PROPOSED REGULATIONS FOR CUSTOMARY TRADE

Customary Trade

Briefing Prepared for Fall 2001 Regional Advisory Council Meetings

Current Federal subsistence management regulations recognize the importance of customary trade and barter to rural Alaskan subsistence economies. While the current regulations seek to permit customary trade and barter, they do not adequately distinguish between permissible trade and barter and impermissible trade and barter. Another potential problem with the regulation stems from the fact that customary trade practices vary regionally, which suggests that it might be desirable to implement regional differences in regulation.

Title VIII of ANILCA specifically identifies customary trade as a subsistence use. During the development of the Federal regulations, an attempt was made to accommodate ongoing customary trade practices. Presently, the Federal regulations provide for the limited sale of subsistence-taken fish, their parts or their eggs as customary trade, as long as the sale does not constitute a significant commercial enterprise. In addition, no one may purchase or barter for these items for use in, or resale to a significant commercial enterprise. However, neither legislative history nor the regulations define significant commercial enterprise or specify an allowable level of customary trade. There is the potential for regional differences in the meaning of these terms. The Federal Subsistence Board’s intent is to have the Regional Advisory Councils and Tribal Governments assist in defining the terms “significant commercial enterprise” and “customary trade”.

In May 2000, the Federal Subsistence Board formed a task force consisting of members statewide, to develop draft language to define “customary trade”. Task Force membership includes one representative from each of the 10 Regional Advisory Councils, federal agency staff consisting of fisheries biologists, cultural anthropologists, council coordinator, enforcement personnel and a State of Alaska, Department of Fish and Game representative. The goal of the Customary Trade Task Force is to develop regulatory language that clearly defines customary trade as a subsistence use and specifies appropriate limitations for enforcement purposes.

The Task Force has met on three different occasions April 24-25, 2001, May 30, 2001 and August 1-2, 2001. As a result, consensus has been reached on draft language defining “Customary Trade.” This draft language, along with a briefing paper, will be forwarded to the Regional Councils and the 229 Alaskan Tribal Governments in late August for review and comment. The current goal is to have the review process completed before the Federal Subsistence Board’s December 2001 meeting for its review and consideration.

The importance of clarifying the term “Customary Trade” cannot be overstated. The Task Force feels that the retention of the current regulatory language would invite abuse from those who wish to use subsistence-harvested fish for monetary gain, to the detriment of subsistence uses and users. If the limits of cash exchange are not defined, then by allowing this exchange to go unchecked could potentially result in a negative impact on other subsistence uses and users.


The Task Force feels that it has met the goal of providing for statutory support for customary trade as a legitimate subsistence use. The goal of the task force was to develop regulatory language that provides for the long established practices of “Customary Trade”, is consistent with the definition of “Subsistence Uses” in section 803 of ANILCA and defines the limits to these cash sales. In working towards a definition, the underlying theme was to develop language that is fair, prevents abuses, meets the needs of Federally qualified subsistence users and does not prevent or limit trade or sale between communities or villages.

The following is the draft language developed by the task force. Please note that it is organized with sub-titles to assist the reader in better understanding the issues the task force addressed when developing the language.


Draft Regulatory Language For
Regional Councils, Tribal Governments and Public Review

Title 50 – Wildlife and Fisheries. 50CFR100.26 (11) (12) (13).
Title 36 – Parks, Forest and Public Property. 36CFR242.26 (11) (12) (13).

This section of the regulation addresses the cash sales between rural residents. In summary, the task force is recommending that no limits on cash sales between rural residents be established.

A) (11) Customary Trade Between Rural Residents -- The exchange for cash of subsistence-harvested fish, their parts, or their eggs, legally taken under Federal subsistence management regulations, unprocessed or processed using customary and traditional methods is permitted as customary trade as long as the cash exchange is between rural residents.

Definition: The term “processed using customary and traditional methods” means all processing of fish including the following but not limited to; freezing, canning, smoking, salting, drying…

This section of the regulation addresses the cash sales of subsistence-harvested fish between rural residents and others. It further establishes an annual cap for the sale of salmon. For other species of fish, the task force is recommending no annual cap be established unless Regional Advisory Councils recommend specific annual dollar amounts for specific fisheries like the Southeast hooligan, Western Alaska sheefish, whitefish and others.

A)(12) Customary Trade Between A Rural Resident and Others -- Customary trade and barter for fish legally taken under Federal subsistence management regulations between a Federally-qualified subsistence user and others is also permitted as long as the total cash amount or value sold by each *family member for salmon does not exceed $1,000.00 annually. (Regional Councils may submit proposed monetary caps during the fall meetings)

Federal Regional Advisory Councils may submit proposed regulations to the Federal Subsistence Board to modify or establish limits on cash sales for specific fisheries. (Some of the specific fisheries identified: Southeast hooligan, Western Alaska sheefish and whitefish…)

Definition: 1) the term “annually” means the calendar year.

* “Family” is currently defined in regulation to mean all persons related by blood, marriage or adoption, or any person living within the household on a permanent basis.

The final section of the draft regulation prohibits the sale of subsistence taken fish to fisheries businesses.

A)(13) No Purchase By Fisheries Businesses -- No person or entity licensed under State of Alaska Regulations, such as AS 43.75.011, to engage in fisheries business, may receive for commercial purposes or barter or solicit to barter for subsistence taken fish, their parts, or their eggs.

 CUSTOMARY TRADE – SCHEDULE OF EVENTS
WORKING TOWARDS A “FINAL RULE”

1) *August 27 - October 31, 2001. The briefing document and the draft regulatory language will be provided in the Regional Council Booklets for their review and comment during the September and October Council meetings. Also during this time frame the consultation with Tribal Governments will start.
2) November 01 - November 15, 2001. Comments are received from the Regional Councils, Tribal Governments and general public. A Pre-Amble will be drafted addressing the scope of all comments received.
3) November 16 - 30, 2001. Staff committee’s review and recommendation on draft pre-amble and proposed regulatory language.
4) December Federal Subsistence Board meeting. Customary Trade Task Force provides a committee report to the Federal Subsistence Board. In addition, staff provides a summary of the comments received. Federal Subsistence Board takes action on proposed rule, which includes preamble and regulatory language for publication in Federal Register.
5) December - early January 2002. Publication of the "Proposed Rule" in the Federal Register.
6) February - March 2002. Proposed rule is forward to the Regional Advisory Councils, Tribal Governments and General Public for review and comment.
7) March 2002. Comments to proposed rule are summarized and presented to Staff Committee. Staff Committee develops their recommendation.
8) April 2002. Federal Subsistence Board reviews comments and Staff Committee's recommendation. Final action on proposed rule.
9) May 2002. Publication of Final Rule.
10) Goal - Final Rule in place by June 01, 2002.

*Dates are approximate.