Department of Environmental Conservation

D E C banner

Part 50 Whelk - Regulatory Impact Statement

1. Statutory authority:

Environmental Conservation Law (ECL) § 13-0305 directs the Department of Environmental Conservation (DEC) to manage New York State's marine fishery resources to preserve their long-term abundance for future generations. ECL § 13-0330(6) grants DEC authority to adopt regulations for whelks including: size limits, restrictions on the manner of taking and landing, recordkeeping requirements, and requirements on the amount and type of fishing effort and gear.

2. Legislative objectives:

It is the objective of the above-cited legislation that DEC regulates the utilization and allocation of available resources to maintain healthy stocks and habitats. The proposed regulations are designed to optimize resource use to provide viable business opportunities while preserving the fishery in usable abundance for future generations.

3. Needs and benefits:

The proposed regulations are necessary to preserve the fishery in usable abundance for future generations. Currently, there is no minimum size limit for whelks, but a minimum size is necessary because the long-term harvest of immature female whelks will decrease the population's spawning potential and increase the risk that the population will not be able to sustain itself (i.e. recruitment failure). A number of long-term fishery participants have requested a minimum size limit because of this risk.

Whelks are especially vulnerable to increased fishing pressure due to their life history characteristics of slow maturation and growth rate. The proposed minimum size is supported by three studies conducted by Udelson (2012), Lynn (2018) and McKown (2019). These studies determined that female whelks captured in and around New York State are immature at sizes smaller than the proposed minimum size. Udelson (2012) and Lynn (2018) conducted research on whelks collected from Peconic Bay and Great South Bay respectively. The studies furthered determined that the minimum size at which female whelks can reach sexual maturity are at shell lengths between 140 to 155 mm (5.51 to 6.10 inches) in length. McKown (2019) examined whelks from a number of areas around Long Island and determined that the minimum size at which female whelks can first reach sexual maturity is at approximately 140 mm (5.5 inches). The proposed rule would be an initial step toward ensuring that some female whelks have the opportunity to reproduce at least once prior to being harvested. Allowing female whelks to reproduce at least once before they are removed from the population would eliminate the issue of harvest-related recruitment failure.

The proposed rule contains new requirements concerning the use of bait bags. Bait bags contain whelk bait and operate to extend the time it takes whelk to consume bait. This results in less bait being consumed. The proposed changes are necessary because horseshoe crabs are a major bait resource for the whelk fishery, and the Atlantic States Marine Fisheries Commission's latest Horseshoe Crab Stock Assessment determined that New York State's horseshoe crab population is in decline. Requiring the use of bait bags would help decrease the amount of horseshoe crabs needed for bait, which would lessen harvest pressure on New York State's horseshoe crab population.

The proposed rule contains new requirements concerning gear marking which are necessary to facilitate the: (1) identification of owners, (2) return of lost gear, and (3) prevention of theft and vandalism. The proposed rule also contains a new requirement that whelk pots cannot be hauled between one-half hour after sunset and one-half hour before sunrise. This measure is intended to protect permit holders from theft.

The proposed changes to line type and gear placement are necessary to limit the amount of line floating at the surface of the water and to restrict the placement of whelk pots in designated navigation channels. These changes will provide boating safety benefits and reduce conflicts between whelk harvesters and boaters.

The proposed maximum pot size is intended to regulate effort in the whelk fishery and is consistent with lobster pot size restrictions.

Citations:

  • Lynn, R. 2018. Maturity, growth rates and movement patterns of the Channeled whelk, Busycotypus canaliculatus, in Great South Bay, New York. Master's Thesis Long Island University - Post Campus. 65 pgs.
  • McKown, K. 2019. Whelk Regulatory Proposal. Marine Resource Advisory Council Bulletin 1/22/2019. Pgs 2 - 8.
  • Udelson, B. 2012. Age and size at onset of sexual maturity of the channeled whelk, Busycotypus canaliculatus (Linnaeus, 1758), in the Peconic Bays of Long Island, New York. Masters Thesis Long Island University - Post Campus. 68 pgs.

4. Costs:

There are no anticipated costs to local governments. DEC would incur minor costs to purchase gauges for enforcement staff to measure whelk length and width. It is estimated that those gauges will cost approximately between $14 and $17 per gauge.
Permit holder compliance costs associated with the proposed rule include: gauges to measure length and width (approximately $14-$17 each); bait bags (approximately $3.40 each); minor costs associated with placing identification information on pots; and potentially some fuel costs associated with avoiding placing pots in designated navigation channels. There may also be costs associated with replacing buoy lines with sinking lines. During 2019, permit holders fished 200 pots on average. Assuming each pot is fished individually in 50 feet water depth, the costs for sinking line would be approximately $170. Permit holders will likely experience a decrease in harvest due to the minimum size limit. Harvest could decline by as much as 42 percent or approximately $4,000 per year on average per active permit holder.

5. Local government mandates:

The proposed rule would not impose any mandates on local government.

6. Paperwork:

The proposed rule would not impose any new reporting requirements.

7. Duplication:

The proposed rule would not duplicate any federal requirement. The proposed rule would duplicate reporting requirements located at 6 NYCRR 40.1(c)(2)(i) and 44.4(b)(1). The proposed rule would not require duplicate or multiple reports. The duplication is necessary to clarify for the regulated community that they must report purchases of whelk.

8. Alternatives:

Status quo - Failure to establish a minimum size limit will result in the continued decline of New York State's whelk fishery. DEC rejected this alternative because continuing to permit unsustainable harvest is contrary to New York State fishery policy.

Smaller minimum size - A smaller minimum size limit would not ensure some female whelks reach sexual maturity. DEC rejected this alternative because permitting unsustainable harvest is contrary to New York State fishery policy.

Larger minimum size - Female whelk begin to mature at the proposed five and one-half inch length or three-inch width minimum size. A larger minimum size would provide increased protection for whelks and allow a larger proportion of the population to spawn at least once before harvest. DEC rejected this alternative because the proposed minimum size limit is based on the best available data, protecting the population while allowing some harvest.

The proposed rule was designed to minimize potential adverse impacts to license holders while ensuring the resource is maintained in usable abundance for future generations. Data collected from 2013 through 2018 by the Connecticut Department of Energy and Environment's Long Island Sound Trawl Survey indicates the whelk population is in decline. The proposed minimum size limit is expected to immediately reduce the amount of whelks harvested by commercial whelk harvesters, but this reduction is necessary to prevent the harvest of immature female whelks and is the minimum necessary to achieve New York State's fishery policy of usable abundance for future generations. The proposed minimum size limit was selected from the best available data which indicated it was the smallest size at which female whelk can reach sexual maturity. In order to prevent a precipitous population decline, whelks smaller than the proposed minimum size limit must not be harvested. Ultimately, the maintenance of long-term sustainable fisheries will have a positive effect on employment for the fisheries in question, as well as wholesale and retail outlets and other related industries. At the request of the Marine Resources Advisory Council, a three percent tolerance for the harvest of undersized whelks was included in the proposed rule which should account for the irregular shape of whelks and the tendency for parts of the shell to break, thereby inhibiting accurate measurement.

9. Federal standards:

The proposed rule does not exceed any minimum federal standards.

10. Compliance schedule:

Compliance with the proposed rule would be required upon the effective date of the rule. Permit holders would be notified of the changes to the regulations through appropriate news releases, by mail, and through DEC's website.