The New Jersey Department of Agriculture (Department) is proposing an amendment to N.J.A.C. 2:23-1.4 to expand the type of insecticide that may be used for the suppression of gypsy moth.  The rules in N.J.A.C. 2:23 list the requirements for municipal participation in the voluntary gypsy moth suppression program administered by the Department.  N.J.A.C. 2:23-1.4 is being amended to include the synthetic insect growth regulator, Dimilin®, to the list of pesticides available for use on the suppression program, and to clarify when Dimilin® might be employed.

The gypsy moth, Lymantria dispar, is a serious pest of oak forested areas of New Jersey.  Successive defoliation of susceptible trees by gypsy moth larvae can cause tree mortality, which reduces property values.  Property owners also bear the costs of removal of dead or dying trees to prevent safety hazards posed by falling tree limbs.  If allowed to spread unabated, the gypsy moth would also damage oak forested areas in public and private forest lands, reducing species diversity and jeopardizing the health and vitality of the ecosystem, and causing enormous losses that cannot be easily measured to the aesthetics of our woodlands.

Pursuant to N.J.A.C. 2:23, the Department operates a voluntary suppression program wherein municipalities may request Department assistance in surveillance and suppression of the gypsy moth population in their respective municipalities. The Department secures Federal cost-share assistance, when available from the United States Department of Agriculture (USDA) Forest Service, for local governments who participate in the Voluntary Gypsy Moth Suppression Program.  Non-participating local governments, however, are not eligible for this Federal assistance.  Annual fluctuations in the gypsy moth population constantly affect the number of municipalities participating in the program. 

As part of its gypsy moth suppression efforts, the Department promotes an integrated pest management philosophy, which conserves natural predators and diseases of gypsy moths through detailed population monitoring and assessments, and utilization of the least toxic spray materials to control gypsy moth outbreaks.  The fungus disease, Entomophaga maimaiga, has provided natural control of the gypsy moth population when weather conditions are favorable.  The fungus can be found in the environment when there is a particularly wet May and early June.  The Department reared and released numerous predatory and parasitic insects into New Jersey’s woodlands from 1963 through 1986 to assist in natural control of gypsy moth.

In addition, the Department relies on insecticides to control the gypsy moth when populations exceed the limits of control afforded by the fungus disease and natural predators.  Currently, only the non-chemical insecticide, Bacillus thuringiensis (B.t.k.) is used in the Department’s suppression program.  This product is extremely effective in areas containing moderate levels of gypsy moth populations.  However, areas with high to extremely high levels of gypsy moths (over 4,000 egg masses per acre; each single egg mass may contain up to 1,000 eggs or more) frequently yield sub-optimal results in foliar protection and population reduction, even when treated with double applications of B.t.k.  This is mainly due to the non-residual nature of the insecticide. 

Of the areas treated using double applications in the spring of 2006, approximately 3,291 acres experienced heavy to severe defoliation by gypsy moth caterpillars. There was no significant population reduction of gypsy moths observed from post-treatment evaluations in 47 percent of the treatment areas.  Gypsy moth populations in these areas remain either the same or double in number, meaning that these areas would experience substantial defoliation and subsequential tree mortality in the spring of 2007.    

Adding a chemical insect growth regulator (Dimilin®) to the list of pesticides allowable under N.J.A.C. 2:23 gives the Department and participating municipalities the opportunity to effectively suppress gypsy moth populations when found in extremely high levels, and to reduce the number and frequency of insecticide applications made aerially to urban or densely populated areas.  Single applications of Dimilin® have provided 81 to 100 percent control of gypsy moth caterpillars, and the insecticide is regularly used in gypsy moth suppression programs in Maryland, Virginia and West Virginia. Both products are also consistent with recommendations for gypsy moth suppression activities by the USDA Forest Service, and would qualify for federal cost-share funding if available.

The Department of Environmental Protection (DEP) regulates the aerial application of pesticides at N.J.A.C. 7:30-10.6, including restrictions on the aerial application of broad-spectrum pesticide for non-agricultural purposes.  The exceptions at N.J.A.C. 7:30-10.6 (t) and (u) allow DEP to determine, with recommendations from Rutgers University, that no practical alternatives to broad spectrum pesticides for non-agricultural purposes are available, and/or where it can be shown that the pest has reached a stage of development, or where population pressure is such that any non-broad spectrum pesticide is ineffective.

Gypsy moth populations are building rapidly in certain areas of the State due to a breakdown in natural control by the fungus disease, Entomophaga maimaiga.  The fungus works best when rain is abundant in May and early June.  The weather has been drier than normal in the past few years, when caterpillars are actively feeding and developing.  As a result of the last two years of inactivity by the fungus in controlling gypsy moth populations throughout the State, gypsy moth populations have reached epidemic proportions in certain areas of New Jersey, resulting in severe tree defoliation.  After three years of such extreme defoliation, tree mortality occurs. Based on the last two years of defoliation, over 3,291 acres of the State’s oak forested areas in public and private forestlands are at risk, and such tree mortality will reduce species diversity, jeopardize the health and vitality of the ecosystem, and cause enormous losses to both property owners and the aesthetics of our woodlands that cannot be easily measured.   

Adding the chemical insect growth regulator (Dimilin®) to the list of pesticides allowed under N.J.A.C. 2:23 gives the Department and participating municipalities the opportunity to effectively suppress gypsy moth populations when found in extremely high levels, to reduce the number and frequency of insecticide applications made aerially to urban or densely populated areas, and to help prevent tree mortality.

Because the Department has provided a 60-day comment period, this notice of proposal is excepted from the rulemaking calendar requirement, pursuant to N.J.A.C. 1:30-3.3(a) 5.

Social Impact

The proposed amendment will affect property owners and inhabitants in affected communities, along with municipal and county entities planning to conduct gypsy moth aerial suppression programs.  Repeated defoliation of high-value hardwood trees during the spring by gypsy moth caterpillars often causes tree mortality, which reduces property values, and results in property owners having to pay for the removal of dead tree hazards.  In addition, the feeding caterpillars constitute a public nuisance known to cause skin irritations to sensitive individuals residing in infested areas. Adding the chemical insect growth regulator Dimilin® to the list of pesticides allowable under N.J.A.C. 2:23 gives the Department and participating municipalities the opportunity to effectively suppress gypsy moth populations when found in extremely high levels, where past experience has shown that double applications of B.t.k. have been ineffective. 

Lastly, employing a single application of Dimilin® when recommended would reduce the number and frequency of insecticide applications made by aircraft flying directly over densely populated forested communities.  Tree mortality is a result of repeated defoliations by gypsy moth caterpillars. Dead standing timber poses a safety threat in the areas where it occurs. Personal injury and property damage would occur as a result of rotting falling tree trunks or limbs.  The financial burden would fall upon the individual resident to cover the costs of tree removal. 

The use of Dimilin® is approved for use against the gypsy moth by the United States Forest Service and is addressed in the Federal Environmental Impact Statement (EIS No. 950550, Final EIS, AFS, Gypsy Moth Management in the United States: A Cooperative Approach, Implementation, UT, dated November 1995, a copy of which is on file with the United States Environmental Protection Agency, see 60 FR 61698-01 (1995)).  The use of this product has been shown to temporarily negatively impact aquatic arthropod populations when sprayed directly into aquatic ecosystems.  Because of this fact, in areas where treatment would occur using this product, a 200-foot buffer zone would be utilized where sprays of B.t.k. would occur around the area of open water.  However, this detriment, when compared with the potential loss of over 3,291 acres or more, could have an even greater devastating impact on the State’s ecosystem if Dimilin® is not used to prevent tree defoliation this year.  It also should be noted that the use of Dimilin® will be limited to only those instances in which extreme tree defoliation has occurred and double applications of B.t.k. has been shown to be ineffective for the gypsy moth population size. 

Economic Impact

The proposed amendment affects only those local governments that voluntarily choose to participate in the program.  Those local governments which do not wish to adhere to the requirements specified in these rules do not have to participate and, hence, will not be economically impacted by the rules.  Participating municipalities are required to pay for the full treatment to the contracting aerial vendor.  In 2006, the cost of a single treatment of B.t.k. was $39.44 per acre.  The use of the synthetic insect growth regulator Dimilin® in select treatment areas would negate the necessity of performing double applications and provide a beneficial cost saving to the participating municipalities.  Instead of treating an area twice at a price of $78.88 per acre using B.t.k., the same parcel would be effectively treated at a cost of $39.44 per acre. The Department of Agriculture will continue to seek Federal cost-share assistance from the USDA Forest Service for local governments who participate in the Voluntary Gypsy Moth Suppression Program to help defray some of the treatment costs; non-participating local governments would not be eligible for this Federal assistance.  Both products are endorsed for aerial suppression activities by the USDA Forest Service and would not impact federal reimbursement monies when available.

Failure to prevent successive defoliation of susceptible trees by gypsy moth larvae can cause tree mortality, which reduces property values.  Property owners also bear the costs of removal of dead or dying trees to prevent hazards posed by falling tree limbs.  Thus, failure to adopt the proposed amendments could have an economic detriment to local property owners as well as municipalities.

Federal Standards Statement

The rulemaking authority of the Department of Agriculture regarding the gypsy moth is defined at N.J.S.A. 4:7-36 et seq.  The federal Cooperative Forestry Assistance Act of 1978 (16 U.S.C. §§2101 et seq.), as amended by the Forest Stewardship Act of 1990 (P.L. 101-264), authorizes the USDA Forest Service to enter into cooperative projects with state authorities to manage forest insects and diseases.  In order for the New Jersey Department of Agriculture and local governments to qualify for Federal cost-sharing funds for cooperative gypsy moth suppression projects, the participants must meet the standards and procedures specified in the Cooperative Forestry Assistance Act.  The proposed amendment meets but does not exceed these Federal requirements.  Thus, a Federal standards analysis is not necessary.

Jobs Impact

The proposed amendment is not expected to result in the generation or loss of jobs in the State.

Agriculture Industry Impact

The proposed amendment is not expected to result in any impact to New Jersey’s agricultural industry.

Regulatory Flexibility Statement

The proposed amendment imposes no reporting, recordkeeping or other compliance requirements on small businesses, as defined under the Regulatory Flexibility Act, N.J.S.A. 52:14B-16 et seq.  N.J.A.C. 2:23 lists the requirements for participation by municipal or county governing bodies in the Voluntary Gypsy Moth Suppression Program, and the proposed amendment merely increases the insecticides that may be used in gypsy moth suppression.

Although N.J.A.C. 2:23 imposes certain legal, fiscal and labor requirements on all applicants requesting participation in the Voluntary Suppression Program, the proposed amendments do not attempt to increase or alter these requirements.  These requirements are necessary to ensure that the public has been properly notified, the cost of treatment has been budgeted, the labor needed to delineate the spray block boundaries has been provided by the applicant, and the spray vendor is paid prior to the disbursement of USDA Forest Service cost-sharing funds.  Since no small businesses, as defined under the Regulatory Flexibility Act, are impacted by the proposed amendment, no regulatory flexibility analysis is necessary.

Smart Growth Impact

The Department believes that the proposed amendment would have a positive impact on the achievement of smart growth, as it will reduce the damage caused by successive defoliation by the gypsy moth larvae to susceptible trees, which can cause tree mortality in 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.  The preservation of forested areas, both residential and non-residential, is important to the achievement of smart growth.  In addition, the proposed amendment will have no impact on the implementation of the State Development and Redevelopment Plan.

Full text of the proposal follows (additions indicated in boldface thus;

deletions indicated in brackets [thus]):

SUBCHAPTER 1.            VOLUNTARY SUPPRESSION PROGRAM

2:23-1.4            The Department of Agriculture participation

1.     (No change.)
2.    If the conditions in N.J.A.C. 2:23-1.3 are met, the Department agrees to:

1-2  (No change.)

1.       [Select] Recommend the most efficacious [non-chemical] insecticide,

[(]Bacillus thuringiensis[)],(B.t.k), or the synthetic insect growth regulator, Dimilin®for a designated treatment area, specify the types of application aircraft, and specify the proper timing of aerial application depending on foliage size (about 30 percent of full leaf expansion of the majority of oak species found in the proposed spray block), larval size (about 1/2 inch), air temperatures (greater than 39 and less than 81 degrees Fahrenheit), and weather conditions (no precipitation forecast for four hours of adequate drying time immediately following spray application, and winds under 10 miles per hour[.]), in accordance with the following:

i.         Preference will be given to the use of B.t.k. unless the conditions in (b)3ii and iii below are met;

ii.          Dimilin®will only be applied pursuant to N.J.A.C. 7:30-10.6 (t) and (u) following consultation with the Department of Environmental Protection and a determination is made by the Department of Environmental Protection that population pressure is such, that any non-broad spectrum pesticide is ineffectivein reducing the number and frequency of insecticide applications made aerially to urban or densely populated areas; and

iii.           Dimilin®will only be applied when gypsy moth populations are increasing at a rapid rate, the treatment site does not contain a body of water visible from the air through the tree canopy, and the treatment site is at least 250 feet from other major bodies of water.

4. – 7.      (No change.)   

Charles M. Kuperus, Secretary
New Jersey Department of Agriculture
November 30, 2006