[Federal Register Volume 74, Number 210 (Monday, November 2, 2009)]
[Rules and Regulations]
[Pages 56523-56526]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-26308]



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Rules and Regulations
                                                Federal Register
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Federal Register / Vol. 74, No. 210 / Monday, November 2, 2009 / 
Rules and Regulations

[[Page 56523]]



DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 319

[Docket No. APHIS-2008-0017]
RIN 0579-AC77


Importation of Tomatoes From Souss-Massa-Draa, Morocco

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Final rule.

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SUMMARY: We are amending the regulations to allow the importation of 
commercial consignments of tomatoes from the Souss-Massa-Draa region of 
Morocco subject to a systems approach similar to that which is already 
in place for tomatoes imported into the United States from other areas 
within Morocco. The tomatoes will have to be produced under conditions 
that include requirements for pest exclusion at the production site, 
fruit fly trapping inside the production site, and pest-exclusionary 
packinghouse procedures. The tomatoes will also be required to be 
accompanied by a phytosanitary certificate issued by the Moroccan 
national plant protection organization with an additional declaration 
stating that the tomatoes have been grown in registered pest-
exclusionary structures in the Souss-Massa-Draa region and were pink at 
the time of packing. This action will allow for the importation of 
commercial consignments of tomatoes from the Souss-Massa-Draa region of 
Morocco into the United States while continuing to provide protection 
against the introduction of quarantine pests.

DATES: December 2, 2009.

FOR FURTHER INFORMATION CONTACT: Ms. Charisse Cleare, Project 
Coordinator, Regulations, Permits, and Manuals, PPQ, APHIS, 4700 River 
Road Unit 156, Riverdale, MD 20737-1231; (301) 734-0773.

SUPPLEMENTARY INFORMATION:

Background

    Under the regulations in ``Subpart-Fruits and Vegetables'' (7 CFR 
319.56 through 319.56-49, referred to below as the regulations), the 
Animal and Plant Health Inspection Service (APHIS) of the U.S. 
Department of Agriculture prohibits or restricts the importation of 
fruits and vegetables into the United States from certain parts of the 
world to prevent plant pests from being introduced into and spread 
within the United States.
    On May 16, 2008, we published in the Federal Register (73 FR 28377-
28382, Docket No. APHIS-2008-0017) a proposal \1\ to amend the 
regulations in Sec.  319.56-28 to allow the importation of commercial 
shipments of tomatoes from the Souss-Massa-Draa \2\ region of Morocco 
subject to a systems approach similar to that which is already in place 
in that section for tomatoes imported into the United States from other 
areas within Morocco. We proposed to require the tomatoes to be 
produced under conditions that include requirements for pest exclusion 
at the production site, fruit fly trapping inside and outside the 
production site, and pest-excluding packinghouse procedures. We further 
proposed that the tomatoes would be required to be accompanied by a 
phytosanitary certificate issued by the Moroccan national plant 
protection organization with an additional declaration stating that the 
tomatoes have been grown in registered pest-exclusionary structures in 
the Souss-Massa-Draa region and were pink at the time of packing.
---------------------------------------------------------------------------

    \1\ To view the proposed rule and the comments we received, go 
to (http://www.regulations.gov/fdmspublic/component/main?main=DocketDetail&d=APHIS-2008-0017).
    \2\ In the proposed rule, we referred to the region as Souss-
Massa. In this final rule, we use the full name of the region, 
Souss-Massa-Draa.
---------------------------------------------------------------------------

    We solicited comments concerning our proposal for 60 days ending 
July 15, 2008. We received four comments by that date. They were from a 
State department of agriculture, representatives of growers and 
importers, and the Moroccan Ministry of Agriculture. They are discussed 
below.
    Two commenters opposed the importation of tomatoes from the Souss-
Massa-Draa region of Morocco unless the tomatoes are treated for fruit 
flies with a Probit 9 treatment.
    Probit 9 is a treatment standard that requires a pest mortality 
rate of greater than 99 percent. As described in the proposal, the 
systems approach uses methods other than treatment to mitigate the risk 
associated with fruit flies, and, therefore, application of a Probit 9 
treatment is not required.
    In order to address the risk associated with fruit flies, we 
proposed various mitigation measures, including ripeness requirements, 
a requirement that the tomatoes be produced in pest-exclusionary 
structures, fruit fly trapping, pest-exclusionary procedures at the 
production site and packinghouse, the removal of shade trees around the 
pest-exclusionary structures, and fruit fly bait spray applications.
    One commenter, the Moroccan Ministry of Agriculture, stated that 
two of the proposed requirements would not be feasible to implement, 
specifically the requirement for removal of shade trees within 10 
meters of the pest-exclusionary structures and the requirement to apply 
approved protein bait spray pesticide for Mediterranean fruit fly 
(Medfly, Ceratitis capitata) on shade trees and host plants within 200 
meters of the pest-exclusionary structures every 6 to 10 days, starting 
at least 30 days before harvest. The commenter stated that these 
requirements would be in conflict with environmental protection 
requirements in Morocco. In addition, the Moroccan Ministry of 
Agriculture stated that the pesticide spraying requirements were not 
feasible because the small size of farms within the Souss-Massa-Draa 
region means that they are concentrated very close together and the 
ministry expressed concern that the frequency and concentration of the 
spraying could negatively affect the natural environment and could lead 
to fruit flies developing resistance to the protein bait spray 
pesticides. As an alternative, the Moroccan Ministry of Agriculture 
stated that it already has an export program in place in Souss-Massa-
Draa that focuses on fruit fly protection measures inside the 
production site such as the use of a greater number of traps per 
hectare than in areas of Morocco and Western Sahara from which tomatoes 
are currently approved to be exported under Sec.  319.56-28(c). The 
program also uses

[[Page 56524]]

anti-thrips nets; as the anti-thrips nets are 50 mesh and fruit flies 
are much larger than thrips, this mesh size is adequate to prevent 
access to the production site by fruit flies. The commenter stated that 
the program was adequate to mitigate the risks associated with fruit 
flies.
    We have determined that some of the measures the commenter 
identified as unfeasible are not necessary to provide phytosanitary 
security, given the demonstrated efficacy of the existing tomato export 
program in Morocco and Western Sahara. No fruit flies have ever been 
intercepted in this program. Therefore, in this final rule, we are not 
including the proposed requirement in Sec.  319.56-28(g)(6) for the 
removal of shade trees within 10 meters of the pest-exclusionary 
structures. In addition, we have changed the proposed buffer zone and 
spraying requirements to be consistent with the requirements currently 
in place for the El Jadida and Safi production areas in Morocco and in 
Western Sahara.
    As provided in current paragraph (c) of Sec.  319.56-28, in the El 
Jadida and Safi production areas in Morocco and in Western Sahara, 
traps must be placed outside the registered pest-exclusionary structure 
within a 2-kilometer radius at a density of 4 traps per square 
kilometer 2 months prior to the start of the shipping season and 
continuing through the end of the shipping season. The capture of a 
single Medfly within 200 meters of a registered pest-exclusionary 
structure necessitates the addition of 6 more traps to be placed within 
a radius of 200 meters surrounding the initial detection. Capture of 2 
Medflies within 200 meters of a registered pest-exclusionary structure 
within a 1-month time period necessitates bait sprays in the area every 
7 to 10 days for 60 days to ensure eradication within the 200-meter 
buffer zone.
    We are adding the requirements for trapping outside the pest-
exclusionary structures to proposed paragraph (g)(3) and the 
requirements for additional trapping when a Medfly is trapped outside 
the greenhouse to proposed paragraph (g)(5). Because Souss-Massa-Draa 
is not an area of low prevalence for fruit flies, unlike the currently 
approved tomato export provinces in Morocco and Western Sahara, some 
additional mitigations are necessary in order to mitigate the 
additional pest risk associated with tomatoes from Souss-Massa-Draa. 
Therefore, we are retaining the proposed requirement for eight fruit 
fly traps per hectare within the pest-exclusionary structures, with a 
minimum of four traps per structure, as opposed to the requirement for 
four traps per hectare in the currently approved provinces. We are also 
retaining the proposed prohibition of fruit fly host material within 50 
meters of the pest-exclusionary structures, which is not included in 
the requirements for the currently approved provinces.
    In addition, we are retaining the proposed requirements for 
trapping program monitoring and retention of trapping records for 1 
year, and the requirement that sea containers must be kept closed if 
stored within 20 meters of Medfly host materials prior to loading. We 
are also amending the regulations in Sec.  319.56-28(c)(4) to make the 
1-year retention of trapping records requirement applicable for all 
approved growing areas within Morocco and Western Sahara in order to 
harmonize our regulations.
    Two commenters expressed concern or had questions regarding 
Morocco's ability to enforce the proposed systems approach or APHIS' 
review of the program. One commenter asked what APHIS's confidence 
level is in the Moroccan Ministry of Agriculture's Division of Plant 
Protection, Inspection, and Enforcement (DPVCTRF) and asked what 
quality control measures are in place to monitor compliance with the 
provisions of the systems approach within Morocco. Specifically, the 
commenter asked how many site visits have been made or are planned and 
how much fruit is inspected at the port of arrival.
    Another commenter stated that the systems approach is inadequate 
because it cannot be effectively reviewed or enforced by APHIS. 
According to the commenter, the systems approach is too reliant on 
reviews by DPVCTRF staff that may not have proper training. The 
commenter also expressed concern that there may not be enough DPVCTRF 
staff to perform required tasks and that decisions within Morocco will 
not be scrutinized by APHIS in a timely manner.
    Based on the track record of our program for the importation of 
tomatoes from other areas of Morocco and Western Sahara into the United 
States, we are confident the DPVCTRF can effectively oversee the 
application of these measures in the Souss-Massa-Draa region. In 
addition, trapping records must be maintained for each site for 1 year 
and made available to APHIS for review upon request. To provide 
additional oversight, we are adding in Sec.  319.56-28(g)(1) a 
requirement that tomatoes must be grown in approved production sites 
and provisions for APHIS to maintain oversight by participating in the 
approval and monitoring of production sites. In addition, we are adding 
the provisions that, 2 months before harvest and continuing until the 
end of the shipping season, DPVCTRF will visit and inspect the 
production sites and that APHIS may monitor the production sites at any 
time during this period. Approval and monitoring of production sites 
are standard requirements for our more recent import programs.
    If, through trapping records, site visits, or port-of-arrival 
inspections, we find that any of the required mitigation measures are 
not being properly implemented, we will suspend shipments from the 
offending sites. Two site visits have already been conducted, with a 
third planned for the future in order to approve the pest-exclusionary 
structures. We will monitor the program on a regular basis and make 
additional site visits as needed. A standard port-of-arrival inspection 
rate of 2 percent will apply.
    The proposed rule included a requirement that the tomatoes be pink 
at the time of packing. As stated in the current regulations, we 
consider pink tomatoes to be tomatoes where the surface area of the 
tomato is more than 30 percent but not more than 60 percent pink and/or 
red. One commenter asked who makes the decision regarding whether the 
tomatoes are at the correct stage of ripeness.
    DPVCTRF is responsible for determining whether the tomatoes are at 
the correct stage of ripeness. However, port-of-arrival inspection will 
serve to check compliance with that provision of the regulations.
    One commenter asked what safeguards are in place to mitigate high 
Medfly population fluctuations and ensure that the packinghouse is free 
of fruit flies. The commenter also asked if there can be fruit fly host 
plants in close proximity to the packinghouse.
    As proposed, the tomatoes will have to be packed within 24 hours of 
harvest and must be safeguarded by an insect-proof mesh screen or 
plastic tarpaulin while in transit to the packinghouse and while 
awaiting packing. In addition, they must be packed in insect-proof 
cartons or containers, or covered by insect-proof mesh or plastic 
tarpaulin for transit to the airport or ship and export to the United 
States. We are adding a provision in a new paragraph (g)(8) in Sec.  
319.56-28 that during the time the packinghouse is in use for exporting 
fruit to the United States, the packinghouse may only accept fruit from 
registered approved production sites. (We are also moving the 
provisions proposed in paragraph (g)(8) to a new paragraph (g)(9).) 
This

[[Page 56525]]

provision is standard for our import programs, including our import 
program for Chilean tomatoes, and will provide additional protection 
against infested host material entering the packinghouse and being 
transported to the United States. These measures are adequate to 
protect against the incursion of fruit flies into the packinghouse 
regardless of Medfly population fluctuations. In addition, as stated in 
the proposed rule, no fruit fly host material is permitted within 50 
meters of the entry door of the packinghouse.
    In addition to the changes discussed earlier, we are making several 
minor changes to the proposed requirements for the importation of 
tomatoes from Souss-Massa-Draa, Morocco, in Sec.  319.56-28(g). We are 
replacing the word ``greenhouses'' with the phrase ``pest-exclusionary 
structures'' in the regulatory text we proposed and in the current 
regulations for the importation of tomatoes from the provinces of El 
Jadida and Safi in Morocco and the province of Dahkla in Western Sahara 
in Sec.  319.56-28(c), as ``pest-exclusionary structures'' is a more 
inclusive term that allows us the flexibility to approve structures 
other than greenhouses that we have found to adequately mitigate risk. 
To be more consistent with the current regulations for the provinces of 
El Jadida and Safi in Morocco and the province of Dahkla in Western 
Sahara, and to reflect the current reality within Morocco, we are also 
making a change in proposed paragraph (g)(8), which we are 
redesignating (g)(9), of Sec.  319.56-28 to state that the Moroccan 
Ministry of Agriculture, Fresh Product Export (EACCE) division and not 
DPVCTRF is responsible for export certification and issuance of 
phytosanitary certificates.
    Since publication of the proposal, several Mediterranean countries, 
including Morocco, have experienced an outbreak of an additional 
quarantine pest of tomatoes, the tomato leaf miner (Tuta absoluta). We 
have issued a Federal Order (FO) \3\ that imposes additional 
restrictions on the movement of tomatoes from countries where the pest 
is known to occur, including Morocco, in order to prevent the spread of 
the pest. Under the FO, the following criteria must be met before 
tomatoes from Morocco are eligible to enter the United States:
---------------------------------------------------------------------------

    \3\ The FO can be found on the APHIS Web site at (http://www.aphis.usda.gov/import_export/plants/plant_imports/federal_order/index.shtml).
---------------------------------------------------------------------------

     The tomatoes must be grown in approved production sites 
registered with DPVCTRF;
     Tomato production sites must include a pest-exclusionary 
structure which must have double self closing doors and have all other 
openings and vents covered with 1.6 mm (or smaller) of screening;
     Registered production sites must conduct regular 
inspections for T. absoluta throughout the harvest season and find 
these areas free of evidence (e.g., eggs or larvae) of T. absoluta. If, 
within 30 days of harvest, 2 T. absoluta are captured inside the 
greenhouse or a single T. absoluta is found inside individual fruit or 
in a consignment of the fruit, shipments from the production site will 
be suspended until APHIS and
     DPVCTRF determine that an appropriate level of risk 
mitigation has been achieved; and DPVCTRF must maintain records of T. 
absoluta captures for 1 year following the date of the capture for 
APHIS review. DPVCTRF must maintain an APHIS-approved quality control 
program to monitor or audit the program. APHIS must be notified when a 
production site is removed or added to the program.
    APHIS will conduct routine site visits to monitor the program and 
will issue a future rulemaking to revise the regulations in accordance 
with the requirements in the FO.
    Finally, because the botanical name for tomatoes has been changed, 
we are replacing each occurrence of the old botanical name, 
Lycopersicon esculentum, in Sec. Sec.  319.56-13 and 319.56-28 with the 
new botanical name, Solanum lycopersicum.

Executive Order 12866 and Regulatory Flexibility Act

    This final 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 have prepared an economic 
analysis for this final rule. The analysis, which considers the number 
and types of entities that are likely to be affected by this action and 
the potential economic effects on those entities, provides the basis 
for the Administrator's determination that the rule will not have a 
significant economic impact on a substantial number of small entities. 
The economic analysis may be viewed on the Regulations.gov Web site 
(see footnote 1 for instructions for accessing Regulations.gov). Copies 
of the economic analysis are also available from the person listed 
under FOR FURTHER INFORMATION CONTACT.

Executive Order 12988

    This rule has been determined to be not significant for purposes of 
Executive Order 12866 and, therefore, has not been reviewed by the 
Office of Management and Budget.
    This final rule allows tomatoes to be imported into the United 
States from the Souss-Massa-Draa region of Morocco. State and local 
laws and regulations regarding tomatoes imported under this rule will 
be preempted while the fruit is in foreign commerce. Fresh fruits are 
generally imported for immediate distribution and sale to the consuming 
public, and remain in foreign commerce until sold to the ultimate 
consumer. The question of when foreign commerce ceases in other cases 
must be addressed on a case-by-case basis. No retroactive effect will 
be given to this rule, and this rule will not require administrative 
proceedings before parties may file suit in court challenging this 
rule.

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 (OMB) under OMB control number 0579-0345.

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) 851-2908.

List of Subjects in 7 CFR Part 319

    Coffee, Cotton, Fruits, Imports, Logs, Nursery stock, Plant 
diseases and pests, Quarantine, Reporting and recordkeeping 
requirements, Rice, Vegetables.

0
Accordingly, we are amending 7 CFR part 319 as follows:

PART 319--FOREIGN QUARANTINE NOTICES

0
1. The authority citation for part 319 continues to read as follows:

    Authority: 7 U.S.C. 450, 7701-7772, and 7781-7786; 21 U.S.C. 136 
and 136a; 7 CFR 2.22, 2.80, and 371.3.


Sec.  319.56-13  [Amended]

0
2. In Sec.  319.56-13, the table in paragraph (a) is amended, under the 
column heading ``Botanical name,'' by removing the words Lycopersicon

[[Page 56526]]

esculentum'' each time they occur and adding the words Solanum 
lycopersicum'' in their place.

0
3. Section 319.56-28 is amended as follows:
0
a. In paragraph (a) introductory text and paragraph (b) introductory 
text, by removing the words Lycopersicon esculentum'' each time they 
occur and adding the words Solanum lycopersicum'' in their place.
0
b. By revising paragraph (c) introductory text to read as set forth 
below.

0
c. In paragraph (c)(4), by removing the semicolon after the word 
``request'' and adding a period in its place, and by adding at the end 
of the paragraph the sentence ``The trapping records must be maintained 
for 1 year for APHIS review;''
0
d. In paragraph (d) introductory text, paragraph (e) introductory text, 
and paragraph (f) introductory text, by removing the words Lycopersicon 
esculentum'' each time they occur and adding the words Solanum 
lycopersicum'' in their place.
0
e. By adding a new paragraph (g) to read as set forth below.
0
f. By revising the OMB citation at the end of the section to read as 
set forth below.


Sec.  319.56-28  Tomatoes from certain countries.

* * * * *
    (c) Tomatoes (fruit) (Solanum lycopersicum) from the provinces of 
El Jadida or Safi in Morocco and the province of Dahkla in Western 
Sahara. Pink tomatoes may be imported into the United States from the 
provinces of El Jadida or Safi in Morocco and the province of Dahkla in 
Western Sahara only in accordance with this section and other 
applicable provisions of this subpart.\7\
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    \7\ See footnote 5 to paragraph (a) of this section.
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* * * * *
    (g) Tomatoes (fruit) (Solanum lycopersicum) from the Souss-Massa-
Draa region of Morocco. Pink tomatoes may be imported into the United 
States from the region of Souss-Massa-Draa in Morocco only in 
accordance with this section and other applicable provisions of this 
subpart.\8\
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    \8\ See footnote 5 to paragraph (a) of this section.
---------------------------------------------------------------------------

    (1) The tomatoes must be grown in approved production sites within 
the region of Souss-Massa-Draa in Morocco in pest-exclusionary 
structures registered with, and inspected by, the Moroccan Ministry of 
Agriculture, Division of Plant Protection, Inspection, and Enforcement 
(DPVCTRF). Production sites will be approved jointly by DPVCTRF and 
APHIS. DPVCTRF will visit and inspect the production sites starting 2 
months before harvest and continuing until the end of the shipping 
season. APHIS may monitor the production sites at any time during this 
period;
    (2) The tomatoes may be shipped from the Souss-Massa-Draa region of 
Morocco only between December 1 and April 30, inclusive;
    (3) Beginning 2 months prior to the start of the shipping season 
and continuing through the end of the shipping season, DPVCTRF must set 
and maintain Mediterranean fruit fly (Medfly) traps baited with 
trimedlure, or other approved protein bait, inside the pest-
exclusionary structures at a rate of 8 traps per hectare, with a 
minimum of 4 traps per pest-exclusionary structure. Traps must also be 
placed outside registered pest-exclusionary structures within a 2-
kilometer radius at a rate of 4 traps per square kilometer. All traps 
must be checked every 7 days;
    (4) DPVCTRF must maintain records of trap placement, trap 
maintenance, and any Medfly captures, and make the records available to 
APHIS upon request. DPVCTRF must maintain an APHIS-approved quality 
control program to monitor or audit the trapping program. The trapping 
records must be maintained for 1 year for APHIS review;
    (5) Capture of a single Medfly in a registered pest-exclusionary 
structure during the 2 months prior to export and continuing through 
the duration of the harvest, or detection of a Medfly in a consignment 
that is traced back to a registered pest-exclusionary structure, will 
immediately result in cancellation of exports from that pest-
exclusionary structure until the source of the infestation is 
determined, the Medfly infestation has been eradicated, and measures 
are taken to preclude any future infestation. Exports will not be 
reinstated until APHIS and DPVCTRF mutually determine that risk 
mitigation has been achieved. Capture of a single Medfly within 200 
meters of a registered pest-exclusionary structure will necessitate 
increasing trap density in order to determine whether there is a 
reproducing population in the area. Six additional traps must be placed 
within a radius of 200 meters surrounding the trap where the Medfly was 
captured. Capture of two Medflies within 200 meters of a registered 
pest-exclusionary structure and within a 1-month time period will 
necessitate Malathion bait sprays in the area every 7 to 10 days for 60 
days to ensure eradication;
    (6) No Medfly host material is permitted within 50 meters of the 
entry door of the pest-exclusionary structure or the packinghouse;
    (7) The tomatoes must be packed within 24 hours of harvest and must 
be pink at the time of packing. They must be safeguarded by an insect-
proof mesh screen or plastic tarpaulin while in transit to the 
packinghouse and while awaiting packing. They must be packed in insect-
proof cartons or containers, or covered by insect-proof mesh or plastic 
tarpaulin for transit to the airport or ship and export to the United 
States. These safeguards must be intact upon arrival in the United 
States. Sea containers must be kept closed if stored within 20 meters 
of Medfly host materials prior to loading;
    (8) During the time the packinghouse is in use for exporting fruit 
to the United States, the packinghouse may only accept fruit from 
registered approved production sites; and
    (9) The Moroccan Ministry of Agriculture, Fresh Product Export 
(EACCE) is responsible for export certification inspection and issuance 
of phytosanitary certificates. Each consignment of tomatoes must be 
accompanied by a phytosanitary certificate issued by EACCE and bearing 
the declaration, ``These tomatoes were grown in registered pest-
exclusionary structures in Souss-Massa-Draa Region, Morocco, and were 
pink at the time of packing.''
    (Approved by the Office of Management and Budget under control 
numbers 0579-0049, 0579-0131, 0579-0316, 0579-0286, and 0579-0345)


Sec.  319.56-34  [Amended]

0
4. In Sec.  319.56-34, paragraph (j)(2), footnote 8 is redesignated as 
footnote 9.

    Done in Washington, DC, this 26\th\ day of October 2009.
Kevin Shea
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. E9-26308 Filed 10-30-09: 8:45 am]
BILLING CODE: 3410-34-S