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The AC Digs Into: Customs and Trade Law

July 16, 2018

As of July 1, 2018, the Harmonized Tariff Schedule of the United States (HTSUS) has been revised to include more detail for archaeological goods. Historically, enforcement agencies lumped together archaeological, historical, and ethnographic pieces, but the new revisions require that importers of archaeological pieces report their items in additional specificity to the U.S. Customs and Border Protection (CBP). These changes add a new level of clarity and detail to import regulations.  

Lawrence Friedman, a customs lawyer at Barnes Richardson, worked on behalf of the U.S. Committee of the Blue Shield, along with several interested not-for-profits (including the Antiquities Coalition), to petition the 484(f) Committee at the U.S. International Trade Commission to make these changes to the HTSUS.

The Antiquities Coalition asked him about this process and what’s next.  

Why was it important to get the HTSUS codes revised?

I am a customs lawyer. While I have some interest and knowledge of this area, I generally work with commercial importers of finished goods and production materials, so this was not something that was on my radar. However, I had heard from colleagues in the cultural property and cultural heritage field that the way import statistics were collected was preventing them from having clear data in imported archaeological and ethnographic pieces because they were categorized with historical pieces. Because of what I do, I was aware of the process for changing the statistical breakouts and offered to help.

In seeking the creation of new HTSUS classification numbers, what opposition, if any, did you face?

I am not aware of any outside opposition to this proposal. The issue was convincing the government people that the change was both worthwhile and could be administered by CBP. Because we were not privy to the governmental discussions, that was a little frustrating. We thought we would succeed last year, but it took until the July update.

We imagine that this process was not as simple as petitioning the 484(f) Committee alone. Could you guide us through this process?

Honestly, there is not a lot more to it. We drafted a pretty detailed petition with input from Prof. Patty Gerstenblith of DePaul University College of Law and Prof. Nancy Wilke of Carleton College, both of whom are affiliated with the U.S. Committee of the Blue Shield, the lead party on this effort. I looked at the available data and worked with them to develop the petition. We showed that more detailed data will help legitimate traders, academics, and enforcement agencies track trade that might be subject to import restrictions under the cultural property laws. We also worked on a strategy of enlisting support from allied organizations and from interested elected officials.

How did you decide on the specific language to include in your petition? Did you have input from partners?

Professors Gerstenblith and Wilkie were very helpful in crafting the petition.

The new HTSUS 9705.00.00, the U.S. International Trade Commission.

To advance efforts to close U.S. markets to imports of illicit art and antiquities, what do you see as the next legal step following the HTSUS revision?

Rumor has it that efforts are underway to rewrite the chapter of the HTS covering these products. This would require an international effort at the World Customs Organization. If that happens, it would be helpful to move the distinction between archaeological, ethnographic, and historical pieces from a statistical breakout for the United States to an internationally accepted subheading. The new definitions the U.S. inserted into the statistical notes can serve as a useful model for that process and for updating the corresponding Explanatory Notes to the Harmonized System, which are the internationally accepted commentary on the scope of the various HTS chapters and headings. It is important to recognize that this is only one part of a larger enforcement exercise. The tariff data generally assumes that importers are properly reporting the nature of their goods. A smuggler will continue to either not report at all or to disguise the merchandise. By breaking out these categories, it will no longer be possible to use “historical pieces” as a cover and claim that the item was properly reported.

Thank you to the Committee of the Blue Shield for leading this successful effort to revise the HTSUS. For more on customs and international trade law, visit Lawrence’s blog.