Summary
The Asian longhorned beetle (Anoplophora glabripennis) is an injurious pest known to cause serious harm to hardwood forests, shade trees and residential forests in New Jersey, along with economic damage to the lumber, maple syrup, nursery and tourism industries in the Northeastern United States.  The United States Secretary of Agriculture issued a "Declaration of Emergency Because of the Asian Longhorned Beetle," 64 CFR 12800-12801, effective March 9, 1999, enabling the Animal and Plant Health Inspection Service (APHIS) of the United States Department of Agriculture to conduct a program for the control and eradication of Asian longhorned beetle wherever it may be found in the United States.  Accordingly, APHIS published 7 CFR §301.51, Asian Longhorned Beetle Quarantine, to prevent the spread of Asian longhorned beetle from known infested areas.  The Asian longhorned beetle is not native to New Jersey and has now been found damaging maple trees in near the outer edge of the quarantine area in the City of Linden, Union County, New Jersey.  The Department of Agriculture is therefore proposing amendments to N.J.A.C. 2:20-8.5 to respond to this imminent peril, to prevent the further spread of the insect pest, and to eradicate Asian longhorned beetle wherever it may be found in the State.
  The Asian longhorned beetle is an invasive, foreign insect pest that is a serious threat to hardwood forests and shade trees.  In the larval stage, Asian longhorned beetles bore into live trees, especially maple (Norway, sugar, silver and red), birch, horsechestnut, poplar, willow, and elm.  Once inside the tree, the beetle larvae tunnel and feed throughout the tree; infested trees are weakened and ultimately die. The unabated spread of Asian longhorned beetle would seriously threaten the forests, shade trees and forested residential areas in New Jersey, along with the lumber, maple syrup, nursery and tourism industries in the Northeastern United States. The most effective method to eradicate Asian longhorned beetle is to cut and chip infested trees, and replant with non-host trees. Because beetle larvae live deep inside infested trees, larvae can be readily moved from infested areas to uninfested areas in firewood, fallen timber and live trees. 
 In 2002, the Asian longhorned beetle was discovered in Jersey City, Hudson County, New Jersey.  As a result, the New Jersey Department of Agriculture instituted a quarantine and eradication program.  Through the efforts of the quarantine and eradication program in Jersey City, no additional signs of Asian longhorned beetle have been found in the quarantine zone, and the quarantine in this area was lifted in the fall of 2005.  37 NJR 3099(a).  Additional infestations of Asian longhorned beetle were found in New York City in 2003, and in Brooklyn in 2004.  In 2004, this pest was discovered attacking trees in Carteret and Woodbridge in Middlesex County, and Rahway and Linden in Union County, New Jersey. At that time, N.J.A.C. 2:20-8.5 was amended to establish a regulated area to limit the further spread of the beetle.  
Recent findings of additional infested trees in Linden near the outer edge of the quarantine area necessitate an additional expansion of the quarantine area.  Specifically, N.J.A.C. 2:20-8.5(a)(5) is amended in response to the latest survey results of Asian longhorned beetle in Linden and is amended to expand the Linden quarantine area and incorporate nearby portions of Roselle and Elizabeth.
As this rule involves an imminent peril subject to provisions of N.J.S.A. 52:14B-4(c), this rulemaking is excepted from the rulemaking calendar requirements, pursuant to N.J.A.C. 1:30-3.3(a)3.

Social Impact
The proposed emergency adopted and concurrent proposed amendments will affect property owners and inhabitants in affected communities, along with municipal and county shade tree commissions and nurserymen conducting business within New Jersey.  These amendments will have a positive social impact by reducing the damage and tree loss caused by the Asian longhorned beetle, which can cause tree mortality in forests and forested residential areas.  Tree damage and mortality in high-value hardwood trees caused by the Asian longhorned beetle will reduce property values and require property owners to pay for the removal of dead tree hazards.  If allowed to spread, the Asian longhorned beetle would damage hardwood forest trees in public and private forestlands, reducing species diversity and jeopardizing the health and vitality of the ecosystem, thereby causing enormous losses to the aesthetics of our woodlands that cannot be easily measured.  In addition, forested residential areas are part of the working landscape in New Jersey, critical to the absorption of air pollutants, oxygen production, natural cooling, noise prevention, wildlife habitat and quality of life.   The purpose of quarantine is to minimize the trees affected by Asian longhorned beetle infestation and consequently, its negative effect on landowners and the public in general.

Economic Impact
The emergency adopted and concurrent proposed amendments will affect property owners, city and municipal shade tree commissions and nurserymen conducting business within New Jersey. Property owners whose trees are found infested with Asian longhorned beetle, and who have been ordered to destroy their trees, may face serious economic impacts.  Failure to comply with these amendments, however, could cost property owners affected by the Asian Longhorned beetle even greater economic loss, including loss of other healthy trees, reduction in property values and liability for damages caused by the dying trees.  The cost of tree removal is expected to be underwritten by USDA APHIS, thereby reducing the economic impact on the property owner. The costs of replanting would fall upon those property owners affected. The Department is also seeking funding to defray replanting costs. State and Federal governments have spent in excess of $80 million to control this pest since 1996.  Over $12 million has been spent on the eradication program in New Jersey since 2002, which included over $750,000 in costs to the State of New Jersey. 
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. However, there are no such businesses within the proposed quarantine area.
Without these amendments, 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 to the aesthetics of New Jersey's woodlands that cannot be easily measured.  Prevention of further spread, and eradication, of the Asian longhorned beetle is necessary protect forested residential areas in the State of New Jersey from the damaging effects of this insect pest.

Federal Standards Statement
Executive Order No. 27 (1994) and P.L. 1995, c.65 require State agencies that adopt, readopt or amend State regulations that exceed any Federal standards or requirements to include in the rulemaking document a comparison with Federal law. The United States Secretary of Agriculture issued a  "Declaration of Extraordinary Emergency Because of Asian Longhorned Beetle,” 64 CFR 12800-12801, effective March 9, 1999, enabling the Animal and Plant Health Inspection Service (APHIS) of the United States Department of Agriculture to conduct a program for the control and eradication of Asian longhorned beetle wherever it may be found in the United States. Accordingly, APHIS published 7 CFR §301.51, Asian Longhorned Beetle Quarantine, to prevent the spread of Asian longhorned beetle from known infested areas.
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 emergency adopted and concurrent proposed amendments do not change any of those requirements, but, rather, list another area in New Jersey that is the subject of quarantine.  Therefore, no Federal standards analysis is necessary.

Jobs Impact
The emergency adopted and concurrent proposed amendments are not expected to result in the generation or loss of jobs in the State.

Agriculture Industry Impact
The emergency adopted and concurrent proposed amendments will affect nurserymen conducting business within New Jersey. 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. However, there are no such businesses within the proposed quarantine area.  As a result, the impact of the emergency adopted and concurrent proposed amendments on this segment of the agriculture industry is minimal.
The establishment and spread of this Asian longhorned beetle could also impact the ornamental nursery industry. 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 is not known to occur.  The unabated spread of Asian longhorned beetle would seriously threaten the various forest industries (lumber, maple syrup) in the Northeastern United States.  Thus, control and/or eradication of the Asian longhorned beetle as a result of these amendments will have a positive impact on these sections of the agriculture industry.

Regulatory Flexibility Analysis
The emergency adopted and concurrently proposed amendments may impose compliance requirements on small businesses, as that term is defined in the Regulatory Flexibility Act, N.J.S.A. 52:14B-16 et seq. No professional services are likely to be needed  to comply with these rules. 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. However, there are no such businesses within the proposed quarantine area.   Arborists or tree removal businesses working within the quarantine area may only haul wood debris to USDA APHIS and state approved disposal facilities.  Currently there is one such facility in Jersey City.  USDA APHIS officials are working to expand the list of approved facilities.
However, should control 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, including the lumber, maple syrup, nursery and tourism industries in the Northeastern United States.
The Department believes that the costs of compliance with these amendments depend on when Asian longhorned beetle is detected, and when trees are destroyed. The cost of tree removal is expected to be underwritten by USDA APHIS, and replanting would fall upon the businesses affected. The Department is seeking funding to defray replanting costs. Delay in treatment resulting in spread of the insect to other trees would affect the operation of the business and would be expected to have a disproportionately harsher impact on a small business with small resources.  Because these amendments are intended to prevent the spread of the Asian longhorned beetle, the Department has provided no lesser or differing requirements based upon business size. The Department has determined that the emergency adopted and concurrent proposed 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 spread of Asian longhorned beetle.

Smart Growth Impact
The Department believes that emergency adopted and concurrent proposed 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 proposed amendments follows (additions indicated in boldface thus; deletions indicated in brackets [thus]):
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 of New Jersey, the following municipalities are hereby quarantined:

1.  Middlesex County:  The Borough of Carteret.  The area that is as bounded as follows:  Beginning at Blair Road at the Woodbridge Township border along Blair Road north to Roosevelt Avenue, continuing northeast along the Carteret-Woodbridge border to the Rahway River; east along the Rahway River to [a point north of the intersection of Peter J. Sica Industrial Drive and Salt Meadow Road; south through the wetlands to Peter J. Sica Industrial Drive;] the confluence of Cross Creek; south along Cross Creek to Peter J. Sica Industrial Drive; south along Peter J. Sica Industrial Drive to Roosevelt Avenue; west along Roosevelt Avenue to the junction of Port Reading Avenue; and northwest along the Carteret-Woodbridge border to the point of the beginning.
2. – 4. (No change.)
5.  Union County: The City of Linden. That area that is bounded as follows: Beginning at the intersection of St. Georges Avenue and Wood Street, northeast along Saint Georges Avenue (State Highway 27) the Roselle Borough- Linden border to the Linden-Elizabeth City border; southeast along the Linden- Elizabeth City border    [east on Wood Street to Curtis Street; then north on Curtis Street to Baltimore Street; then east on Baltimore Street to Dill Avenue; then north on Dill Avenue to Grant Street; then southeast on Grant Street to Alberta Avenue; then northeast on Alberta Avenue to County 616 (Park Avenue); then southeast on County 616 (Park Avenue) to US 1; then north on US 1 to the Linden-Elizabeth City border (Allen Street); then southeast along the Linden – Elizabeth City border (Allen Street)] to the east side of the New Jersey Turnpike; 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 Wood Street to the point of the beginning
6.  Union County: The Borough of Roselle.  The area that is bounded as follows:  Beginning at the intersection of Wood Street  (County Road 617) and Saint Georges Avenue (State Highway 27) northwest on Wood Street to Raritan Road (County Road 607); north on Raritan Road to Pine Street; north on Pine Street to East 5th Avenue; east on East 5th Avenue to Locust Street (County Road 619); north on Locust Street to West Grand Avenue (Union County 610); east on West Grand Avenue to the Roselle Borough-Elizabeth City border; southeast along the Roselle Borough-Elizabeth City border to the Linden- Roselle Borough border Saint Georges Avenue (State Highway 27); southwest on Saint Georges Avenue to the point of the beginning.
7. Union County: Elizabeth City.  The area that is bounded as follows:  Beginning on West Grand Avenue at the Roselle Borough –Elizabeth City border; east on West Grand Avenue to Chilton Street; south on Chilton Street to South Street; east on South Street to Broad Street; south on Broad Street to Bayway Avenue; south east on Bayway Avenue to Polonia Street; southwest on Polonia Street to the Linden-Elizabeth City border; northwest along the Linden-Elizabeth City border to Rahway Avenue (State Highway 27); southwest on Rahway Avenue to the Roselle Borough - Elizabeth City border of; northwest along the Roselle Borough -Elizabeth City border to the point of the beginning.             

(b) (No change.)

                                                                                    
Charles M. Kuperus, Secretary
New Jersey Department of Agriculture
        April ____, 2006
 
STATEMENT OF IMMINENT PERIL

To respond to an imminent peril of serious harm to hardwood forests, shade trees and residential forests in New Jersey by the Asian longhorned beetle, along with economic damage to the lumber, maple syrup, nursery and tourism industries in the Northeastern United States, the New Jersey Department of Agriculture is adopting these rules on an emergency basis and concurrently proposing amendments to prevent the spread of Asian longhorned Beetle by incorporating nearby portions of the City of Linden, Borough of Roselle and City of Elizabeth in Union County to the existing  quarantine area due to the further discovery of Asian longhorned beetle near the outer edge of the quarantine area in the City of Linden, Union County in late March 2006.
The spread of Asian longhorned beetle will negatively affect property owners and inhabitants in affected communities, along with municipal and county shade tree commissions, and nurserymen conducting business within New Jersey.  Damage to high value hardwood trees by the Asian longhorned beetle often causes tree mortality, which reduces property values, and results in property owners having to pay for the removal of dead tree hazards.
If the Asian longhorned beetle is left unchecked, damage to hardwood forest trees in public and private forest lands would occur, reducing species diversity and jeopardizing the health and vitality of the ecosystem, and enormous losses that cannot be easily measured to the aesthetics of our woodlands.  The unabated spread of Asian longhorned beetle would seriously threaten the various forest industries (lumber, maple syrup) in the Northeastern United States. 
Containment will reduce the damage and tree loss caused by the Asian longhorned beetle to susceptible trees, which can cause tree mortality in forests and forested residential areas.  Forested residential areas are part of the working landscape in New Jersey, critical to the absorption of air pollutants, oxygen production, natural cooling, noise prevention, wildlife habitat and quality of life.   Through the efforts of the quarantine and eradication program in Jersey City, no additional signs of Asian longhorned beetle have been found in the quarantine zone.  However, additional infestations of Asian longhorned beetle were found in New York City in 2003, and in Brooklyn in 2004. 
The establishment and spread of the Asian longhorned beetle would also likely have a negative impact on the ornamental nursery industry.  Many important high value ornamental shade trees are grown in New Jersey nurseries. In addition to the trees that may be destroyed by these pests, the unhindered spread of the Asian longhorned beetle would limit or prevent the shipment of ornamental stone fruit trees shipped from New Jersey to other states where Asian longhorned beetle is not known to occur.
Over $12 million has been spent on the eradication program in New Jersey since 2002, which included over $750,000 in costs to the State of New Jersey. The Department, therefore, promulgates amendments by emergency adoption to protect the forests and forested residential areas in New Jersey from further spread of Asian longhorned beetle.

In summary, the adoption of emergency amendments determines an area under quarantine to restrict movement of firewood, logs, green lumber, and nursery stock that present a risk of spreading Asian longhorned beetle, and orders the destruction of infested trees.
For the reasons set forth above, I conclude and certify that emergency rulemaking is warranted under the imminent peril provisions of the New Jersey Administrative Procedure Act, N.J.S.A. 52:14B-4(c).

                                                                                    
Charles M. Kuperus, Secretary
New Jersey Department of Agriculture

Dated:  April ___, 2006

 
CERTIFICATION OF IMMINENT PERIL

  Charles M. Kuperus, Secretary of the New Jersey Department of Agriculture, has proposed pursuant to N.J.A.C 1:30-6.6(a)1, an Emergency Rule with a Concurrent Amendment expanding the quarantine area in the City of Linden, and including adjacent portions of Roselle Borough and Elizabeth City, Union County due to an infestation of Asian longhorned beetle.
The text of this Emergency Rule Adoption and the attached Statement of Imminent Peril, which includes a statement of reasons describing the imminent peril, have been submitted for my review and concurrence.
I hereby concur with the findings of the Secretary of Agriculture that an emergency exists warranting the above described Emergency Rule Adoption at N.J.A.C. 2:20-8.5.

       
                        ________________________________
Jon S. Corzine
Governor

Dated: April ____, 2006