Archaeological Pieces Under 9705 HTSUS

As of July 1, 2018, importers of archaeological pieces have to report their merchandise to U.S. Customs and Border Protection with new detail. That is because the U.S. has added a new statistical breakout for these items and two related statistical notes.

Prior to January of 2018, Heading 9705 provided, in its entirety:

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For people who trade in these items, those who study the legal and illegal trade in antiquities, and (presumably) enforcement agencies, lumping archaeological, historical, and ethnographic pieces together did not provide adequate detail about what is entering the country. As previously drafted, 9705.00.0070 covered items as diverse as a 1936 Bugatti race car and an Egyptian Stone Ushabti  from the 18th Dynasty.

Working on behalf of the U.S. Committee of the Blue Shield and with the support of several interested not-for-profit entities, we asked the 484(f) Committee to further divide this provision to separately identify, in particular, archaeological items.  The result is a new level of detail on the treatment of the items in Heading 9705 and new statistical notes to add clarity to the language. As a side benefit, there is now also a recognition that coins can, depending on age and how they were collected, constitute archeological pieces.

The new 9705 reads as follows:

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Note that the subheading for coins now includes the limitation "other than archaeological pieces." Beyond that, there are new breakouts at .75 for archaeological pieces and .80 for ethnographical pieces. Both breakouts reference statistical note 1, which reads:

For the purposes of statistical reporting number 9705.00.0075, "Archaeological pieces" are objects of cultural significance that are at least 250 years old and are of a kind normally discovered as a result of scientific excavation, clandestine or accidental digging or exploration on land or under water. For the purposes of statistical reporting number 9705.00.0080, "Ethnographic pieces", which may also be called "ethnological pieces" are objects that are the product of a tribal or nonindustrial society and are important to the cultural heritage of a people because of their distinctive characteristics, comparative rarity or their contribution to the knowledge of the origins, development or history of that people. See Customs and Border Protection (CBP) Informed Compliance Publication on "Works of Art, Collector's Pieces, Antiques, and Other Cultural Property".

To ensure that the reporting of archaeological pieces is not obscured in sets or collections imported as a whole, the tariff includes new statistical note 2, which reads:

For statistical reporting of merchandise provided for in subheading 9705.00.00, collections made up of articles of more than one type of cultural property, i.e., zoological, biological, paleontological, archaeological, anatomical, etc., shall be reported by their separate components in the appropriate statistical reference numbers, as if separately entered.

These new data present some important opportunities. To the extent importers are properly reporting the full tariff item and statistical suffix at the time of entry, Customs and Border Protection will have better data to focus on imports that might be subject to restrictions under the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export, and Transfer of Ownership of Cultural Property. That Convention is implemented in the U.S. as the Convention on Cultural Property Implementation Act ("CCPIA"), 19 USC 2601-2613 and in customs regulations at 19 CFR 12.104-12.109. Under these laws and regulations, the U.S. can extend protection to archaeological and ethnological materials from States that have ratified the Convention and for which the United States has entered into a bilateral agreement.  There is also a mechanism to unilaterally extend emergency protection. Covered items cannot be imported to the United States without documentation showing that their exportation was not in violation of the laws of the originating State or that their importation was otherwise permitted under the CCPIA.

For products not properly declared as archaeological or ethnographic pieces using the correct statistical suffix, the failure to do so might expose the importer to penalties under the customs laws. This is not new, but by separating archaeological and ethnographic pieces from historical pieces, an importer will not be able to assert that it item is a historical piece to disguise its true nature while reporting the correct statistical suffix covering historical pieces as well as archaeological and ethnographic pieces. The importer will now have to pick one and get it right.

While it is true that errors in statistical reporting do not usually result in a customs penalty, this circumstance is different in that the correct reporting goes to admissibility of the merchandise. For items subject to protection under the CCPIA--including those from Iraq and Syria that are protected under special legislation--admissibility depends on the documentation showing legal exportation. The new reporting requirements should help to flag those items and give Customs an additional point of enforcement action.

Why does this matter? Mainly because regardless of the source or nature of the item, the United States, as a party to the Convention has made a policy decision that it wants to help countries preserve their cultural heritage by working to reduce illicit trade in these items. On top of that, there is strong evidence indicating that the illegal sale of looted artifacts has been a source of operating income for terrorist organizations and that this has resulted in significant destruction to priceless sites. See, for example here and here. We are hopeful that these and possibly future changes to the HTSUS will provide Customs, researchers, and traders with better data from which to monitor legal and prevent illegal trade in cultural property.