Section

[Code of Federal Regulations]
[Title 9, Volume 1]
[Revised as of January 1, 2005]
From the U.S. Government Printing Office via GPO Access
[CITE: 9CFR3.100]

[Page 93-94]
 
                  TITLE 9--ANIMALS AND ANIMAL PRODUCTS
 
  CHAPTER I--ANIMAL AND PLANT HEALTH INSPECTION SERVICE, DEPARTMENT OF 
                               AGRICULTURE
 
PART 3_STANDARDS--Table of Contents
 
 Subpart E_Specifications for the Humane Handling, Care, Treatment, and 
                    Transportation of Marine Mammals
 
Sec. 3.100  Special considerations regarding compliance and/or variance.

    Source: 44 FR 36874, June 22, 1979, unless otherwise noted.

                   Facilities and Operating Standards


    (a) All persons subject to the Animal Welfare Act who maintain or 
otherwise handle marine mammals in captivity must comply with the 
provisions of this subpart, except that they may apply for and be 
granted a variance,\6\ by the Deputy Administrator, from one or more 
specified provisions of Sec. 3.104. The provisions of this subpart 
shall not apply, however, in emergency circumstances where compliance 
with one or more requirements would not serve the best interest of the 
marine mammals concerned.
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    \6\ Written permission from the Deputy Administrator to operate as a 
licensee or registrant under the Act without being in full compliance 
with one or more specified provisions of Sec. 3.104.
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    (b) An application for a variance must be made to the Deputy 
Administrator in writing. The request must include:
    (1) The species and number of animals involved,
    (2) A statement from the attending veterinarian concerning the age 
and health status of the animals involved, and concerning whether the 
granting of a variance would be detrimental to the marine mammals 
involved,
    (3) Each provision of the regulations that is not met,
    (4) The time period requested for a variance,
    (5) The specific reasons why a variance is requested, and
    (6) The estimated cost of coming into compliance, if construction is 
involved.
    (c) After receipt of an application for a variance, the Deputy 
Administrator may require the submission in writing of a report by two 
experts recommended by the American Association of Zoological Parks and 
Aquariums and approved by the Deputy Administrator concerning potential 
adverse impacts on the animals involved or on other matters relating to 
the effects of the requested variance on the health and well-being of 
such marine mammals. Such a report will be required only in those cases 
when the Deputy Administrator determines that such expertise is 
necessary to determine whether the granting of a variance would cause a 
situation detrimental to the health and well-being of the marine mammals 
involved. The cost of such report is to be paid by the applicant.
    (d) Variances granted for facilities because of ill or infirm marine 
mammals that cannot be moved without placing their well-being in 
jeopardy, or for facilities within 0.3048 meters (1 foot) of compliance 
with any space requirement may be granted for up to the life of the 
marine mammals involved. Otherwise, variances shall be granted for a 
period not exceeding July 30, 1986, Provided, however, That under 
circumstances deemed justified by the Deputy Administrator, a maximum 
extension of 1 year may be granted to attain full compliance. A written 
request

[[Page 94]]

for the extension must be received by the Deputy Administrator by May 
30, 1986. Consideration for extension by the Deputy Administrator will 
be limited to unforeseen or unusual situations such as when necessary 
public funds cannot be allocated in an appropriate time frame for a 
facility to attain full compliance by July 30, 1986.
    (e) The Deputy Administrator shall deny any application for a 
variance if he determines that it is not justified under the 
circumstances or that allowing it will be detrimental to the health and 
well-being of the marine mammals involved.
    (f) Any facility housing marine mammals that does not meet all of 
the space requirements as of July 30, 1984, must meet all of the 
requirements by September 28, 1984, or may operate without meeting such 
requirements until action is taken on an application for a variance if 
the application is submitted to the Deputy Administrator on or before 
September 28, 1984.
    (g) A research facility may be granted a variance from specified 
requirements of this subpart when such variance is necessary for 
research purposes and is fully explained in the experimental design. Any 
time limitation stated in this section shall not be applicable in such 
case.

[49 FR 26681, June 28, 1984; 63 FR 2, Jan. 2, 1998]