By Wayne Sayles - Ancient Coin Collecting
In reading documents recently released to ACCG under the Freedom of Information Act, it struck me as odd that the Treasury Department was in the loop for approval of the Customs and Border Protection (CBP) rule that would implement the Italian Memorandum of Understanding (MOU). A document titled "Memorandum for Executive Secretary" answered that question. The first restrictions on artifacts from Italy were imposed by Treasury Decision 06-01 when Customs was still under Treasury.
Apparently, CBP still needs to get Treasury to sign off on any actions related to the original imposition even though CBP (now under Homeland Security) is responsible for all of the actions and enforcement. CBP sent a request for review to Treasury (Asst. Secretary Timothy E. Skud) on 5 January 11. They asked for an "expedited" review in order to meet the statutory 19 Jan 11 deadline on which the MOU would expire if not extended.
The proposed rule included a revised Designated List that includes for the first time a restriction on certain coins of Italian type. Although CBP did advise Treasury that "Coins of Italian Type" were included in the extension, they stated "We believe that this document will not generate press coverage or controversy." Apparently they do not consider litigation in Federal court "controversy"! They also stated that "We believe that it is not necessary for the Secretary or Deputy Secretary to review this document." In other words, CBP led Treasury to believe that this was not an important issue and a perfunctory approval was in order (keep in mind that Treasury is generally coin collector friendly and may have delayed the response for further input if they had been aware of significant collector opposition). In the resulting "Notice of Planned Regulatory Action Pursuant to Executive Order 12866" the nature of this action was designated by CBP as "Not Significant". This has a statutory bearing under the Administrative Procedures Act (APA) on how the rule is processed since rule changes that are not significant are exempt from the otherwise mandatory public comment period. The CBP agency contact in this matter was Michael Craig, Chief, Interagency Requirements Branch, Office of International Trade.
The individual who handled this review at the Treasury Department undoubtedly knew nothing about the DOS agenda to stifle trade and collecting of ancient coins. I'm confident that he was also unaware that DOS received some 2,000 faxes opposing the addition of coins to the Italian MOU, or that about half of the individuals testifying at the CPAC hearing represented the collecting community's opposition, or that the Cultural Property Advisor Committee actually voted against adding coins to the extended MOU and that Department of State (DOS) added them nonetheless. None of this information was presented to the Dept. of Treasury reviewer, only a simple request to sign off on an "insignificant" issue.
What kind of review was actually performed? A redacted email exchange in which one party is addressed as "Lesleyanne" (apparently CBP attorney Lesleyanne Koch Kessler) sheds some light on this. A 14 December 2010 query from a redacted agency (presumably DOS) to Lesleyanne was responded to on 21 December 2010 with the message:
"I am reviewing this and I don't think we will have comments. I will get sign-off and send forward."
This evoked the response (from DOS?):
"Thanks for emailing me on the status. I was beginning to wonder if CC had a problem with the package."
To which Lesleyanne replied "You were probably perplexed if you thought we had a problem with it...pretty standard stuff!"
In another correspondence of 5 January 2011 from CBP to Treasury, the immediacy of the Treasury sign-off was highlighted. The proposed rule needed a high ranking official's signature and CBP was having logistical problems getting that. The Commissioner was apparently not available and the Deputy was heavily committed. In an attempt to get the package to Treasury for a signature, a member of the CBP staff wrote:
"As we discussed on the phone, this is a plain vanilla rulemaking which extends for another 5-years the import restrictions. If Chief Aguilar could sign as Acting Commissioner, we would appreciate it very much to prevent a lapse in restrictions if this does not get published on time."
Another CBP staff email to Treasury said:
"After I received word from ---- (redacted) that DVA [David V. Aguilar] signed last night, I sent an email to Treasury attaching an electronic copy of the document for them to informally start reviewing the document and stating that the hard copy would be taken over there this morning. ---- (redacted) mentioned to me last night whether we wanted to take a risk with FR [Federal Register] and use auto pen. If a document does not contain an original signature, the Federal Register will reject it. If Chief Aguilar will be back today, I think we should wait as I don't want to have to tackle another hurdle when we deliver the document to the FR on 1/14/11."
A flurry of emails document the Chinese fire drill at CBP obtaining that signature, but the document did apparently get signed and delivered to Treasury sometime on the 5th of January. Treasury reviewed, signed and returned the document to CBP by January 11. That meant it was at Treasury for part of a six day window that included a weekend. In other words, Treasury had no more than three full work days to review the document and its implications. That is, three days to review a document that was formally described to them as "not significant". One can hardly fault Treasury under the circumstances for signing-off with the expectation that the change was staffed and found justified by CBP. In reality, the reason that Treasury was put in this impossible position is that CBP was negligent in processing the rule change that had been in their possession since November. They were not staffing the rule change, they were blissfully ignoring it. For example, one CBP email dated 5 January 2011 states:
"There will be a delay in getting the package over to Main Treasury this morning. I hope that we can get it to you later today. The document was taken over to CBP Front Office on 12/21/10 and it just sat. I had hoped to get this to Treasury well before the end of the year so that Tim [Timothy E. Skud] would have the document when he returned to work on January 3rd. Best laid plans have gone awry."
Another said: " It should not be difficult for Treasury to expedite this. They've seen quite a few of these things."
It is obvious from the FOIA released documents that the rule change was never actually reviewed for content, it was merely massaged, with apparent difficulty, through the various offices that needed to sign-off. The biggest issue and, aside from a couple grammatical comments, the only one discussed in the released FOIA documents was getting the designated reviewing officials in the office long enough to get a signature. There was no attempt whatever to solicit public comment for this rule change either at CBP or at Treasury. The provisions of 5 U.S.C. 553 (the APA) were ignored because the rule was arbitrarily designated by CBP or DOS as "Not Significant".
So, we have at hand an action that is classified as "not significant", and described by government bureaucrats as "plain vanilla rulemaking" and "pretty standard stuff". All it really did, in essence, was to cripple a 600-year-old avocation that has infinitely expanded our understanding and appreciation of past and distant cultures.
To put this all into perspective, let me summarize. A mid-level bureaucrat at DOS orchestrates the addition of coins to the Memorandum of Understanding with Italy after the Cultural Property Advisory Committee has already heard extensive comment from the public and voted to exempt coins. A politically appointed Assistant Secretary of State signs off on the MOU even though it ignores specific provisions of the Convention on Cultural Property Implementation Act that only authorize the use of Memorandums of Understanding and consequent import restrictions in special cases. The enforcement of these import restrictions falls to CBP, which receives a Designated List prepared by DOS and essentially sits on it for more than a month. When the rule and new Designated List are finally sent to legal staff for review they are quickly approved and sent to the Treasury Department for their mandatory review. Treasury returns them in six days, which includes a weekend, and the rule change is announced in the Federal Register. It does not appear that CBP or Treasury reviewed or cared about the content of the change. They were only concerned with getting the signatures necessary to make the document legal. In effect, the decision of one bureaucrat at ECA went unchallenged through the entire government rule making process. This, unfortunately, has become the modus operandi at the Bureau of Educational and Cultural Affairs and not even legislators in Washington seem to have any significant influence over it. Bureaucracy has in this case become the enemy of the American people rather than their servant and the only people who appreciate the scope of this travesty are their victims. But then we already know that those victims are usually plain vanilla folks and not very significant, so why care? A rule usurping their rights is no big surprise, "They've seen quite a few of these things."