Administrative Rule of the Month - 71 IAC 7.5-3-4 Scale of Weights

This month's Indiana Breeder & Owner Protection, Inc. (IBOP) Administrative Rule of the Month is going to focus on a thoroughbred and quarter horse rule '71 IAC 7.5-3-4 Scale of Weights.' With the filing of this particular rule with the Indiana Register on July 18, 2013, the Scale of Weights administrative rule became the first and only rule, in the history of the Indiana Horse Racing Commission (IHRC), to be completed by going through the regular rulemaking process. As our regular readers are well aware of, IBOP has been very critical over the years of the IHRC's use of emergency rulemaking process which only requires a majority vote of five commissioners and filing with the Indiana Register to become "law." The regular rulemaking process requires, among other steps, a public notice, a public hearing, a review by the Attorney General's office for legality, and a final approval by the Governor.

The 'Scale of Weights' rule was absolutely the most ridicules administrative rule for the IHRC to have go through the regular rulemaking process. In fact, doing so was downright stupid, but definitely illustrates the IHRC's cavalier attitude toward their responsibilities as regulators as well as demonstrates their overall lack of class. While that last statement is more directed at the IHRC staff, as you will soon see, the commissioners have an overall responsibility to provide oversight to a group of state employees who appear as if they are completely oblivious and quality control challenged. Our timeline with the 'Scale of Weights' rule should demonstrate our last statement.

The 'Scale of Weights' timeline begins on April 19, 2012. (Yes, 2012.) The first agenda item at that particular IHRC meeting was, "Consideration of an emergency rule amendment regarding 71 IAC 7.5-3-4, Scale of weights." (Yes, emergency rule.) Jeff Johnston, from The Jockey's Guild, presented the Association of Racing Commissioners International (ARCI) Model Rule for the new scale which basically increased the minimum weight for thoroughbreds to 118 pounds from 116 pounds. The presentation took three minutes and the commissioners voted unanimously to approve the new scale and the entire agenda item took just a few minutes. Yet, the actual ARCI Model Rule, approved in April of 2012, will not be finalized until August 17, 2013.

As we mentioned earlier, an emergency rule isn't finalized until the language is filed with the Indiana Register. In late June, 2012, the 'Scale of Weights' emergency rule was never filed with the Indiana Register, (yes, over two months later) yet every other emergency rule approved at the April 19th meeting was already filed with the Indiana Register. Our curiosity as to why led us to actually read the approved emergency rule which was a hand-out at the April 19th meeting. What we found was that the 'Model Rule' approved by the IHRC included an error. Instead of assigning a minimum weight of 120 pounds for two-year old quarter horses, the IHRC approved a minimum weight of 130 pounds. (Yes, 130 pounds.) This makes no sense in any racing jurisdiction, especially when considering the minimum weight assignments in the rule were 122 pounds for three-year olds and 124 pounds for four-years. The combination of the rule not being filed in a timely fashion and knowing of their approved error, we sent the following to all of the commissioners: http://ibopindy.blogspot.com/2012/06/71-iac-75-3-4-scale-of-weights.html. The error of their ways was pointed out on June 30, 2012.

On July 12, 2012, the IHRC staff filed the emergency rule, which was approved almost three months earlier, with the Indiana Register. They also filed the rule with the 130 pound minimum weight for a two-year old quarter horse. So, now the 130 pound minimum for a two-year old quarter horse is law in Indiana. And, below is exactly how the 'Scale of Weights' rule reads today, August 1, 2013. (Yes, the IHRC's error is still not fixed.)

71 IAC 7.5-3-4 Scale of weights
Authority: IC 4-31-3-9
Affected: IC 4-31
Sec. 4. (a) With the exception of apprentice allowances, handicap races, Indiana breds, Indiana restricted races, three (3) year old horses entered to run in races against horses four (4) years old and upwards, and the allowance provided in subsection (2) of this section [redesignated subsection (b) by the Publisher], no jockey shall be assigned a weight of less than one hundred eighteen (118) pounds. For three (3) year old horses entered to run in races against horses four (4) years old and upwards from January 1 through August 31, no jockey shall be assigned a weight of less than one hundred sixteen (116) pounds.
(b) Except in handicaps, fillies two (2) years old shall be allowed three (3) pounds, and fillies and mares three (3) years old and upward shall be allowed five (5) pounds before September 1, and three (3) pounds thereafter in races where competing against horses of the opposite sex.
(c) Quarter horses, appaloosas, and paints minimum scale weights shall be one hundred thirty (130) pounds for two-year-olds, one hundred twenty-two (122) pounds for three-year-olds, and one hundred twenty-four (124) pounds for four-year-olds and older.
(d) A notice shall be included in the daily program that all jockeys will carry approximately three (3) pounds more than the published weight to account for safety equipment (vest and helmet) that is not included in required weighing out procedures.
Additionally, jockeys may weigh in with an additional three (3) pounds for inclement weather gear when approved by the stewards.
(Indiana Horse Racing Commission; 71 IAC 7.5-3-4; emergency rule filed Jun 15, 1995, 5:00 p.m.: 18 IR 2868, eff Jul 1, 1995; emergency rule filed Aug 23, 2001, 9:58 a.m.: 25 IR 119; readopted filed Oct 30, 2001, 11:50 a.m.: 25 IR 899; readopted filed Mar 23, 2007, 11:31 a.m.: 20070404-IR-071070030RFA; emergency rule filed Jul 12, 2012, 3:31 p.m.: 20120718-IR-071120428ERA)

At the August 30, 2012, IHRC meeting, the new Chairman laid out the IHRC's new policy as to when the regular rulemaking process would be used instead of the emergency rulemaking. When the IHRC first asked for input from horsemen on this matter in May 2012, IBOP responded with the following: http://www.ibopindy.blogspot.com/2012/06/letters-to-commissioners-input-on.html to basically state to use the emergency rulemaking process when an emergency exists. The emergency rulemaking considerations in the IHRC's policy include; whether the ARCI has previously adopted a model rule, effect of the safety of race participants, impact on the integrity of racing, and housekeeping, which we equate to correcting errors to name a few. All of those 'considerations' could have easily been justification to use the emergency rulemaking process to correct the 130 pound assignment for two-year old quarter horses. Not with this bunch. They decide to fix this error by going through the regular rulemaking process.

On October 19, 2012, the IHRC staff filed a 'Notice of Intent to Adopt' to fix their error: http://www.in.gov/legislative/iac/20121003-IR-071120549NIA.xml.pdf. The IHRC staff waited until February 20, 2013, to file the Proposed Rule: http://www.in.gov/legislative/iac/20130220-IR-071120549PRA.xml.pdf. At the same time, the IHRC staff published the public hearing announcement: http://www.in.gov/legislative/iac/20130220-IR-071120549PHA.xml.pdf which was scheduled for March 22, 2013. Oh, yeah, the rule's Economic Impact Statement was also filed on February 20, 2013: http://www.in.gov/legislative/iac/20130220-IR-071120549EIA.xml.pdf, and imagine that, there is no economic impact when you change the minimum weight of a two-year old quarter horse from 130 pounds to 120 pounds.

IBOP representatives didn't attend the public hearing held on March 22, 2013, but we did send our comments to be part of the record. What we suggested was that using the regular rulemaking process to fix an error in a rule that was approved by the commission via an emergency rule on April 19, 2012, was a complete waste of time and a complete waste of the tax-payers money. Those written comments became part of the record for this particular rulemaking adventure that ultimately went on to the five commissioners and to the Indiana Attorney General's (AG) office for a legal review.

At their April 5, 2013, meeting, the IHRC approved this 'new' rule almost one year removed from their initial mistake. After the IHRC approval, the proposed rule moved on to the AG's office. Evidently, the AG found no legal issues (sarcasm included) with lowering the minimum weight assignment for a two-year old quarter horse to 120 pounds as they signed off on the 'legality' on July 11, 2013. Hopefully, our comments gave some poor assistant deputy attorney general a chuckle when the record was reviewed. After the AG sign-off, the Governor's office approved the proposed rule within a week with the Final Rule being filed with the Indiana Register on July 18, 2013: http://www.in.gov/legislative/iac/20130718-IR-071120549AFA.xml.pdf. Per Indiana law, this rule goes into effect 30 days after the filing with Indiana Register which will be August 17, 2013, almost 16 months after the IHRC staff screwed up the rule in the first place! As we always say, we can't make this stuff up!