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
Saturday, June 30, 2012
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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