The following was sent on November 29, 2012 to the Indiana Horse Racing Commission (IHRC) staff and then mailed to each commissioner to point out the apparent conflict between Indiana statute and the IHRC's administrative rules regarding the administration of Furosemide.
"Pursuant to ‘71 IAC 2-12-1 Procedures,’ Indiana Breeder & Owner Protection, Inc. (IBOP) is requesting that the Indiana Horse Racing Commission (IHRC) consider the amendment of both 71 IAC 8.5-1-5(8) and 71 8-1-5(8) to conform with IC 4-31-12-7(a). Please consider this correspondence as IBOP’s petition for the IHRC to amend both subsections of the administrative rules cited above, which are titled as ‘Furosemide as a permitted foreign substance’ rules which were most recently modified by the IHRC on January 25, 2012 . Our view is that both of these subsections include language and sentiment contrary to 4-31-12-7(a). IBOP would appreciate the modifications to these rules be considered as an agenda item at the next regularly scheduled IHRC meeting on December 14, 2012. We would consider any correction of administrative rules to conform with an Indiana statute an emergency.
More specifically, both 71 IAC 8.5-1-5(8) and 71 IAC 8-1-5(8) contain the following statements, "The executive director or judges may designate certain official veterinarians, racing veterinarians, and/or practicing veterinarians to administer furosemide under this rule. Such designation may be determined daily, weekly, or for any other appropriate time period." Our requested modification is to have these two sentences removed from each rule as they are contrary to IC 4-31-12-7(a) which is copied below. A redline version of each rule is attached.
IC 4-31-12-7
Veterinarians appointed by commission; prohibition on treatment of horses on the grounds; compensation
Sec. 7. (a) A veterinarian appointed by the commission or employed by a permit holder may not, during the period of the veterinarian's employment, treat or issue prescriptions for a horse on the grounds of or registered to race at a track, except in case of emergency. A full and complete record of an emergency treatment or a prescription shall be filed with the stewards or judges.
(b) An owner or trainer may not directly or indirectly employ or pay compensation to a veterinarian who is employed by the commission or a permit holder.
As added by P.L.341-1989(ss), SEC.2.
Clearly, the current wording of 71 IAC 8.5-1-5(8) and 71 IAC 8-1-5(8) implies that veterinarians designated by the Executive Director or judges can treat a horse by administering furosemide. Clearly, IC 4-31-12-7(a) prohibits "a veterinarian appointed by the commission or employed by a permit holder" from treating horses (or issuing prescriptions) outside of an emergency. We view the ability to "designate" a veterinarian as used in 71 IAC 8.5-1-5(8) and 71 IAC 8-1-5(8) as synonymous to "a veterinarian appointed" as used in IC 4-31-12-7(a). Administration of furosemide is providing a medical remedy, i.e. treatment, for alleviating a condition and is not an emergency treatment.
In addition, both 71 IAC 8.5-1-5(8) and 71 IAC 8-1-5(8) describe "official veterinarians, racing veterinarians, and/or practicing veterinarians" as possible designees by the commission to administer furosemide. Both an official veterinarian and a racing veterinarian are defined by 71 IAC 3.5-1-1 and 71 IAC 3-1-1 as 'Racing officials.' A racing veterinarian, as further defined by 71 IAC 3.5-14-1(a) and 71 IAC 3-13-1(a), "may be an employee of the commission or the association." Interestingly, 71 IAC 3.5-14-1(b)(8) and 71 IAC 3-13-1(b)(8), part of the 'general authority' of a racing veterinarian recognizes the prohibition of IHRC designated veterinarians providing treatment in IC 4-31-12-7(a) by stating that a racing veterinarian shall "refrain from directly treating or prescribing for any horse scheduled to participate during his or her term of appointment at any recognized meeting except in cases of emergency, accident, or injury." While the 'general authority' for the official veterinarian per 71 IAC 3-12-1 and 71 IAC 3.5-13-1 indicates that the official veterinarian is "employed by the commission," there is no specific prohibition on treating horses similar to that of racing veterinarian. However, given IC 4-31-12-7(a), there probably should be.
In summary, per IC 4-31-12-7(a), the IHRC cannot designate or appoint ANY veterinarian to administer furosemide to race horses and the Indiana Administrative Code should reflect that prohibition.
Thank You,
Jim Hartman
IBOP Vice-President
CC: Chairman Diener
Vice-Chairman Schaefer
Commissioner Lauck
Commissioner Grimes
Commissioner Barclay"
Thursday, November 29, 2012
Thursday, November 1, 2012
Administrative Rule of the Month - Allocation of Race Dates and Permits
November 1st of every year has long been established by the Indiana Horse Racing Commission (IHRC) as the deadline for Indiana's race tracks to apply for race dates for the coming year. Given the recent efforts by the IHRC to reduce thoroughbred race dates, Indiana Breeder & Owner Protection, Inc. (IBOP) is making '71 IAC 2-9-1 Allocation of race dates and permits' our November Administrative Rule of the Month. For those of you who regularly follow our blog, this is the second time this year that we've highlighted this particular rule. (See September's Administrative Rule of the Month at http://www.ibopindy.blogspot.com/2012/09/administrative-rule-of-month-allocation.html) Our October Administrative Rule of the Month, which was a proposed rule that could cut flat racing days to a minimum of 50 per track, may be required reading prior to moving on with this post. (See October's Administrative Rule of the Month at http://ibopindy.blogspot.com/2012/10/administrative-rule-of-month.html)
From what we have been told by multiple sources, the proposed rule that could reduce flat racing to 50 days per track will not be considered for 2013. By creating an administrative rule, the IHRC can lower the statutory number of flat racing days from the minimum of 60 days per licensee as provided by IC 4-31-5-9(b)(2). Since Indiana statute defines flat racing as racing horses "mounted by jockeys," the proposed rule was never an issue for Indiana's standardbred race meets, or for that matter quarter horse races as they usually race only three days a week. This proposed rule was specifically targeted to thoroughbred racing. We'll be 100% certain of this rule being out of the picture when the agenda for the IHRC's December 14th meeting is made public.
As of Monday, October 29th, both the General Manager at Indiana Downs and at Hoosier Park indicated to the industry that they will essentially comply with the current statute and request the minimum of 60 days of flat racing. However, the twist is that the breakdown of those 60 days will be 57 thoroughbred/quarter horse and 3 quarter horse-only days. That is a reduction of days for thoroughbred racing while increasing the quarter-horse only days from one day per meet to three days per meet. As long as the total adds up to 60 race days, their applications will comply with the Indiana law.
Here's where '71 IAC 2-9-1 Allocation of race dates and permits' comes into play which is copied below. More specifically, 71 IAC 2-9-1(b) places, "The burden of proof is on the association to demonstrate that the assignment and allocation of the race dates will be in the public interest and will achieve the purposes of the Act." The IHRC, by its own rules, have specifically designed criteria, as outlined in the October Administrative Rule of the Month, which will never be covered by either track during the course of their application hearings. The simple matter is that they cannot demonstrate that 57 thoroughbred race days and 3 quarter horse-only days are in the public interest, or even maximize revenues to the State. Any reduction in thoroughbred race days in favor of quarter horse-only days will actually reduce pari-mutuel wagering revenues to the State. Quarter horse-only days are the poorest, by far, racing days in the State of Indiana as far as handle is concerned. It's doubtful that this fact will ever change.
71 IAC 2-9-1 Allocation of race dates and permits
Authority: IC 4-31-3-9
Affected: IC 4-31-5
Sec. 1. (a) The commission shall allocate race dates and permits to each association in accordance with the Act and after consideration of the factors in 71 IAC 11-1-7. An association shall apply to the commission not later than November 1 of each year
for race dates to be conducted in the next year. The application must contain the information required by statute and commission licensing procedures. After the request is filed, the commission may require the association to submit additional information.
(b) The burden of proof is on the association to demonstrate that the assignment and allocation of the race dates will be in the public interest and will achieve the purposes of the Act.
(c) The association shall be obligated to conduct pari-mutuel racing, except in the case of emergencies, on each race date allocated. Any change in race dates must be approved by the commission. In the case of emergencies, the judges, stewards, or the
executive director may authorize cancellation of all or a portion of any race day.
(d) Racing dates shall be issued by the commission no later than December 31 of each year.
The other problem with a potential reduction in scheduled thoroughbred race dates is that invariably days will be lost due to weather (or an Executive Director attempting to demonstrate his authority over the horsemen). The spin for this 57/3 race day plan will be that thoroughbreds haven't run a full 60 days at either track in the last two years. This is a true statement. In 2011, both Indiana Downs and Hoosier Park held 57 live thoroughbred race days. (IC 4-31-2-10.5 defines a live racing day as "a day on which at least eight (8) live horse races are conducted.") In 2012, Indiana Downs had 57, there's that number again, live thoroughbred race days and Hoosier Park held 59. We can almost hear the testimony in front of the commissioners that the tracks are just requesting what's been run the last two years. The problem is that in 2011 Hoosier Park was scheduled to have 61 thoroughbred race days, and lost four days, and Indiana Downs was scheduled for 60, and lost three days. In 2012, Hoosier Park was scheduled to have 63 thoroughbred race days and Indiana Downs was authorized to have 60 days.
Over the last two years, the thoroughbreds have lost at least three race days per meet. While there's always an attempt to reschedule lost races, there are never enough spots to bring back anywhere close to all of them, especially when considering almost all of the quarter horse races lost due to weather ARE brought back. According to The Jockey Club, thoroughbred races in Indiana reached their peak in 2009 with 1150. They have declined each year ever since with 1128 in 2010, 1065 in 2011, and 1045 in 2012. With a 57/3 race days scenario, this trend will continue as total thoroughbred race days will drop to the mid-50's when taking into consideration the almost inevitable loss of race days due to weather.
Under Indiana statute, IC 4-31-5-10 (copied below) gives the IHRC the authority to add race dates for "race cards lost because of inclement weather or other emergencies." To our knowledge this aspect of the code has never been put into action. Given the current plan of 57/3, the IHRC also needs to institute a policy whereby thoroughbred races dates can be added back when days are lost. After all, if they can delegate the authority to the Executive Director to cancel race days after-the-fact, they can surely be proactive and delegate the authority to add thoroughbred race days when the need arises.
IC 4-31-5-10
Granting of special permission
Sec. 10. Upon receipt of an application from a recognized meeting permit holder, the commission may grant special permission for:
(1) more than nine (9) races each day; or
(2) race cards lost because of inclement weather or other emergencies, to be made up at the rate of one (1) race each day or on additional dates as granted by the commission.
As added by P.L.341-1989(ss), SEC.2.
From what we have been told by multiple sources, the proposed rule that could reduce flat racing to 50 days per track will not be considered for 2013. By creating an administrative rule, the IHRC can lower the statutory number of flat racing days from the minimum of 60 days per licensee as provided by IC 4-31-5-9(b)(2). Since Indiana statute defines flat racing as racing horses "mounted by jockeys," the proposed rule was never an issue for Indiana's standardbred race meets, or for that matter quarter horse races as they usually race only three days a week. This proposed rule was specifically targeted to thoroughbred racing. We'll be 100% certain of this rule being out of the picture when the agenda for the IHRC's December 14th meeting is made public.
As of Monday, October 29th, both the General Manager at Indiana Downs and at Hoosier Park indicated to the industry that they will essentially comply with the current statute and request the minimum of 60 days of flat racing. However, the twist is that the breakdown of those 60 days will be 57 thoroughbred/quarter horse and 3 quarter horse-only days. That is a reduction of days for thoroughbred racing while increasing the quarter-horse only days from one day per meet to three days per meet. As long as the total adds up to 60 race days, their applications will comply with the Indiana law.
Here's where '71 IAC 2-9-1 Allocation of race dates and permits' comes into play which is copied below. More specifically, 71 IAC 2-9-1(b) places, "The burden of proof is on the association to demonstrate that the assignment and allocation of the race dates will be in the public interest and will achieve the purposes of the Act." The IHRC, by its own rules, have specifically designed criteria, as outlined in the October Administrative Rule of the Month, which will never be covered by either track during the course of their application hearings. The simple matter is that they cannot demonstrate that 57 thoroughbred race days and 3 quarter horse-only days are in the public interest, or even maximize revenues to the State. Any reduction in thoroughbred race days in favor of quarter horse-only days will actually reduce pari-mutuel wagering revenues to the State. Quarter horse-only days are the poorest, by far, racing days in the State of Indiana as far as handle is concerned. It's doubtful that this fact will ever change.
71 IAC 2-9-1 Allocation of race dates and permits
Authority: IC 4-31-3-9
Affected: IC 4-31-5
Sec. 1. (a) The commission shall allocate race dates and permits to each association in accordance with the Act and after consideration of the factors in 71 IAC 11-1-7. An association shall apply to the commission not later than November 1 of each year
for race dates to be conducted in the next year. The application must contain the information required by statute and commission licensing procedures. After the request is filed, the commission may require the association to submit additional information.
(b) The burden of proof is on the association to demonstrate that the assignment and allocation of the race dates will be in the public interest and will achieve the purposes of the Act.
(c) The association shall be obligated to conduct pari-mutuel racing, except in the case of emergencies, on each race date allocated. Any change in race dates must be approved by the commission. In the case of emergencies, the judges, stewards, or the
executive director may authorize cancellation of all or a portion of any race day.
(d) Racing dates shall be issued by the commission no later than December 31 of each year.
The other problem with a potential reduction in scheduled thoroughbred race dates is that invariably days will be lost due to weather (or an Executive Director attempting to demonstrate his authority over the horsemen). The spin for this 57/3 race day plan will be that thoroughbreds haven't run a full 60 days at either track in the last two years. This is a true statement. In 2011, both Indiana Downs and Hoosier Park held 57 live thoroughbred race days. (IC 4-31-2-10.5 defines a live racing day as "a day on which at least eight (8) live horse races are conducted.") In 2012, Indiana Downs had 57, there's that number again, live thoroughbred race days and Hoosier Park held 59. We can almost hear the testimony in front of the commissioners that the tracks are just requesting what's been run the last two years. The problem is that in 2011 Hoosier Park was scheduled to have 61 thoroughbred race days, and lost four days, and Indiana Downs was scheduled for 60, and lost three days. In 2012, Hoosier Park was scheduled to have 63 thoroughbred race days and Indiana Downs was authorized to have 60 days.
Over the last two years, the thoroughbreds have lost at least three race days per meet. While there's always an attempt to reschedule lost races, there are never enough spots to bring back anywhere close to all of them, especially when considering almost all of the quarter horse races lost due to weather ARE brought back. According to The Jockey Club, thoroughbred races in Indiana reached their peak in 2009 with 1150. They have declined each year ever since with 1128 in 2010, 1065 in 2011, and 1045 in 2012. With a 57/3 race days scenario, this trend will continue as total thoroughbred race days will drop to the mid-50's when taking into consideration the almost inevitable loss of race days due to weather.
Under Indiana statute, IC 4-31-5-10 (copied below) gives the IHRC the authority to add race dates for "race cards lost because of inclement weather or other emergencies." To our knowledge this aspect of the code has never been put into action. Given the current plan of 57/3, the IHRC also needs to institute a policy whereby thoroughbred races dates can be added back when days are lost. After all, if they can delegate the authority to the Executive Director to cancel race days after-the-fact, they can surely be proactive and delegate the authority to add thoroughbred race days when the need arises.
IC 4-31-5-10
Granting of special permission
Sec. 10. Upon receipt of an application from a recognized meeting permit holder, the commission may grant special permission for:
(1) more than nine (9) races each day; or
(2) race cards lost because of inclement weather or other emergencies, to be made up at the rate of one (1) race each day or on additional dates as granted by the commission.
As added by P.L.341-1989(ss), SEC.2.
2011 Indiana Horse Racing Commission Annual Report
One of the required duties, as prescribed by Indiana law under IC 4-31-3-8(4), of the Indiana Horse Racing Commission (IHRC) is to create an annual report. What the law doesn't require is that this report be created and published in a particular time frame. Just a mere 10 months into 2012, the IHRC has finally released their 2011 Annual Report which can be found at the link below.
IC 4-31-3-8
Duties
Sec. 8. The commission shall:
(1) prescribe the rules and conditions under which horse racing at a recognized meeting may be conducted;
(2) initiate safeguards as necessary to account for the amount of money wagered at each track or satellite facility in each wagering pool;
(3) require all permit holders to provide a photographic or videotape recording, approved by the commission, of the entire running of all races conducted by the permit holder;
(4) make annual reports concerning its operations and recommendations to the governor and, in an electronic format under IC 5-14-6, to the general assembly; and
(5) carry out the provisions of IC 15-19-2, after considering recommendations received from the Indiana standardbred advisory board under IC 15-19-2.
As added by P.L.341-1989(ss), SEC.2. Amended by P.L.24-1992, SEC.5; P.L.15-1999, SEC.1; P.L.28-2004, SEC.52; P.L.2-2008, SEC.18.
http://www.in.gov/hrc/files/11_Annual_Report.pdf
IC 4-31-3-8
Duties
Sec. 8. The commission shall:
(1) prescribe the rules and conditions under which horse racing at a recognized meeting may be conducted;
(2) initiate safeguards as necessary to account for the amount of money wagered at each track or satellite facility in each wagering pool;
(3) require all permit holders to provide a photographic or videotape recording, approved by the commission, of the entire running of all races conducted by the permit holder;
(4) make annual reports concerning its operations and recommendations to the governor and, in an electronic format under IC 5-14-6, to the general assembly; and
(5) carry out the provisions of IC 15-19-2, after considering recommendations received from the Indiana standardbred advisory board under IC 15-19-2.
As added by P.L.341-1989(ss), SEC.2. Amended by P.L.24-1992, SEC.5; P.L.15-1999, SEC.1; P.L.28-2004, SEC.52; P.L.2-2008, SEC.18.
http://www.in.gov/hrc/files/11_Annual_Report.pdf
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