Board Establishes Another Regional Change to Cash Sale Rules
In January 2005, the Federal Subsistence Board approved new restrictions on cash exchange for subsistence-caught salmon in the upper Copper River fishing district.
Responding to a regulatory proposal from the Ahtna regional Native corporation, Copper River Native Association and Chitina Native Corporation, the Board limited the number of salmon per household taken in the district and exchanged for cash to 50 percent or less of a household's annual harvest.
In addition, the Board limited the total cash value of exchanges between a household in the district and non-rural residents to $500 annually. Furthermore, the Board required that rural residents of the district record all cash exchanges of salmon.
The new regulation tightens the statewide regulation governing exchange of salmon for cash specifically in the Upper Copper River district and is similar to one the Board adopted In December 2003, at the request of rural Bristol Bay residents.
The Bristol Bay regulation marked the first regional modification of the statewide cash exchange regulation the Board adopted in January 2003.
Exchange of fish and other subsistence resources for cash is known as "customary trade," and is recognized by the State of Alaska and U.S. federal government as a legitimate subsistence practice.
The statewide January 2003 regulation allows rural residents to exchange subsistence fish caught on federal waters for cash with non-rural residents, but prohibits subsistence fishermen from accepting cash from businesses. It also allows Alaska's 10 subsistence regions to develop differing regulations specifically tailored to fit customary trade practices in their regions.
The Bristol Bay regulation, drafted by the Bristol Bay federal subsistence Regional Advisory Council, limits cash exchanges between rural residents to $500 per household annually and to $400 per household for exchanges between rural non-rural residents. A separate, federal permit will be required of those intending to exchange fish for cash, and reporting of exchanges with non-rural residents is required.
Federal staff estimated only 20 percent of the Bristol Bay region's subsistence harvest comes from federal waters and are eligible for cash exchange under federal rules for customary trade. But this distinction – and other parts of the regulation that don’t exempt users from meeting state health regulations for processed fish – could cause confusion among subsistence users, according to federal staffers.
“There could easily be further confusion among users as to what is expected of them… Current customary trade regulation is challenging to effectively communicate. There will need to be a focused outreach effort associated with implementation of the additional regulations to avoid further confusing this complex area of regulation,” staff members wrote to the Federal Subsistence Board.
An enforcement agent at the meeting said individuals, not households, should be accountable for sales, and immediate recording of sales should be required. The change will require coordination between the State of Alaska – which records subsistence catches – and the federal Office of Subsistence Management, which will keep figures on sales.
The Federal Subsistence Board in July 2003 refused to reconsider
regulations it created in January governing limited cash exchanges of
subsistence-caught fish. The State of Alaska filed the
Such exchanges, known as customary trade, are recognized by state and
federal subsistence laws as a legitimate subsistence activity, but state
law restricts such trade to cash exchange for herring roe on kelp in Southeast
The Board in January revised its regulations, generally tightening them
by prohibiting cash exchange with businesses, but the State asserted the changes
didn’t go far enough toward stemming potential abuse.
In its request for reconsideration, the State said only exchanges found
to be “customary and traditional” should be permitted and that the Board
violated federal subsistence law by not deferring to customary trade
recommendations of its federal Regional Advisory Councils.
In rejecting the request for reconsideration, the Federal Subsistence Board relied on a
staff report that said that the federal “customary and traditional”
requirement for subsistence applied to subsistence harvests, not to
specific uses of resources after harvesting. “This means that once the
Board has made a customary and traditional use determination for a
species in an area, it has allowed, after harvest, all legal uses of
that resource, including customary trade of fish,” the report said.
The Board also rejected the state’s claim that it didn’t give deference
to regional committee recommendations, as required by federal law.
According to Board staff, such deference is required only in considering
subsistence taking of fish and wildlife, not in developing policy on
uses or other matters.
Federal Board Adopts Statewide Rules on Cash Exchange for Fish
In formulating the new regulations in January 2003, the Board placed no
restrictions on cash exchanges of fish between rural residents,
prohibited exchanges to businesses and permitted exchanges between rural
residents and non-rural individuals provided that such fish are used for
personal or family consumption of the individual who purchases the fish.
The Board characterized the January regulations as a starting point
toward refining rules for customary trade between rural residents and
others, saying it would pursue regional modifications to that section of
the regulation, as cash exchange practices differ from region to region.
The Board’s January 2003 action on customary trade was intended to tighten former federal regulations that allow limited cash exchanges of fish that don’t “constitute a significant commercial enterprise.” Federal officials characterized that wording as unenforceable and an invitation to abuse.
The January 2003 regulation crafted by the Board omits “significant commercial enterprise” and places no restrictions (other than subsistence harvest limits) on cash exchanges between qualified federal users (rural residents). It allows cash exchanges between rural residents and other individuals provided the purchased fish are used by the buyer or the buyer’s family.
The regulation prohibits businesses from receiving subsistence-caught fish and also allows the Board to adopt regional regulations governing customary trade exchanges.
Critics of the action said potential for abuse remains. For example, whole fish could be sold to motorists at roadside stands, and cash exchanges may lead to increased harvests, eventually forcing changes in fish allocations. “They’ve stopped sales to businesses, nothing else,” said Alaska Department of Fish and Game biologist Douglas Vincent-Lang.
The state had sought measurable limits on cash exchanges of fish, such as a percentage of total catch, dollar amount or number of fish allowed to be exchanged. It also encouraged the federal government to document historic and regional customary trade practices.
In making the January regulation, Federal Subsistence Board members said they recognized regional differences in customary trade practices and would consider regional modifications as proposals from federal Regional Advisory Councils (RACs). “We’ll make regional changes as RACs bring them to us, when they’re ready and understood in the region,” said Board chair Mitch Demientieff.
The regulation adopted by the Federal Subsistence Board Jan.14, 2003:
.27(c)(11) Transactions Between Rural Residents -- The exchange between rural residents in customary trade of subsistence-harvested fish, their parts, or their eggs, legally taken under the regulations in this part is permitted.
.27(c)(12) Transactions Between a Rural Resident and Others -- (a) Customary trade of subsistence-harvested fish, their parts, or their eggs, legally taken under the regulations in this part, from a rural resident to individuals other than rural residents is permitted, provided that such fish, their parts, or their eggs, are used for personal or family consumption of the individual who purchases the fish. (b) If you are not a rural resident, you may not sell subsistence-harvested fish, their parts, or their eggs.
.27(c)(13) No Commercial Transactions -- (a) You may not sell subsistence-harvested fish, their parts, or their eggs to any individual, business or organization required to be licensed as a fisheries business under Alaska Statute 43.75.011 or to any other business as defined under Alaska Statute 43.70.110(1). (b) If you are required to be licensed as a fisheries business under Alaska Statute 43.75.011 or are a business as defined under Alaska Statute 43.70.110(1), you may not purchase, receive, or sell subsistence-harvested fish, their parts or their eggs.
The Federal Subsistence Board recognizes regional differences in customary trade practices and may define customary trade differently for separate regions of the state.
Going into the January 2003 meeting, federal enforcement officials were particularly concerned about record-keeping of customary trade exchanges. In a letter to the Federal Subsistence Board last year, the federal Division of Law Enforcement said minimum requirements should include names and addresses of fishermen and fish recipients, origin of fish, amount of fish and species. “Failure to require such documentation and accountability would prevent effective enforcement, invite abuse and jeopardize legitimate subsistence use of fishery resources,” the agency said.
Regional advisory councils have taken widely different views of regulation of cash exchanges, particularly divergent on regulating exchanges between federal subsistence users and others.
The Southcentral Regional Advisory Council said exchanges between rural residents should be permitted only as long as exchanged fish are used by the recipient and that fishermen keep records of cash exchanges. Exchanges between rural residents and others should be limited to 30 percent of a fishermen's harvest and not exceed $500, the council said.
The Bristol Bay Regional Advisory Council recommended limiting exchanges between federal subsistence users to $500 per household, and exchanges between subsistence users and others to $400. The council said that without record-keeping, it would not support any cash exchanges.
The Northwest Arctic and Seward Peninsula regional councils, however, recommended no limits on exchanges between subsistence users and others.
The Southeast Regional Advisory Council also recommended no restrictions on exchanges between rural residents and others, but would include language that "subsistence-harvested fish may not enter commerce at any point." The council would also explicitly allows cash exchange for eulachon as long as exchanges are to individuals and the fish do not enter commerce.
Southeast RAC member Jon Littlefield described such exchanges in Southeast as ‘self-limiting’ by virtue of federal subsistence bag limits. “We’re talking an insignificant number of fish.”
At the Southcentral Regional Advisory Council meeting in Cordova in October 2002, Tom Carpenter, chair of the Cordova Fish and Game Advisory Committee, questioned Southcentral RAC members about possible impacts on commercial fisheries, and specifically marketing of Copper River sockeye, if customary trade results in export of contaminated fish, a potential black eye for the area’s commercial fishery. “Twenty-five years of marketing could be destroyed by something that’s not regulated. That’s a really big fear in Cordova.”
State law restricts customary trade exchanges to herring roe-on-kelp in Southeast Alaska. The state Board of Fisheries provides for customary trade by regulation on a case-by-case and species-by-species basis. The Board of Fisheries and Alaska Department of Fish and Game have urged the Federal Subsistence Board to develop a similar approach to sales.
The narrative below provides background on this important subsistence issue.
"Customary trade” generally refers to an exchange of subsistence-harvested resources involving cash.
Three different government bodies regulate customary trade of fish in Alaska – the State of Alaska, the Federal Subsistence Board and the North Pacific Fishery Management Council. Each has its own interpretation of, and rules for, customary trade.
The State of Alaska strictly regulates customary trade. Under state law, customary trade regulations are considered on a case-by-case basis. Currently, the state issues customary trade permits only for herring roe on kelp in Southeast Alaska. Those engaging in customary trade of herring roe on kelp in Southeast must specify the amount of herring they intend to exchange.
The North Pacific Fishery Management Council, which manages halibut uses in Alaska, restricts customary trade involving halibut to reimbursement of a fisherman’s expenses when fishing for others. Individual fishermen may receive cash only for actual trip expenses of ice, bait, food or fuel directly related to the harvest of halibut.
Further, fishermen who qualify for subsistence halibut fishing on the basis of their residency in a rural coastal community may engage in customary trade only with members of the rural community they reside in. Subsistence halibut fishermen qualifying under tribal eligibility may engage in customary trade only with members of another Alaska tribe, or with members of an eligible, rural community they reside in.
Subsistence halibut fishermen are prohibited from soliciting cash exchanges. Regulations further prohibit fishermen "to cause subsistence halibut to be sold, bartered or otherwise to enter commerce."
Of the three government bodies regulating customary trade, the Federal Subsistence Board has created the broadest allowances, defining such trade as limited cash exchanges of any fish caught under federal subsistence fishing regulations.
When the Federal Subsistence Board assumed authority for managing subsistence fisheries on federal waters in October 1999, it adopted a customary trade regulation that allowed “the limited exchange of cash” for fish “so long as it doesn’t constitute a significant commercial enterprise.”
Federal enforcement officials and other perceived this vague wording as an invitation to abuse at the expense of legitimate subsistence users. Beginning in May 2000, the Federal Subsistence Board set up a task force to develop new regulations defining customary trade.
The task force was charged with developing language that would preserve traditional customary trade practices, while preventing abuse and recognizing regional differences in customary trade between regions. The group met three times. Its draft regulatory language included:
The $1,000 limit would apply to salmon only. The task force also recommended a record-keeping requirement.
Also, regional advisory councils, asked to comment on the task force proposal in the fall of 2001, were free to recommend regional modifications to the $1,000 limit proposed by the Task Force. For other species, the task force recommended no annual cap be established unless regional advisory councils recommend specific annual dollar amounts for fisheries such as eulachon, sheefish, and whitefish.
At its December 2001 meeting on fisheries, the Federal Subsistence Board heard comments from tribes, villages, regional advisory councils, commercial fishermen and other members of the public on the task force recommendation.
Testimony reflected substantial differences among the state's regions for regulating cash exchanges between rural residents, who are federal subsistence users, and others.
Representatives of Bristol Bay and Kodiak/Aleutians regional councils favored limits tighter than the current proposal. Councilors from Western Interior and Seward Peninsula, however, characterized the $1,000 cap between rural and non-rural residents as possibly too restrictive.
Noting that the cash value of salmon fluctuates, some subsistence users said the cap on cash exchange should be based on numbers of fish or percentage of catch, rather than a dollar amount. Alaska Department of Fish and Game recommended the percentage model.
Commercial fishermen at the meeting expressed fears that establishing limits would create an incentive to take more subsistence fish, putting additional pressure on smaller salmon runs used for subsistence. “Under this proposal, you have to rely on people not taking advantage of the opportunity to make money, and that’s a very risky proposition,” said David Bedford of Southeast Alaska Seiners Association.
Many at the meeting, including the state Department of Fish and Game, said more time was needed to develop the proposal. Some villagers said additional comments and information on trade have yet to be gleaned from village councils and Native elders. Several said limits of cash exchanges should be set specific to customs of each region, an approach favored by Fish and Game.
Fish and Game Commissioner Frank Rue commented in writing that the proposal for sales to would invite abuse, rather than prevent it. “We are unaware of any customary and traditional sale of salmon on roadsides and docks, to passers-by, yet such activity apparently would be authorized.”
Southcentral Regional Advisory Council chair Ralph Lohse, who served on the task force that drew up the proposed rule, said toward the end of the recent meeting, “We’re not ready for a blanket yet (on the amount of cash rural residents could receive from others), although it would be nice, and it would be handy.”
At the December 2001 meeting, the Federal Subsistence Board adopted language of a proposed rule on customary trade. The proposed rule envisioned three types of exchange of fish for cash: 1) between rural Alaska residents, 2) between rural residents and others, including business entities that aren't fisheries businesses, and 3) between rural residents and fisheries businesses, which would be prohibited. The three-part language of the proposed rule was:
“Transactions Between Rural Residents – The exchange between rural residents in customary trade of subsistence-harvested fish, their parts, or their eggs, legally taken under the regulations in this part, unprocessed or processed using customary and traditional methods, is permitted.
“Transactions Between A Rural Resident and Others – Customary trade for fish, their parts, or their eggs, legally taken under the regulations in this part from a rural resident to commercial entities other than fisheries businesses or from a rural resident to individuals other than rural residents is permitted, as long as the customary trade does not constitute a significant commercial enterprise.
“No Purchase By Fisheries Businesses – If you are required to be licensed as a fisheries business under Alaska Statute AS 43.75.011, you may not purchase or receive for commercial purposes or barter or solicit to barter for, subsistence-taken fish, their parts, or their eggs.”
At the 2001 meeting, Federal Subsistence Board chairman Mitch Demientieff said the proposed rule might be months, or years, in the making. The Board set an April 1, 2002 deadline for written public comments on the customary trade proposed rule, then extended the deadline to Nov. 1, 2002, at the request of subsistence users and others. More than 100 public comments have been filed with the federal Office of Subsistence Management to date.
Follow the link below to the text of the January 2002 federal proposed rule on customary trade: (Every effort has been made to ensure the accuracy of this document, but United Fishermen of Alaska cannot be held responsible for any possible errors. If any errors are found, please contact us at firstname.lastname@example.org .)
Follow the link below to draft regulatory language of proposed federal regulations for customary trade, as developed by the Customary Trade Task Force in the fall of 2001, with introduction and decision schedule:
Follow the link below to draft minutes of the Aug.1-2, 2001 Customary Trade Task Force Meeting, including discussion of a $1,000 cap on cash exchanges for salmon:
Follow the link below to a copy of the draft summary of written comments on the federal proposed rule for customary trade:
(last updated 01/30/07)