When the Kentucky Horse Racing Commission (KHRC) enabled administrative rules that eliminated the use of adjunct bleeder medications, the KHRC also incorporated an Association of Racing Commissioners International (ARCI) Model Rule that requires furosemide (Salix) administration only by a KHRC veterinarian. The Blood-Horse characterized this regulation, which went into effect on October 5th, as a "model rule that is being gradually adopted by racing jurisdictions.” Immediately, a KHRC veterinarian administered furosemide to a horse that wasn’t scheduled to race on the medication. Since then, KHRC veterinarians have missed giving a horse furosemide and administered double doses to two different horses necessitating they be scratched. (http://www.bloodhorse.com/horse-racing/articles/74504/salix-errors-frustrate-kentucky-horsemen)
Given the struggles with regulatory administration of furosemide in Kentucky, and the expectation that this ARCI Model Rule would make its way to Indiana, Indiana Breeder and Owner Protection, Inc. (IBOP) decided to make ‘Furosemide as a permitted foreign substance’ our Administrative Rule of the Month. In reviewing these rules, 71 IAC 8.5-1-5 (flat racing) and 71 IAC 8-1-5 (standardbred), what we found was rather surprising. We’ve copied an abbreviated version of 71 IAC 8.5-1-5 below, with specific emphasis on Subsection 8:
71 IAC 8.5-1-5 Furosemide as a permitted foreign substance
Authority: IC 4-31-3-9
Affected: IC 4-31-12
Sec. 5. Furosemide may be administered intravenously to a horse, which is entered to compete in a race. Except under the instructions of the official veterinarian or the racing veterinarian for the purpose of removing a horse from the veterinarian's list or to facilitate the collection of a post-race urine sample, furosemide shall be permitted only after the official veterinarian has placed the horse on the furosemide list. In order for a horse to be placed on the furosemide list, the following process must be followed:
(Note: Subsections (1) through (7) removed for brevity.)
(8) Medication administration. Bleeder medication shall be administered by a veterinarian licensed by the commission at an intravenous dose level not to exceed five hundred (500) milligrams and no less than one hundred fifty (150) milligrams. The executive director or stewards may designate certain official veterinarians, racing veterinarians, and/or practicing veterinarians to administer furosemide under this rule. Such designation may be determined daily, weekly, or for any other appropriate time period. Administration of furosemide shall take place in the test barn or a specific location otherwise designated by the commission. An association employee shall be present and observe the drawing of furosemide into a syringe. The administering veterinarian shall provide a factory sealed bottle of furosemide from which the draws shall be made. The association shall establish track rules for furosemide administrations that are consistent with these regulations.
(Note: Subsections (9) through (10) removed for brevity.)
(Indiana Horse Racing Commission; 71 IAC 8.5-1-5; emergency rule filed Jun 15, 1995, 5:00 p.m.: 18 IR 2880, eff Jul 1, 1995; emergency rule filed Aug 9, 1995, 10:30 a.m.: 18 IR 3413; emergency rule filed May 20, 1996, 10:00 a.m.: 19 IR 2893; emergency rule filed Feb 13, 1998, 10:00 a.m.: 21 IR 2420; errata filed Oct 15, 1998, 12:39 p.m.: 22 IR 759; emergency rule filed Jun 8,1999, 9:30 a.m.: 22 IR 3123, eff May 26, 1999 [NOTE: IC 4-22-2-37.1 establishes the effectiveness of an emergency rule upon filing with the secretary of state. LSA Document #99-107(E) was filed with the secretary of state June 8, 1999.]; readopted filed Oct 30, 2001, 11:50 a.m.: 25 IR 899; emergency rule filed Mar 10, 2006, 11:00 a.m.: 29 IR 2223; errata filed Apr 10, 2006, 2:00 p.m.: 29 IR 2546; emergency rule filed Jul 28, 2006, 11:17 a.m.: 20060809-IR-071060278ERA, eff Aug 1, 2006; readopted filed Mar 23, 2007, 11:31 a.m.: 20070404-IR-071070030RFA; emergency rule filed Mar 3, 2011, 11:50 a.m.: 20110309-IR-071110100ERA; emergency rule filed Jan 25, 2012, 12:20 p.m.: 20120201-IR-071120056ERA)
According to 71 IAC 8.5-1-5(8), the IHRC has already granted themselves the authority to “designate” what veterinarians administer race-day furosemide; “The executive director or stewards may designate certain official veterinarians, racing veterinarians, and/or practicing veterinarians to administer furosemide under this rule. Such designation may be determined daily, weekly, or for any other appropriate time period.” By the IHRC’s own definitions, the ‘official veterinarian’ is their Equine Medical Director and a ‘racing veterinarian’ is their stable of Commission Veterinarians. A ‘practicing veterinarian,’ while not defined specifically by the IHRC, is a private practice veterinarian. So, there you have it, the IHRC can already “designate” ANY veterinarian to administer furosemide to your horse.
One issue we see with the IHRC being able to “designate” any veterinarian to administer furosemide is the ‘trainer responsibility’ rule. Both Indiana statute and IHRC’s administrative rules place sole responsibility for medication violations on the trainer as being “negligent in their handling or care of the horse.” If the trainer has no control over who administers furosemide, then how can they be held responsible for any mistakes in its administration? Generally, most racing jurisdictions don’t readily admit to or take responsibility for their mistakes. More specifically, there’s a bigger issue with this ability to “designate” what veterinarian administers your horse’s furosemide. The IHRC’s granting themselves this authority in 71 IAC 8.5-1-5(8) and 71 IAC 8-1-5(8) appears to violate Indiana law.
According to IC 4-31-12-7(a), which is copied below, veterinarians “appointed by the commission” are prohibited from treating any horse unless an emergency exists. We view the ability to "designate" a veterinarian as used in 71 IAC 8.5-1-5(8) and 71 IAC 8-1-5(8) as synonymous to "a veterinarian appointed" as used in IC 4-31-12-7(a). Clearly, administration of furosemide is providing a medical remedy, i.e. a treatment, for alleviating a condition and is not an emergency treatment. Simply, per IC 4-31-12-7(a), the IHRC cannot designate or appoint ANY veterinarian to administer furosemide to race horses and IBOP’s view is that the Indiana Administrative Code should reflect that prohibition.
Given our view, IBOP has petitioned the IHRC staff and each commissioner to have 71 IAC 8.5-1-5(8) and 71 IAC 8-1-5(8) brought into compliance with Indiana law. We also see this as another indictment of the IHRC's perpetual use of the emergency rulemaking process to avoid the scrutiny of their administrative rules and practices.
IC 4-31-12-7
Veterinarians appointed by commission; prohibition on treatment of horses on the grounds; compensation
Sec. 7. (a) A veterinarian appointed by the commission or employed by a permit holder may not, during the period of the veterinarian's employment, treat or issue prescriptions for a horse on the grounds of or registered to race at a track, except in case of emergency. A full and complete record of an emergency treatment or a prescription shall be filed with the stewards or judges.
(b) An owner or trainer may not directly or indirectly employ or pay compensation to a veterinarian who is employed by the commission or a permit holder.
As added by P.L.341-1989(ss), SEC.2.
You can find IBOP's Letter to the Commissioners at: http://ibopindy.blogspot.com/2012/11/request-to-modify-furosemide-as.html
Saturday, December 1, 2012
Thursday, November 29, 2012
Request To Modify 'Furosemide As A Permitted Foreign Substance' Rules
The following was sent on November 29, 2012 to the Indiana Horse Racing Commission (IHRC) staff and then mailed to each commissioner to point out the apparent conflict between Indiana statute and the IHRC's administrative rules regarding the administration of Furosemide.
"Pursuant to ‘71 IAC 2-12-1 Procedures,’ Indiana Breeder & Owner Protection, Inc. (IBOP) is requesting that the Indiana Horse Racing Commission (IHRC) consider the amendment of both 71 IAC 8.5-1-5(8) and 71 8-1-5(8) to conform with IC 4-31-12-7(a). Please consider this correspondence as IBOP’s petition for the IHRC to amend both subsections of the administrative rules cited above, which are titled as ‘Furosemide as a permitted foreign substance’ rules which were most recently modified by the IHRC on January 25, 2012 . Our view is that both of these subsections include language and sentiment contrary to 4-31-12-7(a). IBOP would appreciate the modifications to these rules be considered as an agenda item at the next regularly scheduled IHRC meeting on December 14, 2012. We would consider any correction of administrative rules to conform with an Indiana statute an emergency.
More specifically, both 71 IAC 8.5-1-5(8) and 71 IAC 8-1-5(8) contain the following statements, "The executive director or judges may designate certain official veterinarians, racing veterinarians, and/or practicing veterinarians to administer furosemide under this rule. Such designation may be determined daily, weekly, or for any other appropriate time period." Our requested modification is to have these two sentences removed from each rule as they are contrary to IC 4-31-12-7(a) which is copied below. A redline version of each rule is attached.
IC 4-31-12-7
Veterinarians appointed by commission; prohibition on treatment of horses on the grounds; compensation
Sec. 7. (a) A veterinarian appointed by the commission or employed by a permit holder may not, during the period of the veterinarian's employment, treat or issue prescriptions for a horse on the grounds of or registered to race at a track, except in case of emergency. A full and complete record of an emergency treatment or a prescription shall be filed with the stewards or judges.
(b) An owner or trainer may not directly or indirectly employ or pay compensation to a veterinarian who is employed by the commission or a permit holder.
As added by P.L.341-1989(ss), SEC.2.
Clearly, the current wording of 71 IAC 8.5-1-5(8) and 71 IAC 8-1-5(8) implies that veterinarians designated by the Executive Director or judges can treat a horse by administering furosemide. Clearly, IC 4-31-12-7(a) prohibits "a veterinarian appointed by the commission or employed by a permit holder" from treating horses (or issuing prescriptions) outside of an emergency. We view the ability to "designate" a veterinarian as used in 71 IAC 8.5-1-5(8) and 71 IAC 8-1-5(8) as synonymous to "a veterinarian appointed" as used in IC 4-31-12-7(a). Administration of furosemide is providing a medical remedy, i.e. treatment, for alleviating a condition and is not an emergency treatment.
In addition, both 71 IAC 8.5-1-5(8) and 71 IAC 8-1-5(8) describe "official veterinarians, racing veterinarians, and/or practicing veterinarians" as possible designees by the commission to administer furosemide. Both an official veterinarian and a racing veterinarian are defined by 71 IAC 3.5-1-1 and 71 IAC 3-1-1 as 'Racing officials.' A racing veterinarian, as further defined by 71 IAC 3.5-14-1(a) and 71 IAC 3-13-1(a), "may be an employee of the commission or the association." Interestingly, 71 IAC 3.5-14-1(b)(8) and 71 IAC 3-13-1(b)(8), part of the 'general authority' of a racing veterinarian recognizes the prohibition of IHRC designated veterinarians providing treatment in IC 4-31-12-7(a) by stating that a racing veterinarian shall "refrain from directly treating or prescribing for any horse scheduled to participate during his or her term of appointment at any recognized meeting except in cases of emergency, accident, or injury." While the 'general authority' for the official veterinarian per 71 IAC 3-12-1 and 71 IAC 3.5-13-1 indicates that the official veterinarian is "employed by the commission," there is no specific prohibition on treating horses similar to that of racing veterinarian. However, given IC 4-31-12-7(a), there probably should be.
In summary, per IC 4-31-12-7(a), the IHRC cannot designate or appoint ANY veterinarian to administer furosemide to race horses and the Indiana Administrative Code should reflect that prohibition.
Thank You,
Jim Hartman
IBOP Vice-President
CC: Chairman Diener
Vice-Chairman Schaefer
Commissioner Lauck
Commissioner Grimes
Commissioner Barclay"
"Pursuant to ‘71 IAC 2-12-1 Procedures,’ Indiana Breeder & Owner Protection, Inc. (IBOP) is requesting that the Indiana Horse Racing Commission (IHRC) consider the amendment of both 71 IAC 8.5-1-5(8) and 71 8-1-5(8) to conform with IC 4-31-12-7(a). Please consider this correspondence as IBOP’s petition for the IHRC to amend both subsections of the administrative rules cited above, which are titled as ‘Furosemide as a permitted foreign substance’ rules which were most recently modified by the IHRC on January 25, 2012 . Our view is that both of these subsections include language and sentiment contrary to 4-31-12-7(a). IBOP would appreciate the modifications to these rules be considered as an agenda item at the next regularly scheduled IHRC meeting on December 14, 2012. We would consider any correction of administrative rules to conform with an Indiana statute an emergency.
More specifically, both 71 IAC 8.5-1-5(8) and 71 IAC 8-1-5(8) contain the following statements, "The executive director or judges may designate certain official veterinarians, racing veterinarians, and/or practicing veterinarians to administer furosemide under this rule. Such designation may be determined daily, weekly, or for any other appropriate time period." Our requested modification is to have these two sentences removed from each rule as they are contrary to IC 4-31-12-7(a) which is copied below. A redline version of each rule is attached.
IC 4-31-12-7
Veterinarians appointed by commission; prohibition on treatment of horses on the grounds; compensation
Sec. 7. (a) A veterinarian appointed by the commission or employed by a permit holder may not, during the period of the veterinarian's employment, treat or issue prescriptions for a horse on the grounds of or registered to race at a track, except in case of emergency. A full and complete record of an emergency treatment or a prescription shall be filed with the stewards or judges.
(b) An owner or trainer may not directly or indirectly employ or pay compensation to a veterinarian who is employed by the commission or a permit holder.
As added by P.L.341-1989(ss), SEC.2.
Clearly, the current wording of 71 IAC 8.5-1-5(8) and 71 IAC 8-1-5(8) implies that veterinarians designated by the Executive Director or judges can treat a horse by administering furosemide. Clearly, IC 4-31-12-7(a) prohibits "a veterinarian appointed by the commission or employed by a permit holder" from treating horses (or issuing prescriptions) outside of an emergency. We view the ability to "designate" a veterinarian as used in 71 IAC 8.5-1-5(8) and 71 IAC 8-1-5(8) as synonymous to "a veterinarian appointed" as used in IC 4-31-12-7(a). Administration of furosemide is providing a medical remedy, i.e. treatment, for alleviating a condition and is not an emergency treatment.
In addition, both 71 IAC 8.5-1-5(8) and 71 IAC 8-1-5(8) describe "official veterinarians, racing veterinarians, and/or practicing veterinarians" as possible designees by the commission to administer furosemide. Both an official veterinarian and a racing veterinarian are defined by 71 IAC 3.5-1-1 and 71 IAC 3-1-1 as 'Racing officials.' A racing veterinarian, as further defined by 71 IAC 3.5-14-1(a) and 71 IAC 3-13-1(a), "may be an employee of the commission or the association." Interestingly, 71 IAC 3.5-14-1(b)(8) and 71 IAC 3-13-1(b)(8), part of the 'general authority' of a racing veterinarian recognizes the prohibition of IHRC designated veterinarians providing treatment in IC 4-31-12-7(a) by stating that a racing veterinarian shall "refrain from directly treating or prescribing for any horse scheduled to participate during his or her term of appointment at any recognized meeting except in cases of emergency, accident, or injury." While the 'general authority' for the official veterinarian per 71 IAC 3-12-1 and 71 IAC 3.5-13-1 indicates that the official veterinarian is "employed by the commission," there is no specific prohibition on treating horses similar to that of racing veterinarian. However, given IC 4-31-12-7(a), there probably should be.
In summary, per IC 4-31-12-7(a), the IHRC cannot designate or appoint ANY veterinarian to administer furosemide to race horses and the Indiana Administrative Code should reflect that prohibition.
Thank You,
Jim Hartman
IBOP Vice-President
CC: Chairman Diener
Vice-Chairman Schaefer
Commissioner Lauck
Commissioner Grimes
Commissioner Barclay"
Thursday, November 1, 2012
Administrative Rule of the Month - Allocation of Race Dates and Permits
November 1st of every year has long been established by the Indiana Horse Racing Commission (IHRC) as the deadline for Indiana's race tracks to apply for race dates for the coming year. Given the recent efforts by the IHRC to reduce thoroughbred race dates, Indiana Breeder & Owner Protection, Inc. (IBOP) is making '71 IAC 2-9-1 Allocation of race dates and permits' our November Administrative Rule of the Month. For those of you who regularly follow our blog, this is the second time this year that we've highlighted this particular rule. (See September's Administrative Rule of the Month at http://www.ibopindy.blogspot.com/2012/09/administrative-rule-of-month-allocation.html) Our October Administrative Rule of the Month, which was a proposed rule that could cut flat racing days to a minimum of 50 per track, may be required reading prior to moving on with this post. (See October's Administrative Rule of the Month at http://ibopindy.blogspot.com/2012/10/administrative-rule-of-month.html)
From what we have been told by multiple sources, the proposed rule that could reduce flat racing to 50 days per track will not be considered for 2013. By creating an administrative rule, the IHRC can lower the statutory number of flat racing days from the minimum of 60 days per licensee as provided by IC 4-31-5-9(b)(2). Since Indiana statute defines flat racing as racing horses "mounted by jockeys," the proposed rule was never an issue for Indiana's standardbred race meets, or for that matter quarter horse races as they usually race only three days a week. This proposed rule was specifically targeted to thoroughbred racing. We'll be 100% certain of this rule being out of the picture when the agenda for the IHRC's December 14th meeting is made public.
As of Monday, October 29th, both the General Manager at Indiana Downs and at Hoosier Park indicated to the industry that they will essentially comply with the current statute and request the minimum of 60 days of flat racing. However, the twist is that the breakdown of those 60 days will be 57 thoroughbred/quarter horse and 3 quarter horse-only days. That is a reduction of days for thoroughbred racing while increasing the quarter-horse only days from one day per meet to three days per meet. As long as the total adds up to 60 race days, their applications will comply with the Indiana law.
Here's where '71 IAC 2-9-1 Allocation of race dates and permits' comes into play which is copied below. More specifically, 71 IAC 2-9-1(b) places, "The burden of proof is on the association to demonstrate that the assignment and allocation of the race dates will be in the public interest and will achieve the purposes of the Act." The IHRC, by its own rules, have specifically designed criteria, as outlined in the October Administrative Rule of the Month, which will never be covered by either track during the course of their application hearings. The simple matter is that they cannot demonstrate that 57 thoroughbred race days and 3 quarter horse-only days are in the public interest, or even maximize revenues to the State. Any reduction in thoroughbred race days in favor of quarter horse-only days will actually reduce pari-mutuel wagering revenues to the State. Quarter horse-only days are the poorest, by far, racing days in the State of Indiana as far as handle is concerned. It's doubtful that this fact will ever change.
71 IAC 2-9-1 Allocation of race dates and permits
Authority: IC 4-31-3-9
Affected: IC 4-31-5
Sec. 1. (a) The commission shall allocate race dates and permits to each association in accordance with the Act and after consideration of the factors in 71 IAC 11-1-7. An association shall apply to the commission not later than November 1 of each year
for race dates to be conducted in the next year. The application must contain the information required by statute and commission licensing procedures. After the request is filed, the commission may require the association to submit additional information.
(b) The burden of proof is on the association to demonstrate that the assignment and allocation of the race dates will be in the public interest and will achieve the purposes of the Act.
(c) The association shall be obligated to conduct pari-mutuel racing, except in the case of emergencies, on each race date allocated. Any change in race dates must be approved by the commission. In the case of emergencies, the judges, stewards, or the
executive director may authorize cancellation of all or a portion of any race day.
(d) Racing dates shall be issued by the commission no later than December 31 of each year.
The other problem with a potential reduction in scheduled thoroughbred race dates is that invariably days will be lost due to weather (or an Executive Director attempting to demonstrate his authority over the horsemen). The spin for this 57/3 race day plan will be that thoroughbreds haven't run a full 60 days at either track in the last two years. This is a true statement. In 2011, both Indiana Downs and Hoosier Park held 57 live thoroughbred race days. (IC 4-31-2-10.5 defines a live racing day as "a day on which at least eight (8) live horse races are conducted.") In 2012, Indiana Downs had 57, there's that number again, live thoroughbred race days and Hoosier Park held 59. We can almost hear the testimony in front of the commissioners that the tracks are just requesting what's been run the last two years. The problem is that in 2011 Hoosier Park was scheduled to have 61 thoroughbred race days, and lost four days, and Indiana Downs was scheduled for 60, and lost three days. In 2012, Hoosier Park was scheduled to have 63 thoroughbred race days and Indiana Downs was authorized to have 60 days.
Over the last two years, the thoroughbreds have lost at least three race days per meet. While there's always an attempt to reschedule lost races, there are never enough spots to bring back anywhere close to all of them, especially when considering almost all of the quarter horse races lost due to weather ARE brought back. According to The Jockey Club, thoroughbred races in Indiana reached their peak in 2009 with 1150. They have declined each year ever since with 1128 in 2010, 1065 in 2011, and 1045 in 2012. With a 57/3 race days scenario, this trend will continue as total thoroughbred race days will drop to the mid-50's when taking into consideration the almost inevitable loss of race days due to weather.
Under Indiana statute, IC 4-31-5-10 (copied below) gives the IHRC the authority to add race dates for "race cards lost because of inclement weather or other emergencies." To our knowledge this aspect of the code has never been put into action. Given the current plan of 57/3, the IHRC also needs to institute a policy whereby thoroughbred races dates can be added back when days are lost. After all, if they can delegate the authority to the Executive Director to cancel race days after-the-fact, they can surely be proactive and delegate the authority to add thoroughbred race days when the need arises.
IC 4-31-5-10
Granting of special permission
Sec. 10. Upon receipt of an application from a recognized meeting permit holder, the commission may grant special permission for:
(1) more than nine (9) races each day; or
(2) race cards lost because of inclement weather or other emergencies, to be made up at the rate of one (1) race each day or on additional dates as granted by the commission.
As added by P.L.341-1989(ss), SEC.2.
From what we have been told by multiple sources, the proposed rule that could reduce flat racing to 50 days per track will not be considered for 2013. By creating an administrative rule, the IHRC can lower the statutory number of flat racing days from the minimum of 60 days per licensee as provided by IC 4-31-5-9(b)(2). Since Indiana statute defines flat racing as racing horses "mounted by jockeys," the proposed rule was never an issue for Indiana's standardbred race meets, or for that matter quarter horse races as they usually race only three days a week. This proposed rule was specifically targeted to thoroughbred racing. We'll be 100% certain of this rule being out of the picture when the agenda for the IHRC's December 14th meeting is made public.
As of Monday, October 29th, both the General Manager at Indiana Downs and at Hoosier Park indicated to the industry that they will essentially comply with the current statute and request the minimum of 60 days of flat racing. However, the twist is that the breakdown of those 60 days will be 57 thoroughbred/quarter horse and 3 quarter horse-only days. That is a reduction of days for thoroughbred racing while increasing the quarter-horse only days from one day per meet to three days per meet. As long as the total adds up to 60 race days, their applications will comply with the Indiana law.
Here's where '71 IAC 2-9-1 Allocation of race dates and permits' comes into play which is copied below. More specifically, 71 IAC 2-9-1(b) places, "The burden of proof is on the association to demonstrate that the assignment and allocation of the race dates will be in the public interest and will achieve the purposes of the Act." The IHRC, by its own rules, have specifically designed criteria, as outlined in the October Administrative Rule of the Month, which will never be covered by either track during the course of their application hearings. The simple matter is that they cannot demonstrate that 57 thoroughbred race days and 3 quarter horse-only days are in the public interest, or even maximize revenues to the State. Any reduction in thoroughbred race days in favor of quarter horse-only days will actually reduce pari-mutuel wagering revenues to the State. Quarter horse-only days are the poorest, by far, racing days in the State of Indiana as far as handle is concerned. It's doubtful that this fact will ever change.
71 IAC 2-9-1 Allocation of race dates and permits
Authority: IC 4-31-3-9
Affected: IC 4-31-5
Sec. 1. (a) The commission shall allocate race dates and permits to each association in accordance with the Act and after consideration of the factors in 71 IAC 11-1-7. An association shall apply to the commission not later than November 1 of each year
for race dates to be conducted in the next year. The application must contain the information required by statute and commission licensing procedures. After the request is filed, the commission may require the association to submit additional information.
(b) The burden of proof is on the association to demonstrate that the assignment and allocation of the race dates will be in the public interest and will achieve the purposes of the Act.
(c) The association shall be obligated to conduct pari-mutuel racing, except in the case of emergencies, on each race date allocated. Any change in race dates must be approved by the commission. In the case of emergencies, the judges, stewards, or the
executive director may authorize cancellation of all or a portion of any race day.
(d) Racing dates shall be issued by the commission no later than December 31 of each year.
The other problem with a potential reduction in scheduled thoroughbred race dates is that invariably days will be lost due to weather (or an Executive Director attempting to demonstrate his authority over the horsemen). The spin for this 57/3 race day plan will be that thoroughbreds haven't run a full 60 days at either track in the last two years. This is a true statement. In 2011, both Indiana Downs and Hoosier Park held 57 live thoroughbred race days. (IC 4-31-2-10.5 defines a live racing day as "a day on which at least eight (8) live horse races are conducted.") In 2012, Indiana Downs had 57, there's that number again, live thoroughbred race days and Hoosier Park held 59. We can almost hear the testimony in front of the commissioners that the tracks are just requesting what's been run the last two years. The problem is that in 2011 Hoosier Park was scheduled to have 61 thoroughbred race days, and lost four days, and Indiana Downs was scheduled for 60, and lost three days. In 2012, Hoosier Park was scheduled to have 63 thoroughbred race days and Indiana Downs was authorized to have 60 days.
Over the last two years, the thoroughbreds have lost at least three race days per meet. While there's always an attempt to reschedule lost races, there are never enough spots to bring back anywhere close to all of them, especially when considering almost all of the quarter horse races lost due to weather ARE brought back. According to The Jockey Club, thoroughbred races in Indiana reached their peak in 2009 with 1150. They have declined each year ever since with 1128 in 2010, 1065 in 2011, and 1045 in 2012. With a 57/3 race days scenario, this trend will continue as total thoroughbred race days will drop to the mid-50's when taking into consideration the almost inevitable loss of race days due to weather.
Under Indiana statute, IC 4-31-5-10 (copied below) gives the IHRC the authority to add race dates for "race cards lost because of inclement weather or other emergencies." To our knowledge this aspect of the code has never been put into action. Given the current plan of 57/3, the IHRC also needs to institute a policy whereby thoroughbred races dates can be added back when days are lost. After all, if they can delegate the authority to the Executive Director to cancel race days after-the-fact, they can surely be proactive and delegate the authority to add thoroughbred race days when the need arises.
IC 4-31-5-10
Granting of special permission
Sec. 10. Upon receipt of an application from a recognized meeting permit holder, the commission may grant special permission for:
(1) more than nine (9) races each day; or
(2) race cards lost because of inclement weather or other emergencies, to be made up at the rate of one (1) race each day or on additional dates as granted by the commission.
As added by P.L.341-1989(ss), SEC.2.
2011 Indiana Horse Racing Commission Annual Report
One of the required duties, as prescribed by Indiana law under IC 4-31-3-8(4), of the Indiana Horse Racing Commission (IHRC) is to create an annual report. What the law doesn't require is that this report be created and published in a particular time frame. Just a mere 10 months into 2012, the IHRC has finally released their 2011 Annual Report which can be found at the link below.
IC 4-31-3-8
Duties
Sec. 8. The commission shall:
(1) prescribe the rules and conditions under which horse racing at a recognized meeting may be conducted;
(2) initiate safeguards as necessary to account for the amount of money wagered at each track or satellite facility in each wagering pool;
(3) require all permit holders to provide a photographic or videotape recording, approved by the commission, of the entire running of all races conducted by the permit holder;
(4) make annual reports concerning its operations and recommendations to the governor and, in an electronic format under IC 5-14-6, to the general assembly; and
(5) carry out the provisions of IC 15-19-2, after considering recommendations received from the Indiana standardbred advisory board under IC 15-19-2.
As added by P.L.341-1989(ss), SEC.2. Amended by P.L.24-1992, SEC.5; P.L.15-1999, SEC.1; P.L.28-2004, SEC.52; P.L.2-2008, SEC.18.
http://www.in.gov/hrc/files/11_Annual_Report.pdf
IC 4-31-3-8
Duties
Sec. 8. The commission shall:
(1) prescribe the rules and conditions under which horse racing at a recognized meeting may be conducted;
(2) initiate safeguards as necessary to account for the amount of money wagered at each track or satellite facility in each wagering pool;
(3) require all permit holders to provide a photographic or videotape recording, approved by the commission, of the entire running of all races conducted by the permit holder;
(4) make annual reports concerning its operations and recommendations to the governor and, in an electronic format under IC 5-14-6, to the general assembly; and
(5) carry out the provisions of IC 15-19-2, after considering recommendations received from the Indiana standardbred advisory board under IC 15-19-2.
As added by P.L.341-1989(ss), SEC.2. Amended by P.L.24-1992, SEC.5; P.L.15-1999, SEC.1; P.L.28-2004, SEC.52; P.L.2-2008, SEC.18.
http://www.in.gov/hrc/files/11_Annual_Report.pdf
Tuesday, October 2, 2012
Second Request To Modify "Medication" Rules
With no response from the Indiana Horse Racing Commission (IHRC) regarding our initial request to modify the 'Medication' rules, IBOP has filed another request. Perhaps a new IHRC Chair will look at this conflict differently than the past Chair.
"Executive Director Gorajec,
Pursuant to '71 IAC 2-12-1 Procedures,' Indiana Breeder & Owner Protection, Inc. (IBOP) is requesting that the Indiana Horse Racing Commission (IHRC) consider an amendment to 71 IAC 8.5-1-1(e) and 71 IAC 8-1-1(e). IBOP would appreciate this request be considered as an agenda item at the next regularly scheduled meeting on October 12, 2012. Please consider this correspondence as our petition for the IHRC to amend 71 IAC 8.5-1-1(e) and 71 IAC 8-1-1(e) to conform with the intent of '71 IAC 8.5-1-4.2 Threshold levels' and 71 IAC 8-1-4.2 Threshold levels. Clearly, the intent of the IHRC as expressed at their January 24, 2012, meeting was to create a specific gravity (threshold) for the topical use of DMSO via 71 IAC 8.5-1.4.2 and 71 IAC 8-1-4.2. While that intent was not established within either rule submitted to the Indiana Register on January 25, 2012, (the rules submitted at that time were regarding only clenbuterol thresholds submitted under LSA Document #12-056E), the intent was observed in a subsequent submission to the Indiana Register on February 8, 2012 under LSA Document #12-072E.
Both threshold rules, 71 IAC 8.5-1-4.2 and 71 IAC 8-1-4.2, refer to administrative rules, 71 IAC 8.5-1-1 and 71 IAC 8-1-1 respectively. Both 71 IAC 8.5-1-1(e) and 71 IAC 8-1-1(e) indicate that DMSO is a foreign substance and "prohibited" which is in conflict with any approval of a specific gravity. Essentially, the 71 IAC 8.5-1-1(e) is in conflict with the intent of 71 8.5-1-4.2 and 71 IAC 8-1-1(e) is in conflict with the intent of 71 IAC 8-1-4.2. One rule says DMSO can be used with a threshold, the other rule prohibits its use. Amending 71 IAC 8.5-1-1(e) and 71 IAC 8-1-1(e) by eliminating the term DMSO seems appropriate to avoid any confusion and establish the clear intent of the IHRC. The versions that affect the flat racing breeds are copied below for reference with emphasis added to the conflicting portions of the rules.
Thank you for your consideration,
Jim Hartman
IBOP Vice President
71 IAC 8.5-1-4.2 Threshold levels
Authority: IC 4-31-3-9
Affected: IC 4-31-12
Sec. 4.2. The official blood (serum or plasma) sample may contain the following drug substances, their metabolites or analogs, and shall not exceed the threshold concentrations specified in this rule:
(1) The use of clenbuterol shall be permitted under the following conditions:
(A) Not to exceed the following permitted serum or plasma threshold concentrations of clenbuterol (or its metabolites):
Thoroughbred – twenty-five (25) picograms per milliliter.
(B) Not to exceed the following permitted serum or plasma threshold concentrations of clenbuterol (or its metabolites):
Quarter horse – two (2) picograms per milliliter.
(2) The use of firocoxib shall be permitted under the following conditions: Not to exceed forty (40) nanograms per milliliter of firocoxib (or its metabolites) in serum or plasma.
(3) The use of dimethylsulfoxide (DMSO) shall be permitted under the following conditions: Not to exceed ten (10) micrograms per milliliter of DMSO (or its metabolites) in serum or plasma which allows for topical administration of DMSO in accordance with 71 IAC 8.5-1-1 [section 1 of this rule].
(Indiana Horse Racing Commission; 71 IAC 8.5-1-4.2; emergency rule filed Jan 25, 2012, 12:20 p.m.: 20120201-IR-071120056ERA; emergency rule filed Feb 8, 2012, 12:01 p.m.: 20120215-IR-071120072ERA)
71 IAC 8.5-1-1 Medication
Authority: IC 4-31-3-9
Affected: IC 4-31-12
Sec. 1. (a) No horse participating in a race or entered in a race shall carry in its body any foreign substance as defined in 71 IAC 1.5, except as provided for in this rule.
(b) No substance, foreign or otherwise, shall be administered to a horse entered to race by:
(1) injection;
(2) jugging;
(3) oral administration;
(4) tube;
(5) rectal infusion or suppository;
(6) inhalation; or
(7) any other means; within twenty-four (24) hours prior to the scheduled post time for the first race except furosemide as provided for in this rule. The prohibitions in this section include, but are not limited to, injection or jugging of vitamins, electrolyte solutions, and amino acid solutions. The prohibition also includes, but is not limited to, the administration of breathing compounds for oral and nasal dosing, such as Traileze, Vapol, Vicks vapor-rub, wind-aid, exhale ease, or containing methylsalicylate, camphor, or potassium iodide.
(c) Substances or metabolites thereof which are contained in equine feed or feed supplements that do not containpharmacodynami c or chemotherapeutic agents are not considered foreign substances if consumed in the course of normal dietary intake (eating and drinking).
(d) The prohibition in subsection (b) notwithstanding, the use of nebulizers are permitted on an entered horse within twenty-four (24) hours of the scheduled post time for the horse's race until the horse's arrival in the paddock provided their use is restricted to water and saline solutions only.
(e) Topical dressings such as leg paints, liniments, ointments, salves, hoof dressings, and antiseptics, which do not contain anesthetics or a pharmacodynamic or a chemotherapeutic agent, may be administered at any time prior to a horse's arrival in the paddock. Products containing "caine" derivatives or dimethylsulfoxide (DMSO) are foreign substances and are prohibited.
(Indiana Horse Racing Commission; 71 IAC 8.5-1-1; emergency rule filed Jun 15, 1995, 5:00 p.m.: 18 IR 2880, eff Jul 1, 1995; emergency rule filed Aug 9, 1995, 10:30 a.m.: 18 IR 3413; errata filed Mar 5, 1998, 1:46 p.m.: 21 IR 2392; emergency rule filed Feb 13, 1998 10:00 a.m.: 21 IR 2419; readopted filed Oct 30, 2001, 11:50 a.m.: 25 IR 899; emergency rule filed Feb 21, 2003, 4:15 p.m.: 26 IR 2385; emergency rule filed Mar 10, 2006, 11:00 a.m.: 29 IR 2223; errata filed Apr 10, 2006, 2:00 p.m.: 29 IR 2546; readopted filed Mar 23, 2007, 11:31 a.m.: 20070404-IR-071070030RFA)
CC: Chairman Diener
Vice-Chairman Schaefer
Commissioner Lauck
Commissioner Grimes
Commissioner Barclay"
"Executive Director Gorajec,
Pursuant to '71 IAC 2-12-1 Procedures,' Indiana Breeder & Owner Protection, Inc. (IBOP) is requesting that the Indiana Horse Racing Commission (IHRC) consider an amendment to 71 IAC 8.5-1-1(e) and 71 IAC 8-1-1(e). IBOP would appreciate this request be considered as an agenda item at the next regularly scheduled meeting on October 12, 2012. Please consider this correspondence as our petition for the IHRC to amend 71 IAC 8.5-1-1(e) and 71 IAC 8-1-1(e) to conform with the intent of '71 IAC 8.5-1-4.2 Threshold levels' and 71 IAC 8-1-4.2 Threshold levels. Clearly, the intent of the IHRC as expressed at their January 24, 2012, meeting was to create a specific gravity (threshold) for the topical use of DMSO via 71 IAC 8.5-1.4.2 and 71 IAC 8-1-4.2. While that intent was not established within either rule submitted to the Indiana Register on January 25, 2012, (the rules submitted at that time were regarding only clenbuterol thresholds submitted under LSA Document #12-056E), the intent was observed in a subsequent submission to the Indiana Register on February 8, 2012 under LSA Document #12-072E.
Both threshold rules, 71 IAC 8.5-1-4.2 and 71 IAC 8-1-4.2, refer to administrative rules, 71 IAC 8.5-1-1 and 71 IAC 8-1-1 respectively. Both 71 IAC 8.5-1-1(e) and 71 IAC 8-1-1(e) indicate that DMSO is a foreign substance and "prohibited" which is in conflict with any approval of a specific gravity. Essentially, the 71 IAC 8.5-1-1(e) is in conflict with the intent of 71 8.5-1-4.2 and 71 IAC 8-1-1(e) is in conflict with the intent of 71 IAC 8-1-4.2. One rule says DMSO can be used with a threshold, the other rule prohibits its use. Amending 71 IAC 8.5-1-1(e) and 71 IAC 8-1-1(e) by eliminating the term DMSO seems appropriate to avoid any confusion and establish the clear intent of the IHRC. The versions that affect the flat racing breeds are copied below for reference with emphasis added to the conflicting portions of the rules.
Thank you for your consideration,
Jim Hartman
IBOP Vice President
71 IAC 8.5-1-4.2 Threshold levels
Authority: IC 4-31-3-9
Affected: IC 4-31-12
Sec. 4.2. The official blood (serum or plasma) sample may contain the following drug substances, their metabolites or analogs, and shall not exceed the threshold concentrations specified in this rule:
(1) The use of clenbuterol shall be permitted under the following conditions:
(A) Not to exceed the following permitted serum or plasma threshold concentrations of clenbuterol (or its metabolites):
Thoroughbred – twenty-five (25) picograms per milliliter.
(B) Not to exceed the following permitted serum or plasma threshold concentrations of clenbuterol (or its metabolites):
Quarter horse – two (2) picograms per milliliter.
(2) The use of firocoxib shall be permitted under the following conditions: Not to exceed forty (40) nanograms per milliliter of firocoxib (or its metabolites) in serum or plasma.
(3) The use of dimethylsulfoxide (DMSO) shall be permitted under the following conditions: Not to exceed ten (10) micrograms per milliliter of DMSO (or its metabolites) in serum or plasma which allows for topical administration of DMSO in accordance with 71 IAC 8.5-1-1 [section 1 of this rule].
(Indiana Horse Racing Commission; 71 IAC 8.5-1-4.2; emergency rule filed Jan 25, 2012, 12:20 p.m.: 20120201-IR-071120056ERA; emergency rule filed Feb 8, 2012, 12:01 p.m.: 20120215-IR-071120072ERA)
71 IAC 8.5-1-1 Medication
Authority: IC 4-31-3-9
Affected: IC 4-31-12
Sec. 1. (a) No horse participating in a race or entered in a race shall carry in its body any foreign substance as defined in 71 IAC 1.5, except as provided for in this rule.
(b) No substance, foreign or otherwise, shall be administered to a horse entered to race by:
(1) injection;
(2) jugging;
(3) oral administration;
(4) tube;
(5) rectal infusion or suppository;
(6) inhalation; or
(7) any other means; within twenty-four (24) hours prior to the scheduled post time for the first race except furosemide as provided for in this rule. The prohibitions in this section include, but are not limited to, injection or jugging of vitamins, electrolyte solutions, and amino acid solutions. The prohibition also includes, but is not limited to, the administration of breathing compounds for oral and nasal dosing, such as Traileze, Vapol, Vicks vapor-rub, wind-aid, exhale ease, or containing methylsalicylate, camphor, or potassium iodide.
(c) Substances or metabolites thereof which are contained in equine feed or feed supplements that do not containpharmacodynami c or chemotherapeutic agents are not considered foreign substances if consumed in the course of normal dietary intake (eating and drinking).
(d) The prohibition in subsection (b) notwithstanding, the use of nebulizers are permitted on an entered horse within twenty-four (24) hours of the scheduled post time for the horse's race until the horse's arrival in the paddock provided their use is restricted to water and saline solutions only.
(e) Topical dressings such as leg paints, liniments, ointments, salves, hoof dressings, and antiseptics, which do not contain anesthetics or a pharmacodynamic or a chemotherapeutic agent, may be administered at any time prior to a horse's arrival in the paddock. Products containing "caine" derivatives or dimethylsulfoxide (DMSO) are foreign substances and are prohibited.
(Indiana Horse Racing Commission; 71 IAC 8.5-1-1; emergency rule filed Jun 15, 1995, 5:00 p.m.: 18 IR 2880, eff Jul 1, 1995; emergency rule filed Aug 9, 1995, 10:30 a.m.: 18 IR 3413; errata filed Mar 5, 1998, 1:46 p.m.: 21 IR 2392; emergency rule filed Feb 13, 1998 10:00 a.m.: 21 IR 2419; readopted filed Oct 30, 2001, 11:50 a.m.: 25 IR 899; emergency rule filed Feb 21, 2003, 4:15 p.m.: 26 IR 2385; emergency rule filed Mar 10, 2006, 11:00 a.m.: 29 IR 2223; errata filed Apr 10, 2006, 2:00 p.m.: 29 IR 2546; readopted filed Mar 23, 2007, 11:31 a.m.: 20070404-IR-071070030RFA)
CC: Chairman Diener
Vice-Chairman Schaefer
Commissioner Lauck
Commissioner Grimes
Commissioner Barclay"
Monday, October 1, 2012
Administrative Rule of the Month - (Number of Flat Race Days Rule)
IBOP's Administrative Rule of the Month for October is a bit of a departure from the prior months. This particular administrative rule is only a proposed rule at this point, but a proposed rule that can have significant impact on thoroughbred breeding and racing in Indiana. Therefore, we've made this as-yet untitled administrative rule our Administrative Rule of the Month.
On September 14th, IHRC Executive Director Joe Gorajec sent an email to industry stakeholders outlining a proposed rule that would lower the statutory requirement for flat racing dates. As part of the slot legislation, the General Assembly established a 60 day minimum for flat racing per each track. The slot legislation also gave the IHRC the authority to create an administrative rule that could reduce the number of required flat race days. This proposed administrative rule, which would effectively lower the minimum number of race days to 50 per track, is copied below. In addition, IBOP's position statement, which was submitted to the IHRC on September 30th, is copied below as well. The IHRC is expected to consider this new administrative rule at their next scheduled meeting on October 12th.
Proposed Administrative Rule Sent To Industry Stakeholders
71 IAC 4-4-12
Authority: IC 4-31-3-9
Affected: IC 4-31
(a) Pursuant to IC 4-31-5-9(c), there shall be no fewer than one hundred thirty (130) and no more than one hundred sixty-five (165) total live racing days each calendar year at the racetrack designated in a permit holder’s permit, as follows:
(1) At least eighty (80) but not more than ninety (90) live racing days must be for standardbreds.
(2) At least fifty (50) but not more than seventy-five (75) live racing days must be for horses that are:
A. mounted by jockeys; and
B. run on a course without jumps or obstacles.
(b) The requirements of this rule are a continuing condition for maintaining the permit holder’s permit. However, the requirements do not apply if the commission determines that the permit holder is prevented from conducting live horse racing as a result of a natural disaster or another even over which the permit holder has no control.
IBOP Position Statement Sent To IHRC
"Please consider this communication as part of the Indiana Breeder & Owner Protection, Inc. (IBOP) position regarding the proposed, as-yet untitled, 71 IAC 4-4-12. Given that there was no detailed justification for the necessity of this rule; IBOP’s position is that it’s the responsibility of the Indiana Horse Racing Commission (IHRC) to provide such justification. This proposed administrative rule carries significant potential fiscal and economic impact to the State of Indiana and to the thoroughbred breeding and racing industry within Indiana. A clearly communicated position from the IHRC is paramount not only to provide clarity to the industry stakeholders, but also for those within the Legislature who established the current 60 day minimum requirement.
In other words, IBOP believes that the burden of proof as to the necessity of this rule should rest squarely upon the IHRC. At this point, we feel that this burden is far from being met. Within the IHRC’s own regulations, the purpose of the commission is clearly stated. For convenience, ‘71 IAC 2-1-1 Purpose’ is copied in its entirety below. We would like to fully understand, within the framework of the IHRC’s stated purposes, how 71 IAC 4-4-12 is “in the best interests of the public and the state of Indiana”? The industry needs to fully understand how 71 IAC 4-4-12 will encourage agriculture, the breeding industry, the training industry, tourism and employment opportunities in the State of Indiana.
71 IAC 2-1-1 Purpose
Authority: IC 4-31-3-9
Affected: IC 4-31-3
Sec. 1. (a) The commission, created by IC 4-31-3, is charged with implementing, administering, and enforcing the Act. It is the intent of the commission these rules be interpreted in the best interests of the public and the state of Indiana.
(b) Through these rules, the commission intends to encourage:
(1) agriculture;
(2) the horse breeding industry;
(3) the horse training industry;
(4) the breeding and racing of quality horses;
(5) tourism; and
(6) employment opportunities;
in the state of Indiana related to horse racing and to control and regulate pari-mutuel wagering in connection with that horse racing to ensure that pari-mutuel wagering on horse races in Indiana will be conducted with the highest of standards and the greatest level of integrity. (Indiana Horse Racing Commission; 71 IAC 2-1-1; emergency rule filed Feb 10, 1994, 9:20 a.m.: 17 IR 1124; 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 19, 2010, 12:22 p.m.: 20100728-IR-071100480ERA)
Additionally, ‘71 IAC 11-1-7 Assignment of racing meetings’ provides guidance within the administrative code as to what factors the IHRC requires of itself in the evaluation of assigning race days. For your convenience, 71 IAC 11-1-7 is copied in its entirety below. To date, the only guidance on this proposed administrative rule was provided by Executive Director Gorajec’s September 14th email which stated, “The effect of this rule would lower the minimum on TB/QH days from 60 days to 50 days at each track.” Such guidance would suggest that an evaluation within the scope of 71 IAC 11-1-7 would already be available. Logic would also dictate that such an evaluation would be necessary to even suggest promulgating such an administrative rule.
IBOP’s position is that a narrative within the requirements of 71 IAC 11-1-7 should be provided to industry stakeholders prior to any consideration of this proposed administrative rule. Most importantly within that narrative, we would suggest that the burden of proof is also on the IHRC to determine how reduced flat racing dates would “maximize revenues to the state” as required by 71 IAC 11-1-7(7).
71 IAC 11-1-7 Assignment of racing meetings
Authority: IC 4-31-3-9
Affected: IC 4-31-5-9
Sec. 7. In determining the assignment of racing meetings and race dates to permit holders under IC 4-31-5-9, the commission shall consider factors relating to the economic and practical feasibility of conducting racing meetings at various tracks. Factors to be considered shall include, without limitation, the following:
(1) The types and dates of racing meetings being held elsewhere, both within and outside of Indiana.
(2) The effects that various types of pari-mutuel racing have on one another.
(3) The quality of horse racing provided at various tracks.
(4) Past dates.
(5) Past performance of the permit holder.
(6) Whether the permit holder has complied with all applicable laws and rules relating to horse racing.
(7) Whether the assignment will maximize revenues to the state.
(8) Whether the assignment will adversely affect the public health, welfare, and safety.
(9) Stability of dates.
(10) The stability of the racing circuit.
(Indiana Horse Racing Commission; 71 IAC 11-1-7; emergency rule filed Feb 10, 1994, 9:20 a.m.: 17 IR 1211; emergency rule filed Jan 27, 1995, 3:30 p.m.: 18 IR 1507; readopted filed Oct 30, 2001, 11:50 a.m.: 25 IR 899; readopted filed Mar 23, 2007, 11:31 a.m.: 20070404-IR-071070030RFA)
Furthermore, the very limited discussions on this topic have centered on recent declines in the North America thoroughbred foal crops and the effect on the number of available starters. Given the potential fiscal and economic implications of this proposed administrative rule, we would also suggest that the IHRC needs to clearly communicate how simply reducing race dates would increase the pool of available horses willing to race in Indiana.
The willingness of owners and trainers to actually race in Indiana versus other venues will always be a significant contributing factor to the number of available starters. With the limited number of stalls at the two tracks, reliance on the thoroughbred population in the region to ship to race is necessary. Willingness to race in Indiana brings into question a much broader review of thoroughbred racing in Indiana that should include the regulatory environment versus other states within the region as well as the restrictions placed upon the open racing program and the lack of flexibility within the IHRC’s so-called ‘Quality of Racing’ policies and their effect on field sizes.
We would also suggest that one of the greatest resources available to Indiana’s thoroughbred racing is the record Indiana-bred foal crops over the last two years. The two-year old crops of 2011 and 2012 have been record crops for Indiana with the expectation that the two-year olds of 2013 will set yet another record. Reducing race dates prior to any consideration as to how to best utilize this resource seems a bit premature. Race dates should be a part of a more detailed, comprehensive plan which does not seem to exist.
Technical Issues
From a technical perspective, IBOP’s position is that the Authority Line of the proposed rule should be modified. The Authority Line as required by Indiana’s Administrative Rules Drafting Manual is as follows:
“(a) The authority line must give the citation of each Indiana statute (enabling statute) that
expressly delegates rulemaking power to the agency to issue a rule on the subject matter of the
accompanying rule. If an agency has multiple sources of rulemaking power, the citation for each
source must be included.”
The current reference to IC 4-31-3-9 in the Authority Line would not meet this definition as there is no expressed authority within this particular citation for the proposed rule. What IC 4-31-3-9(1)(H) does provide the IHRC is the authority to promulgate “any other regulation that the commission determines is in the public interest in the conduct of recognized meetings and wagering on horse racing in Indiana.” Our view would be that creating an administrative rule that determines the number of race days in a recognized meeting is vastly different from an administrative rule regulating “the conduct of recognized meetings.” With that said, IC 4-31-5-9(c) provides the General Assembly’s expressed authority to create such an administrative rule.
Thank you,
Jim Hartman
IBOP Vice-President
CC: Chairman Diener
Vice-Chairman Schaefer
Commissioner Lauck
Commissioner Grimes
Commissioner Barclay"
On September 14th, IHRC Executive Director Joe Gorajec sent an email to industry stakeholders outlining a proposed rule that would lower the statutory requirement for flat racing dates. As part of the slot legislation, the General Assembly established a 60 day minimum for flat racing per each track. The slot legislation also gave the IHRC the authority to create an administrative rule that could reduce the number of required flat race days. This proposed administrative rule, which would effectively lower the minimum number of race days to 50 per track, is copied below. In addition, IBOP's position statement, which was submitted to the IHRC on September 30th, is copied below as well. The IHRC is expected to consider this new administrative rule at their next scheduled meeting on October 12th.
Proposed Administrative Rule Sent To Industry Stakeholders
71 IAC 4-4-12
Authority: IC 4-31-3-9
Affected: IC 4-31
(a) Pursuant to IC 4-31-5-9(c), there shall be no fewer than one hundred thirty (130) and no more than one hundred sixty-five (165) total live racing days each calendar year at the racetrack designated in a permit holder’s permit, as follows:
(1) At least eighty (80) but not more than ninety (90) live racing days must be for standardbreds.
(2) At least fifty (50) but not more than seventy-five (75) live racing days must be for horses that are:
A. mounted by jockeys; and
B. run on a course without jumps or obstacles.
(b) The requirements of this rule are a continuing condition for maintaining the permit holder’s permit. However, the requirements do not apply if the commission determines that the permit holder is prevented from conducting live horse racing as a result of a natural disaster or another even over which the permit holder has no control.
IBOP Position Statement Sent To IHRC
"Please consider this communication as part of the Indiana Breeder & Owner Protection, Inc. (IBOP) position regarding the proposed, as-yet untitled, 71 IAC 4-4-12. Given that there was no detailed justification for the necessity of this rule; IBOP’s position is that it’s the responsibility of the Indiana Horse Racing Commission (IHRC) to provide such justification. This proposed administrative rule carries significant potential fiscal and economic impact to the State of Indiana and to the thoroughbred breeding and racing industry within Indiana. A clearly communicated position from the IHRC is paramount not only to provide clarity to the industry stakeholders, but also for those within the Legislature who established the current 60 day minimum requirement.
In other words, IBOP believes that the burden of proof as to the necessity of this rule should rest squarely upon the IHRC. At this point, we feel that this burden is far from being met. Within the IHRC’s own regulations, the purpose of the commission is clearly stated. For convenience, ‘71 IAC 2-1-1 Purpose’ is copied in its entirety below. We would like to fully understand, within the framework of the IHRC’s stated purposes, how 71 IAC 4-4-12 is “in the best interests of the public and the state of Indiana”? The industry needs to fully understand how 71 IAC 4-4-12 will encourage agriculture, the breeding industry, the training industry, tourism and employment opportunities in the State of Indiana.
71 IAC 2-1-1 Purpose
Authority: IC 4-31-3-9
Affected: IC 4-31-3
Sec. 1. (a) The commission, created by IC 4-31-3, is charged with implementing, administering, and enforcing the Act. It is the intent of the commission these rules be interpreted in the best interests of the public and the state of Indiana.
(b) Through these rules, the commission intends to encourage:
(1) agriculture;
(2) the horse breeding industry;
(3) the horse training industry;
(4) the breeding and racing of quality horses;
(5) tourism; and
(6) employment opportunities;
in the state of Indiana related to horse racing and to control and regulate pari-mutuel wagering in connection with that horse racing to ensure that pari-mutuel wagering on horse races in Indiana will be conducted with the highest of standards and the greatest level of integrity. (Indiana Horse Racing Commission; 71 IAC 2-1-1; emergency rule filed Feb 10, 1994, 9:20 a.m.: 17 IR 1124; 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 19, 2010, 12:22 p.m.: 20100728-IR-071100480ERA)
Additionally, ‘71 IAC 11-1-7 Assignment of racing meetings’ provides guidance within the administrative code as to what factors the IHRC requires of itself in the evaluation of assigning race days. For your convenience, 71 IAC 11-1-7 is copied in its entirety below. To date, the only guidance on this proposed administrative rule was provided by Executive Director Gorajec’s September 14th email which stated, “The effect of this rule would lower the minimum on TB/QH days from 60 days to 50 days at each track.” Such guidance would suggest that an evaluation within the scope of 71 IAC 11-1-7 would already be available. Logic would also dictate that such an evaluation would be necessary to even suggest promulgating such an administrative rule.
IBOP’s position is that a narrative within the requirements of 71 IAC 11-1-7 should be provided to industry stakeholders prior to any consideration of this proposed administrative rule. Most importantly within that narrative, we would suggest that the burden of proof is also on the IHRC to determine how reduced flat racing dates would “maximize revenues to the state” as required by 71 IAC 11-1-7(7).
71 IAC 11-1-7 Assignment of racing meetings
Authority: IC 4-31-3-9
Affected: IC 4-31-5-9
Sec. 7. In determining the assignment of racing meetings and race dates to permit holders under IC 4-31-5-9, the commission shall consider factors relating to the economic and practical feasibility of conducting racing meetings at various tracks. Factors to be considered shall include, without limitation, the following:
(1) The types and dates of racing meetings being held elsewhere, both within and outside of Indiana.
(2) The effects that various types of pari-mutuel racing have on one another.
(3) The quality of horse racing provided at various tracks.
(4) Past dates.
(5) Past performance of the permit holder.
(6) Whether the permit holder has complied with all applicable laws and rules relating to horse racing.
(7) Whether the assignment will maximize revenues to the state.
(8) Whether the assignment will adversely affect the public health, welfare, and safety.
(9) Stability of dates.
(10) The stability of the racing circuit.
(Indiana Horse Racing Commission; 71 IAC 11-1-7; emergency rule filed Feb 10, 1994, 9:20 a.m.: 17 IR 1211; emergency rule filed Jan 27, 1995, 3:30 p.m.: 18 IR 1507; readopted filed Oct 30, 2001, 11:50 a.m.: 25 IR 899; readopted filed Mar 23, 2007, 11:31 a.m.: 20070404-IR-071070030RFA)
Furthermore, the very limited discussions on this topic have centered on recent declines in the North America thoroughbred foal crops and the effect on the number of available starters. Given the potential fiscal and economic implications of this proposed administrative rule, we would also suggest that the IHRC needs to clearly communicate how simply reducing race dates would increase the pool of available horses willing to race in Indiana.
The willingness of owners and trainers to actually race in Indiana versus other venues will always be a significant contributing factor to the number of available starters. With the limited number of stalls at the two tracks, reliance on the thoroughbred population in the region to ship to race is necessary. Willingness to race in Indiana brings into question a much broader review of thoroughbred racing in Indiana that should include the regulatory environment versus other states within the region as well as the restrictions placed upon the open racing program and the lack of flexibility within the IHRC’s so-called ‘Quality of Racing’ policies and their effect on field sizes.
We would also suggest that one of the greatest resources available to Indiana’s thoroughbred racing is the record Indiana-bred foal crops over the last two years. The two-year old crops of 2011 and 2012 have been record crops for Indiana with the expectation that the two-year olds of 2013 will set yet another record. Reducing race dates prior to any consideration as to how to best utilize this resource seems a bit premature. Race dates should be a part of a more detailed, comprehensive plan which does not seem to exist.
Technical Issues
From a technical perspective, IBOP’s position is that the Authority Line of the proposed rule should be modified. The Authority Line as required by Indiana’s Administrative Rules Drafting Manual is as follows:
“(a) The authority line must give the citation of each Indiana statute (enabling statute) that
expressly delegates rulemaking power to the agency to issue a rule on the subject matter of the
accompanying rule. If an agency has multiple sources of rulemaking power, the citation for each
source must be included.”
The current reference to IC 4-31-3-9 in the Authority Line would not meet this definition as there is no expressed authority within this particular citation for the proposed rule. What IC 4-31-3-9(1)(H) does provide the IHRC is the authority to promulgate “any other regulation that the commission determines is in the public interest in the conduct of recognized meetings and wagering on horse racing in Indiana.” Our view would be that creating an administrative rule that determines the number of race days in a recognized meeting is vastly different from an administrative rule regulating “the conduct of recognized meetings.” With that said, IC 4-31-5-9(c) provides the General Assembly’s expressed authority to create such an administrative rule.
Thank you,
Jim Hartman
IBOP Vice-President
CC: Chairman Diener
Vice-Chairman Schaefer
Commissioner Lauck
Commissioner Grimes
Commissioner Barclay"
Saturday, September 1, 2012
Administrative Rule of the Month - Allocation of Race Dates and Permits
On August 23rd, Indiana Breeder and Owner Protection, Inc. (IBOP) requested a meeting with representatives of the Indiana Inspector General's Office to discuss the Indiana Horse Racing Commission (IHRC) Executive Director Joe Gorajec's cancellation of race days at Indiana Downs on June 15th and 16th. In part, IBOP's view is that this action was outside of any delegated authority. The full version of our submission to the Inspector General can be found at: http://ibopindy.blogspot.com/2012/08/ibop-requests-investigation-of.html . In that submission we referenced 71 IAC 2-9-1(c) under 'Allocation of race dates and permits' which is copied below. To expand a little bit on our observations and request to the Inspector General, we've made 'Allocation of Race Dates and Permits' our September 'Administrative Rule of the Month.'
71 IAC 2-9-1 Allocation of race dates and permits
Authority: IC 4-31-3-9
Affected: IC 4-31-5
Sec. 1. (a) The commission shall allocate race dates and permits to each association in accordance with the Act and after consideration of the factors in 71 IAC 11-1-7. An association shall apply to the commission not later than November 1 of each year for race dates to be conducted in the next year. The application must contain the information required by statute and commission licensing procedures. After the request is filed, the commission may require the association to submit additional information.
(b) The burden of proof is on the association to demonstrate that the assignment and allocation of the race dates will be in the public interest and will achieve the purposes of the Act.
(c) The association shall be obligated to conduct pari-mutuel racing, except in the case of emergencies, on each race date allocated. Any change in race dates must be approved by the commission. In the case of emergencies, the judges may authorize cancellation of all or a portion of any race day.
(d) Racing dates shall be issued by the commission no later than December 31 of each year.
71 IAC 2-9-1(c) provides that "In case of emergencies, the judges may authorize cancellation of all or a portion of any race day." Via this administrative rule, which has the rule of law, the IHRC has delegated to the judges the ability to cancel racing. This makes perfect sense since the judges are the racing officials who are the closest to actual racing and training at the tracks. To be clear on any semantics, as seen below in 71 IAC 1.5-1-49, the Indiana Administrative Code defines a 'judge' and 'steward' as being synonymous.
71 IAC 1.5-1-49 "Judge" or "steward" defined
Authority: IC 4-31-3-9
Affected: IC 4-31
Sec. 49. "Judge" or "steward" means a duly appointed racing official or judge with powers and duties specified by these rules. (Indiana Horse Racing Commission; 71 IAC 1.5-1-49; emergency rule filed Jun 15, 1995, 5:00 p.m.: 18 IR 2819, eff Jul 1, 1995; readopted filed Oct 30, 2001, 11:50 a.m.: 25 IR 899; readopted filed Mar 23, 2007, 11:31 a.m.: 20070404-IR-071070030RFA)
What is also clear in 71 IAC 2-9-1(c) is that the IHRC has NOT delegated the authority to cancel race days to the Executive Director. Yet, that is exactly what Mr. Gorajec did, cancel race days. Our opinion is that Mr. Gorajec acted outside of his delegated authority and in doing so violated the Indiana Administrative Code with his actions. Rather than publish IBOP's entire evaluation and findings on this blog or in our newsletter, we feel that the Inspector General should be first provided the opportunity to begin an investigation. At some point, IBOP will share our complete file on the cancellation of race days at Indiana Downs, should the Inspector General decide against an investigation. We will, however, share with you what the IHRC has done since the cancellation.
At the IHRC's meeting on June 25th, the three commissioners in attendance, which included former Chairman Sarah McNaught, approved the Final Report on the cancellations which was prepared by the IHRC's staff. No where in that Final Report was there any mention of 71 IAC 2-9-1(c) nor were there any questions about Mr. Gorajec's actual authority to cancel race days. (IBOP will expand upon this Final Report, if needed, at some point in the future.) At the IHRC's August 30th meeting, the commissioners voted unanimously to amend 71 IAC 2-9-1(c) via their emergency rulemaking authority. Once the new rule is filed with the Indiana Register, 71 IAC 2-9-1(c) will now read, "In the case of emergencies, the judges, stewards, or the Executive Director (emphasis added) may authorize cancellation of all or a portion of any race day." One of the questions that needs to be answered is, if Mr. Gorajec actually had the authority to cancel race days, then why was it necessary to modify the Indiana Administrative Code to delegate that authority to him in the future? When the amendment was presented to the commissioners, there was no discussion, no questions and they spent less than two minutes on the subject.
In our July newsletter, IBOP suggested that the IHRC staff's Final Report raised more questions than provided answers. There are many questions regarding the cancellation of the two race days at Indiana Downs that need to be answered. By the IHRC's actions on August 30th, they've added another one, why add the Executive Director to rule now? Given that the IHRC is incapable of investigating their own actions, the Indiana Inspector General needs to step in.
71 IAC 2-9-1 Allocation of race dates and permits
Authority: IC 4-31-3-9
Affected: IC 4-31-5
Sec. 1. (a) The commission shall allocate race dates and permits to each association in accordance with the Act and after consideration of the factors in 71 IAC 11-1-7. An association shall apply to the commission not later than November 1 of each year for race dates to be conducted in the next year. The application must contain the information required by statute and commission licensing procedures. After the request is filed, the commission may require the association to submit additional information.
(b) The burden of proof is on the association to demonstrate that the assignment and allocation of the race dates will be in the public interest and will achieve the purposes of the Act.
(c) The association shall be obligated to conduct pari-mutuel racing, except in the case of emergencies, on each race date allocated. Any change in race dates must be approved by the commission. In the case of emergencies, the judges may authorize cancellation of all or a portion of any race day.
(d) Racing dates shall be issued by the commission no later than December 31 of each year.
71 IAC 2-9-1(c) provides that "In case of emergencies, the judges may authorize cancellation of all or a portion of any race day." Via this administrative rule, which has the rule of law, the IHRC has delegated to the judges the ability to cancel racing. This makes perfect sense since the judges are the racing officials who are the closest to actual racing and training at the tracks. To be clear on any semantics, as seen below in 71 IAC 1.5-1-49, the Indiana Administrative Code defines a 'judge' and 'steward' as being synonymous.
71 IAC 1.5-1-49 "Judge" or "steward" defined
Authority: IC 4-31-3-9
Affected: IC 4-31
Sec. 49. "Judge" or "steward" means a duly appointed racing official or judge with powers and duties specified by these rules. (Indiana Horse Racing Commission; 71 IAC 1.5-1-49; emergency rule filed Jun 15, 1995, 5:00 p.m.: 18 IR 2819, eff Jul 1, 1995; readopted filed Oct 30, 2001, 11:50 a.m.: 25 IR 899; readopted filed Mar 23, 2007, 11:31 a.m.: 20070404-IR-071070030RFA)
What is also clear in 71 IAC 2-9-1(c) is that the IHRC has NOT delegated the authority to cancel race days to the Executive Director. Yet, that is exactly what Mr. Gorajec did, cancel race days. Our opinion is that Mr. Gorajec acted outside of his delegated authority and in doing so violated the Indiana Administrative Code with his actions. Rather than publish IBOP's entire evaluation and findings on this blog or in our newsletter, we feel that the Inspector General should be first provided the opportunity to begin an investigation. At some point, IBOP will share our complete file on the cancellation of race days at Indiana Downs, should the Inspector General decide against an investigation. We will, however, share with you what the IHRC has done since the cancellation.
At the IHRC's meeting on June 25th, the three commissioners in attendance, which included former Chairman Sarah McNaught, approved the Final Report on the cancellations which was prepared by the IHRC's staff. No where in that Final Report was there any mention of 71 IAC 2-9-1(c) nor were there any questions about Mr. Gorajec's actual authority to cancel race days. (IBOP will expand upon this Final Report, if needed, at some point in the future.) At the IHRC's August 30th meeting, the commissioners voted unanimously to amend 71 IAC 2-9-1(c) via their emergency rulemaking authority. Once the new rule is filed with the Indiana Register, 71 IAC 2-9-1(c) will now read, "In the case of emergencies, the judges, stewards, or the Executive Director (emphasis added) may authorize cancellation of all or a portion of any race day." One of the questions that needs to be answered is, if Mr. Gorajec actually had the authority to cancel race days, then why was it necessary to modify the Indiana Administrative Code to delegate that authority to him in the future? When the amendment was presented to the commissioners, there was no discussion, no questions and they spent less than two minutes on the subject.
In our July newsletter, IBOP suggested that the IHRC staff's Final Report raised more questions than provided answers. There are many questions regarding the cancellation of the two race days at Indiana Downs that need to be answered. By the IHRC's actions on August 30th, they've added another one, why add the Executive Director to rule now? Given that the IHRC is incapable of investigating their own actions, the Indiana Inspector General needs to step in.
Thursday, August 23, 2012
IBOP Requests Investigation of the Cancellation of Race Days at Indiana Downs
Earlier today, Indiana Breeder & Owner Protection, Inc. (IBOP) sent the message below to the Indiana Inspector General's Office through their 'Request an Investigation' feature (Investigation Hotline) on their website. In our Semi-Annual Report, which can be found in our July newsletter, we suggested that the Final Report approved by the IHRC on the cancellation of race days at Indiana Downs raised more questions than provided answers. What you'll read below is a reference to an IHRC rule that only delegates authority to cancel race days in emergencies to the judges (stewards), not the Executive Director.
If you'd like to help encourage the Inspector General to initiate this investigation, please do so through the Investigation Hotline at the following link: http://www.in.gov/ig/2330.htm
"On June 14, 2012 the Executive Director of the Indiana Horse Racing Commission (IHRC), Joe Gorajec issued a directive canceling live racing at Indiana Downs on June 15th and June 16th. His directive was issued due to a perceived complaint regarding the track surface by a horsemen's group two full days earlier on June 12th.
According to 71 IAC 2-9-1(c), Mr. Gorajec did not have the authority to cancel race days. That authority has been delegated by the IHRC to the judges, also know as stewards in thoroughbred and quarter horse racing. By his own admission, Mr. Gorajec did not engage the stewards at Indiana Downs until June 15th.
Our organization's position (Indiana Breeder & Owner Protection) is that Mr. Gorajec acted inappropriately, rashly and most importantly, outside of his authority. There are many people, not only horsemen, that are reliant upon the race tracks to be open for business. Our files and documentation on this issue are extensive; therefore, we are requesting to meet with an investigator from your office at your earliest possible convenience.
Thank you,
Jim Hartman
IBOP Vice President
317-705-0664"
If you'd like to help encourage the Inspector General to initiate this investigation, please do so through the Investigation Hotline at the following link: http://www.in.gov/ig/2330.htm
"On June 14, 2012 the Executive Director of the Indiana Horse Racing Commission (IHRC), Joe Gorajec issued a directive canceling live racing at Indiana Downs on June 15th and June 16th. His directive was issued due to a perceived complaint regarding the track surface by a horsemen's group two full days earlier on June 12th.
According to 71 IAC 2-9-1(c), Mr. Gorajec did not have the authority to cancel race days. That authority has been delegated by the IHRC to the judges, also know as stewards in thoroughbred and quarter horse racing. By his own admission, Mr. Gorajec did not engage the stewards at Indiana Downs until June 15th.
Our organization's position (Indiana Breeder & Owner Protection) is that Mr. Gorajec acted inappropriately, rashly and most importantly, outside of his authority. There are many people, not only horsemen, that are reliant upon the race tracks to be open for business. Our files and documentation on this issue are extensive; therefore, we are requesting to meet with an investigator from your office at your earliest possible convenience.
Thank you,
Jim Hartman
IBOP Vice President
317-705-0664"
Sunday, August 19, 2012
Request To Modify 'Out-of-Competition Testing' Rules
This request to the Indiana Horse Racing Commission is fairly self-explanatory as far as the inconsistencies in the 'out-of-competition' testing administrative rules when compared to their own definitions.
"Pursuant to ‘71 IAC 2-12-1 Procedures,’ Indiana Breeder & Owner Protection, Inc. (IBOP) is requesting that the Indiana Horse Racing Commission (IHRC) consider the amendment of 71 IAC 8-3-5(e) and 71 IAC 8.5-2-5(e) to conform with their respective definitions in 71 IAC 1-1-67.5 and 71 IAC 1.5-1-67.5. Please consider this correspondence as IBOP’s petition for the IHRC to amend both subsections of the administrative rules cited above, which are part of the ‘Out of competition testing’ rules. Our view is that both of these subsections include language beyond the IHRC’s own definition of its authority and jurisdiction. IBOP would appreciate the changes to these rules be considered as an agenda item at the next regularly scheduled IHRC meeting on August 30, 2012.
At the June 25, 2012, IHRC meeting, 71 IAC 1-1-67.5 was amended, and to correct an oversight in the rule books, 71 IAC 1.5-1-67.5 was added. Both emergency rules, which are copied below, went into effect when submitted to the Indiana Register on July 5, 2012.
71 IAC 1-1-67.5 "Out of competition testing" defined
Authority: IC 4-31-3-9
Affected: IC 4-31
Sec. 67.5. "Out of competition testing" means a test conducted by the commission on a horse located in Indiana as provided in 71 IAC 8-3-5. (Indiana Horse Racing Commission; 71 IAC 1-1-67.5; emergency rule filed Jul 23, 2007, 9:16 a.m.: 20070808-
IR-071070461ERA, eff Jul 18, 2007 [IC 4-22-2-37.1 establishes the effectiveness of an emergency rule upon filing with the Publisher. LSA Document #07-461(E) was filed with the Publisher July 23, 2007.]; emergency rule filed Jul 5, 2012, 2:14 p.m.: 20120718-IR-071120402ERA)
71 IAC 1.5-1-67.5 "Out of competition testing" defined
Authority: IC 4-31-3-9
Affected: IC 4-31
Sec. 67.5. "Out of competition testing" means a test conducted by the commission on a horse located in Indiana as provided in 71 IAC 8.5-2-5. (Indiana Horse Racing Commission; 71 IAC 1.5-1-67.5; emergency rule filed Jul 5, 2012, 2:14 p.m.: 20120718-IR-071120402ERA)
Both of these two “Out of competition testing” definitions contain the phrase “on a horse located in Indiana” then provides a reference to the specific administrative rule based upon the breed of the horse. Both 71 IAC 8-3-5(e) and 71 IAC 8.5-2-5(e) contain the phrase “or its designees, in the case of out-of-state collections” which is an indication of the belief that the IHRC can compel out of competition testing on a horse stabled outside of the State of Indiana. IBOP’s petition is to amend each administrative rule by striking the language “or its designees, in the case of out-of-state collections” from each rule. The language used in 71 IAC 8-3-5(e) and 71 IAC 8.5-2-5(e) is contrary to the IHRC’s own definitions for out of competing testing which limits said authority to within Indiana and not beyond.
In further support of IBOP’s petition, both 71 IAC 1-1-52 and 71 IAC 1.5-1-50 which define the IHRC’s “jurisdiction” limit that jurisdiction to “the state of Indiana.” Both 71 IAC 1-1-52 and 71 IAC 1.5-1-50 are copied below:
71 IAC 1-1-52 "Jurisdiction" defined
Authority: IC 4-31-3-9
Affected: IC 4-31
Sec. 52. "Jurisdiction" of the commission means the state of Indiana. (Indiana Horse Racing Commission; 71 IAC 1-1-52; emergency rule filed Feb 10, 1994, 9:20 a.m.: 17 IR 1118; readopted filed Oct 30, 2001, 11:50 a.m.: 25 IR 899; readopted filed Mar 23, 2007, 11:31 a.m.: 20070404-IR-071070030RFA)
71 IAC 1.5-1-50 "Jurisdiction" defined
Authority: IC 4-31-3-9
Affected: IC 4-31
Sec. 50. "Jurisdiction" of the commission means the state of Indiana. (Indiana Horse Racing Commission; 71 IAC 1.5-1-50; emergency rule filed Jun 15, 1995, 5:00 p.m.: 18 IR 2819, eff Jul 1, 1995; readopted filed Oct 30, 2001, 11:50 a.m.: 25 IR 899; readopted filed Mar 23, 2007, 11:31 a.m.: 20070404-IR-071070030RFA)
In this petition, both 71 IAC 8-3-5(e) and 71 IAC 8.5-2-5(e) were not copied in their entirety for the sake of brevity. Thank you for your consideration of this petition.
Jim Harman
IBOP Vice President
CC: Chairman Diener
Commissioner Lauck
Commissioner Schaefer
Commissioner Grimes
Commissioner Barclay"
"Pursuant to ‘71 IAC 2-12-1 Procedures,’ Indiana Breeder & Owner Protection, Inc. (IBOP) is requesting that the Indiana Horse Racing Commission (IHRC) consider the amendment of 71 IAC 8-3-5(e) and 71 IAC 8.5-2-5(e) to conform with their respective definitions in 71 IAC 1-1-67.5 and 71 IAC 1.5-1-67.5. Please consider this correspondence as IBOP’s petition for the IHRC to amend both subsections of the administrative rules cited above, which are part of the ‘Out of competition testing’ rules. Our view is that both of these subsections include language beyond the IHRC’s own definition of its authority and jurisdiction. IBOP would appreciate the changes to these rules be considered as an agenda item at the next regularly scheduled IHRC meeting on August 30, 2012.
At the June 25, 2012, IHRC meeting, 71 IAC 1-1-67.5 was amended, and to correct an oversight in the rule books, 71 IAC 1.5-1-67.5 was added. Both emergency rules, which are copied below, went into effect when submitted to the Indiana Register on July 5, 2012.
71 IAC 1-1-67.5 "Out of competition testing" defined
Authority: IC 4-31-3-9
Affected: IC 4-31
Sec. 67.5. "Out of competition testing" means a test conducted by the commission on a horse located in Indiana as provided in 71 IAC 8-3-5. (Indiana Horse Racing Commission; 71 IAC 1-1-67.5; emergency rule filed Jul 23, 2007, 9:16 a.m.: 20070808-
IR-071070461ERA, eff Jul 18, 2007 [IC 4-22-2-37.1 establishes the effectiveness of an emergency rule upon filing with the Publisher. LSA Document #07-461(E) was filed with the Publisher July 23, 2007.]; emergency rule filed Jul 5, 2012, 2:14 p.m.: 20120718-IR-071120402ERA)
71 IAC 1.5-1-67.5 "Out of competition testing" defined
Authority: IC 4-31-3-9
Affected: IC 4-31
Sec. 67.5. "Out of competition testing" means a test conducted by the commission on a horse located in Indiana as provided in 71 IAC 8.5-2-5. (Indiana Horse Racing Commission; 71 IAC 1.5-1-67.5; emergency rule filed Jul 5, 2012, 2:14 p.m.: 20120718-IR-071120402ERA)
Both of these two “Out of competition testing” definitions contain the phrase “on a horse located in Indiana” then provides a reference to the specific administrative rule based upon the breed of the horse. Both 71 IAC 8-3-5(e) and 71 IAC 8.5-2-5(e) contain the phrase “or its designees, in the case of out-of-state collections” which is an indication of the belief that the IHRC can compel out of competition testing on a horse stabled outside of the State of Indiana. IBOP’s petition is to amend each administrative rule by striking the language “or its designees, in the case of out-of-state collections” from each rule. The language used in 71 IAC 8-3-5(e) and 71 IAC 8.5-2-5(e) is contrary to the IHRC’s own definitions for out of competing testing which limits said authority to within Indiana and not beyond.
In further support of IBOP’s petition, both 71 IAC 1-1-52 and 71 IAC 1.5-1-50 which define the IHRC’s “jurisdiction” limit that jurisdiction to “the state of Indiana.” Both 71 IAC 1-1-52 and 71 IAC 1.5-1-50 are copied below:
71 IAC 1-1-52 "Jurisdiction" defined
Authority: IC 4-31-3-9
Affected: IC 4-31
Sec. 52. "Jurisdiction" of the commission means the state of Indiana. (Indiana Horse Racing Commission; 71 IAC 1-1-52; emergency rule filed Feb 10, 1994, 9:20 a.m.: 17 IR 1118; readopted filed Oct 30, 2001, 11:50 a.m.: 25 IR 899; readopted filed Mar 23, 2007, 11:31 a.m.: 20070404-IR-071070030RFA)
71 IAC 1.5-1-50 "Jurisdiction" defined
Authority: IC 4-31-3-9
Affected: IC 4-31
Sec. 50. "Jurisdiction" of the commission means the state of Indiana. (Indiana Horse Racing Commission; 71 IAC 1.5-1-50; emergency rule filed Jun 15, 1995, 5:00 p.m.: 18 IR 2819, eff Jul 1, 1995; readopted filed Oct 30, 2001, 11:50 a.m.: 25 IR 899; readopted filed Mar 23, 2007, 11:31 a.m.: 20070404-IR-071070030RFA)
In this petition, both 71 IAC 8-3-5(e) and 71 IAC 8.5-2-5(e) were not copied in their entirety for the sake of brevity. Thank you for your consideration of this petition.
Jim Harman
IBOP Vice President
CC: Chairman Diener
Commissioner Lauck
Commissioner Schaefer
Commissioner Grimes
Commissioner Barclay"
Request to Eliminate Split Sample Testing Costs
As a follow-up to our August Administrative Rule of the Month, IBOP sent the following request to the Indiana Horse Racing Commission requesting the elimination of the costs of split sample testing from being charged to the horsemen.
"Pursuant to ‘71 IAC 2-12-1 Procedures,’ Indiana Breeder & Owner Protection, Inc. (IBOP) is requesting that the Indiana Horse Racing Commission (IHRC) consider the amendment of 71 IAC 8.5-3-5(b) and 71 IAC 8-4-5(b) to conform to IC 4-31-12-6(b). Please consider this correspondence as IBOP’s petition for the IHRC to amend both administrative rules, which are titled as ‘Cost of split sample testing.’ Our view is that both of these rules, which place the burden of the cost of split sample testing on an owner or trainer, are contrary to Indiana statute. IBOP would appreciate changes to these rules be considered as an agenda item at the next regularly scheduled IHRC meeting on August 30, 2012.
The flat racing rule 71 IAC 8.5-3-5 is copied below. Clearly, 71 IAC 8.5-3-5(b) places the burden of “all costs” for split sample testing and negative control samples on the requesting owner or trainer.
71 IAC 8.5-3-5 Cost of split sample testing
Authority: IC 4-31-3-9
Affected: IC 4-31-12
Sec. 5. (a) In order for a split sample laboratory to be identified on the list of approved laboratories, it must establish reasonable fees for split sample testing based on their actual cost of testing. Fees for split sample testing shall include the cost of testing negative control samples if requested by the owner or trainer.
(b) The trainer or owner requesting split sample testing and negative control samples shall pay all costs of transporting and conducting tests on the split sample and negative control samples. (Indiana Horse Racing Commission; 71 IAC 8.5-3-5; emergency rule filed Jun 15, 1995, 5:00 p.m.: 18 IR 2884, eff Jul 1, 1995; readopted filed Oct 30, 2001, 11:50 a.m.: 25 IR 899; readopted filed Mar 23, 2007, 11:31 a.m.: 20070404-IR-071070030RFA)
However, IC 4-31-12-6(b) states, "The cost of analyzing specimens shall be borne by the commission.” The entirety of IC 4-31-12-6 is copied below. We can find no exception within Indiana law that allows for the IHRC to pass the cost of analyzing these “specimens” on to an owner or trainer as currently in 71 IAC 8.5-3-5(b) and 71 IAC 8-4-5(b). Split sample testing is designed to eliminate the possibility that an error at the primary lab contributed to any positive test. The split sample test at a secondary lab is a verification of the integrity of the primary test and verification in which the IHRC should have an interest.
IC 4-31-12-6
Appointment of veterinarian; approval of laboratory; analysis of specimens
Sec. 6. (a) The commission:
(1) shall appoint, at its cost, a veterinarian licensed to practice in Indiana to take or supervise the taking of specimens under section 5 of this chapter;
(2) shall approve a laboratory for the analysis of those specimens; and
(3) may require that a specimen taken under section 5 of this chapter be analyzed.
(b) The cost of analyzing specimens shall be borne by the commission.
(c) The commission may appoint, at its cost, veterinarians or other persons to supervise all activities in the state testing barn area and to supervise the practice of veterinary medicine at all racetracks in Indiana.
(d) The commission shall employ or contract for assistants to aid in securing specimens at each racetrack. These assistants shall have free access, under the supervision of the commission's veterinarian, to the state testing barn area. The permit holder shall, in the manner prescribed by the rules of the commission, reimburse the commission for the salaries and other expenses of the assistants who serve at the permit holder's racetrack.
As added by P.L.341-1989(ss), SEC.2. Amended by P.L.24-1992, SEC.37.
Given that IC 4-31-12-6 refers to IC 4-31-12-5, we’ve copied that section for review as well:
IC 4-31-12-5
Blood and urine tests
Sec. 5. (a) The judges, the stewards, a commission veterinarian, a member of the commission, or the secretary of the commission may order a blood test or urine test, or both, on a horse for the purpose of analysis.
(b) A blood specimen or urine specimen, or both, shall be taken from the following horses after the running of each race:
(1) The horse that finishes first in each race.
(2) Any other horses designated by the judges, the stewards, a commission veterinarian, a member of the commission, or the secretary of the commission. The judges and veterinarian shall designate for the taking of such a specimen a horse that races markedly contrary to form.
As added by P.L.341-1989(ss), SEC.2. Amended by P.L.24-1992, SEC.36.
To further support our view, IC 4-35-8.7-3(f)(1) specifically provides available funding for paying for the cost of samples taken “under IC 4-31-12-6(b).” There is no differentiation in the Gaming Integrity Fund statute between a primary specimen and any other specimen. Through the Gaming Integrity Fund, the IHRC has available each fiscal year $850,000. The annual contract with Truesdail Laboratories for primary testing is currently $661,500, so cost should not be an issue. The Gaming Integrity Fund statute is copied below:
IC 4-35-8.7-3
Gaming integrity fund
Sec. 3. (a) The gaming integrity fund is established.
(b) The fund shall be administered by the Indiana horse racing commission.
(c) The fund consists of gaming integrity fees deposited in the fund under this chapter and money distributed to the fund under IC 4-35-7-12. Fifteen percent (15%) of the money deposited in the fund shall be transferred to the Indiana state board of animal health to be used by the state board to pay the costs associated with equine health and equine care programs under IC 15-17.
(d) The treasurer of state shall invest the money in the fund not currently needed to meet the obligations of the fund in the same manner as other public funds may be invested.
(e) Money in the fund at the end of a state fiscal year does not revert to the state general fund.
(f) Money in the fund may be used by the Indiana horse racing commission only for the following purposes:
(1) To pay the cost of taking and analyzing equine specimens under IC 4-31-12-6(b) or another law or rule and the cost of any supplies related to the taking or analysis of specimens.
(2) To pay dues to the Drug Testing Standards and Practices (DTSP) Committee of the Association of Racing Commissioners International.
(3) To provide grants for research for the advancement of equine drug testing. Grants under this subdivision must be approved by the Drug Testing Standards and Practices (DTSP) Committee of the Association of Racing Commissioners International or by the Racing Mediation and Testing Consortium.
(4) To pay the costs of post-mortem examinations under IC 4-31-12-10.
(5) To pay other costs incurred by the commission to maintain the integrity of pari-mutuel racing.
As added by P.L.233-2007, SEC.21. Amended by P.L.142-2009, SEC.27; P.L.229-2011, SEC.61.
IC 4-22-2-19.5 Standards for rules (copied below) also supports IBOP’s view regarding 71 IAC 8.5-3-5(b) and 71 IAC 8-4-5(b) where minimizing expenses to “regulated entities” be a consideration in all administrative rules. IBOP’s position is also that the IHRC should provide refunds to all those who have been charged for split sample testing costs since at least the existence of the Gaming Integrity Fund, if not beyond.
IC 4-22-2-19.5
Standards for rules
Sec. 19.5. (a) To the extent possible, a rule adopted under this article or under IC 13-14-9.5 shall comply with the following:
(1) Minimize the expenses to:
(A) regulated entities that are required to comply with the rule;
(B) persons who pay taxes or pay fees for government services affected by the rule; and
(C) consumers of products and services of regulated entities affected by the rule.
(2) Achieve the regulatory goal in the least restrictive manner.
(3) Avoid duplicating standards found in state or federal laws.
(4) Be written for ease of comprehension.
(5) Have practicable enforcement.
(b) Subsection (a) does not apply to a rule that must be adopted in a certain form to comply with federal law.
As added by P.L.17-1996, SEC.2.
Thank you for this consideration of this petition,
Jim Hartman
IBOP Vice-President
CC: Chairman Diener
Commissioner Lauck
Commissioner Schaefer
Commissioner Grimes
Commissioner Barclay"
"Pursuant to ‘71 IAC 2-12-1 Procedures,’ Indiana Breeder & Owner Protection, Inc. (IBOP) is requesting that the Indiana Horse Racing Commission (IHRC) consider the amendment of 71 IAC 8.5-3-5(b) and 71 IAC 8-4-5(b) to conform to IC 4-31-12-6(b). Please consider this correspondence as IBOP’s petition for the IHRC to amend both administrative rules, which are titled as ‘Cost of split sample testing.’ Our view is that both of these rules, which place the burden of the cost of split sample testing on an owner or trainer, are contrary to Indiana statute. IBOP would appreciate changes to these rules be considered as an agenda item at the next regularly scheduled IHRC meeting on August 30, 2012.
The flat racing rule 71 IAC 8.5-3-5 is copied below. Clearly, 71 IAC 8.5-3-5(b) places the burden of “all costs” for split sample testing and negative control samples on the requesting owner or trainer.
71 IAC 8.5-3-5 Cost of split sample testing
Authority: IC 4-31-3-9
Affected: IC 4-31-12
Sec. 5. (a) In order for a split sample laboratory to be identified on the list of approved laboratories, it must establish reasonable fees for split sample testing based on their actual cost of testing. Fees for split sample testing shall include the cost of testing negative control samples if requested by the owner or trainer.
(b) The trainer or owner requesting split sample testing and negative control samples shall pay all costs of transporting and conducting tests on the split sample and negative control samples. (Indiana Horse Racing Commission; 71 IAC 8.5-3-5; emergency rule filed Jun 15, 1995, 5:00 p.m.: 18 IR 2884, eff Jul 1, 1995; readopted filed Oct 30, 2001, 11:50 a.m.: 25 IR 899; readopted filed Mar 23, 2007, 11:31 a.m.: 20070404-IR-071070030RFA)
However, IC 4-31-12-6(b) states, "The cost of analyzing specimens shall be borne by the commission.” The entirety of IC 4-31-12-6 is copied below. We can find no exception within Indiana law that allows for the IHRC to pass the cost of analyzing these “specimens” on to an owner or trainer as currently in 71 IAC 8.5-3-5(b) and 71 IAC 8-4-5(b). Split sample testing is designed to eliminate the possibility that an error at the primary lab contributed to any positive test. The split sample test at a secondary lab is a verification of the integrity of the primary test and verification in which the IHRC should have an interest.
IC 4-31-12-6
Appointment of veterinarian; approval of laboratory; analysis of specimens
Sec. 6. (a) The commission:
(1) shall appoint, at its cost, a veterinarian licensed to practice in Indiana to take or supervise the taking of specimens under section 5 of this chapter;
(2) shall approve a laboratory for the analysis of those specimens; and
(3) may require that a specimen taken under section 5 of this chapter be analyzed.
(b) The cost of analyzing specimens shall be borne by the commission.
(c) The commission may appoint, at its cost, veterinarians or other persons to supervise all activities in the state testing barn area and to supervise the practice of veterinary medicine at all racetracks in Indiana.
(d) The commission shall employ or contract for assistants to aid in securing specimens at each racetrack. These assistants shall have free access, under the supervision of the commission's veterinarian, to the state testing barn area. The permit holder shall, in the manner prescribed by the rules of the commission, reimburse the commission for the salaries and other expenses of the assistants who serve at the permit holder's racetrack.
As added by P.L.341-1989(ss), SEC.2. Amended by P.L.24-1992, SEC.37.
Given that IC 4-31-12-6 refers to IC 4-31-12-5, we’ve copied that section for review as well:
IC 4-31-12-5
Blood and urine tests
Sec. 5. (a) The judges, the stewards, a commission veterinarian, a member of the commission, or the secretary of the commission may order a blood test or urine test, or both, on a horse for the purpose of analysis.
(b) A blood specimen or urine specimen, or both, shall be taken from the following horses after the running of each race:
(1) The horse that finishes first in each race.
(2) Any other horses designated by the judges, the stewards, a commission veterinarian, a member of the commission, or the secretary of the commission. The judges and veterinarian shall designate for the taking of such a specimen a horse that races markedly contrary to form.
As added by P.L.341-1989(ss), SEC.2. Amended by P.L.24-1992, SEC.36.
To further support our view, IC 4-35-8.7-3(f)(1) specifically provides available funding for paying for the cost of samples taken “under IC 4-31-12-6(b).” There is no differentiation in the Gaming Integrity Fund statute between a primary specimen and any other specimen. Through the Gaming Integrity Fund, the IHRC has available each fiscal year $850,000. The annual contract with Truesdail Laboratories for primary testing is currently $661,500, so cost should not be an issue. The Gaming Integrity Fund statute is copied below:
IC 4-35-8.7-3
Gaming integrity fund
Sec. 3. (a) The gaming integrity fund is established.
(b) The fund shall be administered by the Indiana horse racing commission.
(c) The fund consists of gaming integrity fees deposited in the fund under this chapter and money distributed to the fund under IC 4-35-7-12. Fifteen percent (15%) of the money deposited in the fund shall be transferred to the Indiana state board of animal health to be used by the state board to pay the costs associated with equine health and equine care programs under IC 15-17.
(d) The treasurer of state shall invest the money in the fund not currently needed to meet the obligations of the fund in the same manner as other public funds may be invested.
(e) Money in the fund at the end of a state fiscal year does not revert to the state general fund.
(f) Money in the fund may be used by the Indiana horse racing commission only for the following purposes:
(1) To pay the cost of taking and analyzing equine specimens under IC 4-31-12-6(b) or another law or rule and the cost of any supplies related to the taking or analysis of specimens.
(2) To pay dues to the Drug Testing Standards and Practices (DTSP) Committee of the Association of Racing Commissioners International.
(3) To provide grants for research for the advancement of equine drug testing. Grants under this subdivision must be approved by the Drug Testing Standards and Practices (DTSP) Committee of the Association of Racing Commissioners International or by the Racing Mediation and Testing Consortium.
(4) To pay the costs of post-mortem examinations under IC 4-31-12-10.
(5) To pay other costs incurred by the commission to maintain the integrity of pari-mutuel racing.
As added by P.L.233-2007, SEC.21. Amended by P.L.142-2009, SEC.27; P.L.229-2011, SEC.61.
IC 4-22-2-19.5 Standards for rules (copied below) also supports IBOP’s view regarding 71 IAC 8.5-3-5(b) and 71 IAC 8-4-5(b) where minimizing expenses to “regulated entities” be a consideration in all administrative rules. IBOP’s position is also that the IHRC should provide refunds to all those who have been charged for split sample testing costs since at least the existence of the Gaming Integrity Fund, if not beyond.
IC 4-22-2-19.5
Standards for rules
Sec. 19.5. (a) To the extent possible, a rule adopted under this article or under IC 13-14-9.5 shall comply with the following:
(1) Minimize the expenses to:
(A) regulated entities that are required to comply with the rule;
(B) persons who pay taxes or pay fees for government services affected by the rule; and
(C) consumers of products and services of regulated entities affected by the rule.
(2) Achieve the regulatory goal in the least restrictive manner.
(3) Avoid duplicating standards found in state or federal laws.
(4) Be written for ease of comprehension.
(5) Have practicable enforcement.
(b) Subsection (a) does not apply to a rule that must be adopted in a certain form to comply with federal law.
As added by P.L.17-1996, SEC.2.
Thank you for this consideration of this petition,
Jim Hartman
IBOP Vice-President
CC: Chairman Diener
Commissioner Lauck
Commissioner Schaefer
Commissioner Grimes
Commissioner Barclay"
Wednesday, August 1, 2012
Administrative Rule of the Month - Cost of Split Sample Testing
If you are a regular reader of our blog and/or newsletter, you’ve probably recognized that Indiana Breeder & Owner Protection, LLC (IBOP) is very critical of the Indiana Horse Racing Commission’s (IHRC) use of the emergency rulemaking process. One of our key concerns is the lack of any meaningful oversight to determine whether an IHRC rule is even authorized by Indiana statute. This month's Administrative Rule of the Month regarding the 'Cost of Split Sample Testing’ is another such example of how this lack of meaningful oversight impacts horsemen. Simply put, the IHRC through emergency rulemaking has adopted 71 IAC 8.5-3-5(b) for the flat racing breeds and 71 IAC 8-4-5(b) for standardbreds which we see as contrary to Indiana law. We’ve copied the flat racing rule below which you can clearly see in (b) has placed a burden of paying for split sample testing and negative control samples on an owner or trainer.
71 IAC 8.5-3-5 Cost of split sample testing
Authority: IC 4-31-3-9
Affected: IC 4-31-12
Sec. 5. (a) In order for a split sample laboratory to be identified on the list of approved laboratories, it must establish reasonable fees for split sample testing based on their actual cost of testing. Fees for split sample testing shall include the cost of testing negative control samples if requested by the owner or trainer.
(b) The trainer or owner requesting split sample testing and negative control samples shall pay all costs of transporting and conducting tests on the split sample and negative control samples. (Indiana Horse Racing Commission; 71 IAC 8.5-3-5; emergency rule filed Jun 15, 1995, 5:00 p.m.: 18 IR 2884, eff Jul 1, 1995; readopted filed Oct 30, 2001, 11:50 a.m.: 25 IR 899; readopted filed Mar 23, 2007, 11:31 a.m.: 20070404-IR-071070030RFA)
All samples taken from horses participating in a race are supposed to be split into two parts (three parts for any out-of-competition testing). One part goes to the primary lab for testing with the other being stored. If the results from the primary lab indicate a positive for a foreign substance or test beyond a specific threshold, the owner or trainer has the option to have the stored, ‘split’ sample tested for verification. Unfortunately, there are no available statistics to determine how many horsemen take advantage of getting the split sample tested. The ‘cost of split sample testing’ rules create financial barriers to doing so. According to one of the IHRC-approved split sample labs, the University of California-Davis’s Thurman Laboratory, a test similar to the primary test starts at $230 with other, more specific tests as much as $2,000 for EPO.
Yet, this financial barrier to getting a split sample tested should not even exist! Chapter 12 of the Pari-Mutuel Wagering on Horse Races law is entitled, “Medication of Race Horses.” Clearly and simply stated in IC 4-31-12-6(b), which copied below, you see "The cost of analyzing specimens shall be borne by the commission.” There is no exception anywhere in Indiana law that allows for the IHRC to pass the cost on to an owner, split sample or otherwise. Yet, the IHRC does just that. The question, which we are estimating has never been asked by a commissioner, has to be, why?
IC 4-31-12-6
Appointment of veterinarian; approval of laboratory; analysis of specimens
Sec. 6. (a) The commission:
(1) shall appoint, at its cost, a veterinarian licensed to practice in Indiana to take or supervise the taking of specimens under section 5 of this chapter;
(2) shall approve a laboratory for the analysis of those specimens; and
(3) may require that a specimen taken under section 5 of this chapter be analyzed.
(b) The cost of analyzing specimens shall be borne by the commission.
(c) The commission may appoint, at its cost, veterinarians or other persons to supervise all activities in the state testing barn area and to supervise the practice of veterinary medicine at all racetracks in Indiana.
(d) The commission shall employ or contract for assistants to aid in securing specimens at each racetrack. These assistants shall have free access, under the supervision of the commission's veterinarian, to the state testing barn area. The permit holder shall, in the manner prescribed by the rules of the commission, reimburse the commission for the salaries and other expenses of the assistants who serve at the permit holder's racetrack.
As added by P.L.341-1989(ss), SEC.2. Amended by P.L.24-1992, SEC.37.
In our opinion, the IHRC staff over the years has created a complicated set of rules to prevent horsemen from challenging their authority. Rules like the ‘cost of split sample testing’ are about control, plain and simple. Without meaningful oversight by our commissioners, or a review by Indiana’s Attorney General in the regular rulemaking process, Indiana law just doesn’t matter and it should. One of IBOP’s next “Letters to the Commissioners” will be a request to modify the ‘cost of split sampling testing’ rules to conform to Indiana law. At that point, we expect the ‘cost’ card to be played, as in ‘the IHRC can’t afford to pay for the cost of analyzing each split sample.’
We would disagree with any such notion as the IHRC has plenty of funding. According to information IBOP has attained from the Indiana State Budget Agency, the IHRC only spent $1,488,380 of their $2,233,636 budget in fiscal year 2012 which ended on June 30th. Plus, the IHRC has available each fiscal year $850,000 from the Gaming Integrity Fund, which specifically came into existence “To pay the cost of taking and analyzing equine specimens under IC 4-31-12-6(b) or another law or rule and the cost of any supplies related to the taking or analysis of specimens.” The annual contract between the IHRC and their primary lab, Truesdail Laboratories, is $661,500, which would allow for a budget to pay for the cost of split sample testing form the Gaming Integrity Fund.
Our question is, where’s the ‘integrity’ with a rule that violates Indiana law? Refunds are in order for everyone charged by the IHRC for the cost of a split sample test.
71 IAC 8.5-3-5 Cost of split sample testing
Authority: IC 4-31-3-9
Affected: IC 4-31-12
Sec. 5. (a) In order for a split sample laboratory to be identified on the list of approved laboratories, it must establish reasonable fees for split sample testing based on their actual cost of testing. Fees for split sample testing shall include the cost of testing negative control samples if requested by the owner or trainer.
(b) The trainer or owner requesting split sample testing and negative control samples shall pay all costs of transporting and conducting tests on the split sample and negative control samples. (Indiana Horse Racing Commission; 71 IAC 8.5-3-5; emergency rule filed Jun 15, 1995, 5:00 p.m.: 18 IR 2884, eff Jul 1, 1995; readopted filed Oct 30, 2001, 11:50 a.m.: 25 IR 899; readopted filed Mar 23, 2007, 11:31 a.m.: 20070404-IR-071070030RFA)
All samples taken from horses participating in a race are supposed to be split into two parts (three parts for any out-of-competition testing). One part goes to the primary lab for testing with the other being stored. If the results from the primary lab indicate a positive for a foreign substance or test beyond a specific threshold, the owner or trainer has the option to have the stored, ‘split’ sample tested for verification. Unfortunately, there are no available statistics to determine how many horsemen take advantage of getting the split sample tested. The ‘cost of split sample testing’ rules create financial barriers to doing so. According to one of the IHRC-approved split sample labs, the University of California-Davis’s Thurman Laboratory, a test similar to the primary test starts at $230 with other, more specific tests as much as $2,000 for EPO.
Yet, this financial barrier to getting a split sample tested should not even exist! Chapter 12 of the Pari-Mutuel Wagering on Horse Races law is entitled, “Medication of Race Horses.” Clearly and simply stated in IC 4-31-12-6(b), which copied below, you see "The cost of analyzing specimens shall be borne by the commission.” There is no exception anywhere in Indiana law that allows for the IHRC to pass the cost on to an owner, split sample or otherwise. Yet, the IHRC does just that. The question, which we are estimating has never been asked by a commissioner, has to be, why?
IC 4-31-12-6
Appointment of veterinarian; approval of laboratory; analysis of specimens
Sec. 6. (a) The commission:
(1) shall appoint, at its cost, a veterinarian licensed to practice in Indiana to take or supervise the taking of specimens under section 5 of this chapter;
(2) shall approve a laboratory for the analysis of those specimens; and
(3) may require that a specimen taken under section 5 of this chapter be analyzed.
(b) The cost of analyzing specimens shall be borne by the commission.
(c) The commission may appoint, at its cost, veterinarians or other persons to supervise all activities in the state testing barn area and to supervise the practice of veterinary medicine at all racetracks in Indiana.
(d) The commission shall employ or contract for assistants to aid in securing specimens at each racetrack. These assistants shall have free access, under the supervision of the commission's veterinarian, to the state testing barn area. The permit holder shall, in the manner prescribed by the rules of the commission, reimburse the commission for the salaries and other expenses of the assistants who serve at the permit holder's racetrack.
As added by P.L.341-1989(ss), SEC.2. Amended by P.L.24-1992, SEC.37.
In our opinion, the IHRC staff over the years has created a complicated set of rules to prevent horsemen from challenging their authority. Rules like the ‘cost of split sample testing’ are about control, plain and simple. Without meaningful oversight by our commissioners, or a review by Indiana’s Attorney General in the regular rulemaking process, Indiana law just doesn’t matter and it should. One of IBOP’s next “Letters to the Commissioners” will be a request to modify the ‘cost of split sampling testing’ rules to conform to Indiana law. At that point, we expect the ‘cost’ card to be played, as in ‘the IHRC can’t afford to pay for the cost of analyzing each split sample.’
We would disagree with any such notion as the IHRC has plenty of funding. According to information IBOP has attained from the Indiana State Budget Agency, the IHRC only spent $1,488,380 of their $2,233,636 budget in fiscal year 2012 which ended on June 30th. Plus, the IHRC has available each fiscal year $850,000 from the Gaming Integrity Fund, which specifically came into existence “To pay the cost of taking and analyzing equine specimens under IC 4-31-12-6(b) or another law or rule and the cost of any supplies related to the taking or analysis of specimens.” The annual contract between the IHRC and their primary lab, Truesdail Laboratories, is $661,500, which would allow for a budget to pay for the cost of split sample testing form the Gaming Integrity Fund.
Our question is, where’s the ‘integrity’ with a rule that violates Indiana law? Refunds are in order for everyone charged by the IHRC for the cost of a split sample test.
Friday, July 20, 2012
July 2012 Newsletter Archive
For a copy of IBOP's July newsletter, follow this link: http://freepdfhosting.com/ccbbe2fb40.pdf
Sunday, July 1, 2012
Administrative Rule of the Month - Trainer Continuing Education (Revisited)
In January, 2012, IBOP made Trainer Continuing Education (CE) our first ‘Administrative Rule of the Month’. More specifically, ‘71 IAC 5.5-3-1 Eligibility’ is an administrative rule that outlines the requirements for flat racing trainers to have a license in Indiana. As a point of reference that first ‘Administrative Rule of the Month’ can be found at: http://www.ibopindy.blogspot.com/2012/01/administrative-rule-of-month.html
IBOP’s comments on the CE aspect of the rule had the following conclusion, “All administrative rules should be applied evenly and fairly, and in this particular case, the rule should be applied on an ‘all or nothing’ basis to be fair to everyone. This is the only way to make sure that the highest standards and the greatest level of integrity is achieved. We are suggesting that the implementation of this administrative rule be delayed into the future until there is a practical and effective way to deliver approved continuing education to ALL trainers, regardless of where they are based.”
At their March 7, 2012, meeting, the Indiana Horse Racing Commission (IHRC) did decide to modify this administrative rule. During this meeting, the IHRC approved an updated version of the rule that, among other things, did delay the implementation of the CE until 2013. This emergency rule was filed with the Indiana Register on March 8, 2012, and now reads:
"(h) Beginning in 2013, trainers must demonstrate, prior to licensure, that they have attended a four hour continuing education course approved by the Commission within the past two calendar years. Trainers completing an approved continuing education course in 2011 or 2012 will have met this requirement through the 2014 racing season. The continuing education requirement does not apply to trainers who have started horses six or fewer times in Indiana the previous year. Such trainers may start up to six horses in a year before he or she must fulfill the continuing education requirement."
Other than the delay of the effective date to 2013, IBOP believes that the IHRC has actually made this rule even worse. The most objectionable aspects of this change are the double standards the IHRC has created. First, the IHRC only applies this continuing education requirement to thoroughbred and quarter horse trainers and not standardbred trainers. Secondly, by now exempting trainers with less than six starts from the CE requirement, the IHRC has created another double standard by treating one group of flat racing trainers differently than another group of flat racing trainers. At the March 7th meeting, the Indiana Horsemen’s Benevolent & Protective Association objected to the exemption for trainers having six or less starts in Indiana on the basis that every trainer should be treated the exact same way. We agree.
IHRC Executive Director Joe Gorajec addressed the need for a CE requirement by saying, “And the rationale behind it is this, the purpose of the continuing education is, of course, trying to get trainers more familiar with our rules, our regulations, things about the training of a horse that might be new or different to them to give them information that they otherwise wouldn't have as a way of being able to perform their particular job better.” Given the stated goals of the CE requirement, to have any credibility in the ‘why’ this is necessary, the IHRC would have to include standardbred trainers. Then, to exclude a subset of the flat racing trainers licensed in Indiana defies logic on a number of fronts, but more specifically, if one of the IHRC’s stated goals is “to get trainer more familiar with our rules, our regulations…” then logic says that trainers with six or less starts in Indiana might be those less likely to be familiar with Indiana’s rules and regulations.
Undaunted, Executive Director Joe Gorajec went out of his way to attempt to explain why this rule change does not create a double standard. He said, “There is one thing I just want to kind of nip in the bud and share it with the commissioners because it's going to be something that will be discussed about the horsemen as far as the trainers who race less than, six times or less and trainers who race more, that the Commission has a double standard. That some trainers can come in and not have to take the classes and other trainers have to take the classes. A double standard is when you have two people, okay, in the same circumstances, you treat them differently. These are clearly not the same circumstances. You have one trainer that's participating in the race meet at certain levels, seven or more. Most of these people that have already gone through the class, some of these people have 20, 30, 40 horses. So it's not apples and apples when you have a 20-horse stable that focuses on Indiana. And then you have someone from either Kentucky or Illinois that has one horse that he sends to race at Indiana Downs or Hoosier Park and starts three or four times. I just want to bring that out there because that's something that I'm sure that the Commission and staff is going to hear.”
The commission and staff should hear the term ‘double standard’ associated with this CE rule because that is exactly what it creates. If you consult http://dictionary.reference.com/, you will find the following definitions: “double standard n. any code or set of principles containing different provisions for one group of people than for another.” To compare: “single standard n. A single set of rules and principles applying to everyone.” In the 1988 hit movie, “Bull Durham,” one of the lead characters, Annie Savoy, said, “The world is made for people who aren't cursed with self- awareness.” When management by exception is the norm, you have to continually find new justifications for your actions irrespective of logic or of awareness to your own actions and words. In other words, you have to fool yourself into believing yourself. And, in this case, you have to fool a group of commissioners too.
Without any awareness to logic and to your own actions and words, the next step is then to become defensive and make further bad decisions. In 2013, what will happen when that trainer attempts to race a 7th time without having gone through a four hour CE course? Is the IHRC going to rescind the trainer’s license prior to the 7th start or not let the trainer enter for a 7th start? Theoretically, with this rule, a trainer could have his or her 6th start in Indiana on the same race card as the 7th potential start. If the trainer doesn't have the CE, do the stewards revoke the license in between those starts? What if a trainer makes a 7th start without having taken the CE and it's not noticed until after the race? Is this grounds for purse forfeiture or a fine? Is the IHRC really going to count trainer's starts in Indiana across two meets?
At this point, IBOP still stands by our conclusion from January’s ‘Administrative Rule of the Month.’ To go further, we believe that this administrative rule should be repealed in its entirety. We know that repeal will never happen since that would be an admission of a mistake. At the very minimum, a more common sense-oriented and logical approach needs to be applied. When comparing the IHRC’s attempted CE requirement for flat racing trainers versus another profession in Indiana that requires continuing education, the insurance industry, we see vast differences.
First, the insurance industry has a statutory requirement for pre-licensing education and continuing education. There is no statutory requirement for the IHRC to selectively apply a continuing education requirement to anyone and we still question whether the IHRC has the statutory authority to even require CE. Second, the insurance industry has a definition for an hour of CE, they have an advisory council of knowledgeable industry organizations that make recommendations as to what courses should be approved for CE, and they have procedures to establish proof that participants actually complete a CE course. The IHRC has none of these items incorporated into their CE "rules." They are also ill-equipped to manage any CE requirement in an industry where quality education programs ARE available through national meetings of horsemen's associations, yet would lack the approval of the IHRC to count as an hour of CE. In fact, at this point, the entire racing industry is ill-equipped to manage a CE requirement, and that is why only Indiana and Montana have such rules. Yet, based upon the continued over-regulation, IBOP is now supportive of a CE requirement for the five commissioners who make these decisions.
Saturday, June 30, 2012
71 IAC 7.5-3-4 Scale of Weights
According to the approved "Minutes of the Regular Meeting of the Indiana Horse Racing Commission" for April 19, 2012, the first agenda item for that meeting was "Consideration of Emergency Rule regarding 71 IAC 7.5-3-4, scale of weights." This motion is noted as being passed 5-0 to conform Indiana's administrative rule to that of the ARCI Model Rule on minimum weight allowances. This agenda item was presented to the commission by Jeff Johnston of The Jockey's Guild. As of this writing, no such administrative rule change has been filed with the Indiana Register and is therefore not in effect. According to Indiana statute, emergency rules are not effective until filed properly with the Indiana Register. All other emergency rules approved by the commissioners on April 19, 2012, were filed with the Indiana Register twenty-six days after their approval on May 16, 2012, under LSA Document #12-267(E). You can access this document at:
http://www.in.gov/legislative/iac/20120523-IR-071120267ERA.xml.pdf.
The version of '71 IAC 7.5-3-4 Scale of weights' that is currently in effect for Indiana flat racing is copied below for your reference. This rule has been in effect since March 23, 2007 without any changes since.
71 IAC 7.5-3-4 Scale of weights
Authority: IC 4-31-3-9
Affected: IC 4-31
Sec. 4. (a) In all races the minimum weight carried shall be one hundred sixteen (116) pounds except the following:
(1) Three (3) year olds competing with older horses shall carry a minimum one hundred fourteen (114) pounds from January through April, and one hundred fifteen (115) pounds thereafter.
(2) Sex allowance.
(3) Apprentice jockey allowances.
(4) Stakes and handicap races.
(5) Indiana bred weight allowance.
(b) In all races except in handicaps and races where the conditions expressly state to the contrary, the sex allowance is as follows:
(1) For two-year-old fillies, three (3) pounds.
(2) For fillies and mares, three-years-old and upward, five (5) pounds before September 1, and three (3) pounds thereafter.
(c) Quarter horses, appaloosas, and paints shall carry a minimum of one hundred sixteen (116) pounds, except in handicaps. Should a quarter horse carry less than one hundred sixteen (116) pounds, one-tenth (1/10) of one (1) second shall be added to the official time for each four (4) pounds, or fraction thereof, less than one hundred sixteen (116) pounds. (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)
Clearly, the expressed intent of the commission at their April 19, 2012, meeting was to adopt the ARCI Model Rule. We've copied the ARCI Model Rule below for reference as well. We would, however, like to point out that the actual administrative rule approved by the commision contains a significant deviation from the ARCI Model Rule. In section (3) below, the ARCI Model Rule provides for a minimum weight of 120 pounds for a two-year old quarter horse. In the edited version of 71 IAC 7.5-3-4 approved by the commission on April 19, 2012, a minimum weight for a two-year old quarter horse was approved at 130 pounds, not the 120 pounds in the ARCI Model Rule. Given the minimum weights established for three-year old quarter horses (122 lbs.) and four-year old and older quarter horses (124 lbs.) in the ARCI Model Rule, the 130 pound minimum for two-year old quarter horses is obviously a mistake, yet a mistake that noneless has been approved by the commission.
ARCI Scale of Weights - Model Rule _____________________________________________________________________________________
(1) With the exception of apprentice allowances, handicap 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, no jockey shall be assigned a weight of less than 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 116 pounds.
(2) 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.
(3) Quarter Horses, Appaloosas and Paints minimum scale weights shall be 120 pounds for two-year-olds, 122 pounds for three-year-olds, and 124 pounds for four-year-olds and older.
(4) 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 require weighing out procedures. Additionally, upon stewards’ approval, jockeys may weigh in with an additional three (3) pounds for inclement weather gear.
_____________________________________________________________________________________
Thank You,
Jim Hartman
IBOP Vice-President
CC: Chairman Diener
Commissioner Lauck
Commissioner Schaefer
Commissioner Grimes
Commissioner Barclay
http://www.in.gov/legislative/iac/20120523-IR-071120267ERA.xml.pdf.
The version of '71 IAC 7.5-3-4 Scale of weights' that is currently in effect for Indiana flat racing is copied below for your reference. This rule has been in effect since March 23, 2007 without any changes since.
71 IAC 7.5-3-4 Scale of weights
Authority: IC 4-31-3-9
Affected: IC 4-31
Sec. 4. (a) In all races the minimum weight carried shall be one hundred sixteen (116) pounds except the following:
(1) Three (3) year olds competing with older horses shall carry a minimum one hundred fourteen (114) pounds from January through April, and one hundred fifteen (115) pounds thereafter.
(2) Sex allowance.
(3) Apprentice jockey allowances.
(4) Stakes and handicap races.
(5) Indiana bred weight allowance.
(b) In all races except in handicaps and races where the conditions expressly state to the contrary, the sex allowance is as follows:
(1) For two-year-old fillies, three (3) pounds.
(2) For fillies and mares, three-years-old and upward, five (5) pounds before September 1, and three (3) pounds thereafter.
(c) Quarter horses, appaloosas, and paints shall carry a minimum of one hundred sixteen (116) pounds, except in handicaps. Should a quarter horse carry less than one hundred sixteen (116) pounds, one-tenth (1/10) of one (1) second shall be added to the official time for each four (4) pounds, or fraction thereof, less than one hundred sixteen (116) pounds. (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)
Clearly, the expressed intent of the commission at their April 19, 2012, meeting was to adopt the ARCI Model Rule. We've copied the ARCI Model Rule below for reference as well. We would, however, like to point out that the actual administrative rule approved by the commision contains a significant deviation from the ARCI Model Rule. In section (3) below, the ARCI Model Rule provides for a minimum weight of 120 pounds for a two-year old quarter horse. In the edited version of 71 IAC 7.5-3-4 approved by the commission on April 19, 2012, a minimum weight for a two-year old quarter horse was approved at 130 pounds, not the 120 pounds in the ARCI Model Rule. Given the minimum weights established for three-year old quarter horses (122 lbs.) and four-year old and older quarter horses (124 lbs.) in the ARCI Model Rule, the 130 pound minimum for two-year old quarter horses is obviously a mistake, yet a mistake that noneless has been approved by the commission.
ARCI Scale of Weights - Model Rule _____________________________________________________________________________________
(1) With the exception of apprentice allowances, handicap 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, no jockey shall be assigned a weight of less than 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 116 pounds.
(2) 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.
(3) Quarter Horses, Appaloosas and Paints minimum scale weights shall be 120 pounds for two-year-olds, 122 pounds for three-year-olds, and 124 pounds for four-year-olds and older.
(4) 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 require weighing out procedures. Additionally, upon stewards’ approval, jockeys may weigh in with an additional three (3) pounds for inclement weather gear.
_____________________________________________________________________________________
Thank You,
Jim Hartman
IBOP Vice-President
CC: Chairman Diener
Commissioner Lauck
Commissioner Schaefer
Commissioner Grimes
Commissioner Barclay
Wednesday, June 20, 2012
Letters to the Commissioners - New Business Agenda Item Request
Indiana Breeder & Owner Protection, Inc. (IBOP) would like to request that the Indiana Horse Racing Commission (IHRC) add a "New Business" item for the meeting scheduled for June 25th. We also believe that due to another oversight by the commission staff an emergency should exist. This oversight by the commission staff has caused the scratches of Red Lite Nite from the $84,000 Ellen's Lucky Star Stakes and of X Boss from the $84,000 Snack Stakes both scheduled for the June 20th race card at Indiana Downs. We've attached a copy of the early scratches at Indiana Downs for June 20th as provided by Equibase.
Please consider this correspondence as IBOP's petition to amend '71 IAC 7.5-1-4 Coupled entries,' which is copied in its entirety below, to conform with the clearly communicated intent, expressed by the commissioners, at the January 24, 2012 meeting. More specifically, 71 IAC 7.5-1-4(b), highlighted below, should have been modified earlier this year to reflect the clearly expressed intent of the commission to provide an exception to this administrative rule for the Indiana-bred stakes program. The language of the rule, "in no circumstances may two (2) having common ties of ownership start to the exclusion of a single entry" is contrary to a commission decision from the January 24, 2012 meeting. At that meeting, the commissioners approved an exception to this administrative rule as a part of the 2012 Thoroughbred Breed Development Program and a change to the rule was never executed. Further substantiation is below the copied administrative rule.
71 IAC 7.5-1-4 Coupled entries
Authority: IC 4-31-3-9
Affected: IC 4-31
Sec. 4. (a) Two (2) or more horses which are entered in a race shall be joined as a mutuel and single betting interest if they are owned or leased in whole or in part by the same owner. Horses trained by the same trainer but owned entirely by different owners shall be coupled as a single betting interest; however, the association, with the permission of the stewards, may uncouple such horses in quarter horse races.
(b) No more than two (2) horses having common ties through ownership or training may be entered in an overnight race. Other than quarter horse time trials and time trial finals, in no circumstance may two (2) horses having common ties of ownership start to the exclusion of a single entry. Preference for horses with the same trainer, but having no common ties of ownership, will be determined by the conditions of the race and/or preference date and may exclude a single entry.
(c) A trainer may not train for another trainer licensed in the state of Indiana. (Indiana Horse Racing Commission; 71 IAC 7.5-1-4; emergency rule filed Jun 15, 1995, 5:00 p.m.: 18 IR 2865, eff Jul 1, 1995; emergency rule filed Aug 9, 1995, 10:30 a.m.: 18 IR 3406; emergency rule filed May 20, 1996, 10:00 a.m.: 19 IR 2892; emergency rule filed Jun 22, 2000, 3:05 p.m.: 23 IR 2780;
readopted filed Oct 30, 2001, 11:50 a.m.: 25 IR 899; emergency rule filed Feb 21, 2003, 4:15 p.m.: 26 IR 2383; emergency rule filed Aug 21, 2003, 4:45 p.m.: 27 IR 205; emergency rule filed Mar 20, 2007, 1:43 p.m.: 20070404-IR-071070198ERA, eff Mar 16, 2007 [IC 4-22-2-37.1 establishes the effectiveness of an emergency rule upon filing with the Publisher. LSA Document #07-198(E) was filed with the Publisher March 20, 2007.]; readopted filed Mar 23, 2007, 11:31 a.m.: 20070404-IR-071070030RFA)
The attachment to this email was taken directly from http://www.in.gov/hrc/files/2012_TB_Program.pdf . This document is the "Thoroughbred Breed Development Advisory Committee 2012 Approved Program." There is further notation under the heading on the first page that this document was approved by the thoroughbred breed development committee on December 14, 2011 and "Approved by the Indiana Horse Racing Commission on January 24, 2012." Having had board members attend the December 14, 2011 breed development advisory committee meeting, the clear expressed intent of the committee was to guarantee that the best horses got into the Indiana-restricted thoroughbred stakes races irrespective of whether common ownership would exclude a single entry. At the top of page three of the approved program of that intent was expressed as:
"In addition, the Committee recommends that the following language, "Two horses having common ties through ownership cannot start to the exclusion of a single betting interest", be eliminated from all Breed Development stake conditions."
The entire 2012 program was approved by the commissioners without changes. In order for the commissioners expressed intent to be effective, 71 IAC 7.5-1-4(b) would have had to have been modified to provide for such an exception. No modification of the language to 71 IAC 7.5-1-4(b) was completed. In reviewing stakes conditions from 2011, we do note that the language "Two horses having common ties through ownership cannot start to the exclusion of a single betting interest" language HAS been removed from the stakes conditions in 2012. However, there should have been more diligence on the part of the IHRC staff in following through to guarantee that the clearly expressed intent of the commission was implemented within the Indiana Administrative Code.
As further corroboration, Program Director Jessica Barnes said, "In the interest of quality of entries, the Committee recommends that all breed development stakes not include the language, two horses having common ties through ownership cannot start to the exclusion of a single betting interest." (Meeting transcript page 36, lines 13-17) After further discussion on the program, Commissioner Grimes asked for clarification with, "Just like a little enlightenment on the recommendation, two horses having common ties of ownership cannot start to the exclusion of a single bet. Please explain that to me." (Meeting transcript page 38, lines 14 to 18) Ms. Barnes responded, "This language has always been included in the requirements for the stakes, and what we would like to do is remove that. If you're looking at carving a race with the top 10 or 12 quality horses and you're excluding a horse because there's common ties, you're really not getting the best horses in the race. So the Committee felt when they were looking at this that it was time to take that language out. This goes along the same lines of what the language is for open stake races. The open stake races at the racetrack does not have this language in there. So we would be conforming to what the language is for the racetracks for their open stakes." (Meeting transcript page 38 lines 19 to 25 and page 39 lines 1 through 7)
Please Note: While the characterization that "This goes along the same lines of what the language is for open stake races" may be accurate from a stakes condition perspective, the same language currently in 71 IAC 7.5-1-4(b) would also provide the same limitation within the open stakes program. However, IBOP's review has been confined to what we readily see as an expressed intent of the commission for the change for stakes races within the Indiana-restricted program.
Sincerely,
Jim Hartman
IBOP Vice President
CC: Chairman McNaught
Commissioner Lauck
Commissioner Schaefer
Commissioner Grimes
Commissioner Barclay
Please consider this correspondence as IBOP's petition to amend '71 IAC 7.5-1-4 Coupled entries,' which is copied in its entirety below, to conform with the clearly communicated intent, expressed by the commissioners, at the January 24, 2012 meeting. More specifically, 71 IAC 7.5-1-4(b), highlighted below, should have been modified earlier this year to reflect the clearly expressed intent of the commission to provide an exception to this administrative rule for the Indiana-bred stakes program. The language of the rule, "in no circumstances may two (2) having common ties of ownership start to the exclusion of a single entry" is contrary to a commission decision from the January 24, 2012 meeting. At that meeting, the commissioners approved an exception to this administrative rule as a part of the 2012 Thoroughbred Breed Development Program and a change to the rule was never executed. Further substantiation is below the copied administrative rule.
71 IAC 7.5-1-4 Coupled entries
Authority: IC 4-31-3-9
Affected: IC 4-31
Sec. 4. (a) Two (2) or more horses which are entered in a race shall be joined as a mutuel and single betting interest if they are owned or leased in whole or in part by the same owner. Horses trained by the same trainer but owned entirely by different owners shall be coupled as a single betting interest; however, the association, with the permission of the stewards, may uncouple such horses in quarter horse races.
(b) No more than two (2) horses having common ties through ownership or training may be entered in an overnight race. Other than quarter horse time trials and time trial finals, in no circumstance may two (2) horses having common ties of ownership start to the exclusion of a single entry. Preference for horses with the same trainer, but having no common ties of ownership, will be determined by the conditions of the race and/or preference date and may exclude a single entry.
(c) A trainer may not train for another trainer licensed in the state of Indiana. (Indiana Horse Racing Commission; 71 IAC 7.5-1-4; emergency rule filed Jun 15, 1995, 5:00 p.m.: 18 IR 2865, eff Jul 1, 1995; emergency rule filed Aug 9, 1995, 10:30 a.m.: 18 IR 3406; emergency rule filed May 20, 1996, 10:00 a.m.: 19 IR 2892; emergency rule filed Jun 22, 2000, 3:05 p.m.: 23 IR 2780;
readopted filed Oct 30, 2001, 11:50 a.m.: 25 IR 899; emergency rule filed Feb 21, 2003, 4:15 p.m.: 26 IR 2383; emergency rule filed Aug 21, 2003, 4:45 p.m.: 27 IR 205; emergency rule filed Mar 20, 2007, 1:43 p.m.: 20070404-IR-071070198ERA, eff Mar 16, 2007 [IC 4-22-2-37.1 establishes the effectiveness of an emergency rule upon filing with the Publisher. LSA Document #07-198(E) was filed with the Publisher March 20, 2007.]; readopted filed Mar 23, 2007, 11:31 a.m.: 20070404-IR-071070030RFA)
The attachment to this email was taken directly from http://www.in.gov/hrc/files/2012_TB_Program.pdf . This document is the "Thoroughbred Breed Development Advisory Committee 2012 Approved Program." There is further notation under the heading on the first page that this document was approved by the thoroughbred breed development committee on December 14, 2011 and "Approved by the Indiana Horse Racing Commission on January 24, 2012." Having had board members attend the December 14, 2011 breed development advisory committee meeting, the clear expressed intent of the committee was to guarantee that the best horses got into the Indiana-restricted thoroughbred stakes races irrespective of whether common ownership would exclude a single entry. At the top of page three of the approved program of that intent was expressed as:
"In addition, the Committee recommends that the following language, "Two horses having common ties through ownership cannot start to the exclusion of a single betting interest", be eliminated from all Breed Development stake conditions."
The entire 2012 program was approved by the commissioners without changes. In order for the commissioners expressed intent to be effective, 71 IAC 7.5-1-4(b) would have had to have been modified to provide for such an exception. No modification of the language to 71 IAC 7.5-1-4(b) was completed. In reviewing stakes conditions from 2011, we do note that the language "Two horses having common ties through ownership cannot start to the exclusion of a single betting interest" language HAS been removed from the stakes conditions in 2012. However, there should have been more diligence on the part of the IHRC staff in following through to guarantee that the clearly expressed intent of the commission was implemented within the Indiana Administrative Code.
As further corroboration, Program Director Jessica Barnes said, "In the interest of quality of entries, the Committee recommends that all breed development stakes not include the language, two horses having common ties through ownership cannot start to the exclusion of a single betting interest." (Meeting transcript page 36, lines 13-17) After further discussion on the program, Commissioner Grimes asked for clarification with, "Just like a little enlightenment on the recommendation, two horses having common ties of ownership cannot start to the exclusion of a single bet. Please explain that to me." (Meeting transcript page 38, lines 14 to 18) Ms. Barnes responded, "This language has always been included in the requirements for the stakes, and what we would like to do is remove that. If you're looking at carving a race with the top 10 or 12 quality horses and you're excluding a horse because there's common ties, you're really not getting the best horses in the race. So the Committee felt when they were looking at this that it was time to take that language out. This goes along the same lines of what the language is for open stake races. The open stake races at the racetrack does not have this language in there. So we would be conforming to what the language is for the racetracks for their open stakes." (Meeting transcript page 38 lines 19 to 25 and page 39 lines 1 through 7)
Please Note: While the characterization that "This goes along the same lines of what the language is for open stake races" may be accurate from a stakes condition perspective, the same language currently in 71 IAC 7.5-1-4(b) would also provide the same limitation within the open stakes program. However, IBOP's review has been confined to what we readily see as an expressed intent of the commission for the change for stakes races within the Indiana-restricted program.
Sincerely,
Jim Hartman
IBOP Vice President
CC: Chairman McNaught
Commissioner Lauck
Commissioner Schaefer
Commissioner Grimes
Commissioner Barclay
Thursday, June 14, 2012
Letters to the Commissioners - Input on Rulemaking Process
On May 14th, the following message was sent to horse racing stakeholders and organizations from Indiana Horse Racing Commission Executive Director Joe Gorajec:
"To All – Chairman McNaught has asked me to consider proposing to the Commission a policy on its rulemaking process. Specifically, the use of the emergency rulemaking process versus the general process.
Should you wish to comment on this issue, please file your thoughts by noon, Thursday, June 14, 2012."
Below is IBOP's response which was subsequently sent to each commissioner:
Joe,
Please consider this email as Indiana Breeder & Owner Protection, Inc’s (IBOP) response to the May 14, 2012 Indiana Horse Racing Commission (IHRC) request for input regarding a rulemaking policy.
Define an Emergency
Simply, emergency rules should be used when a true emergency exists. IBOP is not suggesting that there aren’t potentially legitimate emergencies that may require administrative rules to go into effect immediately. Just like the IHRC, the Indiana Gaming Commission (IGC) has the legal authority to use the emergency rulemaking process. The difference being that the language in the IGC’s authorizing statute attempts to define just what an emergency is, which is “the need for a rule is so immediate and substantial” that the regular rulemaking procedures are “inadequate.” As we know, when the IGC approves an emergency administrative rule, they are required by law to begin the regular rulemaking process within 30 days after adopting the emergency rule. In other words, their emergency rules can be in effect, but only temporarily until providing public notice, hold a public hearing, get the AG’s approval, etc.
Another view of defining an emergency can be found in the Pari-Mutuel Wagering on Horse Racing statute. Indiana law allows the IHRC to suspend a person’s license immediately and to do so prior to a hearing on the matter. This is called a summary suspension and the criteria in the law for a summary suspension of a license are if the licensee’s actions “constitute an immediate danger to the public health, safety, or welfare.” In your own administrative rules, the IHRC has expanded upon this language to “an immediate danger to the public health, safety, or welfare or compromise the integrity of operations at a track or satellite facility.” In creating this summary suspension administrative rule, we feel that the IHRC has actually defined what an emergency actually is.
We believe that if a proposed administrative rule doesn’t fit into a specific definition of an emergency, then the regular rulemaking process should be used.
Proper Legal Oversight & Proper Standards for Administrative Rules
Administrative rules, which carry the weight of a law, should be done more carefully and with proper legal oversight. The regular rulemaking process, which includes a review process by the AG, would help insure that all administrative rules are within the statutory authority of the IHRC (for example portions of the Out-of-Competition Testing rules) and within established standards for Administrative Rules in Indiana. Here’s a recent example that we believe would not have occurred had the regular rulemaking process been used:
One of the agenda items at the IHRC’s January 24th meeting was to introduce a brand new administrative rule regarding specific drug thresholds levels. Specifically, 71 IAC 8-1-4.2, the standardbred version of this rule, had three distinct versions. The first version of the standardbred rule that was emailed out to horsemen’s associations for comments included thresholds for five different drugs: clenbuterol, firocoxib, glycopyrrolate, methocarbamol, and DMSO. The second version, which was handed out at the commission meeting with a draft date of January 3, 2012, had thresholds for three drugs: clenbuterol, firocoxib, and DMSO. The third version of this rule, the one submitted to the Indiana Register as the Final Rule only listed a threshold for clenbuterol when filed on January 25th.
In reviewing the transcript of the January 24th meeting, the discussion on this emergency rule indicates that the IHRC fully intended to approve the draft rule handed out at the meeting with the three drug thresholds. However, the January 3rd draft presented to the commissioners was not submitted to the Indiana Register as the final rule. The “clenbuterol-only threshold rule” was in effective for 15 days when the IHRC staff filed the January 3rd draft rules to the Indiana Register as a brand new emergency rule. (Both rules submitted are easily accessed by the public online via the Indiana Register.) While only one emergency rule was approved by the commission, the Indiana Register now indicates that two versions of this emergency rule were approved. This first-time rule is now on the books as having one version from January 25th to February 8th and another version from February 8th and beyond. Having three different versions of any rule would never happen under the regular rulemaking process. Through the regular rulemaking process, once a Notice of Intent to Adopt has been filed, the language of the rule cannot be substantively changed. The regular rulemaking process is designed to also prevent administrative error.
IBOP has noticed a number of errors in the IHRC’s administrative rules, some of which have been submitted for review. In all instances where the IHRC has attempted to incorporate by reference any outside materials, there is a failure to meet the administrative rule standards to do so. Here’s a recent example:
Another administrative rule on the agenda at the January 24th IHRC meeting was an amendment to a rule on purse forfeiture for certain medication violations. The rule was being modified to defer penalties to those recommended by the Association of Racing Commissioners, International (ARCI) for specific bute, flunixin, ketoprofen and salix overages. No specific penalties are mentioned in the IHRC’s proposed rule with just a reference to “recommended penalties of the Association of Racing Commissioners, International.” Indiana law DOES allow for incorporation by reference in administrative rules to allow for a standard adopted by a national association to be included in an Indiana rule. So, the deferral to the ARCI penalties is allowed by law; however, any reference must be “fully and exactly described.”
Since the ARCI’s model rule recommendations change over time, this particular attempted incorporation by reference fails to meet the “fully and exactly described” standard required by Indiana law. For this rule to meet Indiana’s legal standard, it needs to be further described by “Version 5.00 – Revised December 9, 2011.” (We’ve found seven versions in a 10 minute internet search.) Indiana administrative rules are required to have any ‘incorporation by reference’ be fixed to a particular version of what is actually being referenced. (We’ve found similar errors in other IHRC administrative rules.) Plus, any outside materials incorporated by reference must be submitted to the Indiana Register which then adds an appropriate notation of those materials to the bottom of the administrative rule. In our view of the incorporation by reference portion of the Indiana statute, any rule that does not follow the correct incorporation by reference procedures is technically not in effect. We would suggest that the IHRC staff review all incorporations by reference currently within 71 IAC and make with necessary rule changes.
Other Administrative Rule Standards
Indiana statue regarding administrative rules requires certain sensitivity to the costs of regulations on small business. The statute also states that, to the extent possible, all administrative rules “shall” minimize the expenses to those being regulated, to taxpayers, and to those who are the consumers of the regulated product. Another standard is that each administrative rule is supposed to “achieve the regulatory goal in the least restrictive manner.” We feel that the use of the regular rulemaking procedures will better serve small businesses affiliated in and around the horse racing industry, those regulated, and the taxpayers in keeping these statutory requirements at the forefront of the IHRC’s rulemaking
"To All – Chairman McNaught has asked me to consider proposing to the Commission a policy on its rulemaking process. Specifically, the use of the emergency rulemaking process versus the general process.
Should you wish to comment on this issue, please file your thoughts by noon, Thursday, June 14, 2012."
Below is IBOP's response which was subsequently sent to each commissioner:
Joe,
Please consider this email as Indiana Breeder & Owner Protection, Inc’s (IBOP) response to the May 14, 2012 Indiana Horse Racing Commission (IHRC) request for input regarding a rulemaking policy.
Define an Emergency
Simply, emergency rules should be used when a true emergency exists. IBOP is not suggesting that there aren’t potentially legitimate emergencies that may require administrative rules to go into effect immediately. Just like the IHRC, the Indiana Gaming Commission (IGC) has the legal authority to use the emergency rulemaking process. The difference being that the language in the IGC’s authorizing statute attempts to define just what an emergency is, which is “the need for a rule is so immediate and substantial” that the regular rulemaking procedures are “inadequate.” As we know, when the IGC approves an emergency administrative rule, they are required by law to begin the regular rulemaking process within 30 days after adopting the emergency rule. In other words, their emergency rules can be in effect, but only temporarily until providing public notice, hold a public hearing, get the AG’s approval, etc.
Another view of defining an emergency can be found in the Pari-Mutuel Wagering on Horse Racing statute. Indiana law allows the IHRC to suspend a person’s license immediately and to do so prior to a hearing on the matter. This is called a summary suspension and the criteria in the law for a summary suspension of a license are if the licensee’s actions “constitute an immediate danger to the public health, safety, or welfare.” In your own administrative rules, the IHRC has expanded upon this language to “an immediate danger to the public health, safety, or welfare or compromise the integrity of operations at a track or satellite facility.” In creating this summary suspension administrative rule, we feel that the IHRC has actually defined what an emergency actually is.
We believe that if a proposed administrative rule doesn’t fit into a specific definition of an emergency, then the regular rulemaking process should be used.
Proper Legal Oversight & Proper Standards for Administrative Rules
Administrative rules, which carry the weight of a law, should be done more carefully and with proper legal oversight. The regular rulemaking process, which includes a review process by the AG, would help insure that all administrative rules are within the statutory authority of the IHRC (for example portions of the Out-of-Competition Testing rules) and within established standards for Administrative Rules in Indiana. Here’s a recent example that we believe would not have occurred had the regular rulemaking process been used:
One of the agenda items at the IHRC’s January 24th meeting was to introduce a brand new administrative rule regarding specific drug thresholds levels. Specifically, 71 IAC 8-1-4.2, the standardbred version of this rule, had three distinct versions. The first version of the standardbred rule that was emailed out to horsemen’s associations for comments included thresholds for five different drugs: clenbuterol, firocoxib, glycopyrrolate, methocarbamol, and DMSO. The second version, which was handed out at the commission meeting with a draft date of January 3, 2012, had thresholds for three drugs: clenbuterol, firocoxib, and DMSO. The third version of this rule, the one submitted to the Indiana Register as the Final Rule only listed a threshold for clenbuterol when filed on January 25th.
In reviewing the transcript of the January 24th meeting, the discussion on this emergency rule indicates that the IHRC fully intended to approve the draft rule handed out at the meeting with the three drug thresholds. However, the January 3rd draft presented to the commissioners was not submitted to the Indiana Register as the final rule. The “clenbuterol-only threshold rule” was in effective for 15 days when the IHRC staff filed the January 3rd draft rules to the Indiana Register as a brand new emergency rule. (Both rules submitted are easily accessed by the public online via the Indiana Register.) While only one emergency rule was approved by the commission, the Indiana Register now indicates that two versions of this emergency rule were approved. This first-time rule is now on the books as having one version from January 25th to February 8th and another version from February 8th and beyond. Having three different versions of any rule would never happen under the regular rulemaking process. Through the regular rulemaking process, once a Notice of Intent to Adopt has been filed, the language of the rule cannot be substantively changed. The regular rulemaking process is designed to also prevent administrative error.
IBOP has noticed a number of errors in the IHRC’s administrative rules, some of which have been submitted for review. In all instances where the IHRC has attempted to incorporate by reference any outside materials, there is a failure to meet the administrative rule standards to do so. Here’s a recent example:
Another administrative rule on the agenda at the January 24th IHRC meeting was an amendment to a rule on purse forfeiture for certain medication violations. The rule was being modified to defer penalties to those recommended by the Association of Racing Commissioners, International (ARCI) for specific bute, flunixin, ketoprofen and salix overages. No specific penalties are mentioned in the IHRC’s proposed rule with just a reference to “recommended penalties of the Association of Racing Commissioners, International.” Indiana law DOES allow for incorporation by reference in administrative rules to allow for a standard adopted by a national association to be included in an Indiana rule. So, the deferral to the ARCI penalties is allowed by law; however, any reference must be “fully and exactly described.”
Since the ARCI’s model rule recommendations change over time, this particular attempted incorporation by reference fails to meet the “fully and exactly described” standard required by Indiana law. For this rule to meet Indiana’s legal standard, it needs to be further described by “Version 5.00 – Revised December 9, 2011.” (We’ve found seven versions in a 10 minute internet search.) Indiana administrative rules are required to have any ‘incorporation by reference’ be fixed to a particular version of what is actually being referenced. (We’ve found similar errors in other IHRC administrative rules.) Plus, any outside materials incorporated by reference must be submitted to the Indiana Register which then adds an appropriate notation of those materials to the bottom of the administrative rule. In our view of the incorporation by reference portion of the Indiana statute, any rule that does not follow the correct incorporation by reference procedures is technically not in effect. We would suggest that the IHRC staff review all incorporations by reference currently within 71 IAC and make with necessary rule changes.
Other Administrative Rule Standards
Indiana statue regarding administrative rules requires certain sensitivity to the costs of regulations on small business. The statute also states that, to the extent possible, all administrative rules “shall” minimize the expenses to those being regulated, to taxpayers, and to those who are the consumers of the regulated product. Another standard is that each administrative rule is supposed to “achieve the regulatory goal in the least restrictive manner.” We feel that the use of the regular rulemaking procedures will better serve small businesses affiliated in and around the horse racing industry, those regulated, and the taxpayers in keeping these statutory requirements at the forefront of the IHRC’s rulemaking
Friday, June 1, 2012
Administrative Rule of the Month - Indiana-Bred Preference
The following is a copy of a letter sent to the Indiana Horse Racing Commission (IHRC) regarding Indiana-bred preferred and Indiana-sired preferred thoroughbred races that were being run at Indiana Downs earlier this year. We are of the belief that these races should have provided an additional 40% to the first three finishers and that breeder and any stallion awards be calculated including the 40% purse supplement. As we expected, there is a lot of misinformation being spread about IBOP's involvement with this issue, so we've made Indiana-Bred Preference the IBOP Administrative Rule of the Month. We wanted everyone to see exactly what was said. This letter was emailed on May 13th,and as of this writing, we've received no response from the IHRC.
"According to information provided at the Thoroughbred Breed Development Advisory Committee meeting on November 7, 2011, the thoroughbred breed development program at Indiana Downs in 2011 exceeded the commission approved Indiana Thoroughbred Development Fund (ITDF) budget for the meet by $542,195. Clearly, the number of races supplemented from the ITDF in 2011 exceeded the commission approved number of races with 126 races run versus 120 races approved. However, the breeder and stallion awards from the 27 so-called 'non-ITDF' races (for Indiana-bred and Indiana-sired horses and funded solely from the horsemen's purse account with nothing from the ITDF) was responsible for over $250,000 of the $542,195 overage. In total, the commission approved 120 ITDF award eligible restricted overnight races and 153 award eligible restricted overnight races were actually run. This impacted the budget to a large degree reducing the available surplus in the ITDF well beyond what was approved for the 2011 program.
Last year's 'non-ITDF' races are essentially being replaced this year by what are being called Indiana-bred or Indiana-sired preferred races. These races are impacting the approved 2012 thoroughbred breed development budget, but these races also appear to be being written in violation of commission approved rules. The condition of these 'Indiana preferred' races is that they are actually 'open' for entry to horses bred in any state (Please see 71 IAC 1.5-1-24 copied below). A Kentucky-bred horse, a Florida-bred or an Indiana-bred can be entered into these 'Indiana preferred' races.
71 IAC 1.5-1-24 "Conditions" defined
Authority: IC 4-31-3-9
Affected: IC 4-31
Sec. 24. "Conditions" means qualifications which determine a horse's eligibility to be entered in a race. (Indiana Horse Racing Commission; 71 IAC 1.5-1-24; emergency rule filed Jun 15, 1995, 5:00 p.m.: 18 IR 2817, eff Jul 1, 1995; readopted filed Oct 30, 2001, 11:50 a.m.: 25 IR 899; readopted filed Mar 23, 2007, 11:31 a.m.: 20070404-IR-071070030RFA)
However, while the condition of these 'Indiana preferred' races is 'open,' the caveat attached to these races as applied by Indiana Downs is "No 40% State Bred Supplement if race fills with all Indiana Breds." This raises two issues where commission approved administrative rules are not being applied. So far, this 'Indiana preference' has created fields that have been comprised of 100% of either Indiana-bred or Indiana-sired horses. Ironically, an Indiana-bred can enter this open condition race and be excluded from running by an Indiana-sired preference attached to the race by Indiana Downs. Yet, preference for Indiana-breds in open condition races is determined by 71 IAC 13.5-5-1, which is copied below, and not what the racing secretary decides the preference for Indiana-breds should be in open races. Zero-dates, R-dates (race), and E-dates (entry) determine preference and Indiana-breds (sireds included) only get preference in open condition races when their R-dates and E-dates are equal to a horse bred from another state, and Indiana-breds are never preferred over horses bred in others states with zero-dates. Plus, this commission approved rule doesn't provide for an Indiana-sired to ever have preference over an Indiana-bred in an open race.
71 IAC 13.5-5-1 Indiana bred preference
Authority: IC 4-31-3-9
Affected: IC 4-31
Sec. 1. (a) A registered Indiana bred that receives a [sic., an] R-date or an E-date will receive starter preference over a non-Indiana bred with an equal R-date or E-date. Such preference shall apply in all races not restricted to Indiana breds, stake races excepted. Indiana breds will not receive starter preference over non-Indiana breds with better R-dates, E-dates, or zero-dates.
(b) A registered Indiana bred that enters or races in an open race will retain their previous preference date when returning to a restricted Indiana bred race. (Indiana Horse Racing Commission; 71 IAC 13.5-5-1; emergency rule filed Jun 22, 2000, 3:05 p.m.:23 IR 2787; readopted filed Oct 30, 2001, 11:50 a.m.: 25 IR 899; readopted filed Mar 20, 2008, 2:33 p.m.: 20080416-IR-
071080064RFA; emergency rule filed Jul 19, 2010, 12:22 p.m.: 20100728-IR-071100480ERA)
Beyond the apparent violation of the commission approved Indiana-bred preference rule, these 'Indiana preferred' races are still open condition races, by commission definition, even if the entire field is comprised of Indiana-breds or Indiana-sireds. '71 IAC 13.5-3-5 Purse supplement in open races' provides for a 40% purse supplement to the owner of the horses finishing 1st, 2nd, and 3rd in open races. Plus, the breeder awards and any stallion awards for "open" races are calculated including the 40% open purse supplement as well. The fact that the racing secretary is saying "No 40% State Bred Supplement if race fills with all Indiana Breds" does not change the commission approved rule providing the 40% purse supplement in open races. For example, attached is the official Equibase race chart for one of these 'Indiana preferred' races run as Race 5 on April 17th. (Link to the chart is below.) Clearly, the additional 40% purse supplement has not been applied to the first three finishers. Clearly, this race is not labeled with the (S) to indicate a state-bred restricted race, which is understandable because the condition of the race was in fact an open race. By commission rule, this race should have had the 40% purse supplement added. IBOP's contention is also that the 40% purse supplement should be paid with a corresponding increase in breeder and stallion awards based upon current IHRC rules.
So far, there have been six 'Indiana preferred' races run (Races 5 & 7 on April 17th, Race 3 on April 18th, Race 6 on April 23rd, Race 1 on May 4th, and Race 7 on May 5th) with a current cost to the breed development fund for the breeder awards and stallion awards of $54,400. In our review of the thoroughbred breed development program submitted to and approved by the commission, there was no budget item for these races. Considering that the 40% open purse supplements which are required by commission rules, the dollar amount of the awards should be 40% higher at $76,160. Again, this expenditure was not a budgeted item in approved program. Considering that the budget was exceeded by $542,195 at Indiana Downs in 2011, we are concerned for the integrity of this year's budget. The pace at which Indiana-bred races are being run, plus these 'Indiana preferred' races is on track for similar results to 2011. Continually exceeding the budget, and reducing the surplus beyond what has been approved by the commission, will have profound effects on the thoroughbred program in the future.
With that said, having more Indiana-bred and Indiana-sired races is a great benefit to those participating in the program and encourages more economic benefit for the State of Indiana. Clearly, there is significant demand for Indiana-bred and Indiana-sired races to the extent that, in this example, Indiana Downs is going beyond commission rules to add more races for Indiana-breds. IBOP's concern is that how this is being done currently is harmful to the ITDF, and therefore, harmful to the future of the program. IBOP would encourage the commission to make sure that the established rules on the books are followed, but at the same time revisit the 2012 thoroughbred breed development program, including the contribution from the horsemen's purse trust account toward the Indiana-bred program. Having more Indiana-bred races, in our estimation, will help support and encourage the breeding of quality race horses in Indiana. Yet, the expansion of Indiana-bred races needs to be done in a more fiscally responsible and transparent way where the ITDF is concerned.
Thank you,
Jim Hartman
IBOP Vice President
CC: Chairman McNaught
Commissioner Lauck
Commissioner Schaefer
Commissioner Grimes
Commissioner Barclay"
Link to the April 17th, Race 5 Equibase chart: http://www.equibase.com/premium/eqbPDFChartPlus.cfm?RACE=5&BorP=P&TID=IND&CTRY=USA&DT=04/17/2012&DAY=D&STYLE=EQB
"According to information provided at the Thoroughbred Breed Development Advisory Committee meeting on November 7, 2011, the thoroughbred breed development program at Indiana Downs in 2011 exceeded the commission approved Indiana Thoroughbred Development Fund (ITDF) budget for the meet by $542,195. Clearly, the number of races supplemented from the ITDF in 2011 exceeded the commission approved number of races with 126 races run versus 120 races approved. However, the breeder and stallion awards from the 27 so-called 'non-ITDF' races (for Indiana-bred and Indiana-sired horses and funded solely from the horsemen's purse account with nothing from the ITDF) was responsible for over $250,000 of the $542,195 overage. In total, the commission approved 120 ITDF award eligible restricted overnight races and 153 award eligible restricted overnight races were actually run. This impacted the budget to a large degree reducing the available surplus in the ITDF well beyond what was approved for the 2011 program.
Last year's 'non-ITDF' races are essentially being replaced this year by what are being called Indiana-bred or Indiana-sired preferred races. These races are impacting the approved 2012 thoroughbred breed development budget, but these races also appear to be being written in violation of commission approved rules. The condition of these 'Indiana preferred' races is that they are actually 'open' for entry to horses bred in any state (Please see 71 IAC 1.5-1-24 copied below). A Kentucky-bred horse, a Florida-bred or an Indiana-bred can be entered into these 'Indiana preferred' races.
71 IAC 1.5-1-24 "Conditions" defined
Authority: IC 4-31-3-9
Affected: IC 4-31
Sec. 24. "Conditions" means qualifications which determine a horse's eligibility to be entered in a race. (Indiana Horse Racing Commission; 71 IAC 1.5-1-24; emergency rule filed Jun 15, 1995, 5:00 p.m.: 18 IR 2817, eff Jul 1, 1995; readopted filed Oct 30, 2001, 11:50 a.m.: 25 IR 899; readopted filed Mar 23, 2007, 11:31 a.m.: 20070404-IR-071070030RFA)
However, while the condition of these 'Indiana preferred' races is 'open,' the caveat attached to these races as applied by Indiana Downs is "No 40% State Bred Supplement if race fills with all Indiana Breds." This raises two issues where commission approved administrative rules are not being applied. So far, this 'Indiana preference' has created fields that have been comprised of 100% of either Indiana-bred or Indiana-sired horses. Ironically, an Indiana-bred can enter this open condition race and be excluded from running by an Indiana-sired preference attached to the race by Indiana Downs. Yet, preference for Indiana-breds in open condition races is determined by 71 IAC 13.5-5-1, which is copied below, and not what the racing secretary decides the preference for Indiana-breds should be in open races. Zero-dates, R-dates (race), and E-dates (entry) determine preference and Indiana-breds (sireds included) only get preference in open condition races when their R-dates and E-dates are equal to a horse bred from another state, and Indiana-breds are never preferred over horses bred in others states with zero-dates. Plus, this commission approved rule doesn't provide for an Indiana-sired to ever have preference over an Indiana-bred in an open race.
71 IAC 13.5-5-1 Indiana bred preference
Authority: IC 4-31-3-9
Affected: IC 4-31
Sec. 1. (a) A registered Indiana bred that receives a [sic., an] R-date or an E-date will receive starter preference over a non-Indiana bred with an equal R-date or E-date. Such preference shall apply in all races not restricted to Indiana breds, stake races excepted. Indiana breds will not receive starter preference over non-Indiana breds with better R-dates, E-dates, or zero-dates.
(b) A registered Indiana bred that enters or races in an open race will retain their previous preference date when returning to a restricted Indiana bred race. (Indiana Horse Racing Commission; 71 IAC 13.5-5-1; emergency rule filed Jun 22, 2000, 3:05 p.m.:23 IR 2787; readopted filed Oct 30, 2001, 11:50 a.m.: 25 IR 899; readopted filed Mar 20, 2008, 2:33 p.m.: 20080416-IR-
071080064RFA; emergency rule filed Jul 19, 2010, 12:22 p.m.: 20100728-IR-071100480ERA)
Beyond the apparent violation of the commission approved Indiana-bred preference rule, these 'Indiana preferred' races are still open condition races, by commission definition, even if the entire field is comprised of Indiana-breds or Indiana-sireds. '71 IAC 13.5-3-5 Purse supplement in open races' provides for a 40% purse supplement to the owner of the horses finishing 1st, 2nd, and 3rd in open races. Plus, the breeder awards and any stallion awards for "open" races are calculated including the 40% open purse supplement as well. The fact that the racing secretary is saying "No 40% State Bred Supplement if race fills with all Indiana Breds" does not change the commission approved rule providing the 40% purse supplement in open races. For example, attached is the official Equibase race chart for one of these 'Indiana preferred' races run as Race 5 on April 17th. (Link to the chart is below.) Clearly, the additional 40% purse supplement has not been applied to the first three finishers. Clearly, this race is not labeled with the (S) to indicate a state-bred restricted race, which is understandable because the condition of the race was in fact an open race. By commission rule, this race should have had the 40% purse supplement added. IBOP's contention is also that the 40% purse supplement should be paid with a corresponding increase in breeder and stallion awards based upon current IHRC rules.
So far, there have been six 'Indiana preferred' races run (Races 5 & 7 on April 17th, Race 3 on April 18th, Race 6 on April 23rd, Race 1 on May 4th, and Race 7 on May 5th) with a current cost to the breed development fund for the breeder awards and stallion awards of $54,400. In our review of the thoroughbred breed development program submitted to and approved by the commission, there was no budget item for these races. Considering that the 40% open purse supplements which are required by commission rules, the dollar amount of the awards should be 40% higher at $76,160. Again, this expenditure was not a budgeted item in approved program. Considering that the budget was exceeded by $542,195 at Indiana Downs in 2011, we are concerned for the integrity of this year's budget. The pace at which Indiana-bred races are being run, plus these 'Indiana preferred' races is on track for similar results to 2011. Continually exceeding the budget, and reducing the surplus beyond what has been approved by the commission, will have profound effects on the thoroughbred program in the future.
With that said, having more Indiana-bred and Indiana-sired races is a great benefit to those participating in the program and encourages more economic benefit for the State of Indiana. Clearly, there is significant demand for Indiana-bred and Indiana-sired races to the extent that, in this example, Indiana Downs is going beyond commission rules to add more races for Indiana-breds. IBOP's concern is that how this is being done currently is harmful to the ITDF, and therefore, harmful to the future of the program. IBOP would encourage the commission to make sure that the established rules on the books are followed, but at the same time revisit the 2012 thoroughbred breed development program, including the contribution from the horsemen's purse trust account toward the Indiana-bred program. Having more Indiana-bred races, in our estimation, will help support and encourage the breeding of quality race horses in Indiana. Yet, the expansion of Indiana-bred races needs to be done in a more fiscally responsible and transparent way where the ITDF is concerned.
Thank you,
Jim Hartman
IBOP Vice President
CC: Chairman McNaught
Commissioner Lauck
Commissioner Schaefer
Commissioner Grimes
Commissioner Barclay"
Link to the April 17th, Race 5 Equibase chart: http://www.equibase.com/premium/eqbPDFChartPlus.cfm?RACE=5&BorP=P&TID=IND&CTRY=USA&DT=04/17/2012&DAY=D&STYLE=EQB
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