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"
Thursday, August 23, 2012
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.
Subscribe to:
Posts (Atom)