Administrative Rule of the Month - 71 IAC 8.5-1-1 & 71 IAC 8.5-1-1.5 Medication

This month's Indiana Breeder and Owner Protection, Inc. (IBOP) Administrative Rule of the Month is technically 'Rules' of the month. We are taking a look at why the current flat racing rule book has two separate administrative rules with a heading of 'Medication' where there should be only one. More specifically, these rules are 71 IAC 8.5-1-1 and 71 IAC 8.5-1-1.5. For the most part, they are almost identical except that one indicates that DMSO can be used (71 IAC 8.5-1-1.5) and the other indicates that DMSO is a prohibited foreign substance (71 IAC 8.5-1-1.5). If conflicting administrative rules regarding the use of DMSO sounds familiar, we've covered this conflict a few times before over the last year. Sadly, this issue has a long history that has stretched over the last year, and the Indiana Horse Racing Commission (IHRC) just can't seem to get it right. First, some background.

Over a year ago, IBOP had noticed that the recently approved 'Threshold levels' administrative rules in both the standardbred and flat racing rule books had established a threshold for the use of DMSO that was in conflict with already established 'Medication' rules. On April 27, 2012, IBOP petitioned the Indiana Horse Racing Commission (IHRC) to change the 'Medication' rules to remove the conflict. That communication can be seen on our "Letters to the Commission" page at: http://ibopindy.blogspot.com/2012/04/on-april-27-2012-following-was-sent-to.html. The IHRC chose not to fix this conflict at either of their meetings held on June 25th or August 30th. In advance of the IHRC's October 12th meeting, IBOP filed a second request, which can be found at: http://ibopindy.blogspot.com/2012/10/second-request-to-modify-medication.html. Once again, the IHRC did not resolve the DMSO use conflicts at their October 12th or December 22nd meeting. By their inaction, the IHRC actually allowed the standardbred 'Medication' to expire on January 1, 2013.

Our January, 2013, Administrative Rule of the Month reviewed exactly why '71 IAC 8-1-1 Medication' in the standardbred rule book was allowed to expire. In short, the reasons behind the IHRC allowing the standardbred 'Medication' rule to expire is a great example of their lack of respect for Indiana law. However, for this article, just know that the equivalent thoroughbred 'Medication' administrative rule was not due to expire until January 1, 2014. But, if you'd like to review why the standardbred version was allowed to expire, you can read the article at http://ibopindy.blogspot.com/2013/01/administrative-rule-of-month-71-iac-8-1.html. The fact that the flat racing 'Medication' rule didn't expire until 2014 is key to understanding the ongoing mistakes made by the IHRC staff.

At their February 22, 2013 meeting, the IHRC approved a 'Medication' administrative rule for both the standardbred and the flat racing rule books that fixed the DMSO conflicts. Or, so they thought. At that meeting, IBOP informed the commissioners and the IHRC staff that since 71 IAC 8-1-1 (standardbred version) was allowed to expire that the section heading, 71 IAC 8-1-1, could no longer be used. We suggested that due to the expiration that the old standardbred rule would always read, '71 IAC 8-1-1 Medication (Expired).' While we were met with skepticism, IHRC General Counsel Lea Ellingwood was able to verify this fact before the end of the meeting. So, the IHRC would have to submit the new standardbred 'Medication' rule under a different heading. What they ultimately chose was 71 IAC 8-1-1.5. But, what about the flat racing 'Medication' rule or should we say 'Medication' rules?

To understand why the flat racing rule book now has two 'Medication' rules, you have to understand what the IHRC staff did with the standardbred rule approved on February 22nd. First, they did nothing. If you are a regular reader of IBOP's Administrative Rule of the Month or our newsletter, you've probably read that an emergency rule is not effective until the approved emergency rule is actually filed (published) with the Indiana Register. The 2013 standardbred meet at Hoosier Park opened on April 2, 2013, and we had noticed the new 'Medication' rule had not been filed. Therefore, the standardbred meet opened without a valid 'Medication' rule being in effect. So, we reminded the IHRC staff that the rule had not been filed. Sure enough, the standardbred rule, under the heading of 71 IAC 8-1-1.5 Medication,' was filed the very next day on April 3, 2013. And, the flat racing emergency rule that was approved back on February was also filed at the same time.

While the flat racing rule '71 IAC 8.5-1-1 Medication' had not expired, the IHRC staff had submitted the new rule to the Indiana Register under a different section heading '71 IAC 8.5-1-1.5 Medication' as if the rule had expired. So, now the flat racing rule book has as active rules '71 IAC 8.5-1-1 Medication' and '71 IAC 8.5-1-1.5 Medication' and, as stated earlier, one says DMSO is a prohibited foreign substance and the other allows for the use of DMSO. If you'd like to see how these rules read in the Indiana Administrative Code, click the following link: http://www.in.gov/legislative/iac/T00710/A00085.PDF? or go to the two pages we've downloaded via: http://freepdfhosting.com/1dd8802c3b.pdf.

At some point, we believe that the IHRC will get this right. Left to their own initiative, probably not, so we sent the following petition to the IHRC on April 23, 2013, to have '71 IAC 8.5-1-1 Medication' repealed.

"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 repeal of '71 IAC 8.5-1-1 Medication.' 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 repeal of 71 IAC 8.5-1-1, which is a flat racing administrative rule, due to its conflict with '71 IAC 8.5-1-1.5 Medication' which was put into effect on April 3, 2013.

As background, on April 27, 2012, IBOP submitted a petition to have '71 IAC 8.5-1-1 Medication' modified to conform 71 IAC 8.5-1-1(e) with the newly established threshold for dimethyl sulfoxide (DMSO) in '71 IAC 8.5-1-4.2 Threshold levels.' Effectively, 71 IAC 8.5-1-4.2 established a specific gravity for the use of (DMSO) while 71 IAC 8.5-1-1(e) classified DMSO as a prohibited foreign substance. At the February 22, 2013, IHRC meeting a modification via an emergency rule was approved to fix the conflicting language in 71 IAC 8.5-1-1.

However, on April 3, 2013, the modified rule was actually filed with the Indiana Register as having a new section heading of '71 IAC 8.5-1-1.5 Medication' and not simply filed as an update to the existing '71 IAC 8.5-1-1 Medication.' With 71 IAC 8.5-1-1 still being an active rule at the time, a filing with a separate section heading was not actually necessary. (The equivalent rule in the standardbred rule book did have to be filed with a new section heading due to the rule's expiration on January 1, 2013.) The net result to the flat racing rule book is that now there are two 'Medication' sections; 71 IAC 8.5-1-1, which still indicates DMSO as a prohibited foreign substance, and 71 IAC 8.5-1-1.5, which is in concert with the intent of '71 IAC 8.5-1-4.2 Threshold level.'

Therefore, the flat racing rule book will still have conflicting administrative rules regarding the use of DMSO for the beginning of the flat racing meet at Indiana Downs. However, this year, the conflict is between 71 IAC 8.5-1-1 and 71 IAC 8.5-1-1.5. Both of these 'Medication' rules can be viewed in the Indiana Administrative Code at http://www.in.gov/legislative/iac/T00710/A00085.PDF? . We've also attached a two-page pdf that captures both 'Medication' rules. Our view is that simply repealing 71 IAC 8.5-1-1 will match the stated intent of the IHRC.

Thank You,

Jim Hartman
IBOP Vice-President

CC: Chairman Diener
Vice-Chair Schaefer
Commissioner Grimes
Commissioner Barclay
Commissioner Schenkel"