[Federal Register Volume 71, Number 163 (Wednesday, August 23, 2006)]
[Rules and Regulations]
[Pages 49309-49319]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-13968]



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  Federal Register / Vol. 71, No. 163 / Wednesday, August 23, 2006 / 
Rules and Regulations  

[[Page 49309]]



DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 330

9 CFR Part 94

[Docket No. 05-002-4]
RIN 0579-AC12


Interstate Movement of Garbage From Hawaii; Municipal Solid Waste

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Final rule.

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SUMMARY: We are amending 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 
amending these regulations upon request in order to provide the State 
of Hawaii with additional waste disposal options, and after determining 
that the action is highly unlikely to result in the introduction and 
dissemination of plant or animal pests or diseases into the continental 
United States from Hawaii. We are also making other amendments to the 
garbage regulations to clarify their intent and make them easier to 
understand.

DATES: Effective Date: September 22, 2006.

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.''
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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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Garbage also means ``meals and other food that were available for 
consumption by passengers and crew on an aircraft but were not 
consumed.''
    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 (MSW).
    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 MSW from Hawaii. We believe the regulations 
require amendment to provide for the movement of garbage generated in 
Hawaii.

Pest Risk Assessment

    As part of our evaluation of the request by business interests and 
public officials in Hawaii, we prepared a draft pest risk assessment 
(PRA), titled ``The Risk of Introduction of Pests to the Continental 
United States via Plastic-Baled Municipal Solid Waste from Hawaii `` 
(March 2006) to evaluate the interstate movement of garbage from Hawaii 
to the mainland of the United States. The objective of the PRA was to 
evaluate whether a baling technology that would bundle, wrap, and seal 
the MSW into airtight bales will effectively mitigate potential plant 
pest risks associated with MSW from Hawaii. The PRA focused on the 
planned use of the baling technology because airtight enclosure from 
creation to burial will mitigate the risks of establishment by any 
plant pests. The PRA addressed the following three issues:
     The ability of the baling technology to provide a strong, 
airtight barrier;
     The examination of the occurrence of ruptures or 
punctures; and
     The examination of general pathway procedures to reduce 
pest incidence in the bales and the chances of escape in the event of 
accidental ruptures or punctures.
    In addition, the PRA provides qualitative risk ratings for 
different pest types based on the likelihood of introduction. Only 
those pathway

[[Page 49310]]

processes likely to be common to all company proposals to transport 
baled Hawaiian waste were considered. We will prepare separate 
assessments for other company proposals which will address factors such 
as the destination landfill, type of transportation to be used on the 
mainland, and pest species that may pose particular threats.
    The PRA concluded that transporting MSW from Hawaii to the 
continental United States in airtight bales poses a low risk of pest 
introduction and dissemination because the baling technology mitigates 
the risk from all types of plant pests. In addition, the other pathway 
procedures should adequately protect against accidental ruptures or 
punctures in bales during the handling and transport process. Pest 
mitigation processes such as the baling technology itself or features 
of the proposed pathway, including the waste type, and how bales are 
staged, handled, transported, and buried, are added safeguards that we 
conclude will prevent the introduction and dissemination of exotic 
pests. As a complement to the baling technology, the PRA recommends 
proper staging of bales and certification that they are mollusk-free to 
mitigate against contaminating pests. As long as those processes and 
the procedures proposed by the companies (including diversion of yard 
and agricultural waste, prompt shipment, monitoring and inspection of 
bales, and thorough cleanup of any ruptures that do occur) are 
followed, establishment of Hawaiian plant pests via this pathway is 
highly unlikely.
    On April 19, 2006, we published in the Federal Register (71 FR 
20030-20041, Docket No. 05-002-2) a proposal \3\ to amend the 
regulations in ``Subpart--Garbage'' (7 CFR 330.100 through 330.400) and 
9 CFR 94.5 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.
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    \3\ To view the proposed rule and the comments we received, 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.'' Clicking on the Docket ID link 
in the search results page will produce a list of all documents in 
the docket.
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    We solicited comments on the proposed rule for 30 days ending on 
May 19, 2006. We received five comments by that date, including a 
request to extend the comment period. In a document published in the 
Federal Register on May 31, 2006 (Docket No. APHIS-2005-0047, 71 FR 
30834), we reopened and extended the deadline for comments until June 
5, 2006. We received an additional seven comments by that date. The 
comments came from several municipalities in Hawaii, waste companies, 
congressional representatives, the State of California, a tribal 
representative, and members of the general public. Of the 12 comments, 
8 fully supported the proposal. The remaining commenters raised several 
issues, which are discussed below.

Bale Technology

    Comment: APHIS must test the bale technology to ensure that the 
plastic bales will not breach. In addition, APHIS should use its own 
experts to validate the research data provided by the technology 
vendors and their consultants regarding the safety of bale technology.
    Response: As cited in the PRA, independent researchers have tested 
the baling technology in a variety of situations and firmly established 
its utility and effectiveness at creating airtight bales of MSW. 
Because these studies have been peer reviewed, APHIS believes that it 
is not necessary to repeat the testing performed in the underlying 
research.

Pest Risk Assessment

    Comment: APHIS should revisit its PRA to clarify the roles played 
by compaction and shredding because whole fruit containing fruit fly or 
other insect eggs or larvae will not be affected by the anoxic 
conditions of the bales.
    Response: While insect eggs and larvae, including those of fruit 
flies and other agricultural pests, could theoretically survive in 
whole fruit under short-term anoxic conditions, whole fruit would not 
be present in the bales due to the processing, i.e., pulverizing or 
shredding followed by compaction, of the MSW prior to being baled. As 
described in the PRA, bale densities are expected to be in excess of 
800 kg/m\3\, so compaction will likely kill most insects, including 
fruit flies, regardless of stage, and may also neutralize some weed 
seeds and nematodes. Moreover, bales that remain airtight from creation 
until burial completely mitigate the risk from all plant pests because 
the pests and pest propagules cannot escape. That mitigation is 
universal, i.e., it does not depend on pest type or taxonomy, and 
probably applies equally to both current and future pests that 
establish in Hawaii.
    Comment: How will APHIS ensure that noxious weeds would not be 
included in the bales of MSW?
    Response: As we discussed in the PRA, the exclusion of most yard 
and agricultural waste from the baling process will greatly reduce the 
likelihood that seeds of regulated pest plants will be present in the 
baled MSW. In addition, very few regulated species are likely to have 
viable seeds in the bales, either because they mostly reproduce 
vegetatively, or because they are not found in yards and gardens in 
residential areas in Hawaii. Species of concern to particular mainland 
States will be further evaluated in site-specific PRAs to identify any 
exceptions and assess their potential risks.

Environmental Impacts

    Comment: APHIS should research the consequences of any spill of 
baled MSW during transport.
    Response: APHIS conducted several evaluations, including a PRA and 
an EA to determine the consequences of any spill involving bales 
containing MSW during transport from Hawaii to the mainland United 
States. We have determined that there is a very low likelihood that 
plant pests or noxious weeds would be introduced and disseminated into 
the mainland United States as a result of this action. As described in 
the PRA, there is a series of mitigations that would take place 
including limiting waste materials that would exist in the bales and 
ensuring proper staging, handling, transport, and burial of these 
bales. There will also be specific contingency plans for emergency 
response to potential spills outlined in compliance agreements with 
specific sites. In addition, short of a barge capsizing (which would be 
considered catastrophic events and would be cause to initiate emergency 
consultation), there is essentially no risk of impact on aquatic life 
from the transport of baled MSW from Hawaii to the mainland United 
States. Situations where there is potential for impacts occur wherever 
bales are moved from one staging area or mode of transportation to 
another. These transfer points include: The facility in Honolulu where 
bales are initially loaded onto the barges; the unloading facility on 
the mainland where bales are unloaded from the barges and loaded onto 
trucks; and the final destination where bales are unloaded from trucks 
and placed into the landfill. In some scenarios there could be 
intermediate steps requiring the handling of bales, e.g., an ocean-
going barge may offload its bales onto smaller-sized barges to navigate 
a river; an ocean-going barge may offload its bales onto railcars; and 
railcars would then need to transfer their bales onto

[[Page 49311]]

trucks for the final leg of the trip to the landfill.
    At each of the bale transfer points identified above, there is a 
small potential for dropping a bale into the water or, more likely, 
compromising the integrity of one or more bales of MSW which could 
result in spillage of the contents on the ground or into the water. In 
most cases the spilled MSW would be retrieved and the bale repackaged. 
If this were to happen over water, it would be more difficult to 
retrieve the spilled MSW, particularly if the integrity of the bale was 
breached. Any spill, in the event of a broken bale, would be handled in 
accordance with a spill cleanup plan, attached to each compliance 
agreement, that provides guidance on what detergents and disinfectants 
to use, how to safely use them, and how to avoid aquatic contamination.
    Comment: Shipping MSW to the mainland from Hawaii should only be 
done if alternative disposal options are not available.
    Response: Municipal jurisdictions within the State of Hawaii will 
be responsible for determining which disposal option to pursue. APHIS 
will be responsible for ensuring that if the disposal option includes 
the movement of MSW from Hawaii to the mainland United States, it 
occurs in accordance with conditions provided in our regulations and 
compliance agreements.
    Comment: Sending barges with MSW through the Columbia and Snake 
Rivers would negatively impact the number of fish in the area.
    Response: We do not believe that there will be a significant 
increase in barge traffic in this region due to this action. We will 
have the opportunity to quantify this assertion when we conduct a site 
specific PRA and EA for the Columbia River Basin. In addition, APHIS 
does not regulate barge traffic. Under our authority we ensure that 
safeguards are in place to prevent the introduction and dissemination 
of plant pests, noxious weeds, and animal diseases.
    APHIS did conduct a biological assessment for this action to 
determine impacts on listed species of fish and wildlife. We found that 
there are two types of risks that must be considered in such a 
situation. One is a physical disruption of the environment caused by 
the broken bales and the physical retrieval of their strewn contents. 
Compromised bales or spilled MSW that is on land can be retrieved 
relatively easily. MSW that is spilled into waterways will be more 
difficult to retrieve, and some may not be retrievable, resulting in an 
incremental degradation of the natural aquatic environment. Since 
hazardous wastes are not permitted, any negative impacts will be 
restricted to physical ones and no chemical pollution is likely to 
result from the MSW itself.
    The second type of risk that could result from breaking bales and 
the spilling of MSW could be from detergents and disinfectants that may 
be used during a cleanup of any spilled MSW that may occur on land. 
Detergents and disinfectants would not be effective in aquatic 
situations, and therefore, would not be used if spills were in or over 
water. If such tools were used during a cleanup effort, care must be 
taken to prevent them from entering waterways. Their use would be in 
accordance with a spill cleanup plan, attached to each compliance 
agreement, that provides guidance on what detergents and disinfectants 
to use, how to safely use them, and how to avoid aquatic contamination.
    As mentioned above, APHIS will develop a site-specific pest risk 
assessment and environmental assessment which will examine any risks 
associated with transporting MSW into specific regions. The public will 
have an opportunity to comment on those documents before they are 
finalized.
    Comment: Has APHIS conducted any studies on the potential to 
introduce new plant and animal pathogens to the Columbia Basin Region?
    Response: This final rule provides a general framework which will 
allow for the interstate movement of MSW from Hawaii under certain 
conditions. One condition of that movement will be that shipments will 
be moved under provisions outlined in a compliance agreement. A 
compliance agreement will be developed for each individual site on the 
mainland of the United States into which these shipments would be 
moved. For each compliance agreement, APHIS will develop a site-
specific pest risk assessment and environmental assessment to examine 
the risks associated with transporting MSW into the specific region, 
including into the Columbia Basin region.

Requested Change to the Regulations

    Comment: APHIS should add the staging requirement and certification 
of snail free shipments language found in the PRA to the regulatory 
text.
    Response: The regulations state that 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. In addition, specific provisions will be outlined in individual 
compliance agreements for site-specific shipments. These provisions 
would be consistent with those in Sec.  318.13-8, which pertain to 
inspection of articles and persons moved from Hawaii. We believe that 
the current provisions in the regulations, combined with site-specific 
compliance agreements, are sufficient to prevent the introduction and 
dissemination of snails and other hitchhikers.

Tribal Consultation

    Comment: APHIS did not consult with Indian Tribes as directed under 
Executive Order (EO) 13175 and requested government-to-government 
consultation.
    Response: We were petitioned to amend our regulations by the 
operators of several landfills located in the area of the Columbia 
River Basin who expressed an interest in receiving MSW from Hawaii. 
Therefore, our initial contacts were limited to tribes located within 
that area. To comply with EO 13175, APHIS contacted the tribal chairs 
of each of the 13 tribes generally considered as Columbia River Basin 
Tribes (Burn Paiute Tribe, Coeur d'Alene Tribe, Colville Tribe, 
Kalispel Tribe, Kootenai Tribe, Nez Perce Tribe, Salish Kootenai 
Tribes, Shoshone Bannock Tribes, Shoshone Paiute Tribe, Spokane Tribe, 
Umatilla Indian Reservation, Warm Springs Reservation, and Yakama 
Indian Nation) in early November 2005. Each of these tribes has ties to 
the land and resources in and near the Columbia River and its drainage. 
APHIS believes that if there were any effects on tribes resulting from 
this rule, these are the tribes most likely to be affected. Each tribe 
was provided information on our proposed rule, environmental 
assessment, and pest risk analysis and offered an opportunity to 
request consultation.
    At about the same time, APHIS contacted tribal organizations to 
determine which additional tribes may be affected and should be 
contacted. The tribal organizations contacted were the Affiliated 
Tribes of Northwest Indians (ATNI), the National Congress of American 
Indians, the National Tribal Environmental Council, and the Intertribal 
Agriculture Council. In addition, APHIS contacted the Columbia Basin 
Fish and Wildlife Authority.
    In mid-February 2006, an Agency official provided a presentation 
about the proposed rule at the Winter Conference of the ATNI, and 
invited requests for tribal consultation. ATNI represents over 55 
tribes in the Pacific

[[Page 49312]]

Northwest. In early March 2006, the Agency sent reminders to tribal 
chairs stating that APHIS would consider requests for consultation 
until March 20, 2006. Although we received both oral and written 
comments from tribes and tribal members, we received no requests for 
consultation.
    In mid-April 2006, upon publication of the proposed rule, copies of 
the proposed rule, environmental assessment, and pest risk analysis 
were mailed to the tribal chairs of each of the above-listed tribes and 
also to the listed tribal organizations. APHIS encouraged tribes and 
tribal organizations to submit comments. Based on our actions as 
described above, we believe that we have complied with EO 13175 for the 
purposes of this rulemaking. We will follow this final rule with risk 
and environmental assessments as well as compliance agreements with 
specific waste management sites located on the mainland of the United 
States that have expressed interest in receiving MSW from Hawaii. At 
the time that we make the site-specific assessments available to the 
public, we will also invite potentially affected tribal governments to 
engage in consultations with APHIS.

Change Regarding Agricultural and Yard Waste

    In the proposed rule, the regulations in 7 CFR 330.402(a)(2) and 9 
CFR 94.5(d)(1)(ii) provided that ``The interstate movement of 
agricultural wastes and yard waste from Hawaii to the continental 
United States is prohibited.'' After further consideration, we have 
concluded that this provision, which implies a zero tolerance for 
agricultural or yard waste, is unrealistic. Despite the presence of 
yard waste recycling programs in Hawaii and the efforts of waste 
management companies to separate various types of waste, the presence 
of an incidental amount of agricultural or yard waste in baled MSW is, 
in practical terms, unavoidable. This situation was taken into account 
in the PRA, which recognized that there will likely be some minimal 
volume of agricultural and yard waste entering the pathway despite 
efforts to exclude that waste. Therefore, we have modified 7 CFR 
330.402(a)(2) and 9 CFR 94.5(d)(1)(ii) in this final rule to read: 
``The interstate movement from Hawaii to the continental United States 
of agricultural wastes and yard waste (other than incidental amounts 
(less than 3 percent) that may be present in municipal solid waste 
despite reasonable efforts to maintain source separation) is 
prohibited.'' \4\ We believe this change will establish a more 
practical standard with respect to agricultural and yard waste while 
continuing to prohibit the interstate movement of dedicated shipments 
or large quantities of such waste.
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    \4\ Based on the mean percentage of yard waste at the Waimanalo 
Gulch landfill, Oahu (6.0 percent  3.4 percent) and on 
Hawaii (5.4 percent), if companies are only 50 percent effective 
with additional screening and removal of visible yard waste in 
transfer stations or on bale processing lines, the fraction of yard 
waste in baled Hawaiian MSW should be reduced to 3 percent or less.
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    Therefore, for the reasons given in the proposed rule and in this 
document, we are adopting the proposed rule as a final rule, with the 
change discussed in this document.

Executive Order 12866 and Regulatory Flexibility Act

    This 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 amending 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 
amending these regulations upon request in order to provide the State 
of Hawaii with additional waste disposal options, and after determining 
that the action will not result in the introduction of plant or animal 
pests or diseases into the continental United States from Hawaii.
    For the purposes of this analysis, we have determined that the 
Island of Oahu (where Honolulu is located) is expected to be the source 
of most, if not all, of any 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 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.\5\
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    \5\ Source: News accounts in the Honolulu Star-Bulletin.
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    This rule will 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.\6\
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    \6\ Source: News accounts in the Honolulu Star-Bulletin and 
APHIS staff. Similar estimates for the Island of Hawaii are not 
available.
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Need for Rule and Alternatives Considered

    These are being amended upon request to provide public officials in 
Hawaii another option for disposal of the State's waste. The only other 
regulatory alternative is 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 rules on small entities, i.e., small 
businesses, organizations, and governmental jurisdictions. The changes 
to the regulations will allow for the movement of MSW from Hawaii to 
the continental United States.
    These changes will 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

[[Page 49313]]

disposal process once shipments to the mainland began. Those businesses 
that will participate in the movement of the waste to the mainland 
could be expected to benefit, since they will generate additional 
revenue and, presumably, profits from the increased business activity. 
Conversely, those businesses that will either no longer participate or 
will 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 will 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.\7\ 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 large by virtue of it being a 
subsidiary of a publicly owned firm with receipts (operating revenues) 
of over $13 billion in 1999.\8\ The private company that currently 
manages the Waimanalo Gulch landfill is also a subsidiary of that 
publicly owned firm.
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    \7\ Source: U.S. Census Bureau (2002 Economic Census) and SBA.
    \8\ Source: Various Internet sites.
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    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.\9\
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    \9\ Source: U.S. Census Bureau (2002 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 changes to the regulations will 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 changes to the regulations 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 will 
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 final rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. This rule: (1) Preempts all State and local laws 
and regulations that are inconsistent with this rule; (2) has no 
retroactive effect; and (3) does not require administrative proceedings 
before parties may file suit in court challenging this rule.

National Environmental Policy Act

    An environmental assessment and finding of no significant impact 
have been prepared for this final rule. The environmental assessment 
provides a basis for the conclusion that the importation of MSW from 
Hawaii to the mainland United States will not have a significant impact 
on the quality of the human environment. Based on the finding of no 
significant impact, the Administrator of the Animal and Plant Health 
Inspection Service has determined that an environmental impact 
statement need not be prepared.
    The environmental assessment and finding of no significant impact 
were prepared in accordance with: (1) The National Environmental Policy 
Act of 1969 (NEPA), as amended (42 U.S.C. 4321 et seq.), (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 1b), and (4) APHIS' NEPA 
Implementing Procedures (7 CFR part 372).
    The environmental assessment and finding of no significant impact 
may be viewed on the Regulations.gov Web site.\10\ Copies of the 
environmental assessment and finding of no significant impact are also 
available for public inspection at USDA, room 1141, South Building, 
14th Street and Independence Avenue, SW., Washington, DC, between 8 
a.m. and 4:30 p.m., Monday through Friday, except holidays. Persons 
wishing to inspect copies are requested to call ahead on (202) 690-2817 
to facilitate entry into the reading room. In addition, copies may be 
obtained by writing to the individual listed under FOR FURTHER 
INFORMATION CONTACT.
---------------------------------------------------------------------------

    \10\ 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, click on ``Submit,'' then click on the Docket 
ID link in the search results page. The environmental assessment and 
finding of no significant impact will appear in the resulting list 
of documents.
---------------------------------------------------------------------------

Paperwork Reduction Act

    In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 
3501 et seq.), the information collection or recordkeeping requirements 
included in this rule have been approved by the Office of Management 
and Budget

[[Page 49314]]

(OMB) under OMB control number 0579-0292.

E-Government Act Compliance

    The Animal and Plant Health Inspection Service is committed to 
compliance with the E-Government Act to promote the use of the Internet 
and other information technologies, to provide increased opportunities 
for citizen access to Government information and services, and for 
other purposes. For information pertinent to E-Government Act 
compliance related to this 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.

0
Accordingly, we are amending 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

0
1. The authority citation for part 330 continues 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 371.3.


0
2. In Sec.  330.100, a definition for State is added and the definition 
for United States is 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.
* * * * *

0
3. Subpart--Garbage, Sec.  330.400, is 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.

Subpart--Garbage


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

[[Page 49315]]

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; 
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 a certificate from an 
inspector stating 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

[[Page 49316]]

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 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 from Hawaii to the continental United 
States of agricultural wastes and yard waste (other than incidental 
amounts (less than 3 percent) that may be present in municipal solid 
waste despite reasonable efforts to maintain source separation) 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 
numbers 0579-0015, 0579-0054, and 0579-0292)


[[Page 49317]]



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

0
4. The authority citation for part 94 continues 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.


0
5. In Sec.  94.0, a definition for State is added and the definition 
for United States is 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 Islands of the 
United States, or any other territory or possession of the United 
States.
* * * * *
    United States. All of the States.
* * * * *

0
6. Section 94.5 is 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 paragraph (c)(2) of this section.
    (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

[[Page 49318]]

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.
    (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 a certificate from an 
inspector stating 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

[[Page 49319]]

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 U.S. 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 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 from Hawaii to the continental United 
States of agricultural wastes and yard waste (other than incidental 
amounts (less than 3 percent) that may be present in municipal solid 
waste despite reasonable efforts to maintain source separation) 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 
numbers 0579-0015, 0579-0054, and 0579-0292)

    Done in Washington, DC, this 17th day of August 2006.
Kevin Shea,
Acting Administrator, Animal and Plant Health Inspection Service.
 [FR Doc. E6-13968 Filed 8-22-06; 8:45 am]
BILLING CODE 3410-34-P