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(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 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 Veterinary Medicine 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 Veterinary Medicine, Food and Drug
Administration, 7519 Standish Pl., Rockville, MD 20855. 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
Veterinary Medicine 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 Veterinary Medicine 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 prevent or 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
Veterinary Medicine 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
Division of Dockets Management, Food and Drug Administration,
5630 Fishers Lane, rm. 1061, Rockville, MD 20852.
[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; 66 FR 56035, Nov. 6, 2001; 70
FR 48073, Aug. 18, 2005]
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