On March 23rd, Indiana Breeder & Owner Protection, Inc. (IBOP) filed a petition with the Indiana Horse Racing Commission (IHRC) to clarify the thoroughbred 'out-of-state breeder's awards' administrative rule. That email petition can be seen at the bottom of this post. Our concern was that the out-dated language used in the rule would prevent the breeder of a two-year old that wins out-of-state from being eligible for the award. IBOP saw this as an unintended consequence of the IHRC's decision to have breed specific racing at our two Indiana tracks. When the agenda for the IHRC's April 5th meeting was made public, our petition was not on the agenda which prompted another less-formal request to encourage the IHRC to consider changing the rule. That email is also copied below.
We are pleased to report that the IHRC did include an emergency rule as part of the New Business portion of their April 5th meeting. The new rule will now read "prior to July 1st of the race meet" instead of "prior to the beginning of the Hoosier Park race meet." While we don't know exactly when two-year old thoroughbred racing will begin at Indiana Downs in 2013, the modification to the out-of-state breeder's award rule provides some specific guidance to eligibility where none existed before.
Unfortunately, neither of the two-year olds running at Keeneland on April 5th made it the winner's circle, but that was never the point.
Here's the April 2, 2013 email to IHRC General Counsel Lea Ellingwood:
"Lea, we're concerned that our petition regarding '71 IAC 13.5-3-3 Out-of-state breeder's awards' is not on the agenda for this up-coming meeting. In years past, the IHRC staff could rely on the interpretation of "the beginning of the Hoosier Park race meet" as meaning the thoroughbred race meet at Hoosier Park because there was one. Given that "the beginning of the Hoosier Park race meet" is today, the only meet at Hoosier Park, doesn't this rule now state that the exception for two-year olds racing out-of-state ends today? There is no other Hoosier Park race meet that establishes a different and/or specific date.
To my knowledge, there hasn't yet been a two-year old thoroughbred race run in this country. This will change coincidently on April 5th, but not in Indiana. There are actually 2 two-year old fillies entered in race 4 at Keeneland on the 5th in a $52,000 maiden special weight race. In simply reviewing the work-outs on one day (Saturday March 30th) at Keeneland and their training track, I counted six Indiana-bred two-year olds with enough of a work pattern to indicate that the intent is to start them very soon. In 2012, five Indiana-bred two-year olds won races out-of-state prior to the beginning of the Hoosier Park meet on August 1, 2012, including a stakes race. The earliest winner was April 12, 2012 at Keeneland in a $52,000 race.
If you see there is some other way to interpret this rule and its affect on the thoroughbred out-of-state breeder's award, we'd really like to understand that interpretation so we can let people know. If there isn't another way to interpret this rule, until its changed, it seems to mean that no breeder of an Indiana-bred two-year old winning (after today) is eligible for the out-of-state award. The two-year old exception in this rule was put in place to account for the fact that there are usually no two-year old thoroughbred races scheduled in Indiana until August. Inaction on this rule has an unintended implication to those breeders participating in the thoroughbred program with two-year old runners.
Thanks,
Jim"
Here's the March 23, 2013 email to IHRC Executive Director Joe Gorajec, General Counsel Lea Ellingwood, Assistant Executive Director Deana Pitman, and Director of Racing & Breed Development Jessica Barnes:
"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 13.5-3-3 Out-of-state breeder's awards.' IBOP would appreciate this request be considered as an agenda item at the next regularly scheduled IHRC meeting. Please consider this correspondence as our petition for the IHRC to amend 71 IAC 13.5-3-3, which is a thoroughbred-only administrative rule, by replacing the reference to "the beginning of the Hoosier Park race meet" with a specific date. Obviously, with all flat racing taking place at Indiana Downs, there is no Hoosier Park race meet for thoroughbreds.
The out-of-state breeder award is a significant portion of the value proposition of Indiana's thoroughbred breed development program and encourages the breeding of high quality race horses. Prior to the current version of the 71 IAC 13.5-3-3 (copied below) which was adopted in 2009, this particular administrative rule did include a date of July 1st. The language was changed to "the beginning of the Hoosier Park race meet" to better coordinate with the timing of when two-year old restricted racing was expected to begin in Indiana each year. With all thoroughbred racing taking place at Indiana Downs, the timing of the beginning of two-year old racing season isn't as clear as in the past. We feel that any specific date inserted into this administrative rule should coordinate approximately with the expected beginning of the two-year old racing schedule.
Thank You,
Jim Hartman
IBOP Vice-President
71 IAC 13.5-3-3 Out-of-state breeder's awards
Authority: IC 4-31-3-9
Affected: IC 4-31
Sec. 3. An out-of-state breeder's award is the award paid to the breeder of a registered Indiana bred which wins a flat race in another state or Canada. The amount of the award is ten percent (10%) of the winner's share of the purse for any race when entered for a claiming price of greater than or equal to ten thousand dollars ($10,000). This award is applicable only when there is no live thoroughbred race meet in progress in Indiana (except for stake races and for two-year-olds winning out of state prior to the beginning of the Hoosier Park race meet). Awards will be paid by the commission. Out-of-state breeder's awards shall be limited to a single race award not to exceed ten thousand dollars ($10,000). (Indiana Horse Racing Commission; 71 IAC 13.5-3-3; 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; emergency rule filed Jan 28, 2003, 2:20 p.m.: 26 IR 1952; emergency rule filed Jan 21, 2004, 2:30 p.m.: 27 IR 1922; emergency rule filed May 10, 2005, 3:20 p.m.: 28 IR 2751; emergency rule filed Jun 10, 2009, 12:45 p.m.: 20090617-IR-071090464ERA, eff May 29, 2009 [IC 4-22-2-37.1 establishes the effectiveness of an emergency rule upon filing with the Publisher. LSA Document #09-464(E) was filed with the Publisher June 10, 2009.])"
Sunday, April 7, 2013
Monday, April 1, 2013
Administrative Rule of the Month - 71 IAC 8-1-5.6 Anti-ulcer Medications (Expired)
Disclaimer: Even though today is April 1st, this month's Indiana Breeder & Owner Protection, Inc. (IBOP) Administrative Rule of the Month is no April Fools' Day hoax. However, the "joke" is actually on Indiana's standardbred racing participants as perpetrated by the Indiana Horse Racing Commission (IHRC). As we always say, "We couldn't make this stuff up, even if we tried."
April 2, 2013 is the opening day for the 20th season of standardbred racing at Hoosier Park which will consist of 160 race days through November 9th. What most, if not all, of the standardbred owners and trainers don't realize is that anti-ulcer medications
(Tagamet®, Gastrogard®, and Zantac®) are no longer permitted substances according to the current version of the IHRC's standardbred rule book. If you consult the IHRC's standardbred racing rule book at http://www.in.gov/legislative/iac/T00710/A00080.PDF? what you'll find is that the anti-ulcer medications rule was allowed to expire. More specifically, here is exactly how the standardbred rule book now reads:
71 IAC 8-1-5.6 Anti-ulcer medications (Expired)
Sec. 5.6. (Expired under IC 4-22-2.5, effective January 1, 2013.)
Assuming that prior to its expiration '71 IAC 8-1-5.6' was not a superfluous regulation without meaning, logic suggests that the expiration of this rule would mean that anti-ulcer medications can no longer be used with standardbreds until a new rule is approved by the IHRC and filed as final with the Indiana Register. Here's how the standardbred anti-ulcer medications rule read prior to its expiration on January 1st:
71 IAC 8-1-5.6 Anti-ulcer medications
Authority: IC 4-31-3-9
Affected: IC 4-31-12
Sec. 5.6. The following anti-ulcer medications are permitted to be administered, at the stated dosage, up to twenty-four (24)
hours prior to the race in which the horse is entered:
(1) Cimetidine (Tagamet®) – 8-20 mg/kg PO BID-TID
(2) Omeprazole (Gastrogard®) – 2.2 grams PO SID
(3) Ranitidine (Zantac®) – 8 mg/kg PO BID
(Indiana Horse Racing Commission; 71 IAC 8-1-5.6; emergency rule filed Jul 28, 2006, 11:17 a.m.: 20060809-IR-071060278ERA,
eff Aug 1, 2006)
Administrative rules in Indiana expire on January 1st following the sixth year anniversary of their approval unless they are modified or readopted. According to the history line of ‘71 IAC 8-1-5.6’ the rule was adopted in August of 2006 which made its expiration date January 1, 2013. The equivalent administrative rule in the flat racing rule book, ‘71 IAC 8.5-1-5.6,’ was also adopted in 2006, but readopted in 2007 so its expiration date will be January 1, 2014. By 2014, our hope is that the IHRC has their rulemaking malfunctions sorted out.
Given that studies have shown that 80-90% of racehorses have some degree of ulcer-related problems, how does a racing commission let an anti-ulcer medications rule expire? According to the approved minutes for the IHRC's October 12, 2012 meeting, “General Counsel Ellingwood presented two rules (71 IAC 8-1-1 and 71 IAC 8-1-5.6) to the Commission that are scheduled to sunset at the end of 2012. Commission unanimously voted to begin the process for re-adoption of 71 IAC 8-1-1 and 71 IAC 8-1-5.6.” So, the IHRC did vote to readopt the standardbred anti-ulcer medications rule. On October 17, 2012, the IHRC staff filed a 'Notice of Intent to Readopt' with the Indiana Register. That notice, which can be found at http://www.in.gov/legislative/iac/20121017-IR-071120572RNA.xml.pdf did include '71 8-1-5.6 Anti-ulcer medications.' So far, so good from a procedural perspective.
Normally, administrative rules facing readoption must go through the regular (general) rulemaking process as a confirmation of an administrative agency's intent to maintain the rule. (See http://indianalawblog.com/documents/RMoverview.pdf for a chart that illustrates the steps in the general rulemaking process versus the emergency rulemaking process.) However, Indiana statute allows for an agency to package multiple expiring rules for the purpose of readoption as long as there are no changes made to the language in the rules. If after 30 days the agency receives no request to have an expiring rule go through the regular rulemaking process, the agency can file the readopted rules with the Indiana Register as 'final' rules and the rules does not expire. Since the IHRC elected to readopt multiple rules, which included the standardbred anti-ulcer medications rule, all the IHRC staff had to do was simply file the readopted anti-ulcer medications rule with the Indiana Register prior to December 2, 2012. This simple procedure would have kept '71 IAC 8-1-5.6' from expiring, but was never done. If we understand this procedure by simply consulting the online version of the "Administrative Rules Drafting Manual" on the Indiana Register website, then why doesn't the IHRC?
Given that an emergency rule to add an 'anti-ulcer medications' rule to the standardbred rule book is not on the agenda for the April 5, 2013 IHRC meeting, IBOP has filed a petition directly with Chairman Diener to have such a rule be considered as a new business item. Assuming that the IHRC does approve an emergency rule on April 5th, any new anti-ulcer medications emergency rule cannot be effective until the rule is filed with the Indiana Register.
April 2, 2013 is the opening day for the 20th season of standardbred racing at Hoosier Park which will consist of 160 race days through November 9th. What most, if not all, of the standardbred owners and trainers don't realize is that anti-ulcer medications
(Tagamet®, Gastrogard®, and Zantac®) are no longer permitted substances according to the current version of the IHRC's standardbred rule book. If you consult the IHRC's standardbred racing rule book at http://www.in.gov/legislative/iac/T00710/A00080.PDF? what you'll find is that the anti-ulcer medications rule was allowed to expire. More specifically, here is exactly how the standardbred rule book now reads:
71 IAC 8-1-5.6 Anti-ulcer medications (Expired)
Sec. 5.6. (Expired under IC 4-22-2.5, effective January 1, 2013.)
Assuming that prior to its expiration '71 IAC 8-1-5.6' was not a superfluous regulation without meaning, logic suggests that the expiration of this rule would mean that anti-ulcer medications can no longer be used with standardbreds until a new rule is approved by the IHRC and filed as final with the Indiana Register. Here's how the standardbred anti-ulcer medications rule read prior to its expiration on January 1st:
71 IAC 8-1-5.6 Anti-ulcer medications
Authority: IC 4-31-3-9
Affected: IC 4-31-12
Sec. 5.6. The following anti-ulcer medications are permitted to be administered, at the stated dosage, up to twenty-four (24)
hours prior to the race in which the horse is entered:
(1) Cimetidine (Tagamet®) – 8-20 mg/kg PO BID-TID
(2) Omeprazole (Gastrogard®) – 2.2 grams PO SID
(3) Ranitidine (Zantac®) – 8 mg/kg PO BID
(Indiana Horse Racing Commission; 71 IAC 8-1-5.6; emergency rule filed Jul 28, 2006, 11:17 a.m.: 20060809-IR-071060278ERA,
eff Aug 1, 2006)
Administrative rules in Indiana expire on January 1st following the sixth year anniversary of their approval unless they are modified or readopted. According to the history line of ‘71 IAC 8-1-5.6’ the rule was adopted in August of 2006 which made its expiration date January 1, 2013. The equivalent administrative rule in the flat racing rule book, ‘71 IAC 8.5-1-5.6,’ was also adopted in 2006, but readopted in 2007 so its expiration date will be January 1, 2014. By 2014, our hope is that the IHRC has their rulemaking malfunctions sorted out.
Given that studies have shown that 80-90% of racehorses have some degree of ulcer-related problems, how does a racing commission let an anti-ulcer medications rule expire? According to the approved minutes for the IHRC's October 12, 2012 meeting, “General Counsel Ellingwood presented two rules (71 IAC 8-1-1 and 71 IAC 8-1-5.6) to the Commission that are scheduled to sunset at the end of 2012. Commission unanimously voted to begin the process for re-adoption of 71 IAC 8-1-1 and 71 IAC 8-1-5.6.” So, the IHRC did vote to readopt the standardbred anti-ulcer medications rule. On October 17, 2012, the IHRC staff filed a 'Notice of Intent to Readopt' with the Indiana Register. That notice, which can be found at http://www.in.gov/legislative/iac/20121017-IR-071120572RNA.xml.pdf did include '71 8-1-5.6 Anti-ulcer medications.' So far, so good from a procedural perspective.
Normally, administrative rules facing readoption must go through the regular (general) rulemaking process as a confirmation of an administrative agency's intent to maintain the rule. (See http://indianalawblog.com/documents/RMoverview.pdf for a chart that illustrates the steps in the general rulemaking process versus the emergency rulemaking process.) However, Indiana statute allows for an agency to package multiple expiring rules for the purpose of readoption as long as there are no changes made to the language in the rules. If after 30 days the agency receives no request to have an expiring rule go through the regular rulemaking process, the agency can file the readopted rules with the Indiana Register as 'final' rules and the rules does not expire. Since the IHRC elected to readopt multiple rules, which included the standardbred anti-ulcer medications rule, all the IHRC staff had to do was simply file the readopted anti-ulcer medications rule with the Indiana Register prior to December 2, 2012. This simple procedure would have kept '71 IAC 8-1-5.6' from expiring, but was never done. If we understand this procedure by simply consulting the online version of the "Administrative Rules Drafting Manual" on the Indiana Register website, then why doesn't the IHRC?
Given that an emergency rule to add an 'anti-ulcer medications' rule to the standardbred rule book is not on the agenda for the April 5, 2013 IHRC meeting, IBOP has filed a petition directly with Chairman Diener to have such a rule be considered as a new business item. Assuming that the IHRC does approve an emergency rule on April 5th, any new anti-ulcer medications emergency rule cannot be effective until the rule is filed with the Indiana Register.
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