[Federal Register Volume 71, Number 75 (Wednesday, April 19, 2006)]
[Proposed Rules]
[Pages 20030-20041]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-3738]


 ========================================================================
 Proposed Rules
                                                 Federal Register
 ________________________________________________________________________
 
 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
 
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 

  Federal Register / Vol. 71, No. 75 / Wednesday, April 19, 2006 / 
Proposed Rules  

[[Page 20030]]



DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 330

9 CFR Part 94

[Docket No. 05-002-2]


Interstate Movement of Garbage From Hawaii; Municipal Solid Waste

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Proposed rule.

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SUMMARY: We are proposing to amend the regulations pertaining to 
certain garbage to provide for the interstate movement of garbage from 
Hawaii subject to measures designed to protect against the 
dissemination of plant pests into noninfested areas of the continental 
United States. We are proposing this action upon request in order to 
provide the State of Hawaii with additional waste disposal options, and 
after determining that the action would not result in the introduction 
of plant or animal pests or diseases into the continental United States 
from Hawaii. We are also proposing to make other amendments to the 
garbage regulations to clarify their intent and make them easier to 
understand.

DATES: We will consider all comments that we receive on or before May 
19, 2006.

ADDRESSES: You may submit comments by either of the following methods:
     Federal eRulemaking Portal: Go to http://www.regulations.gov and, in the lower ``Search Regulations and Federal 
Actions'' box, select ``Animal and Plant Health Inspection Service'' 
from the agency drop-down menu, then click on ``Submit.'' In the Docket 
ID column, select APHIS-2005-0047 to submit or view public comments and 
to view supporting and related materials available electronically. 
After the close of the comment period, the docket can be viewed using 
the ``Advanced Search'' function in Regulations.gov.
     Postal Mail/Commercial Delivery: Please send four copies 
of your comment (an original and three copies) to Docket No. 05-002-2, 
Regulatory Analysis and Development, PPD, APHIS, Station 3A-03.8, 4700 
River Road Unit 118, Riverdale, MD 20737-1238. Please state that your 
comment refers to Docket No. 05-002-2.
    Reading Room: You may read any comments that we receive on this 
docket in our reading room. The reading room is located in room 1141 of 
the USDA South Building, 14th Street and Independence Avenue, SW., 
Washington, DC. Normal reading room hours are 8 a.m. to 4:30 p.m., 
Monday through Friday, except holidays. To be sure someone is there to 
help you, please call (202) 690-2817 before coming.
    Other Information: Additional information about APHIS and its 
programs is available on the Internet at http://www.aphis.usda.gov.

FOR FURTHER INFORMATION CONTACT: Ms. Shannon Hamm, Assistant Deputy 
Administrator, Policy and Program Development, APHIS, 4700 River Road 
Unit 20, Riverdale, MD 20737-1231; (301) 734-4957.

SUPPLEMENTARY INFORMATION:

Background

    Under 7 CFR 330.400 and 9 CFR 94.5 (referred to elsewhere in this 
document as the regulations), the Animal and Plant Health Inspection 
Service (APHIS) regulates the importation and interstate movement of 
garbage that may pose a risk of introducing or disseminating animal or 
plant pests or diseases that are new to or not widely distributed 
within the United States. Not all movements of waste material are 
regulated by APHIS; \1\ only movements of waste that meets APHIS's 
definition of ``garbage'' are regulated, and even then, only under 
certain circumstances. Under the regulations, the term ``garbage'' is 
defined as ``all waste material derived in whole or in part from 
fruits, vegetables, meats, or other plant or animal (including poultry) 
material, and other refuse of any character whatsoever that has been 
associated with any such material on board any means of conveyance, and 
including food scraps, table refuse, galley refuse, food wrappers or 
packaging materials, and other waste material from stores, food 
preparation areas, passengers' or crews' quarters, dining rooms, or any 
other areas on means of conveyance.'' Garbage also means ``meals and 
other food that were available for consumption by passengers and crew 
on an aircraft but were not consumed.''
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    \1\ The operation of landfills and incinerators and the 
intrastate and interstate movement of garbage are regulated 
predominantly by State and local governments. The U.S. Environmental 
Protection Agency (EPA) regulates the interstate movement of 
hazardous wastes. See EPA's Web site for additional information: 
http://www.epa.gov/epaoswer/osw/index.htm.
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    Waste material that meets the definition of garbage is regulated by 
APHIS if it is removed from a means of conveyance that:
     Within the last 2 years, has been in any port outside the 
United States or Canada; or
     Within the last year, has moved from Hawaii or a U.S. 
Territory to another U.S. State.\2\
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    \2\ ``State'' is defined as any of the 50 States and any U.S. 
territory or possession.
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    However, garbage onboard a conveyance that meets one of the two 
conditions above may be exempted from regulation if the conveyance is 
cleared of all regulated garbage, and after cleaning and disinfection, 
an inspector certifies that the conveyance contains no garbage that 
poses a risk of pest introduction into the United States. Garbage from 
Canada is also exempted from regulation.
    The regulations were established to address the risk posed by 
garbage that originates on or is onboard conveyances that have been 
located in areas where exotic animal or plant pests or diseases are 
present. Such garbage includes waste generated during the course of 
commercial and private air travel and commercial or private transit of 
goods or persons by sea. The regulations were not intended to address 
risks posed by movements of municipal solid waste.
    Due to a limited availability of landfill space in Hawaii, business 
interests and public officials are exploring other options for disposal 
of the State's waste. These persons have requested that APHIS allow the 
interstate movement of municipal solid waste from Hawaii. We believe 
the regulations require amendment to provide for the movement of 
garbage generated in Hawaii.

[[Page 20031]]

    Therefore, in this document, we are proposing to amend our 
regulations to clearly provide for the interstate movement of garbage 
from Hawaii to the continental United States. We are also proposing to 
make miscellaneous amendments to the regulations to clarify their 
intent and make them easier to understand.

Proposed Amendments to the Regulations

    Under the proposed regulations, waste from Hawaii that does not 
pose plant health risks, such as industrial process wastes, mining 
wastes, sewage sludge, incinerator ash, or other waste, would not be 
regulated by APHIS.\3\ We would also propose that only municipal solid 
waste may be imported from Hawaii under the regulations, and that such 
waste may not include agricultural wastes or yard wastes.\4\ The 
exclusion of agricultural wastes and yard wastes reduces plant pest 
risk by limiting the amount of Hawaiian waste material that is likely 
to contain plant pests. If waste moved interstate from Hawaii contained 
exclusively or mostly plant material, the plant pest risk associated 
with the waste would be considerably higher. These conditions are 
consistent with the assumptions of our risk analysis and an 
environmental assessment (described later in this document), as well as 
with the requests to allow the interstate movement of municipal solid 
waste from Hawaii.
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    \3\ Such waste becomes regulated garbage if it is associated or 
commingled with other waste material that meets the definition of 
garbage contained in the proposed regulations.
    \4\ Definitions for agricultural waste and yard waste can be 
found in the proposed regulations.
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    The proposed regulations, which would be contained in both new 7 
CFR 330.402 and revised 9 CFR 94.5(d), would require that all municipal 
solid waste moved interstate from Hawaii to any area of the continental 
United States must be:
     Processed, packaged, safeguarded, and disposed of using a 
methodology that the Administrator has determined is adequate to 
prevent the introduction or dissemination of plant pests into 
noninfested areas of the United States;
     Moved under a compliance agreement between the person 
handling or disposing of garbage and APHIS, and in accordance with any 
conditions that are stipulated in the compliance agreement to address 
particular pest risks or environmental hazards. APHIS will only enter 
into a compliance agreement when the Administrator is satisfied that 
the Agency has first satisfied its obligations under the National 
Environmental Policy Act (NEPA) and other statutes to assess the 
impacts associated with the movement of garbage to be allowed under the 
compliance agreement; and
     Moved in compliance with all applicable laws for 
environmental protection.

Approved Methodologies

    In response to requests by private waste disposal companies, we 
have evaluated the risk of plant pest introduction posed by the 
movement of municipal solid waste that is shredded, compressed, and 
wrapped in adhesive-backed plastic film barriers, and that would then 
be shipped under certain safeguards from Hawaii to the continental 
United States. Our analysis did not evaluate the risk posed by animal 
pests or diseases because there are no quarantine significant animal 
pests or diseases in Hawaii.
    Our analysis of the risks associated with movement of municipal 
solid waste by this means is contained in a risk assessment entitled, 
``The Risk of Introduction of Pests to the Continental United States 
via Plastic-Baled Municipal Solid Waste from Hawaii'' (March 2006). The 
risk assessment is available from the person listed under FOR FURTHER 
INFORMATION CONTACT and may be viewed on the Regulations.gov Web site 
(see ADDRESSES above for instructions for accessing Regulations.gov.).
    Airtight enclosure of municipal solid waste while in transit from 
Hawaii until burial in the United States would mitigate the risks of 
introduction and dissemination of plant pests that might be present 
inside of the bales, provided the bales remain intact throughout 
movement, and until burial in a landfill. Therefore, the risk 
assessment focused upon the soundness of baling technology and the 
safety of the general pathway. It considered only those processes 
likely to apply to all future proposals to transport baled solid waste 
from Hawaii, since some aspects of the shipping and disposal pathway 
cannot be evaluated until the actual destination is known, and as such, 
risks posed by shipment to individual disposal sites would need to be 
evaluated separately for each particular proposal to identify any 
significant risk factors.
    Manufacturer and independent research indicates that the baling 
technology performs well and will mitigate the risk from all types of 
plant pests. In particular, insects and some pathogens are unlikely to 
survive in the bales because of compression, anoxia, and the absence of 
hosts. Other procedures, such as staging of bales prior to transport, 
bale construction, monitoring during transport, and burial in regulated 
landfills, should adequately protect against escapes via accidental 
ruptures and punctures during handling and transport. It is worth 
noting that the risk assessment considers not only pests contained 
inside the bales, but also those that might attach themselves as 
hitchhikers on the outside of bales, such as snails and slugs.
    The proposed regulations are designed to allow for the approval of 
various safeguarding methodologies for garbage shipped interstate from 
Hawaii, including the methodology evaluated in the risk assessment. 
Persons seeking to move municipal solid waste interstate from Hawaii 
using a methodology different from that evaluated in the risk 
assessment are advised that such movements would likely require the 
completion of another risk assessment. Any shipments of municipal solid 
waste under the proposed regulations would only be allowed subject to a 
compliance agreement approved by the Administrator, based on his or her 
determination that the waste would be packaged and shipped using a 
method equivalent to that evaluated in the risk assessment, or using 
another method that has been formally evaluated, and on which public 
comment has been solicited prior to its approval.
    We previously made our risk assessment available for public review 
and comment in conjunction with a notice of availability of an 
environmental assessment published in the Federal Register on May 20, 
2005 (70 FR 29269).

Compliance Agreements

    The risk assessment concluded that if proper procedures are 
followed, transportation of municipal solid waste from Hawaii in bales 
poses an insignificant risk of pest introduction and dissemination. The 
risk assessment also contains a recommendation that the pathway be 
monitored to ensure that pathway processes and compliance do not differ 
significantly from what was analyzed in the assessment. One of the 
functions of any compliance agreement would be to ensure that the 
pathway is monitored.
    The existing regulations require that persons engaged in the 
business of handling or disposing of regulated garbage operate in 
accordance with a compliance agreement. Persons operating under a 
compliance agreement are allowed to move garbage without the direct 
supervision of an inspector. Under this proposed rule, persons moving 
municipal solid waste from Hawaii would be required to enter into a 
compliance agreement. However,

[[Page 20032]]

as stated elsewhere in this document, under the proposed regulations, 
APHIS would only enter into a compliance agreement for the interstate 
movement of garbage from Hawaii if the pest and environmental risks 
posed by such movements have been analyzed by APHIS, subjected to 
public comment, and subsequently approved by the Administrator. This 
matter is described in detail in the following section.

Environmental Protection

    Under the proposed regulations, any movement of municipal solid 
waste from Hawaii to the continental United States would also have to 
be in compliance with all applicable laws for environmental protection. 
While APHIS is not responsible for the enforcement of specific Federal, 
State, and local environmental laws, we are responsible for ensuring 
that our regulations and programs are subjected to proper analysis 
under the National Environmental Policy Act of 1969 (NEPA), as amended 
(42 U.S.C. 4321 et seq.), the Endangered Species Act, and other 
statutes that are intended to protect the environment.
    In accordance with NEPA, we have prepared an environmental 
assessment, titled ``Movement of Plastic-Baled Municipal Solid Waste 
from Hawaii to the Continental United States (May 2005),'' that 
examines the potential environmental effects associated with moving 
garbage interstate from Hawaii to the continental United States subject 
to the same pest risk mitigation measures described in the risk 
assessment. We made a draft of this environmental assessment available 
to the public for comment through a notice published in the Federal 
Register on May 20, 2005 (70 FR 29269). We received two comments on the 
environmental assessment.\5\ In response to one comment, we revised the 
description of the purpose and need for the action in the environmental 
assessment to reflect that this action is intended simply to provide an 
alternative means of dealing with disposal of municipal solid waste in 
Hawaii, as requested by businesses and public officials in that State. 
The second commenter requested that APHIS provide additional 
information on the potential environmental consequences of allowing 
garbage to move interstate from Hawaii. We developed a list of exotic 
and quarantine-significant plant pests that exist in Hawaii; however, 
any environmental effects that could result from the introduction of 
pests contained in that list, as well as any response to the other 
issues raised by the commenter will be addressed as we prepare site-
specific environmental assessments for movements of garbage from 
Hawaii. Those assessments will be prepared and made available for 
public comment as requests for compliance agreements are made.
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    \5\ These comments and the previous draft of the environmental 
assessment may be viewed on the Regulations.gov Web site. Go to 
http://www.regulations.gov, click on the ``Advanced Search'' tab and 
select ``Docket Search.'' In the Docket ID field, enter APHIS-2005-
0047 then click on ``Submit.''
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    In this document, we are again making our environmental assessment, 
titled ``Movement of Plastic-Baled Municipal Solid Waste from Hawaii to 
the Continental United States (March 2006),'' available to the public 
for review and comment. The environmental assessment is available from 
the person listed under FOR FURTHER INFORMATION CONTACT and on the 
Regulations.gov Web site. Copies of the environmental assessment are 
also available for public inspection in our reading room. (Instructions 
for accessing Regulations.gov and information on the location and hours 
of the reading room are provided under the heading ADDRESSES at the 
beginning of this proposed rule).
    The environmental assessment documents our review and analysis of 
environmental impacts associated with, and alternatives to, the 
proposed action and has been prepared in accordance with: (1) NEPA, (2) 
regulations of the Council on Environmental Quality for implementing 
the procedural provisions of NEPA (40 CFR parts 1500-1508), (3) USDA 
regulations implementing NEPA (7 CFR part 1), and (4) APHIS' NEPA 
Implementing Procedures (7 CFR part 372).
    The environmental assessment is designed to consider the 
environmental effects, of adopting the proposed rule. Given the fact 
that a thorough analysis of the particular risks associated with moving 
garbage interstate to a specific destination in the continental United 
States is not possible without knowing the precise destination and 
handling protocol for such garbage, any specific proposed movements 
must be evaluated in detail under NEPA, and APHIS will not issue 
compliance agreements to parties to allow the movement of garbage as 
such until site-specific NEPA processes are complete. These analyses 
are necessary to ensure proper evaluation of localized risks and 
environmental hazards and compliance with NEPA.
    Persons seeking to move municipal solid waste interstate from 
Hawaii using a method different from that evaluated in the risk 
assessment and environmental assessment are advised that such movements 
may require the completion of another environmental assessment or other 
NEPA analysis.

Other Amendments to the Regulations

    In conjunction with the proposed changes described above, we are 
also proposing to revise the regulations to clarify their applicability 
and to make them easier to understand. As stated earlier in this 
document, the regulations were designed to address the risk posed by 
garbage that originates on or is onboard conveyances that have been in 
areas where exotic animal and plant pests and diseases are present. 
This proposal would amend the regulations to clarify what provisions 
apply to garbage generated onboard conveyances, and what provisions 
apply to garbage generated prior to interstate movement of conveyances 
(e.g., municipal solid waste from Hawaii). Provisions pertaining to 
garbage generated onboard a conveyance would be contained in 7 CFR 
330.401 and 9 CFR 94.5(c), and provisions pertaining to garbage 
generated in Hawaii would be contained in 7 CFR 330.402 and 9 CFR 
94.5(d).
    We would also add provisions to the regulations that make it clear 
that imports of certain garbage (e.g., municipal solid waste) from 
foreign countries other than Canada are prohibited due to their 
potential for introducing exotic plant and animal pests into the United 
States. The current regulations provide that certain imports of garbage 
are regulated in accordance with 7 CFR part 330 and 9 CFR part 94, but 
they do not specifically state that imports of garbage are prohibited 
unless they are imported in accordance with the provisions of those 
parts. We are proposing to clarify that the importation of garbage \6\ 
that the Administrator determines presents a risk of introducing animal 
or plant pests or diseases is prohibited.
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    \6\ Except garbage generated onboard conveyances.
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    Provisions pertaining to compliance agreements would be contained 
in revised 7 CFR 300.403 and 9 CFR 94.5(e). Those provisions currently 
provide, among other things, that where a compliance agreement is 
denied or cancelled, regulated garbage may continue to be unloaded from 
a means of conveyance and disposed of at an approved facility in 
accordance with Sec.  330.401(g)(1) and Sec.  94.5(f)(1). We are 
proposing to clarify that, in cases where compliance agreements have 
been denied or cancelled, the person who entered into or applied for 
the compliance agreement may be prohibited, at the discretion of the

[[Page 20033]]

Administrator, from continuing to handle regulated garbage. This change 
is necessary to provide APHIS with suitable discretion to ensure that 
persons who do not abide by the conditions of compliance agreements may 
not be allowed to continue to move or handle regulated garbage.
    We are also proposing to amend the regulations to provide that 
compliance agreements may be cancelled orally, and that oral 
cancellations and the reasons therefore would be confirmed in writing 
as promptly as circumstances allow. This provision is consistent with 
other APHIS requirements pertaining to compliance agreements, and 
provides discretion necessary for APHIS to take immediate action to 
suspend compliance agreements of persons whose actions present a risk 
of introducing animal or plant pests or diseases into the United 
States.
    A table showing the proposed new locations of all current 
provisions follows.

----------------------------------------------------------------------------------------------------------------
       Current provision 7 CFR         Current provision 9 CFR  Revised provision 7 CFR  Revised provision 9 CFR
----------------------------------------------------------------------------------------------------------------
330.400..............................  94.5...................  330.400 through 330.403  94.5
330.400(a)...........................  N/A....................  330.400(a)(1) & (a)(2).  94.5(a)(1) & (a)(2)
330.400(b)...........................  94.5(a)................  330.400(b) & 330.401(a)  94.5(b) & (c)(1) &
                                                                 & (a)(1).                (c)(1)(i)
330.400(c)...........................  94.5(b)................  330.401(b).............  94.5(c)(2)
330.400(c)(1)........................  94.5(b)(1).............  330.401(b)(2)..........  94.5(c)(2)(ii)
330.400(c)(1)(i).....................  94.5(b)(1)(i)..........  330.401(b)(2)(i).......  94.5(c)(2)(ii)(A)
330.400(c)(1)(i)(A)..................  94.5(b)(1)(i)(A).......  330.401(b)(2)(i)(A)....  94.5(c)(2)(ii)(A)(1)
330.400(c)(1)(i)(B)..................  94.5(b)(1)(i)(B).......  330.401(b)(2)(i)(B)....  94.5(c)(2)(ii)(A)(2)
330.400(c)(1)(ii)....................  94.5(b)(1)(ii).........  330.401(b)(2)(ii)......  94.5(c)(2)(ii)(B)
330.400(c)(2)........................  94.5(b)(2).............  330.401(b)(1)..........  94.5(c)(2)(i)
330.400(c)(2)(i).....................  94.5(b)(2)(i)..........  330.401(b)(1)(i).......  94.5(c)(2)(i)(A)
330.400(c)(2)(ii)....................  94.5(b)(2)(ii).........  330.401(b)(1)(ii)......  94.5(c)(2)(i)(B)
330.400(d)...........................  94.5(c)................  330.401(c).............  94.5(c)(3)
330.400(d)(1)........................  94.5(c)(1).............  330.401(c)(2)..........  94.5(c)(3)(ii)
330.400(d)(1)(i).....................  94.5(c)(1)(i)..........  330.401(c)(2)(i).......  94.5(c)(3)(ii)(A)
330.400(d)(1)(ii)....................  94.5(c)(1)(ii).........  330.401(c)(2)(ii)......  94.5(c)(3)(ii)(B)
330.400(d)(2)........................  94.5(c)(2).............  330.401(c)(1)..........  94.5(c)(3)(i)
330.400(d)(2)(i).....................  94.5(c)(2)(i)..........  330.401(c)(1)(i).......  94.5(c)(3)(i)(A)
330.400(d)(2)(ii)....................  94.5(c)(2)(ii).........  330.401(c)(1)(ii)......  94.5(c)(3)(i)(B)
330.400(e)...........................  94.5(d)................  330.401(a)(2)..........  94.5(c)(1)(ii)
330.400(f)...........................  94.5(e)................  330.401(d).............  94.5(c)(4)
330.400(f)(1)........................  94.5(e)(1).............  330.401(d)(1)..........  94.5(c)(4)(i)
330.400(f)(2)........................  94.5(e)(2).............  330.401(d)(2)..........  94.5(c)(4)(ii)
330.400(g)(1)........................  94.5(f)(1).............  330.401(d)(3)..........  94.5(c)(4)(iii)
330.400(g)(2)........................  94.5(f)(2).............  330.401(d)(3)(i) &       94.5(c)(4)(iii)(A) &
                                                                 (d)(3)(ii).              (B)
330.400(h)...........................  94.5(g)................  330.401(e).............  94.5 (c)(3)(iv)
330.400(i)...........................  94.5(h)................  330.400(c).............  94.5(b)
N/A..................................  N/A....................  330.400(b) (def. for     94.5(b) (def.
                                                                 interstate).             interstate)
330.400(i)(1)........................  94.5(h)(2).............  330.400(b).............  94.5(b)
330.400(i)(2)........................  94.5(h)(3).............  330.400(b).............  94.5(b)
330.400(i)(3)........................  94.5(h)(4).............  330.400(b).............  94.5(b)
330.400(i)(4)........................  94.5(h)(5).............  330.400(b).............  94.5(b)
330.400(i)(5)........................  94.5(h)(6).............  330.400(b).............  94.5(b)
N/A..................................  94.5(h)(7).............  N/A....................  N/A
N/A..................................  94.5(h)(8).............  N/A....................  N/A
N/A..................................  94.5(h)(9).............  330.400(b).............  94.5(b)
N/A..................................  94.5(h)(10)............  330.400(b).............  94.5(b)
330.400(j)...........................  94.5(i)................  330.403................  94.5(e)
330.400(j)(1)........................  94.5(i)(1).............  330.403(a).............  94.5(e)(1)
330.400(j)(2)........................  94.5(i)(2).............  330.403(b).............  94.5(e)(2)
330.400(j)(2)(i).....................  94.5(i)(2)(i)..........  330.403(b)(1)..........  94.5(e)(2)(i)
330.400(j)(2)(ii)....................  94.5(i)(2)(ii).........  330.403(b)(2)..........  94.5(e)(2)(ii)
330.400(j)(2)(iii)...................  94.5(i)(2)(iii)........  330.403(b)(3)..........  94.5(e)(2)(iii)
330.400(j)(2)(iv)....................  94.5(i)(2)(iv).........  330.403(b)(4)..........  94.5(e)(2)(iv)
330.400(j)(2)(v).....................  94.5(i)(2)(v)..........  330.403(b)(5)..........  94.5(e)(2)(v)
330.400(j)(3)........................  94.5(i)(3).............  330.403(c).............  94.5(e)(3)
330.400(j)(4)........................  94.5(i)(4).............  330.403(d).............  94.5(e)(4)
330.400(j)(5)........................  94.5(i)(5).............  330.403(e).............  94.5(e)(5)
N/A..................................  N/A....................  330.402................  94.5(d)
N/A..................................  N/A....................  330.402(a).............  94.5(d)(1)
N/A..................................  N/A....................  330.402(b).............  94.5(d)(2)
N/A..................................  N/A....................  330.402(b)(1)..........  94.5(d)(2)(i)
N/A..................................  N/A....................  330.402(b)(2)..........  94.5(d)(2)(ii)
N/A..................................  N/A....................  330.402(b)(3)..........  94.5(d)(2)(iii)
----------------------------------------------------------------------------------------------------------------

    We are also proposing to reorganize the order of requirements and 
to reconcile nonsubstantive inconsistencies between 7 CFR 330.400 and 9 
CFR 94.5 to ensure their contents would be identical.
    The current provisions in 7 CFR 330.100 and 330.400 and 9 CFR 94.0 
and 94.5 do not contain definitions for the same terms, and in some 
cases, the meaning of terms used in those sections is ambiguous. We 
would therefore add, remove, and revise definitions for terms used in 
the regulations to provide for

[[Page 20034]]

greater clarity of the regulations. All definitions can be found in 
proposed 7 CFR 330.400(b) and 9 CFR 94.5(b) of the rule portion of this 
document. However, a new definition for State and a revised definition 
for United States would be located in 7 CFR 330.100 and 9 CFR 94.0.

Executive Order 12866 and Regulatory Flexibility Act

    This proposed rule has been reviewed under Executive Order 12866. 
The rule has been determined to be not significant for the purposes of 
Executive Order 12866 and, therefore, has not been reviewed by the 
Office of Management and Budget.
    We are proposing to amend the regulations pertaining to garbage to 
provide for the interstate movement of certain garbage from Hawaii 
subject to measures designed to protect against the introduction and 
dissemination of plant pests into noninfested areas of the continental 
United States. We are proposing this action upon request in order to 
provide the State of Hawaii with additional waste disposal options, and 
after determining that the action would not result in the introduction 
of plant or animal pests or diseases into the continental United States 
from Hawaii.
    If this proposal is adopted, the island of Oahu (where Honolulu is 
located) is expected to be the source of most, if not all, of any 
municipal solid waste (MSW) that is moved to the continental United 
States under the regulations. Oahu has only one municipal landfill 
(Waimanalo Gulch), and there is no alternative landfill on the island 
at the present time.
    Oahu generates approximately 1.6 million tons of MSW per year. That 
figure is expected to rise an additional 20,000 tons and remain at that 
level for the next 10 years. Of the current total, 500,000 tons are 
recycled, 600,000 tons are burned for electricity, and 500,000 tons are 
landfilled. Of the 500,000 tons that are landfilled, 200,000 tons go to 
a privately operated construction and demolition landfill and 300,000 
tons go to Waimanalo Gulch municipal landfill. Waimanalo Gulch landfill 
is owned by the City of Honolulu and managed by a private company.
    The island of Hawaii (where Hilo is located) is another potential 
source of MSW that would move to the continental United States if the 
proposal is adopted. The island's only two landfills are located 
approximately 75 miles apart, and one (South Hilo Sanitary Landfill) 
may be nearing capacity. To date, one waste management service company 
has proposed to bale and move (for a fee) at least some of the island's 
MSW to a landfill in Washington State. Approximately 200 tons of 
garbage per day is landfilled at the South Hilo facility.\7\
---------------------------------------------------------------------------

    \7\ Source: News accounts in the Honolulu Star-Bulletin.
---------------------------------------------------------------------------

    The proposed rule would allow for the garbage to be compacted into 
bales, and then wrapped in plastic for transport to the mainland (the 
baling and wrapping would take place in the State of Hawaii). Estimates 
of the annual volume of MSW that would be shipped from Oahu to the 
continental United States range from 100,000 tons to 350,000 tons.\8\
---------------------------------------------------------------------------

    \8\ Source: News accounts in the Honolulu Star-Bulletin and 
APHIS staff. Similar estimates for the island of Hawaii are not 
available.
---------------------------------------------------------------------------

Need for Rule and Alternatives Considered

    The rule is being proposed upon request to provide public officials 
in Hawaii another option for disposal of the State's waste. The only 
other regulatory alternative would be to leave the regulations 
unchanged, but that alternative would unnecessarily limit Hawaiian 
officials' disposal options.

Small Entity Impact

    The Regulatory Flexibility Act (RFA) requires that agencies 
consider the economic impact of proposed rules on small entities, i.e., 
small businesses, organizations, and governmental jurisdictions. The 
proposed changes would allow for the movement of MSW from Hawaii to the 
continental United States.
    The proposed changes would not have a significant economic impact 
on a substantial number of small entities, because few entities, large 
or small, are likely to be affected. Only a handful of businesses are 
potentially affected by the rule--e.g., the company or companies that 
would secure the contract to move the waste from Hawaii, the barge line 
or lines that would physically move the waste to the mainland, the 
trucking company/railroad on the mainland that would physically move 
the waste to the interior landfill locations, and perhaps a few 
companies on Hawaii that would be forced to discontinue participation 
(or play a reduced role) in the State's waste disposal process once 
shipments to the mainland began. Those businesses that would 
participate in the movement of the waste to the mainland could be 
expected to benefit, since they would generate additional revenue and, 
presumably, profits from the increased business activity. Conversely, 
those businesses that would either no longer participate or would play 
a reduced role in Hawaii's waste disposal process could be expected to 
suffer lost revenue.
    The revenues generated by the private company that manages the 
Waimanalo Gulch landfill, for example, are presumably tied to the 
volume of waste that is landfilled there. If waste is diverted from 
Waimanalo Gulch to the mainland, that company's revenues are likely to 
be reduced. The City of Honolulu and the County of Hawaii are also 
potentially affected by the proposed changes.
    The preceding discussion assumes that the rule would not have 
significant environmentally related economic consequences for small 
entities. There are several reasons. First, the environmental 
assessment in this document concludes that the movement of MSW from 
Hawaii to the continental United States (using the plastic-baled 
methodology) will not have a significant impact on the environment. 
Second, site-specific environmental assessments will also be prepared 
as requests for compliance agreements are made. The site-specific 
assessments, which will be made available for public comment, will 
allow APHIS to address any environmental issues that may arise based on 
precise destination and handling protocols for the proposed movements, 
which are now unknown.
    Although the size of virtually all of the businesses potentially 
affected by the rule is unknown, it is reasonable to assume that at 
least some could be small. This assumption is based on composite data 
for providers of the same and similar services in the United States. As 
an example, North American Industry Classification System (NAICS) 
category 562 (``Waste Management and Remediation Services'') consists 
of establishments engaged in the collection, treatment, and disposal of 
waste materials. Under the U.S. Small Business Administration's (SBA) 
size standards, the small entity threshold for establishments that fall 
into most of the activity subcategories under NAICS 562 is annual 
receipts of $10.5 million. For all 18,405 U.S. establishments in NAICS 
562 in 2002, average per-establishment receipts that year were $2.8 
million, an indication that most waste management service companies are 
small entities.\9\ Annual receipt data for three of the four firms that 
have proposed to move Hawaii's waste to the mainland are not available. 
Although annual receipt data for the fourth company are also not 
available, that company is considered

[[Page 20035]]

large by virtue of it being a subsidiary of a publicly owned firm with 
receipts (operating revenues) of over $13 billion in 1999.\10\ The 
private company that currently manages the Waimanalo Gulch landfill is 
also a subsidiary of that publicly owned firm.
---------------------------------------------------------------------------

    \9\ Source: U.S. Census Bureau (2002 Economic Census) and SBA.
    \10\ Source: Various Internet sites.
---------------------------------------------------------------------------

    As another example, there were 677 U.S. entities in NAICS category 
483113 in 2002. NAICS 483113 consists of entities primarily engaged in 
providing deep sea transportation of cargo to and from domestic ports. 
For all 677 entities, average per-entity employment that year was 36, 
well below the SBA's small entity threshold of 500 employees for 
entities in that NAICS category.\11\
---------------------------------------------------------------------------

    \11\ Source: U.S. Census Bureau (2220 Economic Census) and SBA.
---------------------------------------------------------------------------

    Under the RFA, the term ``small governmental jurisdiction'' 
generally means cities, counties, townships, etc., with a population of 
less than 50,000. The City of Honolulu, which owns the Waimanalo Gulch 
landfill, does not qualify as a small entity because its population 
exceeds 50,000. The County of Hawaii, where Hilo is located, also has a 
population that exceeds 50,000.
    The proposed changes would not, as noted previously, have a 
significant economic impact on a substantial number of small entities, 
because few entities, large or small, are likely to be affected. The 
size of virtually all of the businesses potentially affected by the 
proposed changes is unknown, but it is reasonable to assume that at 
least some could be small.
    Under these circumstances, the Administrator of the Animal and 
Plant Health Inspection Service has determined that this action would 
not have a significant economic impact on a substantial number of small 
entities.

Executive Order 12372

    This program/activity is listed in the Catalog of Federal Domestic 
Assistance under No. 10.025 and is subject to Executive Order 12372, 
which requires intergovernmental consultation with State and local 
officials. (See 7 CFR part 3015, subpart V.)

Executive Order 12988

    This proposed rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. If this proposed rule is adopted: (1) All State 
and local laws and regulations that are inconsistent with this rule 
will be preempted; (2) no retroactive effect will be given to this 
rule; and (3) administrative proceedings will not be required before 
parties may file suit in court challenging this rule.

Executive Order 13175

    Adoption of this proposed rule as a final rule, and activities that 
could occur if compliance agreements are issued under such a final 
rule, may have tribal implications as defined by Executive Order 13175. 
We have entered into consultations with Indian tribes that may be 
affected by the specific proposals presented to us. Those consultations 
are ongoing and will be concluded prior to entering into compliance 
agreements for municipal solid waste moving from Hawaii.

Paperwork Reduction Act

    In accordance with section 3507(d) of the Paperwork Reduction Act 
of 1995 (44 U.S.C. 3501 et seq.), the information collection or 
recordkeeping requirements included in this proposed rule have been 
submitted for approval to the Office of Management and Budget (OMB). 
Please send written comments to the Office of Information and 
Regulatory Affairs, OMB, Attention: Desk Officer for APHIS, Washington, 
DC 20503. Please state that your comments refer to Docket No. 05-002-2. 
Please send a copy of your comments to: (1) Docket No. 05-002-2, 
Regulatory Analysis and Development, PPD, APHIS, Station 3A-03.8, 4700 
River Road Unit 118, Riverdale, MD 20737-1238, and (2) Clearance 
Officer, OCIO, USDA, room 404-W, 14th Street and Independence Avenue 
SW., Washington, DC 20250. A comment to OMB is best assured of having 
its full effect if OMB receives it within 30 days of publication of 
this proposed rule.
    Under the regulations in 7 CFR 330.400 and 9 CFR 94.5, APHIS 
regulates the importation and interstate movement of garbage that may 
pose a risk of introducing or disseminating animal or plant pests or 
diseases that are new to or not widely distributed within the United 
States. Not all movements of waste material are regulated by APHIS; 
only movements of waste that meets the definition of ``garbage'' are 
regulated, and even then, only under certain circumstances.
    APHIS is proposing to amend the regulations to provide for the 
interstate movement of garbage from Hawaii subject to measures designed 
to protect against the introduction and dissemination of plant pests 
into noninfested areas of the continental United States. APHIS is 
proposing this action upon request in order to provide the State of 
Hawaii with additional waste disposal options, and after determining 
that the action would not result in the introduction of plant or animal 
pests or diseases into the continental United States from Hawaii. Under 
the proposed regulations, all municipal solid waste moved interstate 
from Hawaii to any area of the continental United States would have to 
be moved under a compliance agreement between the person handling or 
disposing of garbage and APHIS, and thus would require the completion 
of a PPQ Form 519, ``Compliance Agreement.''
    We are soliciting comments from the public (as well as affected 
agencies) concerning our proposed information collection and 
recordkeeping requirements. These comments will help us:
    (1) Evaluate whether the proposed information collection is 
necessary for the proper performance of our agency's functions, 
including whether the information will have practical utility;
    (2) Evaluate the accuracy of our estimate of the burden of the 
proposed information collection, including the validity of the 
methodology and assumptions used;
    (3) Enhance the quality, utility, and clarity of the information to 
be collected; and
    (4) Minimize the burden of the information collection on those who 
are to respond (such as through the use of appropriate automated, 
electronic, mechanical, or other technological collection techniques or 
other forms of information technology; e.g., permitting electronic 
submission of responses).
    Estimate of burden: Public reporting burden for this collection of 
information is estimated to average 2 hours per response.
    Respondents: Companies that handle or dispose of garbage.
    Estimated annual number of respondents: 10.
    Estimated annual number of responses per respondent: 1.
    Estimated annual number of responses: 10.
    Estimated total annual burden on respondents: 20 hours. (Due to 
averaging, the total annual burden hours may not equal the product of 
the annual number of responses multiplied by the reporting burden per 
response.)
    Copies of this information collection can be obtained from Mrs. 
Celeste Sickles, APHIS' Information Collection Coordinator, at (301) 
734-7477.

Government Paperwork Elimination Act Compliance

    The Animal and Plant Health Inspection Service is committed to 
compliance with the Government Paperwork Elimination Act (GPEA), which 
requires Government agencies in general to provide the public the 
option

[[Page 20036]]

of submitting information or transacting business electronically to the 
maximum extent possible. For information pertinent to GPEA compliance 
related to this proposed rule, please contact Mrs. Celeste Sickles, 
APHIS' Information Collection Coordinator, at (301) 734-7477.

List of Subjects

7 CFR Part 330

    Customs duties and inspection, Imports, Plant diseases and pests, 
Quarantine, Reporting and recordkeeping requirements, Transportation.

9 CFR Part 94

    Animal diseases, Imports, Livestock, Meat and meat products, Milk, 
Poultry and poultry products, Reporting and recordkeeping requirements.

    Accordingly, we propose to amend 7 CFR part 330 and 9 CFR part 94 
as follows:

TITLE 7--[AMENDED]

PART 330--FEDERAL PLANT PEST REGULATIONS; GENERAL; PLANT PESTS; 
SOIL, STONE, AND QUARRY PRODUCTS; GARBAGE

    1. The authority citation for part 330 would continue to read as 
follows:

    Authority: 7 U.S.C. 450, 7701-7772, 7781-7786, and 8301-8317; 21 
U.S.C. 136 and 136a; 31 U.S.C. 9701; 42 U.S.C. 4331 and 4332; 7 CFR 
2.22, 2.80, and 371.3.

    2. In Sec.  330.100, a definition for State would be added and the 
definition for United States would be revised to read as follows:


Sec.  330.100  Definitions.

* * * * *
    State. Any of the several States of the United States, the 
Commonwealth of the Northern Mariana Islands, the Commonwealth of 
Puerto Rico, the District of Columbia, Guam, the Virgin Islands of the 
United States, or any other territory or possession of the United 
States.
    United States. All of the States.
    3. Subpart-Garbage would be revised to read as follows:

Subpart--Garbage
Sec.
330.400 Regulation of certain garbage.
330.401 Garbage generated onboard a conveyance.
330.402 Garbage generated in Hawaii.
330.403 Compliance agreement and cancellation.


Sec.  330.400  Regulation of certain garbage.

    (a) Certain interstate movements and imports. (1) Interstate 
movements of garbage from Hawaii and U.S. territories and possessions 
to other States. Hawaii, Puerto Rico, American Samoa, the Commonwealth 
of the Northern Mariana Islands, the Federated States of Micronesia, 
Guam, the U.S. Virgin Islands, Republic of the Marshall Islands, and 
the Republic of Palau are hereby quarantined, and the movement of 
garbage therefrom to any other State is hereby prohibited except as 
provided in this subpart in order to prevent the introduction and 
spread of exotic plant pests and diseases.
    (2) Imports of garbage. In order to protect against the 
introduction of exotic animal and plant pests and diseases, the 
importation of garbage from all foreign countries except Canada is 
prohibited except as provided in Sec.  330.401(b).
    (b) Definitions.
    Agricultural waste. Byproducts generated by the rearing of animals 
and the production and harvest of crops or trees. Animal waste, a large 
component of agricultural waste, includes waste (e.g., feed waste, 
bedding and litter, and feedlot and paddock runoff) from livestock, 
dairy, and other animal-related agricultural and farming practices.
    Approved facility. A facility approved by the Administrator, Animal 
and Plant Health Inspection Service, upon his determination that it has 
equipment and uses procedures that are adequate to prevent the 
dissemination of plant pests and livestock or poultry diseases, and 
that it is certified by an appropriate Government official as currently 
complying with the applicable laws for environmental protection.
    Approved sewage system. A sewage system approved by the 
Administrator, Animal and Plant Health Inspection Service, upon his 
determination that the system is designed and operated in such a way as 
to preclude the discharge of sewage effluents onto land surfaces or 
into lagoons or other stationary waters, and otherwise is adequate to 
prevent the dissemination of plant pests and livestock or poultry 
diseases, and that is certified by an appropriate Government official 
as currently complying with the applicable laws for environmental 
protection.
    Carrier. The principal operator of a means of conveyance.
    Garbage. All waste material that is derived in whole or in part 
from fruits, vegetables, meats, or other plant or animal (including 
poultry) material, and other refuse of any character whatsoever that 
has been associated with any such material.
    Incineration. To reduce garbage to ash by burning.
    Interstate. From one State into or through any other State.
    Sterilization. Cooking garbage at an internal temperature of 212 
[deg]F for 30 minutes.
    Stores. The food, supplies, and other provisions carried for the 
day-to-day operation of a conveyance and the care and feeding of its 
operators.
    Yard waste. Solid waste composed predominantly of grass clippings, 
leaves, twigs, branches, and other garden refuse.


Sec.  330.401  Garbage generated onboard a conveyance.

    (a) Applicability. This section applies to garbage generated 
onboard any means of conveyance during international or interstate 
movements as provided in this section and includes food scraps, table 
refuse, galley refuse, food wrappers or packaging materials, and other 
waste material from stores, food preparation areas, passengers' or 
crews' quarters, dining rooms, or any other areas on the means of 
conveyance. This section also applies to meals and other food that were 
available for consumption by passengers and crew on an aircraft but 
were not consumed.
    (1) Not all garbage generated onboard a means of conveyance is 
regulated for the purposes of this section. Garbage regulated for the 
purposes of this section is defined as ``regulated garbage'' in 
paragraphs (b) and (c) of this section.
    (2) Garbage that is commingled with regulated garbage is also 
regulated garbage.
    (b) Garbage regulated because of movements outside the United 
States or Canada. For purposes of this section, garbage on or removed 
from a means of conveyance is regulated garbage, if, when the garbage 
is on or removed from the means of conveyance, the means of conveyance 
has been in any port outside the United States and Canada within the 
previous 2-year period. There are, however, two exceptions to this 
provision. These exceptions are as follows:
    (1) Exception 1: Aircraft. Garbage on or removed from an aircraft 
is exempt from requirements under paragraph (d) of this section if the 
following conditions are met when the garbage is on or removed from the 
aircraft:
    (i) The aircraft had previously been cleared of all garbage and of 
all meats and meat products, whatever the country of origin, except 
meats that are shelf-stable; all fresh and condensed milk and cream 
from countries designated in 9 CFR 94.1 as those in which foot-and-
mouth disease exists; all fresh fruits and vegetables; and all eggs;

[[Page 20037]]

and the items previously cleared from the aircraft as prescribed by 
this paragraph have been disposed of according to the procedures for 
disposing of regulated garbage, as specified in paragraphs (d)(2) and 
(d)(3) of this section.
    (ii) After the garbage and stores referred to in paragraph 
(b)(1)(i) of this section were removed, the aircraft has not been in a 
non-Canadian foreign port.
    (2) Exception 2: Other conveyances. Garbage on or removed in the 
United States from a means of conveyance other than an aircraft is 
exempt from requirements under paragraph (d) of this section if the 
following conditions are met when the garbage is on or removed from the 
means of conveyance:
    (i) The means of conveyance is accompanied by a certificate from an 
inspector stating the following:
    (A) That the means of conveyance had previously been cleared of all 
garbage and of all meats and meat products, whatever the country of 
origin, except meats that are shelf-stable; all fresh and condensed 
milk and cream from countries designated in 9 CFR 94.1 as those in 
which foot-and-mouth disease exists; all fresh fruits and vegetables; 
and all eggs; and the items previously cleared from the means of 
conveyance as prescribed by this paragraph have been disposed of 
according to the procedures for disposing of regulated garbage, as 
specified in paragraphs (d)(2) and (d)(3) of this section.
    (B) That the means of conveyance had then been cleaned and 
disinfected in the presence of the inspector; and
    (ii) Since being cleaned and disinfected, the means of conveyance 
has not been in a non-Canadian foreign port.
    (c) Garbage regulated because of certain movements to or from 
Hawaii, territories, or possessions. For purposes of this section, 
garbage on or removed from a means of conveyance is regulated garbage, 
if at the time the garbage is on or removed from the means of 
conveyance, the means of conveyance has moved during the previous 1-
year period, either directly or indirectly, to the continental United 
States from any territory or possession or from Hawaii, to any 
territory or possession from any other territory or possession or from 
Hawaii, or to Hawaii from any territory or possession. There are, 
however, two exceptions to this provision. These exceptions are as 
follows:
    (1) Exception 1: Aircraft. Garbage on or removed from an aircraft 
is exempt from requirements under paragraph (d) of this section if the 
following two conditions are met when the garbage is on or removed from 
the aircraft:
    (i) The aircraft had been previously cleared of all garbage and all 
fresh fruits and vegetables, and the items previously cleared from the 
aircraft as prescribed by this paragraph have been disposed of 
according to the procedures for disposing of regulated garbage, as 
specified in paragraphs (d)(2) and (d)(3) of this section.
    (ii) After the garbage and stores referred to in paragraph 
(c)(1)(i) of this section were removed, the aircraft has not moved to 
the continental United States from any territory or possession or from 
Hawaii; to any territory or possession from any other territory or 
possession or from Hawaii; or to Hawaii from any territory or 
possession.
    (2) Exception 2: Other conveyances. Garbage on or removed from a 
means of conveyance other than an aircraft is exempt from requirements 
under paragraph (d) of this section if the following two conditions are 
met when the garbage is on or removed from the means of conveyance:
    (i) The means of conveyance is accompanied by certificate from an 
inspector, saying that the means of conveyance had been cleared of all 
garbage and all fresh fruits and vegetables; and the items previously 
cleared from the means of conveyance as prescribed by this paragraph 
have been disposed of according to the procedures for disposing of 
regulated garbage, as specified in paragraphs (d)(2) and (d)(3) of this 
section.
    (ii) After being cleared of the garbage and stores referred to in 
paragraph (c)(2)(i) of this section, the means of conveyance has not 
moved to the continental United States from any territory or possession 
or from Hawaii; to any territory or possession from any other territory 
or possession or from Hawaii; or to Hawaii from any territory or 
possession.
    (d) Restrictions on regulated garbage. (1) Regulated garbage may 
not be disposed of, placed on, or removed from a means of conveyance 
except in accordance with this section.
    (2) Regulated garbage is subject to general surveillance for 
compliance with this section by inspectors and to disposal measures 
authorized by the Plant Protection Act and the Animal Health Protection 
Act to prevent the introduction and dissemination of pests and diseases 
of plants and livestock.
    (3) All regulated garbage must be contained in tight, covered, 
leak-proof receptacles during storage on board a means of conveyance 
while in the territorial waters, or while otherwise within the 
territory of the United States. All such receptacles shall be contained 
inside the guard rail if on a watercraft. Such regulated garbage shall 
not be unloaded from such means of conveyance in the United States 
unless such regulated garbage is removed in tight, covered, leak-proof 
receptacles under the direction of an inspector to an approved facility 
for incineration, sterilization, or grinding into an approved sewage 
system, under direct supervision by such an inspector, or such 
regulated garbage is removed for other handling in such manner and 
under such supervision as may, upon request in specific cases, be 
approved by the Administrator as adequate to prevent the introduction 
and dissemination of plant pests and animal diseases and sufficient to 
ensure compliance with applicable laws for environmental protection. 
Provided that, a cruise ship may dispose of regulated garbage in 
landfills at Alaskan ports only, if and only if the cruise ship does 
not have prohibited or restricted meat or animal products on board at 
the time it enters Alaskan waters for the cruise season, and only if 
the cruise ship, except for incidental travel through international 
waters necessary to navigate safely between ports, remains in Canadian 
and U.S. waters off the west coast of North America, and calls only at 
continental U.S. and Canadian ports during the entire cruise season.
    (i) Application for approval of a facility or sewage system may be 
made in writing by the authorized representative of any carrier or by 
the official having jurisdiction over the port or place of arrival of 
the means of conveyance, to the Administrator, Animal and Plant Health 
Inspection Service, U.S. Department of Agriculture, Washington, DC 
20250. The application must be endorsed by the operator of the facility 
or sewage system.
    (ii) Approval will be granted if the Administrator determines that 
the requirements set forth in this section are met. Approval may be 
denied or withdrawn at any time, if the Administrator determines that 
such requirements are not met, after notice of the proposed denial or 
withdrawal of the approval and the reasons therefor, and an opportunity 
to demonstrate or achieve compliance with such requirements, has been 
afforded to the operator of the facility or sewage system and to the 
applicant for approval. However, approval may also be withdrawn without 
such prior procedure in any case in which the public health, interest, 
or safety requires immediate action, and in such case, the operator of 
the facility or sewage system and the applicant for approval shall 
promptly thereafter be given notice of

[[Page 20038]]

the withdrawal and the reasons therefor and an opportunity to show 
cause why the approval should be reinstated.
    (e) The Plant Protection and Quarantine Programs and Veterinary 
Services, Animal, and Plant Health Inspection Service, will cooperate 
with other Federal, State, and local agencies responsible for enforcing 
other statutes and regulations governing disposal of the regulated 
garbage to the end that such disposal shall be adequate to prevent the 
dissemination of plant pests and livestock or poultry diseases and 
comply with applicable laws for environmental protection. The 
inspectors, in maintaining surveillance over regulated garbage 
movements and disposal, shall coordinate their activities with the 
activities of representatives of the Environmental Protection Agency 
and other Federal, State, and local agencies also having jurisdiction 
over such regulated garbage.


Sec.  330.402  Garbage generated in Hawaii.

    (a) Applicability. This section applies to garbage generated in 
households, commercial establishments, institutions, and businesses 
prior to interstate movement from Hawaii, and includes used paper, 
discarded cans and bottles, and food scraps. Such garbage includes, and 
is commonly known as, municipal solid waste.
    (1) Industrial process wastes, mining wastes, sewage sludge, 
incinerator ash, or other wastes from Hawaii that the Administrator 
determines do not pose risks of introducing animal or plant pests or 
diseases into the continental United States are not regulated under 
this section.
    (2) The interstate movement of agricultural wastes and yard waste 
from Hawaii to the continental United States is prohibited.
    (3) Garbage generated onboard any means of conveyance during 
interstate movement from Hawaii is regulated under Sec.  330.401.
    (b) Restrictions on interstate movement of garbage. The interstate 
movement of garbage generated in Hawaii to the continental United 
States is regulated as provided in this section.
    (1) The garbage must be processed, packaged, safeguarded, and 
disposed of using a methodology that the Administrator has determined 
is adequate to prevent the introduction or dissemination of plant pests 
into noninfested areas of the United States.
    (2) The garbage must be moved under a compliance agreement in 
accordance with Sec.  330.403. APHIS will only enter into a compliance 
agreement when the Administrator is satisfied that the Agency has first 
satisfied all its obligations under the National Environmental Policy 
Act and all applicable Federal and State statutes to fully assess the 
impacts associated with the movement of garbage under the compliance 
agreement.
    (3) All such garbage moved interstate from Hawaii to any of the 
continental United States must be moved in compliance with all 
applicable laws for environmental protection.


Sec.  330.403  Compliance agreement and cancellation.

    (a) Any person engaged in the business of handling or disposing of 
garbage in accordance with this subpart must first enter into a 
compliance agreement with the Animal and Plant Health Inspection 
Service (APHIS). Compliance agreement forms (PPQ Form 519) are 
available without charge from local USDA/APHIS/Plant Protection and 
Quarantine offices, which are listed in telephone directories.
    (b) A person who enters into a compliance agreement, and employees 
or agents of that person, must comply with the following conditions and 
any supplemental conditions which are listed in the compliance 
agreement, as deemed by the Administrator to be necessary to prevent 
the dissemination into or within the United States of plant pests and 
livestock or poultry diseases:
    (1) Comply with all applicable provisions of this subpart;
    (2) Allow inspectors access to all records maintained by the person 
regarding handling or disposal of garbage, and to all areas where 
handling or disposal of garbage occurs;
    (3)(i) If the garbage is regulated under Sec.  330.401, remove 
garbage from a means of conveyance only in tight, covered, leak-proof 
receptacles;
    (ii) If the garbage is regulated under Sec.  330.402, transport 
garbage interstate in packaging approved by the Administrator;
    (4) Move the garbage only to a facility approved by the 
Administrator; and
    (5) At the approved facility, dispose of the garbage in a manner 
approved by the Administrator and described in the compliance 
agreement.
    (c) Approval for a compliance agreement may be denied at any time 
if the Administrator determines that the applicant has not met or is 
unable to meet the requirements set forth in this subpart. Prior to 
denying any application for a compliance agreement, APHIS will provide 
notice to the applicant thereof, and will provide the applicant with an 
opportunity to demonstrate or achieve compliance with requirements.
    (d) Any compliance agreement may be canceled, either orally or in 
writing, by an inspector whenever the inspector finds that the person 
who has entered into the compliance agreement has failed to comply with 
this subpart. If the cancellation is oral, the cancellation and the 
reasons for the cancellation will be confirmed in writing as promptly 
as circumstances allow. Any person whose compliance agreement has been 
canceled may appeal the decision, in writing, within 10 days after 
receiving written notification of the cancellation. The appeal must 
state all of the facts and reasons upon which the person relies to show 
that the compliance agreement was wrongfully canceled. As promptly as 
circumstances allow, the Administrator will grant or deny the appeal, 
in writing, stating the reasons for the decision. A hearing will be 
held to resolve any conflict as to any material fact. Rules of practice 
concerning a hearing will be adopted by the Administrator. This 
administrative remedy must be exhausted before a person can file suit 
in court challenging the cancellation of a compliance agreement.
    (e) Where a compliance agreement is denied or canceled, the person 
who entered into or applied for the compliance agreement may be 
prohibited, at the discretion of the Administrator, from handling or 
disposing of regulated garbage.

(Approved by the Office of Management and Budget under control 
number 0579-0054).

TITLE 9--[AMENDED]

PART 94--RINDERPEST, FOOT-AND-MOUTH DISEASE, FOWL PEST (FOWL 
PLAGUE), EXOTIC NEWCASTLE DISEASE, AFRICAN SWINE FEVER, CLASSICAL 
SWINE FEVER, AND BOVINE SPONGIFORM ENCEPHALOPATHY: PROHIBITED AND 
RESTRICTED IMPORTATIONS

    4. The authority citation for part 94 would continue to read as 
follows:


    Authority: 7 U.S.C. 450, 7701-7772, 7781-7786, and 8301-8317; 21 
U.S.C. 136 and 136a; 31 U.S.C. 9701; 7 CFR 2.22, 2.80, and 371.4.

    5. In Sec.  94.0, a definition for State would be added and the 
definition for United States would be revised to read as follows:


Sec.  94.0  Definitions.

* * * * *
    State. Any of the several States of the United States, the 
Commonwealth of the Northern Mariana Islands, the Commonwealth of 
Puerto Rico, the District of Columbia, Guam, the Virgin

[[Page 20039]]

Islands of the United States, or any other territory or possession of 
the United States.
* * * * *
    United States. All of the States.
* * * * *
    6. Section 94.5 would be revised to read as follows:


Sec.  94.5  Regulation of certain garbage.

    (a) General restrictions. (1) Interstate movements of garbage from 
Hawaii and U.S. territories and possessions to the continental United 
States. Hawaii, Puerto Rico, American Samoa, the Commonwealth of the 
Northern Mariana Islands, the Federated States of Micronesia, Guam, the 
U.S. Virgin Islands, Republic of the Marshall Islands, and the Republic 
of Palau are hereby quarantined, and the movement of garbage therefrom 
to any other State is hereby prohibited except as provided in this 
section in order to prevent the introduction and spread of exotic plant 
pests and diseases.
    (2) Imports of garbage. In order to protect against the 
introduction of exotic animal and plant pests, the importation of 
garbage from all foreign countries except Canada is prohibited except 
as provided in Sec.  330.401(b).
    (b) Definitions. Agricultural waste. Byproducts generated by the 
rearing of animals and the production and harvest of crops or trees. 
Animal waste, a large component of agricultural waste, includes waste 
(e.g., feed waste, bedding and litter, and feedlot and paddock runoff) 
from livestock, dairy, and other animal-related agricultural and 
farming practices.
    Approved facility. A facility approved by the Administrator, Animal 
and Plant Health Inspection Service, upon his determination that it has 
equipment and uses procedures that are adequate to prevent the 
dissemination of plant pests and livestock or poultry diseases, and 
that it is certified by an appropriate Government official as currently 
complying with the applicable laws for environmental protection.
    Approved sewage system. A sewage system approved by the 
Administrator, Animal and Plant Health Inspection Service, upon his 
determination that the system is designed and operated in such a way as 
to preclude the discharge of sewage effluents onto land surfaces or 
into lagoons or other stationary waters, and otherwise is adequate to 
prevent the dissemination of plant pests and livestock or poultry 
diseases, and that is certified by an appropriate Government official 
as currently complying with the applicable laws for environmental 
protection.
    Carrier. The principal operator of a means of conveyance.
    Continental United States. The 49 States located on the continent 
of North America and the District of Columbia.
    Garbage. All waste material that is derived in whole or in part 
from fruits, vegetables, meats, or other plant or animal (including 
poultry) material, and other refuse of any character whatsoever that 
has been associated with any such material.
    Incineration. To reduce garbage to ash by burning.
    Inspector. A properly identified employee of the U.S. Department of 
Agriculture or other person authorized by the Department to enforce the 
provisions of applicable statutes, quarantines, and regulations.
    Interstate. From one State into or through any other State.
    Person. Any individual, corporation, company, association, firm, 
partnership, society, or joint stock company.
    Shelf-stable. The condition achieved in a product, by application 
of heat, alone or in combination with other ingredients and/or other 
treatments, of being rendered free of microorganisms capable of growing 
in the product under nonrefrigerated conditions (over 50 [deg]F or 10 
[deg]C).
    Sterilization. Cooking garbage at an internal temperature of 212 
[deg]F for 30 minutes.
    Stores. The food, supplies, and other provisions carried for the 
day-to-day operation of a conveyance and the care and feeding of its 
operators.
    Yard waste. Solid waste composed predominantly of grass clippings, 
leaves, twigs, branches, and other garden refuse.
    (c) Garbage generated onboard a conveyance. (1) Applicability. This 
section applies to garbage generated onboard any means of conveyance 
during international or interstate movements as provided in this 
section and includes food scraps, table refuse, galley refuse, food 
wrappers or packaging materials, and other waste material from stores, 
food preparation areas, passengers' or crews' quarters, dining rooms, 
or any other areas on the means of conveyance. This section also 
applies to meals and other food that were available for consumption by 
passengers and crew on an aircraft but were not consumed.
    (i) Not all garbage generated onboard a means of conveyance is 
regulated for the purposes of this section. Garbage regulated for the 
purposes of this section is defined as ``regulated garbage'' in 
paragraphs (c)(2) and (c)(3) of this section.
    (ii) Garbage that is commingled with regulated garbage is also 
regulated garbage.
    (2) Garbage regulated because of movements outside the United 
States or Canada. For purposes of this section, garbage on or removed 
from a means of conveyance is regulated garbage, if, when the garbage 
is on or removed from the means of conveyance, the means of conveyance 
has been in any port outside the United States and Canada within the 
previous 2-year period. There are, however, two exceptions to this 
provision. These exceptions are as follows:
    (i) Exception 1: Aircraft. Garbage on or removed from an aircraft 
is exempt from requirements under paragraph (c)(4) of this section if 
the following conditions are met when the garbage is on or removed from 
the aircraft:
    (A) The aircraft had previously been cleared of all garbage and of 
all meats and meat products, whatever the country of origin, except 
meats that are shelf-stable; all fresh and condensed milk and cream 
from countries designated in Sec.  94.1 as those in which foot-and-
mouth disease exists; all fresh fruits and vegetables; and all eggs; 
and the items previously cleared from the aircraft as prescribed by 
this paragraph have been disposed of according to the procedures for 
disposing of regulated garbage, as specified in paragraphs (c)(4)(ii) 
and (c)(4)(iii) of this section.
    (B) After the garbage and stores referred to in paragraph 
(c)(2)(i)(A) of this section were removed, the aircraft has not been in 
a non-Canadian foreign port.
    (ii) Exception 2: Other conveyances. Garbage on or removed in the 
United States from a means of conveyance other than an aircraft is 
exempt from requirements under paragraph (c)(4) of this section if the 
following conditions are met when the garbage is on or removed from the 
means of conveyance:
    (A) The means of conveyance is accompanied by a certificate from an 
inspector stating the following:
    (1) That the means of conveyance had previously been cleared of all 
garbage and of all meats and meat products, whatever the country of 
origin, except meats that are shelf-stable; all fresh and condensed 
milk and cream from countries designated in Sec.  94.1 as those in 
which foot-and-mouth disease exists; all fresh fruits and vegetables; 
and all eggs; and the items previously cleared from the means of 
conveyance as prescribed by this paragraph have been disposed of 
according to the procedures for disposing of regulated garbage, as 
specified in paragraphs (c)(4)(ii) and (c)(4)(iii) of this section.

[[Page 20040]]

    (2) That the means of conveyance had then been cleaned and 
disinfected in the presence of the inspector; and
    (B) Since being cleaned and disinfected, the means of conveyance 
has not been in a non-Canadian foreign port.
    (3) Garbage regulated because of certain movements to or from 
Hawaii, territories, or possessions. For purposes of this section, 
garbage on or removed from a means of conveyance is regulated garbage, 
if at the time the garbage is on or removed from the means of 
conveyance, the means of conveyance has moved during the previous 1-
year period, either directly or indirectly, to the continental United 
States from any territory or possession or from Hawaii, to any 
territory or possession from any other territory or possession or from 
Hawaii, or to Hawaii from any territory or possession. There are, 
however, two exceptions to this provision. These exceptions are as 
follows:
    (i) Exception 1: Aircraft. Garbage on or removed from an aircraft 
is exempt from requirements under paragraph (c)(4) of this section if 
the following two conditions are met when the garbage is on or removed 
from the aircraft:
    (A) The aircraft had been previously cleared of all garbage and all 
fresh fruits and vegetables, and the items previously cleared from the 
aircraft as prescribed by this paragraph have been disposed of 
according to the procedures for disposing of regulated garbage, as 
specified in paragraphs (c)(4)(ii) and (c)(4)(iii) of this section.
    (B) After the garbage and stores referred to in paragraph 
(c)(3)(i)(A) of this section were removed, the aircraft has not moved 
to the continental United States from any territory or possession or 
from Hawaii, to any territory or possession from any other territory or 
possession or from Hawaii, or to Hawaii from any territory or 
possession.
    (ii) Exception 2: Other conveyances. Garbage on or removed from a 
means of conveyance other than an aircraft is exempt from requirements 
under paragraph (c)(4) of this section if the following two conditions 
are met when the garbage is on or removed from the means of conveyance:
    (A) The means of conveyance is accompanied by certificate from an 
inspector, saying that the means of conveyance had been cleared of all 
garbage and all fresh fruits and vegetables, and the items previously 
cleared from the means of conveyance as prescribed by this paragraph 
have been disposed of according to the procedures for disposing of 
regulated garbage, as specified in paragraphs (c)(4)(ii) and 
(c)(4)(iii) of this section.
    (B) After being cleared of the garbage and stores referred to in 
paragraph (c)(3)(ii)(A) of this section, the means of conveyance has 
not moved to the continental United States from any territory or 
possession or from Hawaii; to any territory or possession from any 
other territory or possession or from Hawaii; or to Hawaii from any 
territory or possession.
    (4) Restrictions on regulated garbage. (i) Regulated garbage may 
not be disposed of, placed on, or removed from a means of conveyance 
except in accordance with this section.
    (ii) Regulated garbage is subject to general surveillance for 
compliance with this section by inspectors and to disposal measures 
authorized by the Plant Protection Act and the Animal Health Protection 
Act to prevent the introduction and dissemination of pests and diseases 
of plants and livestock.
    (iii) All regulated garbage must be contained in tight, covered 
leak-proof receptacles during storage on board a means of conveyance 
while in the territorial waters, or while otherwise within the 
territory of the United States. All such receptacles shall be contained 
inside the guard rail if on a watercraft. Such regulated garbage shall 
not be unloaded from such means of conveyance in the United States 
unless such regulated garbage is removed in tight, covered, leak-proof 
receptacles under the direction of an inspector to an approved facility 
for incineration, sterilization, or grinding into an approved sewage 
system, under direct supervision by such an inspector, or such 
regulated garbage is removed for other handling in such manner and 
under such supervision as may, upon request in specific cases, be 
approved by the Administrator as adequate to prevent the introduction 
and dissemination of plant pests and animal diseases and sufficient to 
ensure compliance with applicable laws for environmental protection. 
Provided that, a cruise ship may dispose of regulated garbage in 
landfills at Alaskan ports only, if and only if the cruise ship does 
not have prohibited or restricted meat or animal products on board at 
the time it enters Alaskan waters for the cruise season, and only if 
the cruise ship, except for incidental travel through international 
waters necessary to navigate safely between ports, remains in Canadian 
and U.S. waters off the west coast of North America, and calls only at 
continental U.S. and Canadian ports during the entire cruise season.
    (A) Application for approval of a facility or sewage system may be 
made in writing by the authorized representative of any carrier or by 
the official having jurisdiction over the port or place of arrival of 
the means of conveyance, to the Administrator, Animal and Plant Health 
Inspection Service, U.S. Department of Agriculture, Washington, DC 
20250. The application must be endorsed by the operator of the facility 
or sewage system.
    (B) Approval will be granted if the Administrator determines that 
the requirements set forth in this section are met. Approval may be 
denied or withdrawn at any time, if the Administrator determines that 
such requirements are not met, after notice of the proposed denial or 
withdrawal of the approval and the reasons therefor, and an opportunity 
to demonstrate or achieve compliance with such requirements, has been 
afforded to the operator of the facility or sewage system and to the 
applicant for approval. However, approval may also be withdrawn without 
such prior procedure in any case in which the public health, interest, 
or safety requires immediate action, and in such case, the operator of 
the facility or sewage system and the applicant for approval shall 
promptly thereafter be given notice of the withdrawal and the reasons 
therefore and an opportunity to show cause why the approval should be 
reinstated.
    (iv) The Plant Protection and Quarantine Programs and Veterinary 
Services, Animal, and Plant Health Inspection Service, will cooperate 
with other Federal, State, and local agencies responsible for enforcing 
other statutes and regulations governing disposal of the regulated 
garbage to the end that such disposal shall be adequate to prevent the 
dissemination of plant pests and livestock or poultry diseases and 
comply with applicable laws for environmental protection. The 
inspectors, in maintaining surveillance over regulated garbage 
movements and disposal, shall coordinate their activities with the 
activities of representatives of the Environmental Protection Agency 
and other Federal, State, and local agencies also having jurisdiction 
over such regulated garbage.
    (d) Garbage generated in Hawaii. (1) Applicability. This section 
applies to garbage generated in households, commercial establishments, 
institutions, and businesses prior to interstate movement from Hawaii, 
and includes used paper, discarded cans and bottles, and food scraps. 
Such garbage includes, and is commonly known as, municipal solid waste.
    (i) Industrial process wastes, mining wastes, sewage sludge, 
incinerator ash, or other wastes from Hawaii that the

[[Page 20041]]

Administrator determines do not pose risks of introducing animal or 
plant pests or diseases into the continental United States are not 
regulated under this section.
    (ii) The interstate movement of agricultural wastes and yard waste 
from Hawaii to the continental United States is prohibited.
    (iii) Garbage generated onboard any means of conveyance during 
interstate movement from Hawaii is regulated under paragraph (c) of 
this section.
    (2) Restrictions on interstate movement of garbage. The interstate 
movement of garbage generated in Hawaii to the continental United 
States is regulated as provided in this section.
    (i) The garbage must be processed, packaged, safeguarded, and 
disposed of using a methodology that the Administrator has determined 
is adequate to prevent the introduction and dissemination of plant 
pests into noninfested areas of the United States.
    (ii) The garbage must be moved under a compliance agreement in 
accordance with paragraph (e) of this section. APHIS will only enter 
into a compliance agreement when the Administrator is satisfied that 
the Agency has first satisfied all its obligations under the National 
Environmental Policy Act and all applicable Federal and State statutes 
to fully assess the impacts associated with the movement of garbage 
under the compliance agreement.
    (iii) All such garbage moved interstate from Hawaii to any of the 
continental United States must be moved in compliance with all 
applicable laws for environmental protection.
    (e) Compliance agreement and cancellation. (1) Any person engaged 
in the business of handling or disposing of garbage in accordance with 
this section must first enter into a compliance agreement with the 
Animal and Plant Health Inspection Service (APHIS). Compliance 
agreement forms (PPQ Form 519) are available without charge from local 
USDA/APHIS/Plant Protection and Quarantine offices, which are listed in 
telephone directories.
    (2) A person who enters into a compliance agreement, and employees 
or agents of that person, must comply with the following conditions and 
any supplemental conditions which are listed in the compliance 
agreement, as deemed by the Administrator to be necessary to prevent 
the introduction and dissemination into or within the United States of 
plant pests and livestock or poultry diseases:
    (i) Comply with all applicable provisions of this section;
    (ii) Allow inspectors access to all records maintained by the 
person regarding handling or disposal of garbage, and to all areas 
where handling or disposal of garbage occurs;
    (iii)(A) If the garbage is regulated under paragraph (c) of this 
section, remove garbage from a means of conveyance only in tight, 
covered, leak-proof receptacles;
    (B) If the garbage is regulated under paragraph (d) of this 
section, transport garbage interstate in sealed, leak-proof packaging 
approved by the Administrator;
    (iv) Move the garbage only to a facility approved by the 
Administrator; and
    (v) At the approved facility, dispose of the garbage in a manner 
approved by the Administrator and described in the compliance 
agreement.
    (3) Approval for a compliance agreement may be denied at any time 
if the Administrator determines that the applicant has not met or is 
unable to meet the requirements set forth in this section. Prior to 
denying any application for a compliance agreement, APHIS will provide 
notice to the applicant thereof, and will provide the applicant with an 
opportunity to demonstrate or achieve compliance with requirements.
    (4) Any compliance agreement may be canceled, either orally or in 
writing, by an inspector whenever the inspector finds that the person 
who has entered into the compliance agreement has failed to comply with 
this section. If the cancellation is oral, the cancellation and the 
reasons for the cancellation will be confirmed in writing as promptly 
as circumstances allow. Any person whose compliance agreement has been 
canceled may appeal the decision, in writing, within 10 days after 
receiving written notification of the cancellation. The appeal must 
state all of the facts and reasons upon which the person relies to show 
that the compliance agreement was wrongfully canceled. As promptly as 
circumstances allow, the Administrator will grant or deny the appeal, 
in writing, stating the reasons for the decision. A hearing will be 
held to resolve any conflict as to any material fact. Rules of practice 
concerning a hearing will be adopted by the Administrator. This 
administrative remedy must be exhausted before a person can file suit 
in court challenging the cancellation of a compliance agreement.
    (5) Where a compliance agreement is denied or canceled, the person 
who entered into or applied for the compliance agreement may be 
prohibited, at the discretion of the Administrator, from handling or 
disposing of regulated garbage.


(Approved by the Office of Management and Budget under control 
number 0579-0054).

    Done in Washington, DC, this 13th day of April 2006.
Kevin Shea,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 06-3738 Filed 4-18-06; 8:45 am]
BILLING CODE 3410-34-P