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.