May 6, 2010 I. INTRODUCTION

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1 Statement of Peter K. Tompa on Behalf of the International Association of Professional Numismatists and the Professional Numismatists Guild at Open Hearings of the United States Cultural Property Advisory Committee on Review of the Agreement Between the Government of the United States of America and the Government of the Republic of Italy I. INTRODUCTION May 6, 2010 This statement is made on behalf of the International Association of Professional Numismatists ( IAPN ) 1 and the Professional Numismatists Guild ( PNG ). 2 In January 2001, the United States imposed import restrictions on a wide range of artifacts of Italian origin dating from the 9th c. B.C. to approximately the 4th c. A.D. Although restrictions had been proposed for coins, the Cultural Property Advisory Committee ( CPAC ) declined that request, and the Executive Branch agreed not to regulate the import of coins. 3 Five years later, in January 2006, the Executive Branch renewed those restrictions, and again declined to extend import restrictions to coins. 4 Now, CPAC is again completing its statutory review of whether to extend the current Memorandum of Understanding with Italy and with it import restrictions on Italian cultural artifacts ( The Agreement or The MOU ). Although the applicable Public Notice Nos and 6945 (75 Fed. Reg (April 7, 2010), do not indicate whether CPAC will indeed be Of Counsel, Bailey & Ehrenberg PLLC, Washington, D.C.; (202) ; pkt@becounsel.com; Graduate of the Washington College of Law, The American University (J.D. cum laude 1986); Georgetown University School of Foreign Service (B.S.F.S. 1982); Trustee and Fellow of the American Numismatic Society; Life Member, the American Numismatic Association; Member and Past President, the Ancient Numismatic Society of Washington, D.C.; Vice-Chair, American Bar Association Art and Cultural Heritage Law Committee; Publications include: Co-author, A Modern Challenge to an Age-Old Pursuit: Can Cultural Patrimony Claims and Coin Collecting Coexist, in Who Owns the Past? (K. Fitz Gibbon ed. Rutgers 2005), and Author, Ancient Coins as Cultural Property: A Cause for Concern?, 4 J. Int'l Legal Studies 69 (Winter 1998). Peter K. Tompa has collected ancient coins for over thirty (30) years, including Greek and Roman coins of a type that circulated within what is now Italy. 1 The IAPN is a nonprofit organization of the leading international numismatic firms founded in It was formed in the aftermath of WW II to help reestablish relationships amongst professional numismatists that had been badly frayed during years of conflict. The objectives of IAPN are the development of a healthy and prosperous numismatic trade conducted according to the highest standards of business ethics and commercial practice, the encouragement of scientific research and the propagation of numismatics, and the creation of lasting and friendly relations amongst professional numismatists around the world. The IAPN has 112 member firms in twenty-three (23) countries, including thirty-two (32) in the United States and twelve (12) in Italy. More about the IAPN may be found on the internet at 2 The PNG is a nonprofit organization founded in The PNG's motto, Knowledge, Integrity, Responsibility continues to reflect its aims, and is expressed in the strict requirements for election to membership to the PNG. The PNG has over 300 members across the United States and abroad. More about the PNG may be found on the internet at 3 Import Restrictions Imposed on Archeological Material Originating from Italy and Representing the Pre-Classical, Classical, and Imperial Roman Periods, 66 Fed. Reg (Jan. 23, 2001). 4 Extension of Import Restrictions Imposed on Archeological Material Originating from Italy and Representing the Pre- Classical, Classical, and Imperial Roman Periods, 71 Fed. Reg (Jan. 19, 2006). 1

2 asked to reconsider its prior two recommendations to exempt coins from the Italian restrictions, an inquiry to the Department of State Bureau of Educational and Cultural Affairs elicited no response. 5 Under the circumstances, IAPN and PNG make these comments to demonstrate that there has been no material change justifying CPAC to depart from its prior two recommendations to exempt ancient coins from these restrictions. 6 In any event, IAPN and PNG respectfully submit that it remains unfair to the small businesses of the numismatic trade and to collectors to treat any ancient Greek or Roman coin struck in Italy as presumptive Italian State property. If CPAC reverses course and restrictions are imposed, coins of Italian types can only be legally imported into the United States with an export certificate issued by the Republic of Italy or satisfactory evidence demonstrating that the coins were exported from or were outside of Italy at least 10 years prior to importation into the United States or that the coins were exported from or were outside of Italy on or before the date of the restrictions. 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. As a practical matter, this information is typically unavailable for common artifacts of modest value like most coins, and, even if it were available, compliance costs would be prohibitive. Moreover, such a rule would only discriminate against American collectors. Coin collectors in the EU-- including within Italy itself-- do not have to make such a showing when they purchase ancient coins. Thus, while the Italian government and archaeologists are rightly concerned about looting of archaeological sites, any guilty until proven innocent remedy represents severe overkill and will only act to punish those who want to abide by the law. II. SUMMARY OF ARGUMENT A. CPAC Should Not Depart from Its Prior Two Recommendations Exempting Coins. There is simply no good reason for CPAC to depart from its prior two recommendations exempting coins from the broad sweep of the current import restrictions on other Italian cultural goods. 5 Letter from Peter K. Tompa to Judith McHale, dated April 7, In any event, as further set forth in that correspondence (Exhibit A), it is improper to consider new restrictions in the context of a renewal. Any effort to impose new import restrictions can only be done fairly if there is proper notice provided in the Federal Register and the Committee then considers the matter separately from a renewal. (See id.) Combining a proposal for new import restrictions within the context of renewal unfairly confuses CPAC s fact finding, and the short comment period associated with this renewal has already prejudiced the ability of many coin collectors and dealers to be heard on the prospect of import restrictions on coins. (See id.) 6 It is clear the recommendation is for CPAC and not the State Department bureaucracy to make. See Convention on Cultural Property Implementation Act ( CPIA ), 19 U.S.C 2605 (f) (4) (CPAC reports to include where import restrictions are recommended a listing of such archaeological or ethnological material of the State Party, specified by type or such other classification as the Committee deems appropriate, which should be covered by such agreement or action. ). 2

3 There has been no change in the underlying facts that could justify changing CPAC s recommendations: o The Cultural Property Implementation Act ( CPIA ) only allows for restrictions on artifacts first discovered within Italy. But one cannot assume that Greek and Roman coins struck in Italy were found there. It is beyond dispute Roman coins circulated far and wide, and it also is clear that Greek coins struck in Italy also circulated widely, albeit in lesser numbers than their Roman counterparts because their mintages were lower. o There is a vibrant market for unprovenanced coins within Italy and the rest of the EU. It is discriminatory to impose restrictions on American collectors that Italian and other collectors within the EU do not face. o CPAC has twice considered and rejected the arguments advanced by the archaeological community in favor of restrictions on coins from Italy. On this third go-around, the archaeological tail cannot be allowed to wag the numismatic dog. Cultural significance is distinct from archaeological significance. A vibrant ancient numismatic market in the United States is absolutely necessary to generate funds for the study of ancient coins in this country. Clamping down on the trade will not help archaeology, but it will certainly defund numismatic scholarship. Even if the issue is reconsidered, CPAC cannot make the requisite findings under the CPIA to support new restrictions. Legislative history strongly suggests that the CPIA s drafters did not think import restrictions would apply to coins. Looting continues its decline in Italy making an extension of restrictions to a whole new class of artifacts unnecessary. There is little or no public money available to study coins. Italy needs to encourage collectors to help public collections rather than discouraging them to collect. The CPIA s concerted international response requirement cannot be met. EU collectors including those within Italy itself are not subject to similar restrictions like those some want to impose on American collectors. There has been no effort to consider less drastic remedies than import restrictions. Such restrictions would seriously damage the people to people contacts numismatics engender. Even if all other criteria favoring restrictions are met, no meaningful listing of coins to be subject to restriction is possible. A list of ancient coins of Italian type would be voluminous. Scholars even dispute whether certain coins were struck in Italy or elsewhere. Italian export controls are subjective. An application for an export permit must be made, but the coin can be exported without a certificate if the applicant does not hear back in forty (40) days. This subjective system of export control simply cannot be squared with an objective designated list under U.S. law. 3

4 III. STATEMENT OF FACTS A. There Are Tens of Thousands of Collectors, Hundreds of Professional Numismatists, and Many Thousands of Historical Coins Traded World-Wide, but Primarily Between the United States and the Nations of Europe. 1. Historical Coins Found in Italy and Elsewhere Coinage originated in Asia Minor sometime around the 7 th c. B.C. This innovation spread to the Greek Islands and the Greek Mainland before reaching the Greek Colonies situated in present-day Southern Italy and Sicily circa 550 B.C. From there, Rome adopted the idea, and with its military expansion soon became one of the most prolific issuers of coinage in history. 7 What we know about the circulation patterns of ancient coinage struck in Italy and where it is found have not changed since the CPAC first took up the issue of import restrictions on Italian cultural artifacts back in To summarize this research, IAPN has commissioned an academic study, entitled Italian Type Coin Finds Beyond the Border of the Italian Republic. (hereinafter Finds Study ) (Exhibit B.) That study acknowledges that Greco-Italian coins did not circulate as much as their later Roman counterparts that had huge mintages, but nonetheless concludes they cannot be justly characterized as purely local coins of Italy. (Finds Study at 1.) 8 The situation with Roman coins is crystal clear. Given the huge numbers 7 For example, one scholar has estimated the output of Roman gold Aurei and Silver Denarii by reign A.D as follows: Combined value in sesterces (millions) Reign Aurei (millions) Per year Denarii (millions) Per Year Per Year Nero, , :0.45 Vespasian , :4.8 Trajan , :6.9 Hadrian , :5.4 A. Pius , :6.3 M. Aurelius , :5.7 Gold: silver ratio (by aggregate weight) Richard Duncan Jones, Money and Government in the Roman Empire 167 (Cambridge University Press 1994). 8 During consideration of the last minute Cypriot request for import restrictions on coins, the Archaeological Institute of America also argued that Cypriot coins did not circulate, though Cypriot authorities themselves later admitted in a private communication to the State Department that they did.. Compare Jeremy Kahn, U.S. Imposes Restrictions Importing Cypriot Coins, N.Y. Times (July 18, 2007) (available at (last checked 4/16/10) (quoting the President of the Archaeological Institute of America ( AIA ) as stating, Coins minted in Cyprus were very rarely taken from the Island in antiquity. ) with FOIA Release Case Nos , , , (March 18, 2009), Letter from Pavolos Flouretzos, Director, Cypriot Department of Antiquities to [Redacted], dated 14 May 2007, Appendix II Coin Collections Introduction (Exhibit C) ( 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. For the same reasons, in most cases it is impossible to pinpoint the provenance of the coins belonging to private collections sold during auctions. ). 4

5 minted, it is not at all surprising that Roman coins can be found in large numbers in countries such as Albania, Algeria, Austria, Belgium, Bosnia, Bulgaria, Croatia, Denmark, Egypt, France, Germany, Greece, Hungary, India, Ireland, Israel, Jordan, Lebanon, Libya, Luxembourg, Macedonia (FYROM), Mauritania, Morocco, The Netherlands, Poland, Portugal, Romania, Russia, Serbia, Spain, Sri Lanka, Sweden, Switzerland, Syria, Tunisia, Turkey, Ukraine, the United Kingdom and Vietnam. (Id. at 7-8.) The Greek and Roman coins that are found in modern Italy could have been produced in Italy for local circulation, or they could have been produced anywhere else in the Classical World and been traded into Italy at some time in history. Historical coins by their nature were mass-produced, fungible commodities, and were meant to be circulated both in a particular locality and beyond its borders based on their intrinsic value. 9 For many issues, it is difficult or impossible to tell precisely where a particular coin was struck. 2. Where Do Ancient Coins Come From? Ancient coins have been found in great numbers for millennia. In an era without modern banks, the ancients typically buried their savings in hoards, many of which were never retrieved, leaving them to be found to even to this day. Most coins found in collectable condition come from such hoards found in pots or other containers that may contain hundreds, if not thousands, of coins. These containers protect the coins from corrosion due to contact with the soil. In an era before modern banking, people typically buried their savings in secret locations. If they did not return to claim them, those coins remained hidden until found by chance or design. Large savings and accumulation hoards are often found outside the archeological stratum. 10 In contrast, coins archeologists typically find are small change of bronze that is likely corroded due to exposure to the elements Historically, foreign coins circulated freely within the boundaries of any given nation based on intrinsic value. Indeed, foreign coins were even legal tender in the United States until After two world wars and the Depression ended the use of precious metal coins in day to day transactions, the use of coins across national borders declined. Even today, however, some foreign coins continue to circulate outside their own country of origin. For example, U.S. dollar coins are evidently quite popular in Ecuador s dollarized economy largely because the portrait of Sacagawea strikes a chord with that county s Indian population. 10 See Mary Washington College Presents Symposium on Ancient Numismatics, ANS Magazine 8, 11 (Spring 2002) (hereinafter Mary Washington Symposium) ( Coins recovered in good condition from containers, like those found in savings and accumulation hoards, are only found infrequently at archaeological sites. ). 11 See e.g., John H. Kroll with Alan Walker, The Athenian Agora XXVI The Greek Coins 1 (American School of Classical Studies at Athens 1993) ( In comparison with museum or hoard specimens, it is in the area of absolute metrology that the Agora specimens are most deficient. Most are worn to some degree; almost all are found in a heavily corroded state. ); Theodore Buttrey, Kenan Erim, Thomas Groves, and R. Ross Holloway, Morgantina Studies II The Coins at xi (Princeton University Press 1989) ( The coins found at Morgantina are most entirely of bronze, as is usual in most excavations. The metal, less durable than gold or silver, has suffered not only from wear during the circulating life of the coins, but from the corrosive action of the soil, so that many have remained illegible even after cleaning. ). 5

6 3. Collectors and Professional Numismatists During the Middle Ages, any ancient coin that was discovered was likely to be melted for bullion, but some coins escaped the melting pot to be incorporated into jewelry or religious art. The situation began to change during the 14 th Century when discoveries of Greek and Roman coins in Italy helped spark the Renaissance. Numismatics, the study of coins, began during this period. It remains one of the few academic endeavors where ideas are exchanged freely among collectors, academics and museum professionals. Numismatics predates archaeology by several centuries. Unlike all too many archaeologists, 12 numismatists have interpreted coins as part of a larger political, military and economic context of the society which issued them. Moreover, unlike many archaeologists, numismatists also have accepted the obligation to preserve, study, popularize and display their coins. 13 This devotion is not limited to American collectors. Indeed, the EU. is filled with collectors, including many residing in Italy. 14 Today, an estimated 50,000 ancient coin collectors study, preserve and display historical coins in the United States. There are probably even more ancient coin collectors in Europe (including Italy), where numismatics enjoys a long and illustrious history. Not surprisingly, then, most international numismatic trade takes place between the United States and various countries within Europe. As part of this trade, professional numismatists buy and sell coins amongst themselves for resale or sell directly to collectors and numismatic institutions on either continent. While the dollar value of these transactions is not large when compared with the 12 Many archaeologists see coins as little more than just one tool to date archaeological sites, and treat them accordingly. See e.g., John Casey, Understanding Ancient Coins: An Introduction for Archaeologists and Historians 7 (B.T. Batsford 1986) ( An archaeologist was heard to remark that Coins are only well dated pieces of metal. He was of course wrong: coins are not usually well dated nor are they necessarily of metal. But these small technical points aside, the drift of the comment well reflects the place coin studies have occupied in the archaeological world. Coins are perceived as dating evidence, as art objects and as unique species of evidence that is best left to the numismatist and confined to the museum strong room at the earliest possible moment. It is the purpose of this short book to bring to the attention of archaeologists and historians something of the full potential of coin evidence. ); Mary Washington College Symposium, supra note 10 at 10 (noting that the common view that coins are only valuable as evidence for dating archaeological strata and not as objects in themselves probably helps explain why there are so few site publications, why find spots are not always recorded, and why smaller coins are not even recovered.). Despite recent efforts to put more emphasis on coin studies in an archaeological context, the numbers of archaeologists that focus their work on coins remains quite small with much work to be done. 13 Numismatists take great care in preserving and displaying coins given their love of them as historical objects as well as their monetary value. Moreover, it should be noted that firms like Classical Numismatic Group, Inc. of Lancaster, Pennsylvania, Numismatica Ars Classica of Zurich, Switzerland, and London, England, and Spink of London, England, act as publishers for scholarly numismatic books as an adjunct to their primary business as numismatic auction houses. Without their generous efforts, much numismatic research would probably never get published. 14 It is our understanding that a number of Italian collectors and dealers have written CPAC, objecting to an extension of import restrictions to coins as detrimental to numismatic scholarship. See Letter from Umberto Moruzzi and Domenico Lupino to Katherine Reid, dated April 16, 2010 ( The numismatic cultural heritage of Italy and the other nations of the world is not measured just by how many specimens are in public museums but especially by the knowledge their citizens have of the subject, by the studies conducted, and the books published. For centuries collectors have been profoundly contributing to the study and development of numismatics, to the creation of Numismatic Societies and to funding and additions to Museum collections. ). 6

7 antiquities market as a whole, the numismatic trade is extensive in that many thousands of historical coins travel back and forth across the Atlantic Ocean each year. 15 To provide some indication about the scope of the international numismatic trade, CNG, Inc. compiled data to approximate the world auction market in ancient Italian coins for the year (See Summary and Attachments from Eric J. McFadden, dated May 6, 2010 (Exhibit D).) According to that analysis, the total prices realized for 16,544 ancient Greek and Roman coins struck in Italy before 238 A.D. was some $29.3 million of which U.S. firms accounted for $7.3 million or some 25% of the total prices realized. Due to the short time allotted for public comment, the analysis based solely on data from an easily accessible U.S. based auction tracker called CoinArchives ----reflects a bias in favor of the inclusion of U.S. firms. Thus, it undercounts total numbers of lots and values, and similarly overstates the take attributed to U.S. firms. In any event, even from this Americancentric analysis, it should be clear that European firms predominate the marketplace as a whole. (Id.) Moreover, one of the attachments reveals substantial offerings of unrpovenanced ancient Greek and Roman coins struck in Italy being made by firms located in Italy and the Italian micro-state of San Marino. (Id.) A review of the web links to coins offered for sale confirms they are typically sold without any provenance information whatsoever. Leaving aside these auction figures for one year, the volume of collectors coins in commerce over the last hundred years is truly enormous, far more than any non-collector could imagine. Most are duplicates of well-known coin types and so have marginal value for scholars; the occasional discovery of a new or very rare coin is often made by a collector and is always communicated to scholars for research and documentation. Thus no historical knowledge is lost. Even when hoards of coins are discovered and appear in the market dealers will often take them to scholars for recording or document the hoard themselves and share the information with scholars. 16 Far more new knowledge comes from the cooperation of dealers and collectors with scholars than would be gained if only professionally excavated coins were known. Suppressing the trade in coins is counter-productive to scholarship, because otherwise coin discoveries will be melted (in the case of silver or gold coins) or thrown away (in the case of bronze coins) At hearings before a select committee of Parliament, the British Antiquities Dealer Association has estimated the worldwide antiquities market (for Greek and Roman antiquities) is 200 million ($360 million) to 300 million ($540 million) per year. (Page 56 in Minutes of Evidence Taken Before the House Select Committee on Culture, Media and Sport, Cultural Property: Return and Illicit Trade, Seventh Report, Session , Vol. II.) IAPN and PNG know of no similar hard numbers about the value of the numismatic trade. This is not surprising because the trade is made up of hundreds of small businesses dealing internationally in many thousands upon thousands of common objects which are typically of limited value. (The vast majority of ancient coins retail for under $100 a piece. There certainly are numerous more valuable coins (based on condition, style and rarity), but only a distinct minority sell in excess of $5,000 a piece.) 16 For example, since 1975, the Royal Numismatic Society in the United Kingdom has published the Coin Hoard series, which lists hoards reported from both official and non-official sources. 17 For example, the spectacular Brescello Hoard of 1714, which contained approximately 80,000 late Republican aurei, was almost entirely melted to make new gold coins. 7

8 B. CPAC Has Already Decided Twice Against Recommending Import Restrictions on Coins Based on Public Testimony. On October 12, 1999, CPAC conducted an open session where it took public testimony on whether to impose import restrictions on Italian cultural goods. A total of thirteen speakers made presentations at this session. Two speakers representing the interests of the archaeological community spoke in favor of import restrictions on coins: Malcolm Bell, III and R. Ross Holliway. I spoke against restrictions on behalf of coin dealers and collectors. All the speakers but one also provided written testimony. Both Bell and Holliway used their written testimony to elaborate on why they thought it appropriate to impose import restrictions on coins. In particular, Bell stated, As for Greek and Roman coins, the search for these antiquities with the metal detector creates immense damage The inclusion of Greek and Roman coins minted in Italy on the Italian list recognizes the gravity of this destruction of sites. (Statement of Malcolm Bell, III (Oct. 12, 1999) at 6.) In contrast, I explained: (1) that most collectors coins do not come from archaeological sites; (2) that the broad circulation patterns of historical coins undercut any claim that ancient coins belong to a particular culture; and (3) that practical questions override any benefit import restrictions could bring in protecting Italy s cultural heritage. (Letter of Peter K. Tompa to Dr. Martin E. Sullivan, Chairman, CPAC (September 30, 1999). In addition to my own comments, approximately fifty-seven (57) other coin collectors and coin dealers wrote CPAC, presumably also to object to the imposition of import restrictions on coins. 18 (See Year 2000 CPAC Report at ) The Year 2000 CPAC Report makes clear that CPAC weighed both sides of the issue: Commenting specifically on the inclusion of coins in the list of restricted objects, written comments and letters from coin dealers and collectors suggest that the find spots, production of many thousands of multiples, and wide distribution of coins makes them inappropriate for trade restrictions. They also indicate that the coins most sought after by collectors are coins in pristine condition found in savings and emergency hoards outside archaeological strata. Noting that coins in archaeological contexts have suffered much from the elements, they suggest that these have little value for the collector. Coin collectors and coin dealers also pointed out that broad circulation patterns covering many countries and regions in both ancient and modern times precludes a claim by an individual country that a specific coin belongs to them. Dealers and collectors further suggested that the implementation of import restrictions on coins would be entirely unworkable. On the other hand, archaeologists note that coin collectors with metal detectors are a serious threat to the integrity of Italian sites. They dig holes, destroy archaeological contexts, and remove metals illicitly for their own collections or for sale. In a phone interview another field archaeologist working on an Etruscan village site observed that 18 Since 1999, the Internet has made communication with interested members of the public much easier, explaining the increased number of public comments CPAC has received over the years. For example, as of April 20, 2010, the Ancient Coin Collectors Guild Fax Wizard recorded some 1,800 comments opposed to the extension of import restrictions to coins. That said, the short time frame for public comment will mean that those who are not on-line will likely not even hear about the Italian renewal before the comment period ends. 8

9 coin collectors with metal detectors visit her site most weekends and damage the surface areas with indiscriminate digging. (Year 2000 CPAC Report at 18.) Finally, the Report also indicates that CPAC reviewed the categories of archaeological objects submitted in the Request, but decided against imposing import restrictions on coins. (See Id. at 23.) This recommendation was accepted by the State Department s decision maker and coins did not appear on the list of items subject to restriction when it was announced on January 23, IAPN and PNG also would like to share the contents of the CPAC report prepared in conjunction with the 2005 renewal, but the State Department has refused to produce this document in anything other than highly redacted form to the public. CPAC should itself, therefore, request a copy of that report to review the discussion about coins that evidently takes place at pages of that document. (See Report of the Cultural Property Advisory Committee of the Proposal to Extend the Agreement Between the Government of the United States of American & the Government of Italy Concerning the Imposition of Import Restrictions on Categories of Archaeological Material Representing the Pre-Classical, Classical & Imperial Roman Periods of Italy (Nov. 2005).) In any event, as set forth above, coins were again exempted when an extension of other restrictions was announced in January C. The CPIA s Legislative History Suggests that the Drafters Did Not Contemplate that Coins Would be Subject to Restrictions. Recently unearthed legislative history indicates that the State Department s chief negotiator explained to Congress that the State Department did not contemplate that coins would be covered under the CPIA s import restrictions. Here is the colloquy between Mark Feldman, State Department Deputy Legal Adviser, and Congressman Vanik (D-Ohio) during the Congressional hearing process: Mr. Vanik. Some coin collectors have expressed opposition to the bill because they think ancient coins, after discovery by clandestine digging in farmer s fields will be covered by the bill. They also claim that a government may declare that all ancient coins within its borders are government property as has been done by Turkey, effectively eliminating the legal exporting of coins but vastly increasing illegal exportation of coins which could be declared stolen and prohibited from importation under the bill. What is your response to these concerns and are ancient coins a type of archaeological or ethnological material which could be covered by the bill? Mr. Feldman. Mr. Chairman, I think in theory, they may well come within the definition but we did not have coins in mind when we addressed the issue. I think as a practical 19 During CPAC s interim review of the Italian MOU, several members of the archaeological community claimed that more recent Chinese and Cypriot precedent, should trump CPAC s decision to exempt Italian coins for restriction. As set forth in the chart attached as Exhibit E, such precedent has little application here. 9

10 matter, it would not be a serious problem. In most cases, it is impossible to establish the provenance of a particular coin or hoard of coins. Therefore, there would be no reason for the United States, in most cases, to list coins as one of the categories of objects of archaeological or ethnological interest that would be included in the agreement. Under this bill, Mr. Chairman, the coverage of the import controls only applies to specific categories of material that are listed in an international agreement and then further specified in regulations by the Treasury. So, in answer to that, this legislation and ratification of the convention would not have any immediate effect on coins and it is hard for me to imagine a case where we would need to deal with coins except in the most unusual circumstances. (See Cultural Property Treaty Legislation, Hearing before the House Subcommittee on Trade of the Committee on Ways and Means, 96 th Cong., 1 st session on HR 3403 at 8. (Exhibit F).) IV. ARGUMENT A. There Has Been No Showing That The CPIA s Statutory Criteria Have Been Met To Justify Import Restrictions on Coins. Even if CPAC chooses to reconsider its prior exemption for coins, it can only do so after a thorough review of the statutory requirements of the CPIA. There has been no showing that the CPIA s statutory criteria have been met with respect to import restrictions on coins because there has been no change in the underlying facts warranting a change in CPAC s prior recommendations to exempt coins. 1. The CPIA Establishes Strict Statutory Criteria To Follow Before Import Restrictions Can Be Imposed. Because import restrictions effectively embargo most listed material from entry into the United States, Congress established strict statutory criteria that must be met before the draconian remedy of import restrictions can be authorized. A critical threshold is the requirement that artifacts subject to possible restriction were first discovered within the ground of the UNESCO State Party that has requested import controls. (19 U.S.C (2) (c).) Another threshold issue for import restrictions on archaeological material is whether that material is of cultural significance. (19 U.S.C (2).) If an object of archaeological significance lacks cultural significance, CPAC cannot lawfully recommend import restrictions. Assuming these thresholds are met, CPAC must then make four separate findings under CPIA 303 (a) (19 U.S.C (a). 20 See also Year 2000 CPAC Report at 22.) These 20 IAPN s and PNG s procedural objections regarding CPAC s possible consideration of placing import restrictions on coins in the context of this renewal stems in part from the concern that CPAC may treat the fact finding for a renewal less stringently than that afforded an initial determination about the imposition of import restrictions. (Compare 19 U.S.C (a) with 19 U.S.C (e).) 10

11 findings cannot be divorced from the category of material for which import restrictions are sought. Any contrary construction would be inconsistent with the words of the statute, prior practice (including the 2001 and 2006 exemptions for coins) and the CPIA s legislative history. (See CPIA, 19 U.S.C 2605 (f) (4) (CPAC reports to include where import restrictions are recommended a listing of such archaeological or ethnological material of the State Party, specified by type or such other classification as the Committee deems appropriate, which should be covered by such agreement or action. ); S. Rep. No , at 22 (1982) ( The Committee intends these limitations to ensure that the United States will reach an independent judgment regarding the need and scope of import controls. That is, U.S. actions need not be coextensive with the broadest declarations of ownership and value made by other nations. ).) Lastly, assuming all these other criteria are met, import restrictions can only be imposed under the CPIA if it is possible to prepare a sufficiently specific and precise list that ensures that (1) the import restrictions are applied only to the archaeological material covered by the agreement ; and (2) fair notice is given to importers (CPIA, 19 U.S.C ) As will be confirmed below, none of these criteria can be met here, and, hence, CPAC should not reconsider its prior exemption for coins from restriction. (a) The Threshold Requirements Under the CPIA Cannot be Met. (i) There Can be No Finding that Coins Struck in Italy Were First Discovered There. Import restrictions cannot be lawfully imposed on ancient coins struck in Italy because one cannot assume they had find spots within the confines of the territory of modern Italy. An important threshold for import restrictions under the CPIA is that the artifact was first discovered within the State Party seeking restrictions. (See CPIA, 19 U.S.C (2) (c).) As set forth above and in the Finds Study, appended as Exhibit B, one cannot assume either the Greek or Roman coinage of Italy was first discovered there. Accordingly, this important threshold cannot be met. (ii) Coins Are Not Culturally Significant Because They May Assist In Dating Archaeological Sites or May Carry Some Information About History. During CPAC s hearings on China s request for import restrictions, CPAC member Professor Joan Breton Connelly first posited the theory that coins are culturally significant as dating tools at archaeological sites. In contrast, members of the numismatic community contested the factual basis of that assertion, and instead argued that the large number of ancient coins extant precludes them from being considered culturally significant under the provisions of the CPIA. See generally, Letter from Arthur Friedberg to Jay I. Kislak (Feb. 3, 2005); Letter from Wayne Sayles to Jay I. Kislak (Feb. 28, 2005); Letter from Arthur Friedberg to Jay I. Kislak (March 1, 2005); and Letter from Peter K. Tompa to Jay I. Kislak (March 3, 2005). 11

12 In any event, any archaeological significance test finds little support in the CPIA. For archaeological material to be restricted, it must be both of archaeological interest and cultural significance. (CPIA, 19 U.S.C (2).) While the use of coins that are archaeological material for dating may give them archaeological interest, it is hard to understand how that also makes them of culturally significance under the terms of the CPIA. To the extent this contention remains relevant to CPAC s deliberations, IAPN has commissioned its own study, entitled Coins as Archaeological Evidence (Exhibit G). That study concludes, This overview of the use of coins in archaeology should make it clear that, while they can in some particular instances provide important chronological information, the bulk of the coins found in sites do not add much that could not also be garnered from pottery and other material evidence. (Id.) Perhaps recognizing the inherent weakness of an archaeological significance test, it has also been stated that coin studies can provide a wealth of information about the history and economics of ancient societies. While this is true in general, it is also true that there is comparatively little information newly found coins of Italian type can tell us. Greek and Roman coins from Italy are certainly one of the best understood series of ancient coins. Under the circumstances, finds of specific coins of Italian type simply do not rise to the level of cultural significance to justify restriction. One obvious problem with this whole line of argument is that cultural significance is equated with subjective values archaeologists themselves place on artifacts. In contrast, during consideration of China s MOU, Sotheby s proposed an objective cultural significance test that looks at: (1) the quality and state of the existing archaeological and art historical record; (2) site specificity, portability and documentary importance; (3) mass production and lack of rarity; and (4) frequent and long-term market incidence. (See Supplemental Submission of Sotheby s Written Comments on Request by the People s Republic of China for Assistance Under Article 9 of the 1970 UNESCO Convention.). Under such a common sense test, coins certainly would not be designated as culturally significant under the CPIA as none of these factors would argue for restriction. Ancient coins of Italian types are well known. They are not specific to individual sites, but can be found most anywhere. They exist in the millions and have been avidly collected since at least the Renaissance. There is nothing objectively distinctive about ancient coins as a class of artifacts that suggest they are cultural significant in an objective sense. In addition, as set forth above, the CPIA s legislative history itself suggests that the State Department assured Congressional decision makers that coins would likely not be covered under any agreements. This fact also lends support to the view that coins should generally not be considered of cultural significance under the CPIA. (b) CPAC Cannot Make the Necessary Findings Under CPIA 303 (a) To Support a Finding Justifying Import Restrictions on Coins. Assuming, despite all evidence to the contrary, these thresholds can be met, CPAC must then still make determinations on the following four issues under CPIA 303 (a) before import restrictions on coins may be imposed: 12

13 1. Whether the cultural patrimony of Italy is in jeopardy from looting of its archaeological materials; 2. Whether Italy has taken measures consistent with the 1970 UNESCO Convention to protect its cultural patrimony; 3. Whether application of U.S. import restrictions would be of substantial benefit in deterring a serious situation of pillage and that less drastic remedies are not available; and, 4. Whether the application of import restrictions is consistent with the general interest of the international community in the interchange of cultural property among nations for scientific, cultural, and educational purposes. (19 U.S.C (a); See also Year 2000 CPAC Report at 22.) Here, no such a showing is again possible to justify new restrictions on coins. (i) Italy s Cultural Patrimony Relating to Coins is Not in Jeopardy. During the October 1999 hearing, the archaeological community presented evidence in support of its claim that coin collectors with metal detectors are a serious threat to the integrity of Italian sites. (Year 2000 CPAC Report at 18.) IAPN and PNG are unaware of any information suggesting that the situation in Italy has deteriorated markedly since 1999 when CPAC concluded that this allegation was insufficient to support import restrictions on coins. Indeed, if anything, as set forth in IAPN and PNG s statement on the last interim review, the Carabinieri s enforcement activities have stabilized the situation in Italy making further expansion of the MOU to coins unnecessary. (See Statement of Peter K. Tompa on Behalf of the International Association of Professional Numismatists and the Professional Numismatists Guild at Open Hearing on the Interim Review of the Agreement Between the Government of the United States of America and the Government of the Republic of Italy Concerning the Imposition of Import Restrictions on Cultural Artifacts ( IAPN and PNG Interim Review Statement ) at 4-5 (Nov. 13, 2009).). (ii) Italy Needs to Encourage and Not Discourage Private Collecting to Help Care for Coins. Over the years, there have been reports that the storage conditions at Italian archaeological sites and museums are deplorable, a situation that has evidently improved somewhat in the recent past. What has not changed since 1999, and is unlikely to change in the future, however, is the simple fact that there are far too many historical coins extant to be adequately preserved, studied and displayed by archaeologists, museums or the State. Italy itself has a long and proud tradition of private collecting, and private ownership is a critical component to the preservation of Italy s numismatic heritage. As set forth in an update of an IAPN commissioned academic study, entitled Stewardship of Italian Type Coins by Institutions in the Italian Republic, originally appended to the IAPN and PNG Interim Review Statement 13

14 (appended here Exhibit H), Italy s record at preserving, publishing and displaying its own numismatic heritage as required under the 1970 UNESCO Convention remains poor. 21 Italy s cultural establishment as a whole is grossly underfunded. If Italy cannot take care of major cultural treasures like Pompeii, it is hard not to imagine the neglect historical coins have faced over the years. In this cash starved environment, Italy needs to turn to partnerships with collectors to help preserve its numismatic past. Certainly, this cannot be accomplished through efforts to stamp out the trade in ancient coins, as some have suggested. (iii) Application of U.S. Import Restrictions Would Not be of Substantial Benefit in Deterring a Serious Situation of Pillage and Less Drastic Remedies than Import Restrictions on Coins Are Available. In 1999 and 2005, CPAC found that imposition of import restrictions on coins would not substantially benefit deterring a serious situation of pillage. (See Year 2000 CPAC Report at (referencing attached list of categories of objects subject to import restrictions that excludes coins).) The same remains true today, particularly because there is an unfettered market for ancient Greek and Roman coins struck in Italy within Europe, including within Italy itself. A review of this statutory criterion raises two subsidiary issues: the concerted multinational response requirement and the issue of whether less drastic remedies are available than imposition of import restrictions. Here, new restrictions on coins cannot be justified because neither can be met. a. The Concerted International Response Requirement Cannot be met Given an Unfettered Market in Ancient Coins Abroad The CPIA s concerted international response requirement seeks to ensure the comity and effectiveness of any import restrictions before they can be legally imposed. 22 The State Department and Italy have referenced this requirement in the MOU. Specifically, in Art. II, Sec. D, Italy promises to seek increased cooperation from other art-importing nations to restrict illicit imports, in an effort to deter further pillage. 21 During CPAC s interim review, members of the archaeological community suggested that Italy does a good job publishing its coin finds. As set forth above at Exhibit H, this simply is untrue. In particular, members of the archaeological community mentioned the Fasti web site, but it provides few details about coins found in excavations. In addition, while it is true that Italy has installed one prominent coin display at the Palazzo Massimo in Rome, that display is limited in scope and already is suffering from neglect. For more, see (last checked, 4/16/10). 22 In particular, under that provision, the decision maker must find that the United States is acting in concert with other nations unless he can also find that there can be a substantial benefit in the United States acting alone to deter a serious situation of pillage. (CPIA 303 (a) (2).) This criterion is referred to as the concerted international response requirement. 14

15 The CNG, Inc. market data appended as Exhibit D demonstrates that the major markets for ancient coins of Italian type, are in Europe, most notably in the United Kingdom, Germany and Switzerland. As far as IAPN and PNG know, there are no effective import controls in the any of these countries. Nor as far as IAPN and PNG know are there any provenance requirements for ancient coins sold within Italy or the rest of the EU for that matter.. Although Switzerland has entered into a bilateral agreement with Italy imposing some form of import restrictions on cultural artifacts, coins are not listed in the appendix under metal objects subject to restrictions. (See Appendix Bilateral Agreement Switzerland-Italy dated October 20, 2006: Metal, Exhibit I.) Thus, this Agreement cannot be used to support a claim that the concerted international response requirement has been met. Having little or nothing to show about coin imports, members of the archaeological community have alternatively maintained that the CPIA s concerted international response is met with respect to coins because European Regulation No. 3911/92 on the Export of Cultural Goods treats all ancient coins as 0 rated archaeological objects requiring export certificates for sale outside the EU. Even this, however, is patently untrue. Rather, for example, under the U.K. s Export rules, no export license is required for ancient coins that have been circulating in the marketplace where they are considered to be numismatic items of a standard type which are published in a reference work on numismatics. See Museums and Libraries Archives Guidance to Exporters of Antiquities at 2, Sec. 5 (a) (available at: (last checked 4/14/10) (Exhibit J). IAPN and PNG further understand that another major exporter of ancient coins of Italian type to the United States, the Federal Republic of Germany, has a similar rule for such coins that do not come directly from archaeological excavations. In contrast to the exports of coins from the U.K. and Germany, IAPN and PNG have reason to believe that exports of such coins from Italy are truly negligible. In a related vein, members of the archaeological community have also argued that the existence of European Union Council Directive 93/7/EEC also helps satisfy the concerted international response requirement. However, as an official EU report recently observed, the Directive is seldom applied, either in the context of administrative cooperation or in the exercise of return proceedings. Report from the Commission to the Council, The European Parliament and the European Economic and Social Committee, Third Report on the Application of Council Directive 93/7/EEC on the Return of Cultural Objects Unlawfully Removed from the Territory of a Member State at 5 (July 30, 2009) (available at (last checked 4/14/10). Under the circumstances, the concerted international response as to coins is not met, and indeed, any new import restrictions proposed as to coins would be inconsistent with how the major European markets in the U.K, Germany and Switzerland treat coin exports (as well as how Italy itself handles them). b. Less Severe Remedies Have not Been Considered With respect to alternate remedies, in CPAC offered several recommendations in lieu of imposing import restrictions on coins. These included passage of a law akin to the 15