September 30, 2014 by David Olive

Every so often, a federal agency does something so questionable, enforces a policy so rigidly or makes a public statement in its own defense that it makes one shake his head in disbelief.

While I’m sure that there are events like this that catch the attention of the Washington pundit class on a weekly basis, most of these are beyond my personal or professional interests. But one incident several weeks back has motivated me to speak out now to bring some further attention to a situation that is unfolding at the intersection of bureaucracy and the music world – and I’m not talking about Miley Cyrus’ infamous “twerking” episode, whatever in the world that is.

No, this is far more important. This is about saving bagpipes and other musical instruments from seizure by federal officials at the U.S. border. It is a tragedy in the making, and it almost scuttled a German philharmonic orchestra presentation at Carnegie Hall and a Hungarian orchestra presentation at Lincoln Center earlier this year.

The complex tale first came to my attention when two young men, Campbell Webster and Eryk Bean, crossed the border into Canada from their home a few miles away in New Hampshire to play in a bagpipe contest. These young men had done almost everything right, from what I can glean from press reports. They had practiced their artistic interpretation of music written specifically for bagpipers so well at the Maxville and Montreal Canadian competition that they were primed to compete in the World Pipe Band Championships in Glasgow, Scotland in mid-August. They even have their own YouTube video showing their prowess. It is worth watching.

One of the boys played a set of pipes that his father had used as the 9th Sovereign Piper to Queen Elizabeth II. Those bagpipes, silver and ivory Robertson drones, dated back to the 1930s and had been handed down from father to son. Joy must have poured over them when they received their blue ribbons, medals or other forms of indicia of excellence from the contest judges. One has to have a discerning ear to know good bagpipe music from random blaring and squawking, and these young men were very, very good, in the judgment of their evaluators.

This story brought back memories of when I spent a summer studying at the University of Aberdeen in Scotland. We were awakened every Monday morning by a set of pipers. If you’ve never had the pleasure of having bagpipe music serve as an alarm clock, you’ve missed one of life’s most annoying (and after-the-fact, delightful) occasions. It may well have altered my DNA, as well as my musical appreciation.

So I can only imagine how their joy turned to frustration when these two young, musically talented Americans crossed back through a DHS Customs & Border Protection (CBP) operated port of entry, only to have their bagpipes seized because some of the parts were made of ivory. According to the Manchester Union Leader story about the seizure at the Highgate Springs, Vermont border crossing, although the boys had the proper documentation to bring the bagpipes back into the United States, they just didn’t do so at one of the 38 “authorized” facilities.

To be fair, the CBP officer in Highgate Springs was following the letter of the law and the applicable regulations and guidance that had been put out by the U.S. government through the Department of Interior’s Fish and Wildlife Service. And after a tense day or so (no doubt pushed by a social media campaign that caught fire after the boys posted their stories online) and payment of a $576 fine, the bagpipes were returned to the boys – but the underlying problem still exists and that is truly a problem.

Why is it still a problem? Because in 1976, Congress decided that to save endangered elephants, rare trees and other items of importance to the environment, they would try to save endangered species and eliminate the commercial markets for endangered products. Effective in 1976, Congress banned the importation of ivory, Brazilian rosewood and other items that poachers and ne’er-do-wells could sell for incredible amounts of money – to the point that most of these opportunists found it more lucrative than the supply of materials. Driven by a profit motive rather than environmental concerns, poachers and unscrupulous traders were killing elephants at an alarming rate. Something had to be done, so Congress enacted legislation, following the lead of other countries who were equally upset. The United States was the first country to sign the Convention on International Trade in Endangered Species (CITES.)

The problem arose, however, about what to do with those items that already existed. The trinkets, tchotchkes, pieces of furniture and musical instruments that were made long before the new law made them illegal were in people’s homes, businesses and, in the case of many musical instruments, in an instrument case in someone’s practice room. Some of the strict constitutionalists may have even cited Article I, Section 9, Clause 3 of the U.S. Constitution, which prohibits “Ex Post Facto” laws as a reason to exempt them from the new law, and there was certainly no need to create a constitutional crisis, even if saving elephant tusks was at stake.

Congress had an answer. It would give a certificate to anyone who could prove (yes, the burden of proof was on the owner, not the government, as my colleague Lawson Bader noted in Human Events) that the item was made before the law went into effect. The U.S. Fish and Wildlife Service (FWS) was empowered to enforce the new law and after some considerable internal angst, FWS issued guidelines and regulations on what owners would need to do to prove the provenance of their possessions. Everything rocked along relatively well until early in July 2013 when the Obama Administration issued an Executive Order that strengthened the enforcement of the law against trafficking in wildlife, especially that material from endangered species.

The bagpiping community has several websites that explain the new law, how a piper can get a CITES certificate and provides helpful advice on how to avoid problems – one of the easiest to understand is from The Bagpipe Place, which not only explains what should be done but also highlights the uncertainty and confusion that has been created.

Then another problem cropped up. When DHS was created in 2002, the Agricultural Inspection Service was dissolved into the new organization, and CBP officers at the land ports of entry were given the authority to enforce both customs laws, as well as conduct agricultural inspections to ensure bad food, food-borne pathogens, and other prohibited items did not enter the country. CBP was given the authority to enforce the Endangered Species Act, along with all other U.S. laws concerning imports, but they were not permitted to accept duly issued FWS permits for exempt items, as jurisdiction was apparently retained exclusively by FWS.

FWS doesn’t have an officer at or near every air, land or sea port-of-entry. Like every other federal agency, FWS has not been given enough budget, manpower or equipment to be everywhere they want to be, so FWS decided that it would only permit certificate holders to enter the country in 18 places.

That’s right. Of the 328 CBP ports of entry, where people can legally enter the United States, only 18 places in the country are “authorized” ports where people with CITES certificates can get their instruments into the country, unless they pay hundreds of dollars for an exemption process that can take weeks, if not longer. These locations would be spread out across the country so that it would give the appearance of being sensitive to travelers from around the globe. In point of fact, it appears that every location selected was chosen so as to be convenient for FWS operations and certainly not for young, competitive bagpipers.

How do we know this? The New Hampshire pipers had been prepared to address the “you have ivory in your possession” question because they brought along with them an official CITES certificate showing they had proved that the ivory in their pipes had been put there decades before the importation ban went into effect. As far as the FWS was concerned, that certificate might as well have been a roll of paper towels because the authority to accept that certificate was only granted to FWS officers in the 18 locations FWS operates – and there isn’t one in New Hampshire. CBP officers are not authorized to recognize a CITES certificate, even if it had been validly issued.

As an Associated Press story pointed out, to avoid seizure of their bagpipes, they would have had to drive from their home to a nearby airport, fly to Canada, find ground transportation from the airport back to the site of the competition, and then (after winning) reverse course, choosing to enter the United States in Boston or New York at an “authorized” FWS location.

To someone in FWS, this makes perfect sense. In fact, one of the FWS mouthpieces blamed the teenagers, saying that they should have understood the requirements of the FWS regulations. To me, it makes no sense whatsoever.

If Congressional action is needed to correct this situation, then it needs to be introduced and passed as quickly as Congress returns. If CBP can be given authority to accept valid CITES certificates through an amendment to the Executive Order, then the President should be encouraged to issue one with all deliberate speed.

Another solution could be a simple Interagency Memorandum of Understanding (MOU) between FWS and CBP. When presented with a CITES certificate, CBP officers could communicate electronically with FWS officials, who could quickly determine if the certificate was authentic. If so, the musical instrument remains with the owner and entry into the United States occurs with little hassle.

Teenage bagpipers should not have to travel hundreds of miles out of their way simply as a matter of convenience for the FWS. CBP is fully capable of enforcing the law, and accepting valid CITES certificates – if given the ability to do so. FWS can perform their responsibilities effectively in a virtual manner without breaking their budget.

It seems like common sense that they could work this out and not inconvenience musicians and others who have done their best to comply with the law but just went to the wrong port. Unfortunately, the old canard is all too true: The problem with common sense is that it isn’t all that common. This should not be as difficult as it has become. Let’s change that.