CUSTOMARY TRADE TASK FORCE
August 1 and 2, 2001
Anchorage
MINUTES
Members
Present:
Pete Probasco, OSM; Michael Patkotak,
North Slope RAC; Ralph Lohse, Southcentral RAC; Bert Greist,
Northwest Arctic RAC; Grace Cross, Seward Peninsula RAC; Martin
Myers, FS; George Sherrod, OSM; Janet Cohen, NPS; Robert
Sundown, FWS; Charles Miller, Eastern Interior RAC; Della
Trumble, Kodiak/Aleutians RAC; Jay Pilgrim (for Wally Soroka)
8/1, Wally Soroka 8/2, FWS; Ray Collins, Western Interior RAC;
Robert Nick, Y/K Delta RAC; Rich Uberuaga (for Tim Jennings),
OSM; Pete Abraham, Bristol Bay RAC; Dolly Garza, Southeast RAC;
Ann Wilkinson, OSM
Members Absent:
Grace Cross, Seward Peninsula RAC; Don
Martin, FS
Others Present:
Michelle Chivers, OSM; Donald Mike, OSM;
Cliff Edenshaw, OSM; David Bedford, UFA; Gary Edwards, FWS;
Carl Jack, OSM; Richard Uberuaga, OSM; Sue Asplund, CDFU; Tom
Kron, OSM; Gabe Sam, RurAL CAP; Dianne McKinley, NPS; Gerald
Nicholia, Eastern Interior RAC
AUGUST 1, 2001
Call to Order/Introductions: Chairman Probasco called
the meeting to order at 9:00 a.m. He stated that the purpose
of this meeting is to review the draft regulatory language
provided by the subcommittee appointed at the last meeting. He
then asked CTTF members and other attendees to introduce
themselves.
Approval of Agenda and Minutes:
The CTTF then reviewed and approved the agenda and the minutes
of the May 1, 2001, meeting as written.
Tribal Consultation: Mr. Carl
Jack then spoke to the CTTF regarding the Department of the
Interior’s policy on government-to-government relations (see
attached handout). He reported that this policy, signed
January 18, 2001, ensures that DOI agencies will consult
Alaska’s tribes prior to taking action or undertaking
activities that will have a substantial effect on them. In
this instance the CTTF provides reports of their actions
through Mr. Jack to the Alaska Intertribal Council. He stated
that a two-phase consultation approach is under review by the
Office of Subsistence Management. The tribes will be consulted
about the draft regulation, as will the Regional Councils.
Their comments and recommendations will go to the Federal
Subsistence Board when they take up this issue, probably in
December 2001, and then will be published in the Federal
Register for public comment. The final rule will probably be
published in late spring 2002, but only when tribal
consultations are completed. He assured the CTTF that OSM is
bound by this policy.
In response to questions and comments by CTTF members, Mr. Jack offered the following information. The
consultation process requires all 229 tribes to be consulted.
Besides AITC, reports are also sent to the Alaska Federation of
Native subsistence committee. A briefing paper is being
developed to send out the tribes’ non-profit agencies in the
near future. OSM recently received a letter from the Native
Village of Barrow expressing concerns about tribal
consultations and the involvement of the Alaska Department of
Fish and Game by having a representative on the CTTF. A
response letter is being prepared either to be signed by the
Regional Director or by Mr. Mitch Demientieff, Chairman of the
Federal Subsistence Board. One member raised a concern about
including AFN in the consultation process stating that they
should be allowed to comment only. He stated that the tribes
are the end users and are the ones to consult.
Regulatory Language Committee Report:
Members of this committee were appointed by the chairman at the
May 2001 meeting: Pete Probasco, Ralph Lohse, Bert Griest, Ken
Lord, and Don Martin. Chairman Probasco presented the work of
the Regulatory Language Committee to the CTTF. He noted that
the Committee researched all the regulations pertaining to
customary trade but did not make a written summary. Mr. Lohse
expressed the Committee’s intent: 1) to protect present
customary trade practices while preventing new practices from
arising that would harm the resources, 2) to make allowance for
regional differences through the Regional Councils; and 3) to
set a limit ($500) that would encourage community involvement
rather than individual profiteering. He also noted that
through these meetings he has learned that statewide the
concerns are the same although practices are different
regionally.
CTTF Review of Draft Language: The
members began a general discussion about the draft language as
it might apply statewide and regionally.
Southeast: Herring eggs are not
under federal jurisdiction but people are working toward that
goal. The State made herring eggs open to all Alaska
residents, not just rural. Hooligan trade and barter are still
important and need to continue. One river is used primarily
and a few people fish for all. The suggested $500 limit would
put more boats in the river. Tribal people live in urban areas
for many reasons; under this rule they can’t have hooligan.
Salmon is different and may need restrictions.
North Slope: Health issues
regarding fish processing should be addressed through the
federal system. The State regulates without dialog.
Northwest Arctic: Because of the
higher cost of living in this region, they will probably ask
for more than the $500 amount. The cost of living is so high
that an infusion of cash is necessary to conduct subsistence
activities. In the past his region traded with near neighbors
and Russia and Canada.
Seward Peninsula: Because the
regions are so different from one another, the regulation needs
to be broad enough to allow each of the regions to be able to
define their own meaning of customary trade. Imposing State
health regulations or any other such rules would annul the
customary and traditional ways we prepare our fish; the
regulations are not customary and traditional. Any imposition
of 21st century rules and regulations to our
customary trade is totally unacceptable.
Kodiak/Aleutians: Most catch is
taken under State regulations because there is not much federal
water. Most families have no other source of cash. Regional
Councils can oversee customary trade and if there is a resource
shortage, the Board can make a quick response through in-field
management and the Special Action process.
Yukon/Kuskokwim: Subsistence is
only 1%-2% of the salmon taken. 113 households went fishing
for the one day allowed; it is expensive – gas is $2.15. If we
get any excess of fish we share it and that person may want to
give cash. To put a dollar amount on it will give a commercial
flavor. Whatever we do, we need to follow traditional ways.
Bristol Bay: We have to abide by
State and federal laws; both have to work together or it will
be confusing for subsistence users. Elders say they want no
change to centuries old practice. This is only a little cash.
Chairman Probasco then focused the group
on the draft regulatory language and recommended addressing
each section separately. He noted that the committee used
information from last meeting’s discussion to write A(11) and
A(12). The highest potential for abuse is between “others” –
not between rural residents.
Review
of Draft Language
The CTTF began extensive discussion of
each of the three paragraphs in the draft language (see
attached). Following are the conclusions reached during the
discussion.
A(11) 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 so long as the cash
exchange is made 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...
- Use the term “rural residents.” The CTTF
considered using the term “federally qualified subsistence
users”; however, that term refers to customary and
traditional use determinations and may be misconstrued here.
“Rural residents” is also less limiting and is defined in
ANILCA related regulations.
- Whether to include a limit. The CTTF clearly did
not want to limit exchange at this level; however, concluded
not to include the word “unlimited” since it is implied.
There was discussion about protection of the resource. The
federal agencies have in-season management authority and can
quickly take action to protect if necessary; also the Special
Action process can be used.
- “Family needs” was a phrase included in the
original draft, but was deleted following a discussion about
the meaning of subsistence and need.
- Definition of “processed.” This discussion
focused on the intent of the CTTF to allow the sale of whole
fish and concluded with the decision to add the word
“unprocessed” in the second line.
The CTTF
concluded that A(11) as written would preserve traditional
trade practices.
A(13) No person 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.
Discussion Items:
- Inclusion of State regulations. The Committee
decided to include this as an example for clarification;
however, use of the phrase “such as” will prevent it from
being considered all inclusive and will allow for changes.
- Use of “receive.” The CTTF concluded that if a
commercial entity may not receive subsistence fish, they
cannot get them in any way – not by barter or purchase or as
a gift – for commercial purposes.
The CTTF concluded that A(13) as written
would prevent sales to fisheries businesses, especially those
with unlimited potential for sales.
A(12) Customary trade and
barter for fish legally taken under Federal subsistence
management regulations between a Federally-qualified user and
others is also permitted. The total cash amount or value sold
by each family member for salmon does not exceed $1,000
annually. (Regional Councils should submit proposed
monetary caps during the fall meetings.)
Regional 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” implies the calendar year. 2) “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.
Discussion Items:
- Cash cap. The original draft language submitted
by the committee suggested a limit of $500. The CTTF
considered setting a limit between $1,500 and $500, as well
as leaving this task completely to the Regional Councils.
The CTTF also considered recommending that no limit be set;
however, realized that making it unlimited trade would not
satisfy the apparent need for a clear, enforceable
regulation. It was noted that it is easier to adjust a limit
than to initiate it later. (NOTE: The decision to set
a cap and that it be $1,000 was made during discussion during
the August 2nd morning session. See Aug. 2
minutes, below.)
- Salmon only. Since salmon is the primary species
of concern, the CTTF decided to recommend limiting exchange
for cash for salmon only. If necessary for conservation, the
limit can be expanded to include other species.
- Value. The value is determined by the buyer.
- Regional differences. In some regions no one
trades outside the region and they know everyone. Areas with
a large number of rural residents have a greater risk of
abuse. The CTTF recognized that the Councils will face
different and sometimes very difficult situations when
considering a cash limit.
- Proxy. Members discussed whether a family member
would be able to transfer their cash limit to another family
member but no conclusion was reached.
- Cash limit or goal? The CTTF also expressed
concern that by setting a cash limit they would be setting
what many people will think of as a goal or a right.
- Record keeping. Without record keeping there is
no way to know when the limit has been exceeded. Also, there
is no data for Councils to use when making future decisions.
- Family. The current definition is broad but
satisfies the intent of the CTTF.
The CTTF concluded that A(12) as written
would provide a source for urban or out-of-State family members
and provide regional flexibility through the Regional Councils.
CTTF members also discussed the role of
Regional Councils in this process. Councils will serve as
clearinghouses for future proposed regulatory changes. One
member mentioned the need for an accurate report of current and
past practices, a more specific report than those provided at
the first meeting.
The meeting was recessed at 4:30 p.m. The
chairman said that he would provide a fresh copy of the draft
language with the day’s changes when the CTTF reassembles in
the morning.
AUGUST 2, 2001
Members Absent: Chuck Miller, George
Sherrod, Dolly Garza. Member Wally Soroka present.
Chairman Probasco called the meeting to
order at 9:30 a.m. and reviewed the agenda.
Mr. Nick summarized the CTTF’s view that
this draft is a compromise from the positions taken at the
beginning of this process. It recognizes regional differences
and provides flexibility through the Regional Councils. The
Alaska Board of Fisheries listed salmon as a stock of concern
and listing it here is proper. The CTTF has fulfilled the
FSB’s charge but the work doesn’t stop today.
The CTTF expressed concern about this
being the last meeting and the group being immediately
disbanded. The draft regulatory language will be reviewed by
many people over a period of time. CTTF’s intent may be lost
and changes may be made without understanding. The FSB does
not have the depth of knowledge the CTTF has and may impose
limits that don’t meet regional needs. An inappropriate
regulation could devastate regional economies. Members agreed
that the CTTF needs to be maintained in an advisory position
and should be ready to act again if needed. The members agreed
that they would like to meet at least one day prior to the FSB
meeting where this issue would be deliberated to review
Regional Council recommendations and to formulate CTTF
recommendations. The also agreed that the entire CTTF should
be present at the FSB meeting when this issue is presented.
Chairman Probasco said that he would bring
these concerns to the FSB at their next work session. He spoke
of the role of the Regional Councils as representatives to the
FSB and of the value of their counsel.
During yesterday’s discussion regarding a
cash limit, the CTTF decided not to set one at all.
However, after further consideration, several members brought
it forward again at this time. They stated that the FSB’s
charge included recommending a cash limit; therefore, the CTTF
could not consider its work completed until that had been
done. Also, they recognized that unless some measure is set,
the new regulation would be have the same failing as the
current one (“significant commercial enterprise”). If no limit
is set, enforcement considers the trade to be a significant
commercial enterprise. Members spoke of their responsibility
to the people of their regions who are living now and those who
are to come. They acknowledged that Regional Councils may
reasonably dread taking this issue and the proposed language to
the people of their regions, but recognized that it is the
Councils’ duty.
Chairman Probasco asked Dolly Garza,
Robert Nick, Ray Collins, and Bert Greist to come up with a
recommended limit while the CTTF took a break.
Following the break the committee made
two recommendations: 1) They recommended that the limit be
set at $1,000. This number is a compromise. They stated that
it is low enough not to be considered commercial or to hurt the
species but enough to meet cash needs. They also considered
current situations at different salmon fisheries. 2) They
recommended that the entire CTTF meet the day prior to the FSB
meeting to review Regional Council recommendations and attend
the Board deliberations on this proposed regulation. The
CTTF concurred with their recommendations.
Chairman Probasco then polled each member
as to whether they agree to the draft regulatory language
presented by the committee and edited by the CTTF. All members
agreed to support the draft language; however, Mr. Soroka
stated that he thinks the cash limit is too high when
considering that it applies to each family member, and Mr.
Sundown expressed conservation concerns for the Yukon/Kuskokwim
area especially.
Chairman Probasco said that he would make
a report to the FSB. The Draft Language Committee will write a
briefing document before August 20, 2001, to be included in the
Regional Council books. He will email the draft to CTTF
members for comment opportunity. This document will also be
sent to the tribal governments.
He noted that the CTTF will meet next on
December 10, 2001.
Members made closing statements and the
meeting was adjourned at 11:30 a.m.
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