Calendar No. 829
     
     97th CONGRESS |                             |      REPORT
     2nd Session   |          SENATE             |  No. 97-564
     _________________________________________________________


          MISCELLANEOUS TARIFF, TRADE, AND CUSTOMS MATTERS

                    ____________________________

        SEPTEMBER 21 (legislative day, SEPTEMBER 8, 1982)--
        Ordered to be printed

                    ____________________________

             Mr. DOLE, from the Committee on Finance,                   
                   submitted the following

                             REPORT

                         together with

                        ADDITIONAL VIEWS

                    [To accompany H.R. 4566]

  The Committee on Finance, to which was referred the bill (H.R.
4566) to reduce certain duties, to suspend temporarily certain
duties, to extend certain existing suspensions of duties, and for
other purposes, having considered the same, reports favorably
thereon with an amendment and recommends that the bill as amended
to pass.

I.  SUMMARY

  H.R. 4566, as referred to the committee was ordered favorably
reported with amendments which struck everything after the
enacting clause and substituted the provisions described herein. 
Title I.... Title II of the bill contains provisions implementing
the Convention on the Mans of Prohibiting and Preventing the
Illicit Import, Export,a nd Transfer of Ownership of Cultural
Property.  Title III....

[Continuing Report 97-564]

[PAGE 21]
...IMPLEMENTING LEGISLATION FOR THE CONVENTION ON THE MEANS OF
PROHIBITING AND PREVENTING THE ILLICIT IMPORT, EXPORT, AND
TRANSFER OF OWNERSHIP OF CULTURAL PROPERTY

  Purpose--This bill implements in domestic law the Convention on
the Means of Prohibiting and Preventing the Illicit Import,
Export, and Transfer of Ownership of Cultural Property (823
U.N.T.S. 231 (1972)).  The Cultural Property Convention is an
international agreement adopted ;by the United Nationals
Educational, Scientific and Cultural Organization on November 14,
1970.  It establishes principles for the control of trade in
archaeological and ethnological materials as well as certain other
cultural material.  Although the Senate unanimously gave its
advice and consent to ratification in 1972, the Convention is not
self-executing and it has not been ratified for lack of the
domestic legal means necessary to carry out its obligations.  The
purpose of this bill is to provide that authority, thereby
promoting U.S. leadership in achieving greater international
cooperation towards preserving cultural treasures that not only
are of importance to the nations whence they originate, but also
to a greater international understanding of our common heritage.  
  The bill--S. 1723, as amended by the committee and included in
H.R. 4566, implements the essential obligations of the Cultural
Property Convention. These obligations generally are:  (1) to
prohibit the import of cultural material identified as stolen from
an institution in another State Party (i.e., a party to the
Convention), and to assist in its recovery if it is imported; and
(2) to apply specific import or other controls (upon the request
of a State Party) to archaeological or ethnological materials
specifically identified as comprising a part of a state's cultural
patrimony that is in danger of being pillaged.  Except in certain
emergency situations, the latter obligation normally will be met
through ad hoc international arrangements.  In form and substance,
the bill substantially emulates H.R. 5643, implementing
legislation passed by the House of Representatives in the 95th
Congress (See H.Reg. No. 95-615, 95th Cong., 1st Sess. (1977)).
  Following the short title provided in section 201, section 202
of the bill sets forth definitions for the important terms of art
in the legislation.

[PAGE 22]
  Sections 203-205 and 207 implement article 9 of the Convention. 
This sections authorize the President, subject to certain
conditions and limitations, to enter into bilateral or
multilateral agreements or to invoke emergency import regulations
to control the importation of archaeological or ethnological
materials that have been illegally exported from another State
Party or are in danger thereof.  The exercise of this authority is
contingent upon a request from a State Party, the cultural
patrimony of which is in jeopardy from pillage.  The agreements
are to serve as the basis for a concerted effort to thwart the
pillage.
  Section 208 implements article 7 of the Convention.  This
section imply declares illegal the importation into the United
States of cultural property identified as appertaining  to the
inventory of a museum, a religious or public monument, or a
similar institution in a state Party.  This provision creates a
juridical basis for actions, authorized in section 210 to recover
the property.
  Section 206 establishes a Cultural Property Advisory Committee
comprised of representatives of the general public, and experts
from the academic, museum, and art dealer communities.  It is
structures similarly to trade advisory committees established by
section 135 of the Trade Act of 1974, and will advise the
President concerning the requests of State parties for import
controls and the scope and operation of such controls.
  Sections 210-211 subject to seizure and forfeiture any articles
imported in violation of sections 207 or 208.  Pursuant to section
209, however, U.S. museums or similar institutions may retain the
articles, subject to certain protections, until their final
disposition is determined.  Under section 212, certain articles
are excluded from any controls authorized by this bill because
they are entering this country solely for purposes of exhibition
or because they have been held in this country for a significant
period without challenge to the legitimacy of their procurement.
  Sections 213-215 are administrative in nature.
  As in the case of the earlier-passed H.R. 5643, this bill
reflects the approach to illicit trade in art adopted by the
Congress in the Pre-Columbian Art Act of 1972 (Pub. L. No. 92-587)
with regard to a particular category of artifacts.  The bill takes
into account the reservation and understandings accompanying the
grant by the Senate in 1972 of its advice and consent to
ratification of the Convention.  Further, it neither pre-empts
State law in any way nor modifies any Federal or State remedies
that may pertain to articles to which the provisions of this bill
apply.

                      REASONS FOR THE BILL

  Background.--The increasing demand in recent years for
archaeological and ethnological materials and antiquities has
spurred, in most experts' opinions, a great increase in the
international exchange of such materials.  But unlike other
commodities, increased or new production of these articles cannot
rise to meet the demand.  Instead, the increased supply results
from the sales of known artifacts and those newly recovered from
archaeological sites. The unique origin and character of these
articles raises serious trade

[PAGE 23]
issues distinct from the normal concerns of the reciprocal trade
agreements program or U.S. trade law.
  No detailed data exist that provide reliable insights into
either the precise nature or magnitude of trade in cultural
property.  As one expert points out.  "It is easy to understand
why we have little information.  Much about the art trade simply
is not knowable." Bator. An Essay on the International Trade in
Art 34 Stan. L. Rev. 275, 291 (1982).  Professor Bator suggests
that this is because of the vast number of undiscovered or
unidentified objects; the lack of resources among many nations to
develop their cultural resources; and the secret nature of much of
the trade.  Nevertheless, the testimony to the committee on  S.
1723 confirmed the evidence given in various Congressional fora in 
recent years and in many learned articles:  the demand for
cultural artifacts has resulted in the irremedial destruction of
archaeological sites and articles, depriving the situs countries
of their cultural patrimony and the world of important knowledge
of its past.  Further, because the United States is a principal
market for articles of archaeological or ethnological interests
and of art objects, the discovery here of stolen or illegally
exported artifacts in some cases severely strains our relations
with the countries of origin, which often include close allies. 
As stated by the Department of State in commenting on S. 1723:

    The legislation is important to our foreign relations,         
  including our international cultural relations.  The expanding  
  worldwide trade in objects of archaeological and ethnological  
  interest has led to wholesale depredations in some countries,  
  resulting in the mutilation of ceremonial centers and            
  archaeological complexes of ancient civilizations and the        
  removal of stone sculptures and reliefs.  In addition, art       
  objects have been stolen in increasing quantities from museums,  
  churches, and collections.  The governments which have been      
  victimized have been disturbed at the outflow of these objects  
  to foreign lands, and the appearance in the United States of    
  objects has often given rise to outcries and urgent requests    
  for return by other counties.  The United States considers that  
  on grounds of principle, good foreign relations, and concern     
  for the preservation of the cultural heritage of mankind, it     
  should render assistance in these situations.

  Witnesses before the committee also pointed out that the
interest of the United States in this matter extends beyond our
import market and our interest in fostering the careful study of
foreign cultures.  In recent years, the increasing interest in
native American, Hawaiian, and Alaskan artifacts concomitantly has
spurred the pillaging of U.S. historic sites.  The destruction of
such sites and the disappearance of the historic records evidenced
by the articles found in them has given rise to a profound
national interest in joining other countries to control the
trafficking of such articles in international commerce.
  These concerns led the United States in the late 1960's to
participate in negotiations, sponsored by the United Nations
Educational, Scientific, and Cultural Organization (UNESCO), to
achieve international agreement on the nature and means to address
the problem.

[PAGE 24]
The Convention on the Means of Prohibiting and Preventing the
Illicit Import, Export and Transfer of Ownership of Cultural
Property resulted from these negotiations.  The sixteenth General
Conference of Unesco adopted the Convention on November 14, 1970,
by a vote of 77 to 1, with 8 abstentions.  It entered into force
(but not with respect to the United States) on April 24, 1972. 
Forty-five countries are now parties to the Convention.
  As described by the Committee on Foreign Relations, the
Convention generally encompasses the following obligations:

    The principle purpose of the convention is to combat the       
  increasing illegal international trade in national art           
  treasures, which in some countries has led to wholesale          
  pillaging.  To this end, the parties to the convention           
  undertake to protect their own cultural heritage and to          
  establish an export certificate for cultural property            
  designated by each country as being of importance.  They are     
  also required to prohibit the import of cultural property        
  stolen from museums, public monuments, or similar institutions   
  and to take appropriate steps, upon request to recover and       
  return such cultural property provided that the state of origin
  is prepared to pay just compensation to an innocent purchaser or
  a person who has valid title.  The parties further agree to take
  what measures they can, consistently with existing national      
  legislation, to prevent museums and similar institutions within
  their territory from acquiring cultural property originating in
  another country which has been illegally exported after entry    
  into force of the treaty.

Senate Committee on Foreign Relations, Exec. Rep. No 92-29, 92d
Cong., 2d Sess. 1 (August 8, 1972).  Where a State Party's
cultural patrimony is in jeopardy from pillage of identified types
of archaeological or ethnological materials, the parties agree to
apply import controls or other appropriate corrective measures.
  After consideration by the committee on Foreign Relations, which
found no opposition to the Convention, the Senate unanimously gave
its advice and consent to ratification on August 11, 1972.  The
senate's action included one reservation and six understandings. 
One understanding made clear that the Convention is not self-
executing and will have no domestic legal effect except as defined
by implementing legislation. 
  The Department of State first proposed implementing legislation
in 1973 to the 93rd Congress, and again in 1975 to the 94th
Congress.  The House of Representatives approved an amended
version of this legislation (H.R. 5643) in 1977, but the bill was
not reported by the Committee on Finance.  Legislation again was
introduced in the 96th Congress, but no action was taken after
hearing.
  S. 1723 is the successor in this Congress to those earlier
efforts.  The Subcommittee on International Trade held a hearing
on July 22, 1982, and took oral and written testimony from the
Administration and representatives from the academic and art
dealers' community.  This will reflect amendments subsequently
agreed to by all of these groups.  The Committee adopted the bill,
as amended, without objection as part of H.R. 4566 on September
15, 1982.

[PAGE 25]
                 SECTION-BY-SECTION ANALYSIS

  Section. 201.--This section provides that this title may be
cited as the "Convention on Cultural Property Implementation Act."
  Section 202.ÄThis section defines the essential terms of art
employed in title II.
  Only the term "archaeological or ethnological materials of the
State Party" requires fuller explication here.  The Convention
does not define this terms.  The definition is intended by the
committee to reflect the understanding of U.S. negotiators that
the application of import restrictions under agreements entered
into under section 203 or emergency actions taken under section
204 is limited to a narrow range of objects possessing certain
characteristics.  As defined under section 202(2i),
"archaeological material" includes any object which is of cultural
significance, which is at least 250 years old, and which normally
has been discovered through scientific excavation, clandestine or
accidental digging, or exploration on land or under water. 
Archaeological objects are usually found underground or under
water, or are discovered through excavation, digging, or
exploration.  However, the definition would also include objects
which are typically regarded as archaeological (for example,
frescoes from buildings), without regard to whether the particular
objects are discovered by excavation or exploration.
  The committee believes that the 250-year threshold age
requirement ensures that the controls authorized by this Act will
be applied to objects of significantly rare archaeological
stature, which encompassing a range of important artifacts that
are of a more recent vintage.  For example, archaeological sites
of importance in understanding the settlement of North America
contain objects not greatly exceeding 250 years in age. 
  "Ethnological material" includes any object that is the product
of a tribal or similar society, and is important to the cultural
heritage of a people because of its distinctive characteristics,
its comparative rarity, or its contribution to the knowledge of
their origins, development or history.  While these materials do
not lend themselves to arbitrary age thresholds, the committee
intends this definition, to encompass only what is sometimes
termed "primitive" or "tribal" art, such as masks, idols, or totem
poles, produced by tribal societies in Africa and South America. 
Such objects must be important to a cultural heritage by
possessing characteristics which distinguish them from other
objects in the same category providing particular insights into
the origins and history of a people. The committee does not intend
the definition of ethnological materials under this title to apply
to trinkets and other objects that are common or repetitive or
essentially alike in material design, color, or other outstanding
characteristics with other objects of the same type, or which have
relatively little value for understanding the origins or history
of a particular people or society.  An agreement or emergency
action would also not apply to ethnological material produced by
more technologically advanced societies.  The Cultural Property
Advisory Committee, as provided in section 206, will render the
expert advice necessary to understand these terms in the context
of particular cases.

[PAGE 26]
  Sections 203-205 and 207.ÄThese sections implement Article 9 of
the Cultural Property Convention, which states:

    Any State Party to this Convention whose cultural patrimony    
  is in jeopardy from pillage of archaeological or ethnological    
  materials may call upon other State Parties who are affected.    
  The States Parties to this Convention undertake, in these        
  circumstances, to participate in a concerted international       
  effort to determine and to carry out the necessary concrete      
  measures, including the control of exports and imports and       
  international commence in the specific materials concerned.      
  Pending agreement each sate concerned shall take provisional     
  measures to the extent   feasible to prevent irremediable injury 
  to the cultural heritage of the requesting State.

  In describing what is contemplated by this provision, the
Committee on Foreign Relations stated that--

  at the UNESCO 16th General Conference, the U.S. delegate said    
  before voting that in his view the procedures in article 9 for   
  determination of concrete measures to deal with pillage of       
  archaeological or ethnological materials will permit the states
  affected to determine by mutual agreement the measures that can
  be effective in each particular case to deal with the situation
  and to accept responsibility for carrying out those measures on
  a multilateral basis.  Two examples of such situations are (1)   
  the case in which the remains of a particular civilization are   
  threatened with destruction or wholesale removal as may be true
  of certain pre-Columbian monuments, and (2) the case in which    
  the international market for certain items has stimulated        
  widespread illegal excavations destructive of important          
  archaeological resources.

  Exec. Rep. No. 92-29, 92d Cong., 2d Sess. 5(1972).  The latter
two situations are addressed in sections 204 and 203,
respectively.
  Sections 203(a) and (c) together comprise the substantive grant
of authority for the President to enter into bilateral or
multilateral agreements intended to provide U.S. cooperation
towards protecting form the danger of pillage the archaeological
or technological materials comprising the cultural patrimony of
another State Party.  The President, with the advice of the
Advisory Committee established in section 206, must make several
determinations prior to concluding such as agreement.  In general,
these are intended to ensure that the requesting nation is engaged
in self-help measures and that U.S. cooperation, in the context of
a concerted international effort, will significantly enhance the
chances of their success in preventing the pillage.
  Specifically, after a request by the victimized nation, the
President may enter into agreements to apply the import controls
authorized by section 207 if he determines the following:
    (1) The cultural patrimony of the State Party is in jeopardy  
  from pillage of its archaeological or ethnological materials;    
    (2) the State {arty has taken measures consistent with the     
  Convention to protect its cultural patrimony;

[PAGE 27]
    (3) application of import restrictions in the context of a     
  concerted international effort, to archaeological or             
  ethnological material of the State Party would be of substantial 
  benefit in deterring a serious situation of pillage, and less    
  drastic remedies are not available; and
    (4) application of 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 and educational purposes.
  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
historical or scientific value made by other nations.  U.S.
actions in these complex matters should not be bound by the
characterization of other countries, and these other countries
should have the benefit of knowing what minimum showing is
required to obtain the full range of U.S. cooperation authorized
by this bill.
  The concept that U.S. import controls should be part of a
concerted international effort is embodied in article 9 of the
Convention and carried forward in section 203.  In previous years'
consideration f various proposals for implementing legislation, a
particularly nettlesome issue was how to formulate standards
establishing that U.S.  controls would not be administered
unilaterally.  The committee believes that the language now
adopted, which amends that contained in S. 1723 and which is
agreeable to all private sector parties that have contributed
actively to the Committee's consideration of the bill, satisfies
the twin interests of obtaining international cooperation while
achieving the goal of substantially contributing to the protection
of cultural property from further destruction.
  The bill reflects the principle of participation in a concerted
international effort in the following manner.  Under section
203(a)(1)(C)(i), as a precondition to entering into an agreement
the President must determine that import restrictions, "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) individually having a significant
import trade in such material, would be of substantial benefit in
deterring a serious situation of pillage...." Section 203(c)(1)
then specifically denies the President the authority to enter into
an agreement unless these conditions are satisfied.  The
determination of what countries have a significant import trade in
the material that is in jeopardy of being pillaged, and whether
the effort will help to ameliorate the problem is within the
discretion of the President.  These decisions inherently preclude
precise determination, given the goals of the Convention and the
uncertain factual basis of them.  For example, whether a country
has a "significant import trade" may be a function of not only
value of imports, but type and historic trading patterns. 
therefore, a measure of Presidential judgment is required. 
Nevertheless, the committee believes the standards set forth in
this section, together with active contributions by the Advisory
Committee to the Administration's decisionmaking process, 

[PAGE 28]
will ensure that the President will enter into agreements only in
accord with the purposes and standards of the bill.   It is the
committee's further intent that the formula measuring the presence
and worth of a "concerted international effort" not be so
mechanical as to preclude the consultation of agreements under
section 203(a) where the purposes of the legislation nevertheless
would be served by doing so.  Therefore, the Committee adopted in
section 203(c)(2) a limited exception to the general requirement
laid down by section 203(c)(1).  This exception allows the
President, once he has identified the significant importing
nations the participation ow which ordinarily would be expected to
comprise a concerted international effort, to enter into
agreements without the participation of all such nations.  To do
so, he must determine with regard to particular such nationals
that they are not implementing similar import controls but--       
    (A) such restrictions are not essential to deter a serious     
  situation of pillage, and
    (B) the application of the import restrictions set forth in  
  section 207 in concert with similar restrictions implemented, or 
  to be implemented by other national (whether or not State        
  Parties) individually having a significant import trade in such  
  material would be of substantial benefit in deterring a serious  
  situation of pillage.
The essential nature of a concerted international effort is thus
preserved, while the president is allowed to move forward without
the full participation of national the contributions of which are
not essential to amelioration of the problem.
  Section 203 contains other limitations on the President's
agreement-making authority.  Subsections (b) and (e) limit the
term of the agreements to five years, with the possibility of
extension for additional five-year periods if, after an
opportunity for public comment and Advisory Committee review, the
President determines that the circumstances warrant an extension. 
Further, under subsection (d) the President must suspend an
agreement if he determines that the circumstances originally
constituting the basis for its entry into force no longer obtain.
  Section 204 authorizes the President to impose the import
restrictions set forth in section 207 on archaeological or
ethnological materials of any state Party if he determines that an
emergency condition exists with respect to such material.  The
emergency restrictions may not apply for more than 5 years,
although they may be extended for one additional period of not
more than 3 years if the emergency persists.  Subsection (a)
defines "emergency condition" as a situation in which the
archaeological or ethnological materials of a State Party is one
of the following:
    (1) newly discovered material important for understanding the  
  history of mankind and in jeopardy from pillage, dismantling,  
  dispersal, or fragmentation;
    (2) identifiable as coming from a site of high cultural        
  significance in jeopardy from pillage, dispersal, or             
  fragmentation which is or threatens to be of crisis proportions; 
  or
    (3) part of the remains of a particular civilization, the      
  record of which is in jeopardy from pillage, dismantling,        
  dispersal or fragmentation which is or threatens to be of crisis 
  proportions.
  
  [PAGE 29]
In addition, the President must determine that application of
temporary import restrictions would reduce the incentive for such
pillage, dismantling, dispersal, or fragmentation in whole or in
part.
  Beside time limitations, subsection (c) imposes two limitations
on the emergency authority.  First it prohibits the President from
implementing section 204 unless the State Party made a request to
the United States as in section 203(a) for assistance under
Article 9 of the Convention.  However, the State Party need not
indicate in its request that an emergency condition exists as a
necessary precondition to the use of the emergency authority,
although the information provided in its request must support such
a finding.  Second, before making his decision on emergency
action, the President must consider the views and recommendations
of the Advisory Committee on the use of the emergency authority if
the committee has submitted its report to him within 90 days after
the President provides it information on the request of the State
Party.  The information provided by the President should include
any indication by the State Party of an emergency situation.  
  Section 204(c)(4) provides the President with additional means
to continue the emergency import restrictions after an agreement
is concluded.  This subsection provides that when an agreement is
concluded under section 203 or the Senate has given its advice and
consent to a treaty, the President may continue to apply the
emergency import restrictions to the covered articles, as
originally promulgated or as modified, for a period lasting until
their expiration under the agreement or treaty.
  In order to carry out the import restrictions contemplated by
agreements entered into pursuant to section 203 or by the
emergency authority granted by section 204, the specific types of
archaeological or ethnological materials that will be restricted
must be identified.  Section 205 authorizes the Secretary of the
Treasury to do so by regulation.  The Secretary will consult with
the Director of the United States Information Agency before
promulgating such a lists, as the latter is responsible for
servicing the work of the Advisory Committee that is expected to
contribute heavily to the composition of the list.  The Secretary
may list such material by type or other classification but each
such listing must be sufficiently specific and precise to serve
the two purposes of ensuring that (1) the import restrictions are
applied only to material covered by the agreement or emergency
action (that is, pillage is creating the jeopardy to the cultural
patrimony of the State Party found to exist under section 203 or
section 204); and (2) importers and other interested persons are
provided fair notice of what archaeological or ethnological
material is subject to import restrictions.
  Section 207 bars the importation of any article designated for
restriction under section 205 unless it is accompanied by proper
export documentation from the originating State Party, or unless
satisfactory evidence is adduced that the export occurred either
before the designation of more than 10 years prior to the entry
and the importer involved or a "related person" did not acquire an
interest in the article prior to one year before entry.  Section
207(d) defines "related persons" for this purpose.  The committee
believes these requirements strike a fair balance between the
authority necessary to avoid circumvention of and to enforce
"related persons"

[PAGE 30]
to this end.  The committee believes these requirements strike a
fair balance between the authority necessary to avoid
circumvention of and to enforce controls this Government
undertakes to implement, and the desire to lessen the burden of
such restrictions on normal art trade and on innocent purchasers
of art.
  Entries failing to meet the requirements of this section are
subject to seizure and forfeiture pursuant to section 210. 
Indeed, even if an item is permitted to enter the country, it may
be seized under section 210 if it was subject to seizure had the
facts been known. In order to obtain entry in t he first instance,
a consignee must present "satisfactory evidence" that these
requirements are satisfied.  Under section 207(c), such evidence
in general consists of a declaration under oath by the consignee
attesting to the necessary facts and statements by the consignor
to the same effect together with the reasons upon which he bases
these statements.  The committee understands the latter
requirement of providing reasons to mean that the consignor must
present to the Customs officer a substantial basis for his
assertions in the statement.  Although this section thus
recognizes the difficulties in obtaining sworn declarations by
foreign consignors, it requires more than a superficial meeting of
the requirements of "satisfactory evidence."
  Section 206.--The exercise by the President of the authorities
provided in sections 203-205 will require substantial input from
knowledgeable representatives of the private sector.  Section 206
establishes a Cultural Property Advisory Committee for this
purpose.
  The eleven members of the Advisory Committee will include two
members representing the interests of museum, three
archaeologists, anthropologists, or experts in related fields;
three persons representing the interests of art dealers; and three
representatives of the general public.  While following the same
division of interests, the committee rejected the formulation of
S. 1723 of enumerating specific associations, each of which would
nominate a few names from which the President would be required to
select his appointment.  This approach raises a serious question
of unconstitutional infringement of the President's appointment
power.  Of equal concern would be the deviation from the
established practice of creating trade advisory committees adopted
in section 135 of the Trade Act of 1974 (19 U.S.C. 2155). While
the associates listed in S.1723 doubtless will provide a rich
source of qualified persons for consideration by the President,
the committee concluded that to avoid any appearance of unfairness
in the appointments process, the pool of qualified nominees should
not be arbitrarily restricted to certain private groups.
  In other respects also, the committee chose to follow the
established structure of trade advisory committees under section
206(b)(3), appointments will be on a renewable 2-year basis. 
Subsection (h) ensures that in operation the Advisory Committee
will conform to the strictures of the Federal Advisory Committee
Act (5 U.S.C. app. I, sec. 1 et seq). Subsection (c) would
establish a limited statutory exception to the Freedom of
Information Act, in addition to the exemptions already contained
therein.  The committee believes this exception is warranted
because of the limited nature, the restricted scope of Advisory
Committee functions, and the nature of the information involved
which, if released could adversely affect

[PAGE 31]
the President's ability to negotiate agreements authorized by this
Act.  As the Advisory Committee's role is limited to pre-
negotiation determinations, it is expected that this provision
will apply to only a small volume of information.  Subsection (j)
confirms that private sector Advisory Committee members are not
expected on the basis of this legislation alone, to have a role in
negotiating agreements to which this bill pertains.
  Section 206(d) provides that a majority of the eleven Advisory
Committee members shall constitute a quorum, and that it may act
by majority vote of those present and voting.  As the Advisory
Committee is required to adhere to certain time limits if its
advice is to be considered by the President, this provision will
assist it in proceeding with business in the absence of several
members.
  Section 206(e) establishes the United States Information Agency
as the secretariat of the Advisory Committee.  Other agencies,
particularly the Departments of State, Justice, the Treasury, and
the General Services Administration are expected to facilitate the
Advisory Committee's operations in every reasonable way.
  Section 206(f) and (g) set forth the substantive
responsibilities of the Advisory Committee.  Under subsection (f),
it will report on requests for assistance by other state Parties
and whether agreements or emergency measures would be the proper
response.  The reports are to contain substantive analyses and
recommendations, and any dissents.  The Advisory Committee will
also review existing agreements and emergency controls and report
on the need for extending or suspending such agreements or
emergency controls.  Through this mandate, the committee believes
the Advisory Committee will play a prominent role in achieving the
effective implementation of this bill.
  Section 208.--Section 208 implements article 7(b)(i) of the
Convention, which requires State Parties to undertake to prohibit
the import of cultural property stolen from a museum or a
religious or secular public monument or similar institution in
another State Party to this Convention after the entry into force
of this convention for the States concerned, provided that such
property is documented as appertaining to the inventory of that
institution.
  Section 208 prohibits the importation of any article of cultural
property stolen from t he inventory of a museum or religious or
secular monument or similar institution.  "Cultural property" is
defined to include the categories of articles listed in article 1
of the Convention, whether or not the article is specifically
designated by the State Party for this purpose.  The term thus is
broader than  but inclusive of "archaeological or ethnological
material."  This provision will apply to items of cultural
property stolen from a broad range of institutions and public
monuments in State Parties.  In addition to public museum, the
language is intended to cover cathedrals, temples, shrines, and
other such edifices or sties open for public visitation or
scientific study.  Examples include the Wailing Wall in Jerusalem;
Pompeii, Italy; Teotihuacan, Mexico; Angkor Wat, Cambodia; the
Colosseum, Rome; Arc de Triomphe, Paris, etc.  Covered are
facades, murals, internal and external ornamentation, statuary,
paintings, objects of artistic or religious significance, etc.
affixed to, or located in or on such edifices or sites.

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  An article of cultural property would be covered by section 208
if it were listed in the inventory of a particular institution or
if it were affixed to or located in or on an edifice or site which
itself is included in an inventory.  The committee intends the
language "documents as appertaining to the inventory" to be read
broadly in the context of the actual practices by which nations
identify and maintain their cultural treasures, not only in museum
but also those associated with monuments. "Documented," for
example, is intended to cover photographic and other types of
evidence in addition to formal museum records.  Further,
"inventory" should be broadly construed where public and religious
monuments and similar institutions are concerned.
  Section 208 takes effect with respect to any article stolen
after the effective date of this act or after the date the
convention enters into force for the State Party, whichever is
later.  This is without regard to whether or not the United States
has an agreement under section 203 or has taken emergency action
under section 204 to restrict importation of archaeological or
ethnological material from that State Party.
  Section 209.--Section 209 provides for temporary retention of
any archaeological or ethnological material or article of cultural
property in a public museum or other cultural or scientific
institution in the United States pending a final determination of
whether the material or article was imported in violation of
sections 207 or 208.  The Secretary of the Treasury will permit
retention upon application by an institution if he finds that the
institution will take sufficient safeguards to protect the
material or article and will post sufficient bond to insure its
return to the Secretary.
  Sections 210-211.--Sections 210 and 211 contain the provisions
for seizure, forfeiture, and disposition of archaeological or
ethnological materials or of stolen articles of cultural property
imported in violation of sections 207 or 208.
  Section 210 contains the seizure and forfeiture provisions and
the conditions for return to the State Part of protected material
or articles which are forfeited to the United States.  Subsection
(a) provides that any designated archaeological or ethnological
material or article of cultural property imported in violation of
section 207 or 208 will be subject to seizure and forfeiture.  All
provisions of law relating to seizure, forfeiture, and
condemnation for violation of the customs law apply insofar as
they are applicable to and not inconsistent with provisions of
this Act.
  The Committee agreed to amend S. 1723 to allow both summary and
judicial forfeiture proceedings.  It accepted the argument of the
Administration and others that many articles potentially subject
to forfeiture are likely to be small in value, and neither the
consignee nor the Government will wish to bear the cots of a
judicial proceeding concerning them.  Further, the limited
resources of the courts should not be diverted to these minor
cases if the parties do not wish to undergo such proceedings. 
Finally, anyone seeking judicial forfeiture may do so by posting a
small bond; therefore, eliminating the requirement of judicial
forfeiture proceedings does not abridge any rights of
opportunities of the defendant [sic].
  Subsection (b) specifies that any archaeological or ethnological
material imported in violation of section 207 and forfeited to the

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United States must first be offered for return to the State Party. 
The object will be returned if the State Party bears the expenses
of return and delivery and complies with any other requirements
related to the return prescribed by the Secretary of the Treasury. 
Otherwise, the object will be disposed of as prescribed for
articles forfeited for violation of the customs law, unless the
claimant establishes valid title the material and that he is a
bona fide purchaser for value of it.
  Subsection (c) specifies that any action for forfeiture of an
articles of cultural property imported in violation of section 208
is subject to the following alternative resolutions.
  1. If the claimant establishes valid title as against the
institutions from which the article was stolen, forfeiture will
not be decreed unless the State Party requesting its return agrees
to pay the claimants holding valid title just compensation.
  2.  If the claimant does not establish valid title but
establishes his purchase for value without knowledge or reason to
believe the article was stolen, then forfeiture will not be
decreed unless (a) State Party to which the article is to be
returned pays that innocent purchaser and amount equal to what he
paid for the article, or (b) the United States establishes that
the State Party as a matter of law or reciprocity would in similar
circumstances recover and return an article stolen from a United
States institution without requiring payment of compensation.
  Implementation of article 7(b) of the Convention affects neither
existing remedies available in State or Federal courts nor laws
prohibiting the theft and the knowing receipt and transportation
of stolen property in interstate and foreign commerce (e.g.,
National Stolen Property Act, Title 18, U.S.C. Sections 2314-15),
including the possible recovery of stolen property for the
rightful owner in the courts without payment of compensation. 
Article 7(b)(ii 0 of the convention specifically requires that an
offer of just compensation be made to a person holding valid title
to, or to an innocent purchaser of, an article of cultural
property by the state Party requesting its return.  However,
innocent purchasers who do not acquire valid title as against the
true owner may not be entitled to compensation under applicable
municipal laws in the United States.  Consequently, the fourth
understanding adopted by the Senate in its advice and consent to
ratification of the Convention, as reflected in section 210(c),
provides that the United States is prepared to return recovered
stolen cultural property without payment of compensation if it
establishes before the court as a matter of law or reciprocity
that the claiming State Party would in similar circumstances
recover and return an article stolen from an institution in the
United States without requiring payment of compensation. It is
considered that reciprocity would have to be shows by a Government
decree, proclamation, written commitment, written opinion, or
other such evidence.
  Section 211 establishes the evidentiary requirements for any
forfeiture proceeding under this Act in which archaeological or
ethnological material or an article of cultural property is
claimed by any person.  Notwithstanding section 615 of the Tariff
Act of 11930, the burden of proof will be on the United States in
such proceedings to establish that material subject to section 207 
has been designated

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by the Secretary of the Treasury under section 205 as covered by
an agreement with a State Party or by an emergency action.  In the
case of an article of cultural property, the United States must
establish that the article appertains to the inventory of a museum
or similar institution in a State Party and was stolen from that
institution after the effective date of this Act or after the date
the Convention entered into force for the State Party concerned,
whichever is alter.
  Section 212.--Section 212 exempts archaeological or ethnological
material or article of cultural property from the provisions of
the Act under any of the following circumstances:
  1. Material or articles imported into the United States for
temporary exhibition of display are exempt if they are immune from
seizure under judicial process pursuant to 22 U/S/C/ 2459.  To
achieve such immunity, the President or his designee must have
determined prior to importation of the object that it is of
cultural significance and that its temporary exhibition or display
within the United States is in the national interest, and he must
have published notice to this effect in the Federal Register.
  2. Material or articles held at least three years in the United
States by a public institution that openly procured, displayed, or
publicized its possession of the objects.
  3. Material or articles held in the United States for at least
10 consecutive years from the date of the importation and (a)
exhibited for at least 5 years during that period in a recognized
museum, religious, or secular monument, or similar institution, or
(b), if (a) does not apply, the State Party received or should
have received fair notice through publication or other means to be
prescribed by regulation, of its location within the United States
during this period.
  4. If none of the above apply then the material or articles have
been in this country for at least 20 years and the claimant
purchased them without awareness of their illegal origin.   The
purpose of these exceptions is to provide a time certain when an
adequate opportunity to identify and to recover illicitly traded
art will have been afforded, and rights to objects can be settled.
  Section 213.--Section 213 authorizes the Secretary of the
Treasury to prescribe rules and regulations as necessary and
appropriate to carry out the act.
  Section 214.--Section 214 provides for custom officers to
enforce the Act in the United States customs territory and in the
Virgin Islands.  The President will designate persons to enforce
the act in other United States territories or areas outside the
customs territory or Virgin Islands.
  Section 215.--Section 215 provides for the act to take effect on
the 90th day after enactment, or on a prior date after enactment
that the President prescribes and publishes in the Federal
Register if he has appointed the initial members of the Advisory
Committee.  The President may appoint the Advisory Committee
members any time after the date of enactment of this act.