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"
Tuesday, October 2, 2012
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"
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