Proposed Rule Readoption with Amendments: N.J.A.C. 2:20

Authorized By: State Board of Agriculture and Charles M. Kuperus, Secretary

Authority: N.J.S.A. 4:1-21.5, 4:6-20 and 4:7-1 et seq.

Calendar Reference: See Summary below for explanation of exception to calendar requirement.

Proposal Number: PRN 2005-312

Submit comments by November 5, 2005 to:

Carl P. Schulze Jr., Director
Division of Plant Industry
NJ Department of Agriculture
PO Box 330
Trenton, NJ 08625-0330
Telephone: (609) 292-5441

The agency proposal follows:

Summary

Pursuant to Executive Order No. 66 (1978) and N.J.S.A. 52:14B-5.1, N.J.A.C. 2:20 expires on July 27, 2005. In accordance with N.J.S.A. 52:14B-5.1c, the submission of this notice of proposal to the Office of Administrative Law extends that expiration date 180 days to January 23, 2006. The Department of Agriculture has reviewed the rules proposed for readoption and, as amended, has determined them to be necessary, reasonable and proper for the purpose for which they were originally promulgated, as required by the Executive Order. The introduction of dangerously injurious insect pests or plant pathogens from another state or foreign country can constitute a serious threat to agriculture in New Jersey. In the current globalization of world trade, the prospect of spreading highly injurious plant pest species to new areas has increased, and there is a need to quarantine certain pests to prevent their introduction into New Jersey. Based on these factors, the rules proposed for readoption with amendments set forth the means by which the agricultural industry in New Jersey can be properly protected from highly injurious invasive pest threats.

Subchapter 1 determines the Golden Nematode to be a serious threat to New Jersey agriculture and prohibits the movement of any soil from any area known to be infested with this pest.

Subchapter 2 determines white pine blister rust to be a dangerous plant disease and prohibits the movement of certain types of plants into New Jersey, which can serve as a host to the spread of the disease.

Subchapter 3 determines the Ceriferus (or Japanese) Wax Scale to be a dangerously injurious insect and if found, subject to the measures of control allowed by the Statues of New Jersey.

Subchapter 4 determines the Mediterranean Fruit Fly to be a dangerously injurious insect that constitutes a menace to the fruits and vegetables of the State of New Jersey and prohibits the harboring or importation of the pest.

Subchapter 5 determines that the Africanized honeybee is a menace to the practice of apiculture and sets forth rules to prevent its importation into New Jersey.

Subchapter 6 determines that the Khapra beetle is a highly injurious insect and constitutes a menace to food and grain stocks and sets forth rules to prevent importations as well as control measures should the pest be found.

Subchapter 7 describes the roles and responsibilities of the Department, in cooperation with the Animal and Plant Health Inspection Service (APHIS) of the United States Department of Agriculture (USDA), in the inspection and monitoring of nursery stock imported from foreign countries.

Subchapter 8 describes the roles and responsibilities of the Department, in the inspection, monitoring and control measures for the Asian Longhorned beetle. The Asian Longhorned beetle is a dangerously injurious, invasive, foreign insect pest that is a serious threat to hardwood forests and shade trees, which has been declared a nuisance. In 2002, this pest was discovered in Jersey City, Hudson County, New Jersey. Following a successful eradication program in the Jersey City- Hoboken Quarantine area, there is a proposed amendment to rescind the quarantine in these sections of Hudson County. In 2004, larger infestation was identified in Carteret, Middlesex County, New Jersey, which required quarantine areas in Carteret and Woodbridge, Middlesex County, and Rahway and Linden in Union County.

Additional findings of ALB in Linden require proposal of an amendment for a minor expansion of the quarantine area in Union County.

As the Department has provided a 60-day comment period on this notice of proposal, this notice is excepted from the rulemaking calendar requirement pursuant to N.J.A.C. 1:30-3.3(a).

Social Impact

The rules proposed for readoption with amendments will continue to affect certain plant growers and dealers conducting business within New Jersey. The social impact of the rules will be of benefit to the plant growers, farmers, consumers and residents of the State through the prevention and exclusion of plants and plant materials infected or infested with dangerously injurious insects and plant diseases. In addition, these rules proposed for readoption with amendments will reduce the damage and tree mortality caused by the Asian longhorned beetle. Future damage to the agricultural and natural resources in the State can be avoided through the inspection, control and exclusion of these exotic pests, along with the increased public benefit by the avoidance of environmental impacts resulting from additional pesticide applications required in control measures against these pests.

Economic Impact

The purpose of the rules proposed for readoption with amendments is to provide protection from five highly destructive and injurious insects not native to North America, a destructive plant disease that was eradicated from the State in the 1930's, and a plant parasitic nematode only known to be established in North American in parts of the State of New York and Canada. The least expensive and most efficient method of control of these pests is to prevent their entry and establishment in this State and country.

The economic impact of the introduction and establishment of any of the five foreign insect pests into New Jersey and North American agriculture would be devastating as they are capable of untold damage if unabated. Approximately, $13.6 million has been spent on the Asian longhorned beetle eradication program in New Jersey since 2002, which included approximately $750,000 in costs to the State of New Jersey. Establishment of the Golden nematode would have serious impacts on tomato and potato production in New Jersey, as well as, limiting or preventing interstate and international trade of New Jersey grown nursery stock. Reintroduction and establishment of the white pine blister rust fungus in New Jersey would lead to the loss of highly valued ornamental or landscape plantings of white pines, white pines planted in Christmas tree plantations, nurseries and for conservation purposes, and native white pines in forests and parks throughout the State. Nurseries or garden centers within the quarantine area may not ship regulated articles outside the quarantine area without a certificate issued by the Department or USDA APHIS. Arborists or tree removal businesses working within the quarantine area may only haul wood debris to USDA APHIS and State approved disposal facilities. USDA APHIS officials are working to expand the list of approved facilities.

Relatively inexpensive and effective control measures are available through the proper use of pesticides and other control agents applied early in the infestation or outbreak. The cost of such treatments would fall upon the businesses affected in proportion to the locations of the infestation or amount of acreage affected and the difficulty of treatment. Delay in treatment requiring prolonged quarantine of premises or stock, of course, will affect the operation of the business.

There is no provision in the statutes nor are funds provided by the Legislature for the reimbursement of the destruction of any infected crop, stock, or plant. It may be that costs of control due to the virulence or large-scale spread of such an outbreak could be borne by the Department through a wide area control program. If that should occur, it would be the Department’s responsibility to secure funding to deal with the problem either in cooperation with the Federal government or on its own.

The treatment or destruction of diseased or infested plants will cause growers to incur the expense of treatment methods and disposal of destroyed plants, as well as loss of any plants destroyed. Prompt action in response to a disease or infestation problem will minimize both the costs and time involved and, therefore, will reduce the time and expense to the Department, any affected grower, and the public.

Without these rules, mature ornamental trees would be attacked, and domestic supplies of trees for nursery and landscaping companies would be reduced or eliminated. Widespread destruction of hardwood trees in public and private forest land would occur, causing enormous direct losses in tourism and related industries and enormous losses that cannot be easily measured to the aesthetics of New Jersey's woodlands. Prevention of further spread, and eradication, of the Asian longhorned beetle will protect forested residential areas in the State of New Jersey from the damaging effects of this insect pest.

Federal Standard Statement

The requirements imposed at N.J.A.C. 2:20-1 are the same as those imposed by Federal law, 7 CFR §301.85-3(b), namely, that soil from areas infested with Golden Nematode may be moved into or through New Jersey to Federally approved laboratories for scientific purposes.

The requirements imposed at N.J.A.C. 2:20-4 are the same as those imposed by Federal law, 7 CFR §301.78-3(a), which requires the State to have adopted equivalent restrictions on the movement of regulated articles, if Mediterranean fruit fly has been detected. Likewise, the requirements imposed at N.J.A.C. 2:20-5 are the same as those imposed by Federal law, 7 CFR §322.1(d), requiring that honeybees or honeybee semen imported into the State does not contain genetically undesirable germ plasm (Africanized traits).

The requirements imposed at N.J.A.C. 2:20-7 are more restrictive than those imposed by Federal law (at 7 CFR §319.37-7). These rules set limits on the total numbers of plants permitted to be imported yearly by each grower to be grown under post entry quarantine. Current USDA APHIS rules set no limit on the total numbers of plants imported. The Department has determined that the annual importation limit is necessary to enable the Department to continue to provide effective and efficient post entry quarantine inspection and monitoring services.

Importation of plants without limit will cause tremendous strain on the State’s inspection resources, as was seen in the State of Washington several years ago. Permitting importation without limit, would severely outstrip the Department’s ability to carry out quarantine inspection and monitoring services properly. The Department believes that importation of large quantities of plants would jeopardize agricultural and/or natural resources due to in due to increased likelihood of the establishment of exotic pests or diseases. The Department believes that the proposed annual importation limit in the proposed rules is necessary to ensure that sufficient State resources are available to carry out quarantine inspection and monitoring services properly, and to enable more growers to participate in the program.
The proposed limitation will impose no direct costs on growers, although it may result in the loss of profits that might be realized from the sale of imported plants. The Department believes the benefits to the State agriculture industry and the citizens of New Jersey in ensuring the continued availability of quality quarantine services and the protection of the public health, safety and welfare outweigh this potential profit loss.

The requirements of N.J.A.C. 2:20-8 are substantially the same as, but do not exceed, those imposed by Federal law at 7 CFR§301.54 (Asian Longhorned Beetle quarantine), at 7 U.S.C. §164a, Section 10 (Plant Quarantine Act), and at 7 U.S.C. §§150dd and 150ff (Federal Plant Pest Act). The proposed amendment does not change any of those requirements, but rather, specifically lists those areas in New Jersey that are the subject of quarantine.

Except for N.J.A.C. 2:20-7, which is analyzed above, these rules do not exceed any federal standards and no federal standards analysis is necessary. No other Federal standards are applicable to the subject matter of the rules proposed for readoption with amendments.

Jobs Impact

The rules proposed for readoption with amendments are not expected to result in the generation or loss of jobs in the State.

Agriculture Industry Impact

The rules proposed for readoption with amendments are expected to have a positive impact on New Jersey’s agriculture industry. The rules will afford protection to farmers from the introduction and establishment of a number of highly destructive plant pests not found in New Jersey. Adoption of the post entry quarantine rules will allow the safe importation of horticulturally desirable nursery stock from foreign countries and allow trained State and Federal inspectors to monitor the plants for two years to ensure they are free of dangerously injurious insects and diseases. The establishment and spread of the Asian longhorned beetle would impact the ornamental nursery industry, as well as seriously threaten the various forest industries (lumber, maple syrup) in the Northeastern United States. Many important high value ornamental shade trees are grown in New Jersey nurseries. The unhindered spread of this insect pest would limit or prevent the shipment of ornamental stone fruit trees shipped from New Jersey to other states where Asian longhorned beetle infestation is not known to occur.

Regulatory Flexibility Analysis

The rules proposed for readoption with amendments do not in and of themselves, impose any reporting, recordkeeping or compliance requirements on small businesses, as that term is defined in the Regulatory Flexibility Act, N.J.S.A. 52:14B-16 et seq. However, should control and quarantine measures have to be implemented, then the burden of undertaking plant pest remedial measures may be imposed upon the individual business affected. This burden, of course, is in counterpoise to the overwhelming risks that the unabated spread of these plant pests would have upon the rest of New Jersey and North American agriculture.

The rules proposed for readoption with amendments do not impose any reporting or recordkeeping on the part of any business or individual. However, accurate records that are kept in the ordinary course of the nursery business are extremely helpful in preventing the spread of plant pests. No professional services are likely to be needed to comply with these rules. In the event that quarantine pests are discovered, the professional services of a licensed certified pesticide applicator may be required to apply certain pesticides and other control agents. In addition, services for tree removal and replanting may be necessary, but in most instances those will provided by the Department in conjunction with our Federal and State partners.

The Department believes that the costs of compliance with the rules proposed for readoption with amendments depend on when pests are detected, and when pesticides and other control agents are applied. Relatively inexpensive and effective control measures are available through the proper use of pesticides and other control agents applied early in the infestation or outbreak. The cost of such treatments would fall upon the businesses affected in proportion to the locations of the infestation or amount of acreage affected and the difficulty of treatment. Delay in treatment requiring prolonged quarantine of premises or stock, of course, would affect the operation of the business and would be expected to have a disproportionately harsher impact on a small business with smaller resources.

The Department has provided no lesser or differing requirements based upon business size. The Department has determined that the rules proposed for readoption with amendments represent the minimum standards necessary to protect against the potential endangerment to the agricultural and natural resources of the State that might result from the potential establishment of exotic pests or diseases that may be associated with live, growing plant materials imported from foreign countries. No capital expenditures are required to comply with these rules.

Smart Growth Impact

The Department believes that the rules proposed for readoption with amendments will have no impact on the achievement of smart growth or on the implementation of the State Development and Redevelopment Plan.


Full text of the rules proposed for readoption may be found in the New Jersey Administrative Code at N.J.A.C. 2:20.

Full text of the proposed amendments follows (additions indicated in boldface thus; deletions indicated in brackets [thus]):

SUBCHAPTER 8. ASIAN LONGHORNED BEETLE

2:20-8.5 Quarantine area

(a) By order of the State Board of Agriculture and pursuant to N.J.S.A. 4:1?21.5, in order to control the spread of Asian longhorned beetle, a menace to the hardwood forests in the State of New Jersey, the following municipalities are hereby quarantined:
[1. Hudson County: The City of Jersey City. That area that is bounded as follows: Beginning at the intersection of Paterson Plank Road and S. Wing Viaduct; then south to Congress Street; then west along Congress Street to Webster Avenue; then south along Webster Avenue to Bowers Street; then west along Bowers Street to Summit Avenue; then south along Summit Avenue to Fairmount Avenue; then east to Grand Street; then east along Grand Street to the shoreline of the Hudson River; then north along the shoreline of the Hudson River to the Hoboken - Jersey City border.
2. Hudson County: The City of Hoboken. That area that is bounded as follows: Beginning at the shoreline of the Hudson River east of the intersection of Hudson Street and 11th Street; then west along 11th Street to the railroad tracks; then south along the rail road tracks to the Hoboken - Jersey City border; then east along the Hoboken - Jersey City border River to the shoreline of the Hudson River; then north along the shoreline of the Hudson River to the point of the beginning.]
Recodify existing 3.- 6. as 1.- 4. (No change in text).
[7.] 5. Union County: The City of Linden. That area that is bounded as follows: Beginning at the intersection of Elizabeth Avenue and Stiles Street, north on Elizabeth Avenue to Wood Avenue; then east along Wood Avenue to Linden Avenue; then north along Linden Avenue to Willow Glade Road; then southeast along Willow Glade Road to Edgar Road; then north along Edgar Road to the South Reservoir; then east along the northern shore of South Reservoir to Morse Creek; then east along the southern bank of Morse Creek to the eastern-edge of the New Jersey Turnpike right of way; then south along the New Jersey Turnpike right of way to Marshes Creek; then southeast along Marshes Creek to the Rahway River; then west along the Rahway River to the Rahway-Linden border, north along the Rahway-Linden border to Lower Road, northwest along the Rahway-Linden border to St. Georges Avenue, then north along St. Georges Avenue to Stiles Street, then east along Stiles Street to the point of the beginning.

(b) (No change.)


_________________________________
Charles M. Kuperus, Secretary
New Jersey Department of Agriculture
June 22, 2005