A question Indiana Breeder & Owner Protection, Inc. (IBOP) has posed many times, either through our newsletters, letters to the commissioners, blog articles, etc. is 'what are the limits to the Indiana Horse Racing Commission's (IHRC)authority?' The IHRC believes and acts as if their authority is unlimited. Their penchant for the use of emergency rulemaking to create 'law,' without any meaningful oversight, creates an environment where the IHRC continually steps beyond their actual statutory authority. Within "their environment," which are their administrative rules in the Indiana Administrative Code (IAC), it's still fairly easy to point out when the IHRC goes beyond their statutory authority. We've pointed this out many times, and a few times, the IHRC has modified administrative rules based upon IBOP petitions.
However, the biggest problem with the IHRC's unchecked power is that no one in the legislature, attorney general's office, or the Governor's office reviews the administrative rules the IHRC creates. Plus, the IHRC doesn't want to give up any authority in their rulemaking which provides for their control over horsemen whether they are within their statutory authority or not. This month's Administrative Rule of the Month takes a look at how the IHRC goes beyond their statutory authority with how they define their 'jurisdiction.'
Both the standardbred and flat racing rulebooks have 'jurisdiction' definitions, and to keep things simple we are going to use '71 IAC 1.5-1-50 "Jurisdiction" defined' as our example. Now, most every administrative agency's authorizing statute as determined by the Indiana legislature has a 'definitions' chapter. The IHRC's authorizing statute 'IC 4-31 Pari-Mutuel Wagering On Horse Racing' has IC 4-31-2 as the 'Definitions' chapter. In the Indiana Administrative Code, an administrative agency can, if authorized by statute, create additional definitions as necessary to implement the State's laws. And, here's how 71 IAC 1.5-1-50 reads:
71 IAC 1.5-1-50 "Jurisdiction" defined
Authority: IC 4-31-3-9
Affected: IC 4-31
Sec. 50. "Jurisdiction" of the commission means the state of Indiana. (Indiana Horse Racing Commission; 71 IAC 1.5-1-50;
emergency rule filed Jun 15, 1995, 5:00 p.m.: 18 IR 2819, 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)
It's easy to see that the IHRC is defining their jurisdiction as the entire state of Indiana. Merriam-Webster defines jurisdiction in a number of ways: 1) the power, right, or authority to interpret and apply the law, 2a) the authority of a sovereign power to govern or legislate, 2b) the power or right to exercise authority : control, 3) the limits or territory within which authority may be exercised. So, the IHRC believes their "power," "authority," "control," and "territory" is the entire state. Effectively, the IHRC is claiming that its regulatory jurisdiction is the entire state of Indiana. We disagree, and actually, Indiana statute disagrees in a number of ways as well.
First, the idea that the IHRC has to create a definition of their jurisdiction in their rulebooks is actually laughable because the whole idea of an authorizing statute IS to define the limits of an administrative agency's authority. The 'Definitions' chapter in Indiana law (IC 4-31-2) does not include a 'jurisdiction' definition because the entirety of the law is simply a definition in and of itself. Yet, the IHRC's arrogance and/or defiance leads to such a definition as "the State of Indiana." Had the Indiana legislature felt it was necessary to specifically define the IHRC's geographical jurisdiction, they would have.
Second, 'IC 4-31 Pari-Mutuel Wagering On Horse Racing' is not the only aspect of Indiana law that addresses horse racing which we are sure will come as a surprise to the IHRC. However, IC 4-31 is the only 'Article' that gives the IHRC any authority over horse racing and more specifically "pari-mutuel" horse racing. The Indiana legislature was very specific in IC 4-31-1-1 which provides that the applicability of the law “does not apply to horse racing meetings at which pari-mutuel wagering is not permitted.” Therefore, the opposite is true in defining the jurisdiction of the IHRC to only horse racing meetings at which pari-mutuel wagering IS permitted which doesn't take place across the entire state of Indiana, only at race tracks during recognized meetings.
The Indiana legislature in ‘IC 15-19-3 Regulation of Horse Racing’ grants no authority to the IHRC over other horse racing within Indiana. Yet, with this particular administrative rule, the IHRC defines their ‘jurisdiction’ as the entire state. Given the purpose of the IHRC as outlined in ‘IC 4-31-1-2’ and the legislative intent expressed in ‘IC 4-31-5.5 Satellite Facilities,’ the IHRC’s jurisdiction is actually only over locations WITHIN the state that provide pari-mutuel wagering on live horse racing and those off-track simulcasting locations that can provide pari-mutuel wagering on horse racing on races in Indiana and around the country. By statue, the IHRC's jurisdiction is defined as being only at Indiana race tracks and at all licensed OTB's, and not beyond.
Third, the authority line in 71 IAC 1.5-1-50 claims that IC 4-31-3-9 gives the IHRC the authority to even create a jurisdiction definition that encompasses the entire state. An administrative agency is required to cite from where they get their rulemaking authority with each administrative rule. In reviewing IC 4-31-3-9, the only possible portion of this statute that provides the IHRC discretionary rulemaking authority is IC 4-31-3-9(a)(1)(H) which states, "any other regulation that the commission determines is in the public interest in the conduct of recognized meetings and wagering on horse racing in Indiana." What the law actually allows for is rulemaking at recognized race meetings and places where people can wager on horse racing which is a very limited definition when compared to the IHRC's 'entire state of Indiana' claim. Again, the law only allows rulemaking, and therefore, exercise of authority, at the two tracks and at all licensed OTB's.
Fourth, statutory construction, which is a set of interpretation guidelines established by courts that apply to laws and to administrative rules, does not allow for any interpretation that would lead to an absurd result. Here's a great example of the IHRC's absurdity with their definition of their jurisdiction. State law, through IC 4-31-13-1(a)(3), allows the IHRC to "rule off" a person from a race track "if necessary in the public interest to maintain proper control over recognized meetings." The IHRC expands upon this authority (unnecessarily) in "71 IAC 2-10-1 Exclusion of patrons and licensed and unlicensed persons." In this administrative rule, the IHRC concludes that their authority allows for "exclusions under this section shall be for all of the premises under the regulatory jurisdiction of the commission, including satellite facilities." Given their definition of jurisdiction, the IHRC's own administrative rule gives them the ability to exclude someone from their "regulatory jurisdiction" which they define as the entire state of Indiana. This, of course, is absolutely absurd that the IHRC can rule someone off and exclude them from the entire state of Indiana.
Again, the problem is that no one within Indiana government keeps tabs on the legality of the rules or the rulemaking procedures at the IHRC. However, IBOP is attempting to change that by challenging the IHRC's jurisdiction definitions and about 80 other administrative rules. (This challenge includes the entirety of '71 IAC 10 Due Process and Disciplinary Action" where the IHRC really goes beyond their statutory authority.) Administrative rules in the IAC expire on January 1st of the seventh year from there adoption and must be readopted. The majority of the IHRC's rulebooks are due to be readopted as of January 1, 2014. The IHRC has already, without a vote at a meeting, filed a Notice to Intent to Readopt for those rules: http://www.in.gov/legislative/iac/20130731-IR-071130345RNA.xml.html. Effectively, the IHRC is saying 'we're good with these rules and we are readopting them 'as is' as of January 1st.' No further action is necessary, and no further review takes place.
However, under a provision in Indiana law, IBOP has requested that these 80 or so rules "be considered separately" from the Notice of Intent to Readopt. What this means is that simply providing a basis with the request to be considered separately, those rules are now required to go through the regular rulemaking process and cannot be readopted by another emergency rule. We've selected those 80 or so rules based primarily on the IHRC's overstepping their statutory boundaries. With almost every single request for rules to be considered separately, we included the following basis, "Given the IHRC’s past history of exclusively using the emergency rulemaking process to promulgate administrative rules, the public interest would be served by a more extensive review of this administrative rule which would finally include a public hearing and a review for statutory authority, for statutory compliance, for consistency with public policy, and for any effects on small businesses." In addition, each request had at least one other reason/basis for the request. This 'Administrative Rule of the Month' is a great example of the additional information (basis) provided to the IHRC.
We will develop more of the ideas behind our requests in future 'Administrative Rule of the Month' articles as well as keep you up to date as to how the IHRC reacts to them. To help ensure that the IHRC follows the law, we are also providing copies of each request to Indiana's Legislative Rules Oversight Committee. A new law that was established as of July 1st gives this committee more responsibility in taking an active role in monitoring an administrative agency's rulemaking. We're confident IBOP's requests and the bases (yes, that's the plural of 'basis')for each request will be eye-openers to this committee. With these requests, we are trying to facilitate real change with the IHRC's rulemaking procedures and to make sure all administrative rules stay within their statutory boundaries. (As horsemen, if you don't know the deck is stacked against you by the IHRC's administrative rules, then go back and read everything we have posted to this website.)
To meet our objectives, we need your help and your support. You can help by sending a link to this article to every horseman on your email list. The more people that are aware of IBOP's effort, the better. And, you can support this effort by considering a donation to IBOP. We'll be able to do more through this process with your support than without. This is an opportunity that only comes along once every seven years.
Monday, September 2, 2013
Friday, August 9, 2013
2012 Indiana Horse Racing Commission Annual Report
The Indiana Horse Racing Commission has released their 2012 Annual Report, which is the first under new Chairman Bill Diener. Here is the link to the report: http://freepdfhosting.com/bfcf53cea5.pdf.
If you're sharp, and understand basic math, see if you can find the errors on page 5 regarding handle on Indiana races. The same errors have been made in every Annual Report in recent history.
Update: On August 16th, the IHRC updated the 2012 Annual Report to correct some on-going math errors. Here's the link to the corrected report: http://www.in.gov/hrc/files/12_Annual_Report_book.pdf. While we didn't get a response, here's exactly what we said to Chairman Diener last week:
"Chairman Diener, I noticed that the IHRC's 2012 Annual Report has been posted the commission website. Each year, the annual report is one of the few publications, and possibly only publication, that provides a summary of the handle at Indiana's race tracks. In this year's edition, the 'Live Racing at Tracks' is page 5, and each year, the same mathematical error is made on this page.
If you look at the 'Total' column on the page, you'll see simple addition of the Hoosier Park handle numbers to the Indiana Downs handle numbers for each breed. For most of the metrics on this page, simple addition works to create a total. Where simple addition doesn't work is with the averages calculated on this page. More specifically, the average daily handle and average handle per race for quarter horses are being added together. What the annual report does is add the averages together to create a total, yet averages can't be added together as overall averages are a completely separate calculation.
More specifically, the average quarter horse handle per race at Hoosier Park is indicated to be $2,742 with the average at Indiana Downs indicated to be $3,084. The average in the Total column is indicated to be $5,826. Yet, based upon the numbers provided, the overall average is really $2,912. It's mathematically impossible to have an overall average greater than either of the other two averages in the calculation. This same adding-averages-together error is also made on the Simulcast Handle chart on the same page.
For your convenience, here's the link to the current annual report: http://www.in.gov/hrc/files/12_Annual_Report_book.pdf
Thanks,
Jim Hartman"
If you're sharp, and understand basic math, see if you can find the errors on page 5 regarding handle on Indiana races. The same errors have been made in every Annual Report in recent history.
Update: On August 16th, the IHRC updated the 2012 Annual Report to correct some on-going math errors. Here's the link to the corrected report: http://www.in.gov/hrc/files/12_Annual_Report_book.pdf. While we didn't get a response, here's exactly what we said to Chairman Diener last week:
"Chairman Diener, I noticed that the IHRC's 2012 Annual Report has been posted the commission website. Each year, the annual report is one of the few publications, and possibly only publication, that provides a summary of the handle at Indiana's race tracks. In this year's edition, the 'Live Racing at Tracks' is page 5, and each year, the same mathematical error is made on this page.
If you look at the 'Total' column on the page, you'll see simple addition of the Hoosier Park handle numbers to the Indiana Downs handle numbers for each breed. For most of the metrics on this page, simple addition works to create a total. Where simple addition doesn't work is with the averages calculated on this page. More specifically, the average daily handle and average handle per race for quarter horses are being added together. What the annual report does is add the averages together to create a total, yet averages can't be added together as overall averages are a completely separate calculation.
More specifically, the average quarter horse handle per race at Hoosier Park is indicated to be $2,742 with the average at Indiana Downs indicated to be $3,084. The average in the Total column is indicated to be $5,826. Yet, based upon the numbers provided, the overall average is really $2,912. It's mathematically impossible to have an overall average greater than either of the other two averages in the calculation. This same adding-averages-together error is also made on the Simulcast Handle chart on the same page.
For your convenience, here's the link to the current annual report: http://www.in.gov/hrc/files/12_Annual_Report_book.pdf
Thanks,
Jim Hartman"
Thursday, August 1, 2013
Administrative Rule of the Month - 71 IAC 7.5-3-4 Scale of Weights
This month's Indiana Breeder & Owner Protection, Inc. (IBOP) Administrative Rule of the Month is going to focus on a thoroughbred and quarter horse rule '71 IAC 7.5-3-4 Scale of Weights.' With the filing of this particular rule with the Indiana Register on July 18, 2013, the Scale of Weights administrative rule became the first and only rule, in the history of the Indiana Horse Racing Commission (IHRC), to be completed by going through the regular rulemaking process. As our regular readers are well aware of, IBOP has been very critical over the years of the IHRC's use of emergency rulemaking process which only requires a majority vote of five commissioners and filing with the Indiana Register to become "law." The regular rulemaking process requires, among other steps, a public notice, a public hearing, a review by the Attorney General's office for legality, and a final approval by the Governor.
The 'Scale of Weights' rule was absolutely the most ridicules administrative rule for the IHRC to have go through the regular rulemaking process. In fact, doing so was downright stupid, but definitely illustrates the IHRC's cavalier attitude toward their responsibilities as regulators as well as demonstrates their overall lack of class. While that last statement is more directed at the IHRC staff, as you will soon see, the commissioners have an overall responsibility to provide oversight to a group of state employees who appear as if they are completely oblivious and quality control challenged. Our timeline with the 'Scale of Weights' rule should demonstrate our last statement.
The 'Scale of Weights' timeline begins on April 19, 2012. (Yes, 2012.) The first agenda item at that particular IHRC meeting was, "Consideration of an emergency rule amendment regarding 71 IAC 7.5-3-4, Scale of weights." (Yes, emergency rule.) Jeff Johnston, from The Jockey's Guild, presented the Association of Racing Commissioners International (ARCI) Model Rule for the new scale which basically increased the minimum weight for thoroughbreds to 118 pounds from 116 pounds. The presentation took three minutes and the commissioners voted unanimously to approve the new scale and the entire agenda item took just a few minutes. Yet, the actual ARCI Model Rule, approved in April of 2012, will not be finalized until August 17, 2013.
As we mentioned earlier, an emergency rule isn't finalized until the language is filed with the Indiana Register. In late June, 2012, the 'Scale of Weights' emergency rule was never filed with the Indiana Register, (yes, over two months later) yet every other emergency rule approved at the April 19th meeting was already filed with the Indiana Register. Our curiosity as to why led us to actually read the approved emergency rule which was a hand-out at the April 19th meeting. What we found was that the 'Model Rule' approved by the IHRC included an error. Instead of assigning a minimum weight of 120 pounds for two-year old quarter horses, the IHRC approved a minimum weight of 130 pounds. (Yes, 130 pounds.) This makes no sense in any racing jurisdiction, especially when considering the minimum weight assignments in the rule were 122 pounds for three-year olds and 124 pounds for four-years. The combination of the rule not being filed in a timely fashion and knowing of their approved error, we sent the following to all of the commissioners: http://ibopindy.blogspot.com/2012/06/71-iac-75-3-4-scale-of-weights.html. The error of their ways was pointed out on June 30, 2012.
On July 12, 2012, the IHRC staff filed the emergency rule, which was approved almost three months earlier, with the Indiana Register. They also filed the rule with the 130 pound minimum weight for a two-year old quarter horse. So, now the 130 pound minimum for a two-year old quarter horse is law in Indiana. And, below is exactly how the 'Scale of Weights' rule reads today, August 1, 2013. (Yes, the IHRC's error is still not fixed.)
71 IAC 7.5-3-4 Scale of weights
Authority: IC 4-31-3-9
Affected: IC 4-31
Sec. 4. (a) With the exception of apprentice allowances, handicap races, Indiana breds, Indiana restricted races, three (3) year old horses entered to run in races against horses four (4) years old and upwards, and the allowance provided in subsection (2) of this section [redesignated subsection (b) by the Publisher], no jockey shall be assigned a weight of less than one hundred eighteen (118) pounds. For three (3) year old horses entered to run in races against horses four (4) years old and upwards from January 1 through August 31, no jockey shall be assigned a weight of less than one hundred sixteen (116) pounds.
(b) Except in handicaps, fillies two (2) years old shall be allowed three (3) pounds, and fillies and mares three (3) years old and upward shall be allowed five (5) pounds before September 1, and three (3) pounds thereafter in races where competing against horses of the opposite sex.
(c) Quarter horses, appaloosas, and paints minimum scale weights shall be one hundred thirty (130) pounds for two-year-olds, one hundred twenty-two (122) pounds for three-year-olds, and one hundred twenty-four (124) pounds for four-year-olds and older.
(d) A notice shall be included in the daily program that all jockeys will carry approximately three (3) pounds more than the published weight to account for safety equipment (vest and helmet) that is not included in required weighing out procedures.
Additionally, jockeys may weigh in with an additional three (3) pounds for inclement weather gear when approved by the stewards.
(Indiana Horse Racing Commission; 71 IAC 7.5-3-4; emergency rule filed Jun 15, 1995, 5:00 p.m.: 18 IR 2868, eff Jul 1, 1995; emergency rule filed Aug 23, 2001, 9:58 a.m.: 25 IR 119; readopted filed Oct 30, 2001, 11:50 a.m.: 25 IR 899; readopted filed Mar 23, 2007, 11:31 a.m.: 20070404-IR-071070030RFA; emergency rule filed Jul 12, 2012, 3:31 p.m.: 20120718-IR-071120428ERA)
At the August 30, 2012, IHRC meeting, the new Chairman laid out the IHRC's new policy as to when the regular rulemaking process would be used instead of the emergency rulemaking. When the IHRC first asked for input from horsemen on this matter in May 2012, IBOP responded with the following: http://www.ibopindy.blogspot.com/2012/06/letters-to-commissioners-input-on.html to basically state to use the emergency rulemaking process when an emergency exists. The emergency rulemaking considerations in the IHRC's policy include; whether the ARCI has previously adopted a model rule, effect of the safety of race participants, impact on the integrity of racing, and housekeeping, which we equate to correcting errors to name a few. All of those 'considerations' could have easily been justification to use the emergency rulemaking process to correct the 130 pound assignment for two-year old quarter horses. Not with this bunch. They decide to fix this error by going through the regular rulemaking process.
On October 19, 2012, the IHRC staff filed a 'Notice of Intent to Adopt' to fix their error: http://www.in.gov/legislative/iac/20121003-IR-071120549NIA.xml.pdf. The IHRC staff waited until February 20, 2013, to file the Proposed Rule: http://www.in.gov/legislative/iac/20130220-IR-071120549PRA.xml.pdf. At the same time, the IHRC staff published the public hearing announcement: http://www.in.gov/legislative/iac/20130220-IR-071120549PHA.xml.pdf which was scheduled for March 22, 2013. Oh, yeah, the rule's Economic Impact Statement was also filed on February 20, 2013: http://www.in.gov/legislative/iac/20130220-IR-071120549EIA.xml.pdf, and imagine that, there is no economic impact when you change the minimum weight of a two-year old quarter horse from 130 pounds to 120 pounds.
IBOP representatives didn't attend the public hearing held on March 22, 2013, but we did send our comments to be part of the record. What we suggested was that using the regular rulemaking process to fix an error in a rule that was approved by the commission via an emergency rule on April 19, 2012, was a complete waste of time and a complete waste of the tax-payers money. Those written comments became part of the record for this particular rulemaking adventure that ultimately went on to the five commissioners and to the Indiana Attorney General's (AG) office for a legal review.
At their April 5, 2013, meeting, the IHRC approved this 'new' rule almost one year removed from their initial mistake. After the IHRC approval, the proposed rule moved on to the AG's office. Evidently, the AG found no legal issues (sarcasm included) with lowering the minimum weight assignment for a two-year old quarter horse to 120 pounds as they signed off on the 'legality' on July 11, 2013. Hopefully, our comments gave some poor assistant deputy attorney general a chuckle when the record was reviewed. After the AG sign-off, the Governor's office approved the proposed rule within a week with the Final Rule being filed with the Indiana Register on July 18, 2013: http://www.in.gov/legislative/iac/20130718-IR-071120549AFA.xml.pdf. Per Indiana law, this rule goes into effect 30 days after the filing with Indiana Register which will be August 17, 2013, almost 16 months after the IHRC staff screwed up the rule in the first place! As we always say, we can't make this stuff up!
The 'Scale of Weights' rule was absolutely the most ridicules administrative rule for the IHRC to have go through the regular rulemaking process. In fact, doing so was downright stupid, but definitely illustrates the IHRC's cavalier attitude toward their responsibilities as regulators as well as demonstrates their overall lack of class. While that last statement is more directed at the IHRC staff, as you will soon see, the commissioners have an overall responsibility to provide oversight to a group of state employees who appear as if they are completely oblivious and quality control challenged. Our timeline with the 'Scale of Weights' rule should demonstrate our last statement.
The 'Scale of Weights' timeline begins on April 19, 2012. (Yes, 2012.) The first agenda item at that particular IHRC meeting was, "Consideration of an emergency rule amendment regarding 71 IAC 7.5-3-4, Scale of weights." (Yes, emergency rule.) Jeff Johnston, from The Jockey's Guild, presented the Association of Racing Commissioners International (ARCI) Model Rule for the new scale which basically increased the minimum weight for thoroughbreds to 118 pounds from 116 pounds. The presentation took three minutes and the commissioners voted unanimously to approve the new scale and the entire agenda item took just a few minutes. Yet, the actual ARCI Model Rule, approved in April of 2012, will not be finalized until August 17, 2013.
As we mentioned earlier, an emergency rule isn't finalized until the language is filed with the Indiana Register. In late June, 2012, the 'Scale of Weights' emergency rule was never filed with the Indiana Register, (yes, over two months later) yet every other emergency rule approved at the April 19th meeting was already filed with the Indiana Register. Our curiosity as to why led us to actually read the approved emergency rule which was a hand-out at the April 19th meeting. What we found was that the 'Model Rule' approved by the IHRC included an error. Instead of assigning a minimum weight of 120 pounds for two-year old quarter horses, the IHRC approved a minimum weight of 130 pounds. (Yes, 130 pounds.) This makes no sense in any racing jurisdiction, especially when considering the minimum weight assignments in the rule were 122 pounds for three-year olds and 124 pounds for four-years. The combination of the rule not being filed in a timely fashion and knowing of their approved error, we sent the following to all of the commissioners: http://ibopindy.blogspot.com/2012/06/71-iac-75-3-4-scale-of-weights.html. The error of their ways was pointed out on June 30, 2012.
On July 12, 2012, the IHRC staff filed the emergency rule, which was approved almost three months earlier, with the Indiana Register. They also filed the rule with the 130 pound minimum weight for a two-year old quarter horse. So, now the 130 pound minimum for a two-year old quarter horse is law in Indiana. And, below is exactly how the 'Scale of Weights' rule reads today, August 1, 2013. (Yes, the IHRC's error is still not fixed.)
71 IAC 7.5-3-4 Scale of weights
Authority: IC 4-31-3-9
Affected: IC 4-31
Sec. 4. (a) With the exception of apprentice allowances, handicap races, Indiana breds, Indiana restricted races, three (3) year old horses entered to run in races against horses four (4) years old and upwards, and the allowance provided in subsection (2) of this section [redesignated subsection (b) by the Publisher], no jockey shall be assigned a weight of less than one hundred eighteen (118) pounds. For three (3) year old horses entered to run in races against horses four (4) years old and upwards from January 1 through August 31, no jockey shall be assigned a weight of less than one hundred sixteen (116) pounds.
(b) Except in handicaps, fillies two (2) years old shall be allowed three (3) pounds, and fillies and mares three (3) years old and upward shall be allowed five (5) pounds before September 1, and three (3) pounds thereafter in races where competing against horses of the opposite sex.
(c) Quarter horses, appaloosas, and paints minimum scale weights shall be one hundred thirty (130) pounds for two-year-olds, one hundred twenty-two (122) pounds for three-year-olds, and one hundred twenty-four (124) pounds for four-year-olds and older.
(d) A notice shall be included in the daily program that all jockeys will carry approximately three (3) pounds more than the published weight to account for safety equipment (vest and helmet) that is not included in required weighing out procedures.
Additionally, jockeys may weigh in with an additional three (3) pounds for inclement weather gear when approved by the stewards.
(Indiana Horse Racing Commission; 71 IAC 7.5-3-4; emergency rule filed Jun 15, 1995, 5:00 p.m.: 18 IR 2868, eff Jul 1, 1995; emergency rule filed Aug 23, 2001, 9:58 a.m.: 25 IR 119; readopted filed Oct 30, 2001, 11:50 a.m.: 25 IR 899; readopted filed Mar 23, 2007, 11:31 a.m.: 20070404-IR-071070030RFA; emergency rule filed Jul 12, 2012, 3:31 p.m.: 20120718-IR-071120428ERA)
At the August 30, 2012, IHRC meeting, the new Chairman laid out the IHRC's new policy as to when the regular rulemaking process would be used instead of the emergency rulemaking. When the IHRC first asked for input from horsemen on this matter in May 2012, IBOP responded with the following: http://www.ibopindy.blogspot.com/2012/06/letters-to-commissioners-input-on.html to basically state to use the emergency rulemaking process when an emergency exists. The emergency rulemaking considerations in the IHRC's policy include; whether the ARCI has previously adopted a model rule, effect of the safety of race participants, impact on the integrity of racing, and housekeeping, which we equate to correcting errors to name a few. All of those 'considerations' could have easily been justification to use the emergency rulemaking process to correct the 130 pound assignment for two-year old quarter horses. Not with this bunch. They decide to fix this error by going through the regular rulemaking process.
On October 19, 2012, the IHRC staff filed a 'Notice of Intent to Adopt' to fix their error: http://www.in.gov/legislative/iac/20121003-IR-071120549NIA.xml.pdf. The IHRC staff waited until February 20, 2013, to file the Proposed Rule: http://www.in.gov/legislative/iac/20130220-IR-071120549PRA.xml.pdf. At the same time, the IHRC staff published the public hearing announcement: http://www.in.gov/legislative/iac/20130220-IR-071120549PHA.xml.pdf which was scheduled for March 22, 2013. Oh, yeah, the rule's Economic Impact Statement was also filed on February 20, 2013: http://www.in.gov/legislative/iac/20130220-IR-071120549EIA.xml.pdf, and imagine that, there is no economic impact when you change the minimum weight of a two-year old quarter horse from 130 pounds to 120 pounds.
IBOP representatives didn't attend the public hearing held on March 22, 2013, but we did send our comments to be part of the record. What we suggested was that using the regular rulemaking process to fix an error in a rule that was approved by the commission via an emergency rule on April 19, 2012, was a complete waste of time and a complete waste of the tax-payers money. Those written comments became part of the record for this particular rulemaking adventure that ultimately went on to the five commissioners and to the Indiana Attorney General's (AG) office for a legal review.
At their April 5, 2013, meeting, the IHRC approved this 'new' rule almost one year removed from their initial mistake. After the IHRC approval, the proposed rule moved on to the AG's office. Evidently, the AG found no legal issues (sarcasm included) with lowering the minimum weight assignment for a two-year old quarter horse to 120 pounds as they signed off on the 'legality' on July 11, 2013. Hopefully, our comments gave some poor assistant deputy attorney general a chuckle when the record was reviewed. After the AG sign-off, the Governor's office approved the proposed rule within a week with the Final Rule being filed with the Indiana Register on July 18, 2013: http://www.in.gov/legislative/iac/20130718-IR-071120549AFA.xml.pdf. Per Indiana law, this rule goes into effect 30 days after the filing with Indiana Register which will be August 17, 2013, almost 16 months after the IHRC staff screwed up the rule in the first place! As we always say, we can't make this stuff up!
Subscribe to:
Posts (Atom)