[Federal Register: August 23, 2006 (Volume 71, Number 163)]
[Rules and Regulations]
[Page 49309-49319]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr23au06-1]
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Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
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[[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
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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.
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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.
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\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.
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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