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The 4" Law
[Code
of Federal Regulations]
[Title 21, Volume 8, Parts 800 to 1299]
[Revised as of April 1, 1999]
From the U.S. Government Printing Office via GPO Access
[CITE: 21CFR1240.62]
[Page 638-640]
TITLE 21--FOOD AND DRUGS
Subpart D--Specific Administrative Decisions Regarding Interstate
Shipments
Sec. 1240.62 Turtles intrastate and interstate requirements.
(a) Definition. As used in this section the term ``turtles''
includes all animals commonly known as turtles, tortoises, terrapins,
and all other animals of the
[[Page 639]]
order Testudinata, class Reptilia, except marine species (families
Dermachelidae and Chelonidae).
(b) Sales; general prohibition. Except as otherwise provided in this
section, viable turtle eggs and live turtles with a carapace length of
less than 4 inches shall not be sold, held for sale, or offered for any
other type of commercial or public distribution.
(c) Destruction of turtles or turtle eggs; criminal penalties. (1)
Any viable turtle eggs or live turtles with a carapace length of less
than 4 inches which are held for sale or offered for any other type of
commercial or public distribution shall be subject to destruction in a
humane manner by or under the supervision of an officer or employee of
the Food and Drug Administration in accordance with the following
procedures:
(i) Any District Office of the Food and Drug Administration, upon
detecting viable turtle eggs or live turtles with a carapace length of
less than 4 inches which are held for sale or offered for any other type
of commercial or public distribution, shall serve upon the person in
whose possession such turtles or turtle eggs are found a written demand
that such turtles or turtle eggs be destroyed in a humane manner under
the supervision of said District Office, within 10 working days from the
date of promulgation of the demand. The demand shall recite with
particularity the facts which justify the demand. After service of the
demand, the person in possession of the turtles or turtle eggs shall not
sell, distribute, or otherwise dispose of any of the turtles or turtle
eggs except to destroy them under the supervision of the District
Office, unless and until the Director of the Center for Food Safety and
Applied Nutrition withdraws the demand for destruction after an appeal
pursuant to paragraph (c)(1)(ii) of this section.
(ii) The person on whom the demand for destruction is served may
either comply with the demand or, within 10 working days from the date
of its promulgation, appeal the demand for destruction to the Director
of the Center for Food Safety and Applied Nutrition, Food and Drug
Administration, 200 C St. SW., Washington, DC 20204. The demand for
destruction may also be appealed within the same period of 10 working
days by any other person having a pecuniary interest in such turtles or
turtle eggs. In the event of such an appeal, the Center Director shall
provide an opportunity for hearing by written notice to the appellant(s)
specifying a time and place for the hearing, to be held within 14 days
from the date of the notice but not within less than 7 days unless by
agreement with the appellant(s).
(iii) Appearance by any appellant at the hearing may be by mail or
in person, with or without counsel. The hearing shall be conducted by
the Center Director or his designee, and a written summary of the
proceedings shall be prepared by the person presiding. Any appellant
shall have the right to hear and to question the evidence on which the
demand for destruction is based, including the right to cross-examine
witnesses, and he may present oral or written evidence in response to
the demand.
(iv) If, based on the evidence presented at the hearing, the Center
Director finds that the turtles or turtle eggs were held for sale or
offered for any other type of commercial or public distribution in
violation of this section, he shall affirm the demand that they be
destroyed under the supervision of an officer or employee of the Food
and Drug Administration; otherwise, the Center Director shall issue a
written notice that the prior demand by the District Office is
withdrawn. If the Center Director affirms the demand for destruction he
shall order that the destruction be accomplished in a humane manner
within 10 working days from the date of the promulgation of his
decision. The Center Director's decision shall be accompanied by a
statement of the reasons for the decision. The decision of the Center
Director shall constitute final agency action, reviewable in the courts.
(v) If there is no appeal to the Director of the Center for Food
Safety and Applied Nutrition from the demand by the Food and Drug
Administration District Office and the person in possession of the
turtles or turtle eggs fails to destroy them within 10 working days, or
if the demand is affirmed by the Director of the Center for Food Safety
and Applied Nutrition after an appeal and the person in
possession of the turtles or turtle eggs fails to destroy them within 10
working days, the District Office shall designate an officer or employee
to destroy the turtles or turtle eggs. It shall be unlawful to preventor
to attempt to prevent such destruction of turtles or turtle eggs by the
officer or employee designated by the District Office. Such destruction
will be stayed if so ordered by a court pursuant to an action for review
in the courts as provided in paragraph (c)(1)(iv) of this section.
(2) Any person who violates any provision of this section, including
but not limited to any person who sells, offers for sale, or offers for
any other type of commercial or public distribution viable turtle eggs
or live turtles with a carapace length of less than 4 inches, or who
refuses to comply with a valid final demand for destruction of turtles
or turtle eggs (either an unappealed demand by an FDA District Office or
a demand which has been affirmed by the Director of the Center for Food
Safety and Applied Nutrition pursuant to appeal), or who fails to comply
with the requirement in such a demand that the manner of destruction be
humane, shall be subject to a fine of not more than $1,000 or
imprisonment for not more than 1 year, or both, for each violation, in
accordance with section 368 of the Public Health Service Act (42 U.S.C.
271).
(d) Exceptions. The provisions of this section are not applicable
to:
(1) The sale, holding for sale, and distribution of live turtles and
viable turtle eggs for bona fide scientific, educational, or
exhibitional purposes, other than use as pets.
(2) The sale, holding for sale, and distribution of live turtles and
viable turtle eggs not in connection with a business.
(3) The sale, holding for sale, and distribution of live turtles and
viable turtle eggs intended for export only, provided that the outside
of the shipping package is conspicuously labeled ``For Export Only.''
(4) Marine turtles excluded from this regulation under the
provisions of paragraph (a) of this section and eggs of such turtles.
(e) Petitions. The Commissioner of Food and Drugs, either on his own
initiative or on behalf of any interested person who has submitted a
petition, may publish a proposal to amend this regulation. Any such
petition shall include an adequate factual basis to support the
petition, and will be published for comment if it contains reasonable
grounds for the proposed regulation. A petition requesting such a
regulation, which would amend this regulation, shall be submitted to the
Dockets Management Branch, Food and Drug Administration, rm. 1-23, 12420
Parklawn Dr., Rockville, MD 20857.
[40 FR 22545, May 23, 1975, as amended at 46 FR 8461, Jan. 27, 1981; 48
FR 11431, Mar. 18, 1983; 54 FR 24900, June 12, 1989; 59 FR 14366, Mar.
28, 1994]
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