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USDA's Unlawful Application of The Scar Rule



Kelley Drye & Warren, LLP., counsel to the Tennessee Walking Horse National Celebration sent a letter on March 9, 2015, to Secretary of Agriculture Tom Vilsack outlining the USDA’s unlawful application of the scar rule.  The letter summarizes USDA Animal and Plant Health Inspection Service (APHIS), through its Veterinary Medical Officers (VMOs), has been misapplying the HPA, specifically the scar rule promulgated pursuant to the HPA and failing to follow an established APHIS scar rule inspection procedure.

In question is the intent of the scar rule versus the application and intent of such application of the scar rule by USDA VMOs since 2009.  The scar rule, per the Notice of Proposed Rulemaking, was meant to, “allow for normal changes in the skin that are due to friction.  These changes would allow thickening of the epithelial layer of the skin in the pastern area (much like the callous on a workman’s hands) and the moderate loss of hair in the pastern area caused by the friction generated by the action device.”

The scar rule explicitly lays out what is prohibited based upon whether the anterior or anterior-lateral surface of the pastern is being examined or if it is the posterior (pocket) surface of the pastern.  The scar rule expressly provides that “uniformly thickened epithelial tissue” does not constitute a violation if such tissue is found on the posterior surface of the pastern.  The scar rule acknowledges and allows that normal friction caused by the legal action device will cause tissue changes and those changes are not violations of the Scar Rule.

Due to the allowance of “uniformly thickened epithelial tissue” USDA VMOs and industry Designated Qualified Persons must attempt to flatten or smooth out the tissue to determine if it is uniformly thickened. This inspection protocol has repeatedly been acknowledged as a requirement by APHIS Administrator Mr. Kevin Shea, Deputy Administrator Dr. Chester Gipson and others.  However as early as the HIO training in 2009 conducted by USDA VMO Dr. Jeff Baker and multiple statements since, Baker has trained and instructed that it is not necessary to attempt to flatten the tissue to determine if a violation exists.

The letter points out in great detail how APHIS and its VMOs are not following the terms of the Scar Rule.  “In derogation of the terms of the scar rule, APHIS and its VMOs, when conducting investigations on horses in the Industry, have been improperly applying the “must be free of…granulomas” factor from part (a) of the scar rule – which applies only to the anterior and anterior-lateral surfaces of the pasterns – to find violations for tissue change on the posterior surface of the pasterns.”  Per the terms of the scar rule the posterior surface only needs to be free of “proliferating granuloma tissue” which is described as proud flesh.

The letter goes on to read, “by applying a factor that is irrelevant under the scar rule with respect to the posterior pastern surface and additionally ignoring a factor that is relevant under the scar rule regarding the posterior pastern surface, APHIS and its VMOs have been violating the Administrative Procedure Act (APA).”

In order to allow for such improper inspection procedures, in the 2015 APHIS training presentation, the material contains no definition for proliferating granuloma in discussing the scar rule with respect to the posterior surface of the pasterns.  It does contain a different, more expansive definition however which the letter points out is problematic under the law.

“First, the definition is substantially the same as the definition that the scar rule gives for “granuloma” in the portion of the rule that pertains only to tissue changes on the anterior and anterior-lateral surfaces of the pasterns.  Second, the definition in the training presentation effectively reads out the “proliferating” aspect from the term “proliferating granuloma tissue.” 

The letter requests APHIS to take the following action:
1. Withdraw all scar violations issued since May 2009
2. Command that VMOs and DQPs immediately cease and desist from applying the factors in part (a) to the scar rule when examining the posterior surface of the pasterns
3. Develop new scar rule training material and protocols based on accepted principles of veterinary science that address the proper posterior surface tissue changes that the scar rule permits and does not permit
4. Begin using those new scar rule materials only after those protocols have been reviewed and approved by the USDA, Industry leaders and independent veterinarians
5. Require VMOs and DQPs to adhere to requirements of new training materials and inspection protocols or face dismissal 
6. Refrain from establishing any different or additional inspection protocols regarding posterior scars until the above noted training material and inspection protocols have been put in place

To view the letter in its entirety click here.

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