Request to Repeal "Foreign Substance" Defintion

On February 6, 2014, Indiana Breeder & Owner Protection, Inc. petitioned the Indiana Horse Racing Commission to repeal the definition of 'foreign substance' in the flat racing rulebook. On the surface this petition may seem quite strange. In addition, we only petitioned for the 'foreign substance' definition be repealed from the flat racing rulebook, but not the standardbred rulebook. As you read our petition, you'll get a better sense for our position which is as follows:

"February 6, 2014

To: Lea Ellingwood
General Counsel
Indiana Horse Racing Commission

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 striking (repeal) of ‘71 IAC 1.5-1-40 “Foreign substance” defined’ from the Indiana Administrative Code. Please consider this correspondence as IBOP’s official petition to do so. Our view, which is supported by Indiana statue, is that this definition is an unnecessary duplication of ‘IC 4-31-2-7 “Foreign substances.”’ We would appreciate this request be considered as an agenda item at the next regularly scheduled IHRC meeting.

For you convenience, this administrative rule appears in ‘71 IAC 1.5. Flat Racing; Definitions’ and is copied below:

71 IAC 1.5-1-40 "Foreign substance" defined
Authority: IC 4-31-3-9
Affected: IC 4-31
Sec. 40. "Foreign substance" means all substances except those that exist naturally in an untreated horse at normal physiological concentration, and includes all narcotics, stimulants, depressants, or other drugs or medications of any type. (Indiana Horse Racing Commission; 71 IAC 1.5-1-40; emergency rule filed Jun 15, 1995, 5:00 p.m.: 18 IR 2818, eff Jul 1, 1995; readopted filed Oct 30, 2001, 11:50 a.m.: 25 IR 899; readopted filed Mar 23, 2007, 11:31 a.m.: 20070404-IR-071070030RFA; readopted filed Nov 26, 2013, 11:25 a.m.: 20131225-IR-071130345RFA)

Clearly, ‘71 IAC 1.5-1-40’ copies verbatim the definition of “Foreign substances” found in ‘IC 4-31-2-7,’ which is copied below for your convenience:

IC 4-31-2-7
"Foreign substances"
Sec. 7. "Foreign substances" means all substances except those that exist naturally in an untreated horse at normal physiological concentration, and includes all narcotics, stimulants, depressants, or other drugs or medications of any type.
As added by P.L.341-1989(ss), SEC.2.

Given this obvious and direct duplication of Indiana statute, we believe that ‘71 IAC 1.5-1-40’ does not meet the standard for administrative rules as cited by ‘IC 4-22-2-19.5(a)(3)’ which is copied below for your convenience:

IC 4-22-2-19.5
Standards for rules
Sec. 19.5. (a) To the extent possible, a rule adopted under this article or under IC 13-14-9.5 shall comply with the following:
(1) Minimize the expenses to:
(A) regulated entities that are required to comply with the rule;
(B) persons who pay taxes or pay fees for government services affected by the rule; and
(C) consumers of products and services of regulated entities affected by the rule.
(2) Achieve the regulatory goal in the least restrictive manner.
(3) Avoid duplicating standards found in state or federal laws.
(4) Be written for ease of comprehension.
(5) Have practicable enforcement.
(b) Subsection (a) does not apply to a rule that must be adopted in a certain form to comply with federal law.
As added by P.L.17-1996, SEC.2.

We see the approval of this petition as possible given the standard of “To the extent possible” in ‘IC 4-22-2-19.5.’ This is especially true given that the ‘Foreign substance’ definition in ‘71 IAC 1. Definitions,’ the portion of the administrative code dealing with standardbred racing, was not readopted in 2013 and no longer exists. That portion of the Indiana Administrative Code now reads as follows:

71 IAC 1-1-42.1 "Foreign substance" defined (Expired)
Sec. 42.1. (Expired under IC 4-22-2.5, effective January 1, 2014.)

Logic dictates that neither ‘71 IAC 1-1-42.1’ and ‘71 IAC 1.5-1-40’ were ever necessary given the exact same definition exists in ‘IC 4-31-2-7,’ and therefore, applies to both flat racing and standardbred racing without any further need for the same definition in the Indiana Administrative Code. Should you believe otherwise, then efforts should be made to promulgate another “Foreign substance” definition within the standardbred rulebook via 71 IAC 1. Definitions.

Thank You,


Jim Hartman
IBOP Vice-President

CC: Executive Director Gorajec
Chairman Diener
Vice-Chairman Schaefer
Commissioner Schenkel
Commissioner Weatherwax
Commissioner Pillow"

March 7, 2014 Update: At the March 5th IHRC meeting, the IBOP petition was considered, but not approved just as we expected. The goal of our petition was to point out that the IHRC has allowed the "Foreign substance" definition to expire. While the IHRC staff and commissioners didn't seem too concerned with the definition's expiration, we'll share why they should have been in the April edition of the 'Administrative Rule of the Month.'