphic photographs of the ravages of looting.

Last month, the U.S. State Department issued notice of Egypt’s request for an MoU under the Convention on Cultural Property Implementation Act (CPIA). The agency announced:
Egypt, concerned that its cultural heritage is in jeopardy from pillage, made a request to the Government of the United States under Article 9 of the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property. The United States Department of State received this request in April 2014. Egypt's request seeks U.S. import restrictions on archaeological and ethnological material from Egypt representing its prehistoric through Ottoman heritage.
The written public comment period closed yesterday, attracting over 350 submissions.

Ancient coin collectors joined an organized effort to convince CPAC to either reject the adoption of the MoU or to simply exempt ancient coins. One illustrative comment declared:
Ancient coins should not be included in this ban. They are of a different nature than other antiquities, being mass produced in large establishments of ancient governments. In addition, if historical historical (sic) information is considered important, banning the import of these coins will have the opposite effect, forcing coins into the illicit end of the market; if legalized, there would be no such need for smuggling, and historical information could be preserved.
Another submission, evidently carved from a template seen in other comments, stated“The request of the United (sic) Arab Republic of Egypt should be denied. It does not meet the requirements established by the CPIA [in the] early eighties.” The Ancient Coin Collectors Guild, the International Association of Professional Numismatists, and the Professional Numismatists Guild all urged the removal of coins from CPAC's consideration of potential import restrictions on jeopardized archaeological material.

Organizations representing archaeology and heritage preservation universally submitted comments supporting the adoption of a bilateral agreement between the U.S. and Egypt. With a collective membership of over 230,000, the Archaeological Institute of America (AIA), the Society of American Archaeology (SAA), the American Anthropological Association (AAA), and The American Schools of Oriental Research (ASOR) submitted a joint statement highlighting “the loss of archaeological context and thus our ability to understand temporal and social relationships and political structures as they impacted daily life, birth, and death.”

Writing on behalf of the American Research Center in Egypt, Brown University professor and Egyptologist Laurel Bestock offered a first-hand account of the looting threat in Egypt:
Coins and statues are some of the prime types of artifacts that are traded on the antiquities market, and there is no doubt that those my team found would have been immediately saleable had they been uncovered by looters. We found these objects in January of 2011, only days before the revolution began. In the aftermath of the revolution, looting at Abydos increased significantly; I would not be at all surprised if the discovery of the cache had some role in this, as the decision to avoid a public announcement could hardly keep their existence from being known locally. The very area where these were found was the subject of a nightime looting attempt while I was excavating in 2013. Thankfully the local police as well as the head workmen from my excavation, our guards, and our house staff responded immediately. On this occasion no looting was done. But as Dr. O’Connor noted, Abydos has had hundreds of looters pits dug since the revolution. These have been documented by comparing satellite imagery before and after January 2011, and archaeological fact-checking on the ground. To walk across the site is to see holes with bricks and pots thrown aside, gaping wounds in the archaeological landscape. While the incidence of looting has decreased significantly, the threat to the site and the information it contains remains very real. Abydos stands in the middle. Some sites have seen nearly no looting, and some have seen looting that has nearly destroyed them, has made it impossible for archaeologists to conduct work there.
The Penn Cultural Heritage Center submitted a meticulously researched and rigorously documented letter detailing the recent pillage of archaeological material in Egypt, noting that its institution currently maintains 700+ reports of “looting incidents or cultural heritage damage” since the 2011 Egyptian revolution. The letter argued that “there is a condition of extraordinary pillage of cultural patrimony in Egypt.”

The letter touched on all aspects of the “four determinations” that CPAC must consider under the CPIA, which include:
(A) [whether] the cultural patrimony of the State Party is in jeopardy from the pillage of archaeological or ethnological materials of the State Party;
(B) [whether] the State Party has taken measures consistent with the Convention to protect its cultural patrimony;
(C) [whether] --(i) the application of the import restrictions . . . with respect to archaeological or ethnological material of the State Party, if applied in concert with similar restrictions implemented, or to be implemented within a reasonable period of time, by those nations (whether or not State Parties [to the 1970 UNESCO Convention]) individually having a significant import trade in such material, would be of substantial benefit in deterring a serious situation of pillage, and (ii) remedies less drastic than the application of the restrictions set forth in such section are not available; and
(D) [whether] the application of the import restrictions . . . in the particular circumstances is consistent with the general interest of the international community in the interchange of cultural property among nations for scientific, cultural, and educational purposes.
With regard to the third determination, The Penn Center noted:
Already, there is a strong international response to the pillage in Egypt. As CPAC is well aware, countries implement the 1970 UNESCO Convention in different ways. Most states party grant reciprocal recognition to the export restrictions of other counties. Such is the system in Canada, for example, which, in 2007, intercepted a Greco-Roman bust smuggled from Egypt. Switzerland is the only country with a protection regime involving bilateral agreements similar to those in the United States. Switzerland entered into an agreement with Egypt in 2010. Major market countries such as Belgium, Canada, France, Germany, Israel, and the United Kingdom have all been involved in the recovery and return of Egyptian material …. The United States would therefore not be alone in responding to the situation of pillage in Egypt with import restrictions.
A public hearing on the MoU proposal will be held in Washington, DC in June.

Photo credit: Enrico Nunziati

This post was updated on May 16, 2014.

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

Wednesday, May 14, 2014

The Top Import Suppliers of Works of Art, Collectors’ Pieces and Antiques to the United States

Works of art, collectors’ pieces and antiques imported into the United States are categorized by Harmonized Tariff Schedule (HTS) code 97. CHL recently identified 2013's top source countries of archaeological, historical, and ethnological material to the U.S. But which nations rank in 2013's top 10 list of suppliers for all HTS 97 imports by general customs value? They are, in order from highest to lowest declared customs values,

France
United Kingdom
Italy
Germany
Spain
Switzerland
China
Netherlands
Japan
Belgium

The table below shows the fuller picture of 2009 through 2013 American imports of works of art, collectors’ pieces and antiques, displaying the total general customs import values among last year's top 25 source nations.


The data have been compiled from publicly available tariff and trade information produced by the U.S. Department of Commerce and the U.S. International Trade Commission.

The commodities classified by HTS 97 consist of paintings, drawings, engravings, prints, lithographs, sculptures, statuary, and stamps. Also included are collectors' pieces and collections of zoological, botanical, mineralogical, anatomical, historical, archaeological, and paleontological materials. Numismatics fall under the classification too, as do antiques over 100 years old.

Copyright note: Although the data presented here is sourced from publicly available information, it has been carefully selected, coordinated, arranged, and analyzed so that it is subject to copyright as a compilation by CHL. The publication, retransmission, or broadcast of this compiled data is strictly prohibited without CHL's express consent.

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

Thursday, May 8, 2014

The Museum Raids Cases Revisited: Recalling the Southeast Asian Artifacts Seized and the Dealers Indicted

The recent repatriations of Cambodian cultural objects by Sotheby's, Christie's, the Metropolitan Museum of Art, and the Norton Simon Museum have once again drawn  public attention to at-risk Cambodian heritage. It has also reminded CHL of the ongoing California court cases involving Southeast Asian cultural objects.

Six years ago, dramatic police raids on several museums sparked criminal prosecutions that now quietly crawl through the justice system. The silence in the years following the initial government-generated publicity should be no surprise given that authorities were dealt a blow when one of the arrested suspects, a scholar, died in federal custody in May 2008 after jail officials failed to respond to the inmate's health emergency.

The museum raids occurred on a morning in January 2008 when a troop of officers outfitted with agency alphabet jackets entered the Los Angeles County Museum of Art, the Bowers Museum, the Pacific Asia Museum, and the Mingei Museum. The goal of the raids was to "seize in place" cultural objects identified in court authorized search warrants. The media covered the event and were permitted access to the contents of the warrant affidavits.

A five-year undercover investigation prompted the law enforcement sweep, but seemingly little happened afterwards, prompting the Los Angeles Times last year to write, "No museum officials or collectors involved in the Southern California probe have been indicted, and no seized objects have been returned to their countries."

Earlier this year, however, a federal district court unsealed the cases of U.S. v. Jonathan Markell and U.S. v. Robert Olson after the U.S. Attorney"s Office for the Central District of California made an ex parte request to the court. The government's legal petition disclosed that a grand jury indicted both defendants on August 15, 2008. The petition explained that the criminal charge should be unsealed "for the purpose of formally initiating the prosecution of this case."

The unsealed indictment reveals that antiquities dealers Markell and Olson were charged with one count of conspiracy to "knowingly enter and introduce into the commerce of the United States imported merchandise, namely, Burmese and  Khmer antiquities, by means of materially false declarations and statementsand three counts of false statements concerning the entry of goods into the U.S.

It should be recalled that an indictment is simply a formal process that initiates a criminal proceeding. Defendants who are charged are always presumed innocent unless prosecutors prove guilt beyond a reasonable doubt. That should remain the presumption here.

In 2010, a grand jury handed up a seven count indictment against Jonathan Markell and his wife, Carolyn Markell, both owners of an antiquities gallery. The court unsealed the charging document in June 2011 at prosecutors' request. The indictment alleges conspiracy to defraud, subscribing to false income tax return, wire fraud, and aiding and abetting. The most recent court summons schedules the defendants for a hearing in the matter later this month. 

A grand jury in indicted Olson once again in 2013, along with alleged exporter and co-conspirator Marc Pettibone. The indictment alleges conspiracy, aiding and abetting, smuggling, and receiving and transferring stolen property.

Because the 2008 Markell/Olson indictment has now been unsealed, we know its claims. The charging document reads that Markell and Olson allegedly would:
 ... travel to Thailand to purchase Burmese and Khmer antiquities, including marble, wooden, bronze, and lacquer Buddhas and Khmer bronze bells, that were over 100 years old ("the antiquities"). 
... cause the purchased Buddhas to be described on purchase invoices and packing lists as "sitting man" or "reclining man" to conceal their true nature and character.
... cause the purchased Khmer bronze bells to be described on purchase invoices and packing lists as "bell," "bell 12th," "bronze bell," and "stand (bell)" to conceal their true nature and character.  
... cause the antiquities to be listed on purchase invoices at 25% of their true purchase price.  
... provide to a customs broker the purchase invoices and packing lists containing false statements describing the antiquities.  
... cause a customs broker, relying upon the purchase invoices and packing lists containing false statements, to prepare an Entry Summary and associated import documents that also contained similar false statements regarding the antiquities. 
... cause a customs broker to file the Entry Summary and associated invoices, packing lists, and other shipping documents, that falsely described the antiquities, to be filed with the Department of Homeland Security, Customs and Border Protection, at the time of importation.
Meanwhile, the 2010 indictment against Jonathan and Carolyn Markell charge them both with a "donations package" plan whereby "falsely inflated" appraisal values would be secured for cultural objects donated to museums. The indictment reads, in part:
Beginning on a date unknown and continuing to at least in or about January 2008 ... [the] defendants and other unindicted co-conspirators, conspired and agreed with each other to knowingly and intentionally defraud the United States, for the purpose of  impeding, impairing, obstructing, and defeating the lawful Government functions of the Internal Revenue Service ... by promoting and   participating in  false  charitable deduction scheme for the purpose of improperly claiming charitable deductions on Federal income tax returns ....
The 2013 Olson/Pettibone indictment alleges that Pettibone purchased archaeological artifacts looted by diggers in Thailand and Cambodia, bribed Thai customs officials and filled out false paperwork to export the objects, affixed "made in Thailand" stickers to make ancient artifacts appear modern, and shipped both Thai and Cambodian archaeological material to Olson. It is alleged that Olson, in turn, stored the goods in warehouses located in California and then sold the merchandise in the U.S. and elsewhere.

The charging document points to alleged violations of the federal National Stolen Property Act--predicated upon ownership interests maintained by Thai and Cambodian title vesting laws--and to a claimed smuggling conspiracy that allegedly skirted the Cultural Property Implementation Act's import restrictions meant to outlaw endangered Cambodian archaeological material from entering the U.S. marketplace.

One fact sequence contained in the Olson/Pettibone indictment recites allegations focused on artifacts from Cambodia. These assertions, naturally, must be proved beyond a reasonable doubt by the prosecution:
On or about November 6, 2005, defendant OLSON sent money to defendant PETTIBONE for the purchase of swords and daggers looted from Cambodia. 
On or about November 10, 2005, defendant OLSON received a shipment from defendant PETTIBONE in Thailand containing six metal swords and two metal daggers.
On or about November 10, 2005, defendant OLSON told the UCA [an undercover federal agent] that he had just received six swords and two daggers from a site in Cambodia. Defendant OLSON described the swords and daggers as being "pre-Khmer" and  dating from 1,000 A.D. Defendant OLSON further told the UCA that he had the swords and daggers classified on United States Customs documents as "metal sticks," and defendant OLSON offered to sell the swords and daggers to the UCA. 
On or about November 16, 2005, defendant OLSON offered to sell the UCA the Cambodian swords and daggers received from defendant PETTIBONE on or about November 10, 2005. Defendant OLSON also told the UCA that an additional shipment of swords had been delayed because the shipper needed to avoid a new team of Thai Customs officials. 
On or about November 17, 2005, defendant OLSON met the UCA at defendant OLSON'S storage lockers in Cerritos, California. During their meeting, defendant OLSON showed the UCA the six swords and two daggers shipped from Thailand by defendant PETTIBONE, and defendant OLSON told the UCA he had purchased the antiques from defendant PETTIBONE.
The indictment indicates that descriptions of "gifts," "metal sticks," and "samples" were allegedly written on customs forms to mask the true contents of the shipments.

Of particular importance to this 2013 indictment is a forfeiture request. The government asks the court to forfeit “any and all property seized by law enforcement officers on or about January 24, 2008." The warrant returns, which are the receipts listing all the objects the police seized, remain unavailable online. But it is known from the original warrant affidavits that many cultural objects were identified for seizure. Twenty-one objects were listed for the Mingei Museum, for example, including Ban Chiang pottery and Khmer objects.

A trial date has been set for January 27, 2015 in the cases of U.S. v. Olson and U.S. v. Pettibone as lawyers continue to pore over volumes of discovery material, including 150 CDs and 19,000 digital files.

The U.S. Attorney's environmental crimes unit is spearheading the prosecution of the case.

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

Monday, May 5, 2014

UPDATED > Minding the Value Gap Between U.K. Exports and U.S. Imports of Works of Art, Collectors’ Pieces and Antiques

The reported export values of art and antiquities shipped from the United Kingdom to the United States over the last five years do not match the reported U.S. import values for the same classified commodities. In fact, the published values are substantially different, amounting to roughly $6.8 billion in missing value over the last five years.

The art and antiquities trade between the United States and the United Kingdom can be measured by examining public data produced by the U.S. International Trade Commission and by HM Revenue & Customs. CHL recently looked at the 2013 trade in works of art, collectors pieces, and antiques exported from the U.K and imported into the U.S., asking why the reported values differed by approximately $2 billion. The trade data reviewed here compares export and import values over a five year period, from 2009 through 2013.

The commodities examined are classified by Harmonized Tariff Schedule (HTS) code 97, covering works of art, collectors’ pieces and antiques. HTS 97 specifically comprises paintings, drawings, engravings, prints, lithographs, sculptures, statuary, and stamps. It also includes collectors' pieces and collections of zoological, botanical, mineralogical, anatomical, historical, archaeological, and paleontological materials. Numismatics fall under the definition as well. So too do antiques over 100 years old.

The chart below graphically displays the gap between export values published by the U.K. and the import values published by the U.S. for all goods each country classifies under HTS 97. The value differences are listed in billions of U.S. dollars. 


One can easily see the striking value differences over the last five years. In 2010, 2012 and 2013 the gaps in U.K.-U.S. customs values measure at least 50% or more for each of those years. Also noteworthy is the pattern whereby the reported values of U.K. HTS 97 exports are consistently higher than the reported values of U.S. HTS 97 imports.

The actual value gaps--the differences between the reported U.K. HTS 97 export values and the reported U.S. HTS 97 import values--from 2009 through 2013, and their percentage differences, are outlined in the table below.

                                                                   Value Gap            Percent Difference
                                                        2009   $535,430,047        33.6% 
                                                        2010   $1,203,868,869     50.6%
                                                        2011   $1,107,359,364     44.5%
                                                        2012   $2,023,212,767     53.0%
                                                        2013   $1,968,097,336     54.0%

Given that the reported customs values of American HTS 97 imports have been less than--and even more than half as much as--the reported values of British HTS 97 exports, and given that billions of dollars appear unaccounted for, the published trade data should prompt both American and British customs authorities to investigate the reasons behind the export-import rift.

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Copyright notice: Although the data presented here is sourced from publicly available information, it has been carefully selected, coordinated, arranged, and analyzed so that it is subject to copyright as a compilation by CHL. The publication, retransmission, or broadcast of this compiled data is strictly prohibited without CHL's express consent.

Notes about the data:

The U.S. and the U.K. each define what is covered under HTS 97 in documents found here and here, respectively. They both title HTS 97 as “Works of Art, Collectors’ Pieces and Antiques,” and both nations supply substantially the same definitions and exclusions.

The U.S. specifically notes that HTS 97 “covers not only original sculpture made by the sculptor, but also the first 12 castings, replicas or reproductions made from a sculptor's original work or model, by the sculptor himself or by another artist, with or without a change in scale and whether or not the sculptor is alive at the time the castings, replicas or reproductions are completed.”

The U.K. clarifies that collectors’ motor vehicles of historical or ethnographic interest, which are in their original condition, at least 30 years old, and no longer in production are goods classified by HTS 97.

The U.K. defines HTS 97 goods as:
Paintings, drawings and pastels, executed entirely by hand, other than drawings of heading 4906 and other than hand-painted or hand-decorated manufactured articles; collages and similar decorative plaques.
Original engravings, prints and lithographs.
Original sculptures and statuary, in any material.
Postage or revenue stamps, stamp-postmarks, first-day covers, postal stationery (stamped paper), and the like, used or unused, other than those of heading 4907.
Collections and collectors' pieces of zoological, botanical, mineralogical, anatomical, historical, archaeological, palaeontological, ethnographic or numismatic interest.
Antiques of an age exceeding 100 years.

The U.S. defines HTS 97 goods as:
Paintings, drawings and pastels, executed entirely by hand, other than drawings of heading 4906 and other than hand-painted or hand-decorated manufactured articles; collages and similar decorative plaques; all the foregoing framed or not framed.
Original engravings, prints and lithographs, framed or not framed.
Original sculptures and statuary, in any material.
Postage or revenue stamps, stamp-postmarks, first- day covers, postal stationery (stamped paper) and the like, used, or if unused not of current or new issue in the country to which they are destined.
Collections and collectors' pieces of zoological, botanical, mineralogical, anatomical, historical, archeological, paleontological, ethnographic or numismatic interest.
Antiques of an age exceeding one hundred years.

Both nations carry this same exclusion:
1. This chapter does not cover:
(a) unused postage or revenue stamps, postal stationery (stamped paper) or the like, of heading 4907;
(b) theatrical scenery, studio back-cloths or the like, of painted canvas (heading 5907) except if they may be classified in heading 9706; or
(c) pearls, natural or cultured, or precious or semi-precious stones (headings 7101 to 7103).

2. For the purposes of heading 9702, the expression ‘original engravings, prints and lithographs’ means impressions produced directly, in black and white or in colour, of one or of several plates wholly executed by hand by the artist, irrespective of the process or of the material employed by him, but not including any mechanical or photomechanical process.

3. Heading 9703 does not apply to mass-produced reproductions or works of conventional craftsmanship of a commercial character, even if these articles are designed or created by artists.

4. (A) Subject to Notes 1 to 3 above, articles of this chapter are to be classified in this chapter and not in any other chapter of the nomenclature.
(B) Heading 9706 does not apply to articles of the preceding headings of this chapter.


5. Frames around paintings, drawings, pastels, collages or similar decorative plaques, engravings, prints or lithographs are to be classified with those articles, provided they are of a kind and of a value normal to those articles. Frames which are not of a kind or of a value normal to the articles referred to in this note are to be classified separately.

The HTS 97 exports from the U.K. to the U.S., as reported by HM Revenue & Customs, are in GBP. The exchange rate as of December 31 for each year have been used to supply the currency conversion into USD
2013    2202630107 GBP = 3643573444.36 USD
2012    2362859107 GBP = 3820066543.04 USD
2011    1608179003 GBP = 2491108358.65 USD
2010    1532463711 GBP = 2378946280.15 USD
2009    982324630 GBP = 1593443150.52 USD

Update 5/14/14: A screenshot showing the actual HM Revenue & Customs export data produced in the agency's original format. The data table clearly displays code 97, the Export tables, and identifies the values documenting exports to the "United States."

The export values listed by HM Revenue & Customs are defined in this way: “Value – the statistical value in pounds sterling (£) of the trade.” Source: https://www.uktradeinfo.com/Statistics/BuildYourOwnTables/Pages/Home.aspx

HM Revenue & Customs states on its web site:
This web site is managed by HM Revenue & Customs (HMRC) Trade Statistics unit, and operates alongside the main HMRC website for the purpose of publishing and hosting UK trade statistics data.
These statistics record the movement—for trade purposes—of goods between the UK and both EU and non-EU countries.
They are collected from the EU-wide Intrastat survey and from Customs import and export entries, both administered by HMRC.”

HTS 97 US imports for consumption by customs value received by the U.S. from the U.K. as reported by USITC and compiled by CHL:
2013    $1,675,476,108
2012    $1,796,853,776
2011    $1,383,658,901
2010    $1,175,073,725
2009    $1,058,013,104

HTS 97 US imports by general imports value received by the U.S. from the U.K. as reported by USITC and compiled by CHL.
2013    $1,675,476,108  
2012    $1,796,853,776
2011    $1,383,748,995
2010    $1,175,077,411
2009    $1,058,013,104

Update 5/14/14: A screenshot showing the actual USITC import data produced in the agency's original format. The second row shows the import values from the U.K. for HTS 97 goods.




CHL has used the values for general imports in this blog post because the numbers tend to be more inclusive than imports for consumption. USITC defines imports for consumption and general imports as follows (source: http://www.trade.gov/mas/ian/referenceinfo/tg_ian_001872.asp):
General Imports - This number measures the total value of merchandise shipments that arrive in the U.S. from foreign countries, whether such merchandise enters consumption channels immediately or is entered into bonded warehouses or U.S. Foreign Trade Zones under Customs custody.
Imports for Consumption - This number measures the total value of merchandise that physically clears Customs, or goods withdrawn from Customs bonded warehouses or U.S. Foreign Trade Zones, which immediately enter consumption channels. Merchandise being held in bonded warehouses or U.S. Foreign Trade Zones is not included until it is specifically withdrawn for consumption.

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