Governor’s Tracking No. AR 471
STATE OF
OFFICE OF ADMINISTRATIVE
HEARINGS
FOR THE
|
In the Matter of the Proposed Rules of the |
ORDER OF
CHIEF ADMINISTRATIVE
LAW JUDGE ON REVIEW
OF RULES UNDER |
The Minnesota
Racing Commission (“Commission”) has
adopted the above-entitled rules without a hearing pursuant to Minnesota
Statutes, section 14.26. On October 28, 2009, the
Office of Administrative Hearings received the documents that must be filed by
the Board under Minnesota Statute § 14.26 and Minn. R. 1400.2310. The Commission supplemented the record on
November 2, 2009, with the determination required by Minn. Stat. § 14.128. On November 12, 2009, the Administrative Law Judge issued the Order on
Review of Rules under Minnesota Statutes, Section 14.26. As set forth in the November 12, 2009 Order, a
portion of the rules was disapproved.
Based upon a review of the written
submissions and filings, Minnesota Statutes, Minnesota Rules, and the November
12, 2009 Order,
IT
IS HEREBY ORDERED: that the findings of the Administrative Law Judge in the
November 12, 2009 Order on Review of Rules under Minnesota Statutes, Section
14.26, regarding the disapproval of portions of the rules are approved. The reasons for the disapproval of the rules
and the changes recommended to correct the defects found are as set forth in
the attached Order.
Dated this 16th day of November, 2009.
_____/s___Raymond
R. Krause_____
RAYMOND
R. KRAUSE
Chief
Administrative Law Judge
Governor’s Tracking No. AR 471
STATE OF
OFFICE OF ADMINISTRATIVE
HEARINGS
FOR THE
|
In the Matter of the Proposed Rules of the |
ORDER ON
REVIEW OF RULES UNDER
STATUTES,
SECTION 14.26 |
The
Minnesota Racing Commission (“Commission”) is seeking review and approval of
the above-entitled rules, which were adopted by the Commission without a
hearing. Review and approval is governed
by Minn. Stat. § 14.26. On October 28,
2009, the Office of Administrative Hearings received the documents that must be
filed by the Commission under Minn. Stat. § 14.26 and Minn. R. 1400.2310. The Commission supplemented the record on
November 2, 2009 with the determination required by Minn. Stat. § 14.128. Based upon a review of the written
submissions and filings, and for the reasons set out in the Memorandum which
follows,
IT IS HEREBY ORDERED:
1.
The Commission has the statutory authority to adopt the rules.
2.
The
rules were adopted in compliance with all procedural requirements of Minnesota
Statutes, chapter 14, and Minnesota Rules, chapter 1400, with the exception of
a timely authorizing resolution for Richard Krueger to issue the Dual Notice of
Intent to Adopt Rules With or Without a Hearing. As discussed below, the Administrative Law
Judge finds that error on the part of the Commission to be harmless according
to the standards of Minn. Stat. § 14.15.
3.
The rules are needed and reasonable, with the exception of parts
7877.0175, subpart 13 and 7892.0120, subpart 5. Accordingly, these rule parts
are DISAPPROVED as not meeting the
requirements of Minnesota Rule part 1400.2100, items B or E.
4. Pursuant to Minnesota Statutes, section 14.26, subdivision
3(b), and Minnesota Rules, part 1400.2300, subpart 6, the rules will be
submitted to the Chief Administrative Law Judge for review.
Dated: November
12, 2009
____/s_Manuel
J. Cervantes________________
MANUEL
J. CERVANTES
Administrative
Law Judge
MEMORANDUM
Pursuant
to Minnesota Statutes, Section 14.26, the agency has submitted these rules to
the Administrative Law Judge for a review as to legality. The rules adopted by the Office of
Administrative Hearings[1]
identify several types of circumstances under which a rule must be disapproved
by the Administrative Law Judge or the Chief Administrative Law Judge. These circumstances include situations in
which a rule was not adopted in compliance with procedural requirements, unless
the judge finds that the error was harmless in nature and should be
disregarded; the rule is not rationally related to the agency’s objectives or
the agency has not demonstrated the need for and reasonableness of the rule;
the rule is substantially different than the rule as originally proposed and
the agency did not comply with required procedures; the rule grants undue
discretion to the agency; the rule is unconstitutional[2] or
illegal; the rule improperly delegates the agency’s powers to another entity;
or the proposal does not fall within the statutory definition of a “rule.”
I.
Harmless Error
The Commission passed two authorizing resolutions in
this proceeding. The first, passed on
November 20, 2008, authorized Richard Krueger, Executive Director of the
Commission, to sign the Request for Comments.
The second, passed on October 22, 2009, authorized Mr. Krueger to “sign
the Order Adopting Rules, to modify the rules as needed to obtain the Revisor
of Statutes or the Administrative Law Judge’s approval of the rules, and to
perform other necessary acts to give the rules the force and effect of law." On the same date, the Racing Commission
passed a resolution authorizing Mr. Krueger to give the Commission's Notice of
Intent to Adopt, and "to do anything else needed to complete the
Notice.” This last authorization was not
timely because the Notice of Intent to Adopt was published on August 10, 2009.
The Commission erred when it neglected to timely authorize
Mr. Krueger to publish the Notice of Intent to Adopt. However, because this
error did not “deprive any person or entity of an opportunity to participate meaningfully in
the rulemaking process” and because the
Commission took corrective action demonstrating that it clearly intended to
give Mr. Krueger the authority he needed to proceed, the Administrative Law
Judge finds this omission was harmless error pursuant to Minnesota Statute §
14.15.
II. Defects
Defect in Part 7877.0175,
subpart 13
This subpart establishes the times when an outrider must be
used. The proposed language states:
Outriders shall be
responsible for the orderly conduct of horses on the race course during
training and racing hours.
The outriders shall be
present on the race course, mounted and ready to assist in the control of any
unruly horse or to recapture any loose horse, at all times that horses are
permitted on the race course, for thoroughbred, quarterhorse, arabian racing,
and for harness racing during racing periods.
The Statement of Need and Reasonableness (SONAR) addresses
the purpose of the new language:
The outrider’s
responsibility is being redefined as there are now three breeds that race in
The proposed language is ambiguous and does not accomplish the
Commission’s stated purpose. The
intended change to limit the required presence of outriders at the harness
track only to racing periods is not clearly established by simply adding the
proposed phrase. This is particularly so
given the first sentence in the subpart
which establishes a general requirement.
Because the language is unclear, it “is not rationally related to the
agency’s objective. . .” pursuant to Minn. R.
1400.2100. B and is, therefore, defective.
This defect can be cured by changes which will make the
language more explicit and clear. The
Administrative Law Judge recommends that the Commission adopt the following
language:
Outriders shall be responsible for the orderly conduct
of horses on the race course during training and racing hours, as specified
in the following paragraph.
At the thoroughbred/quarterhorse track, Tthe outriders shall be present on the
race course, mounted and ready to assist in the control of any unruly horse or
to recapture any loose horse, at all times that horses are permitted on the
race course. , for thoroughbred, quarterhorse, arabian
racing. and Outriders are
required for harness racing during racing periods but are not required during
training hours.
The change is needed and
reasonable and would not be a substantial change from the rules as proposed.
Defect in Part 7892.0120,
subpart 5
This subpart adds an option for obtaining urine for
split sample testing in circumstances where it was not originally requested, or
it appeared that there was an insufficient amount to split. The rule as proposed states:
A portion of the sample from each horse tested, after
a sufficient amount has been sent to the official laboratory, must be preserved
by the commission. In the absence of
urine for split sample testing, urine from the original testing laboratory, if
available, may be sent to the designated split sample laboratory for analysis. It must be available for testing at the
request of a person accused of a violation of chapter 7890.
The new language says “urine from the original testing
laboratory, if available, may be sent . . .” (emphasis
added). But the next sentence says “[i]t
“must be available . . .” (emphasis
added). The conflicting “must” and “if
available . . .may” create conflicting responsibilities on the part of the
laboratories and uncertain rights on the part of the person accused of the rule
violation.
The SONAR’s discussion of this rule change states:
The amount of urine passed by a particular horse is
sometimes not enough to send for a split sample analysis. In that instance, remaining urine held by the
original testing laboratory can be sent to the split sample testing laboratory.[4]
Because the proposed language conflicts with the existing
language, it creates ambiguity that renders it “not rationally related to the
agency’s objective” and unconstitutionally vague, in violation of Minn. R.
1400.2100 B. and E. The Administrative
Law Judge recommends that the sentences in the proposed rule be re-arranged as
follows:
A portion of the sample from each horse tested, after
a sufficient amount has been sent to the official laboratory, must be preserved
by the commission. It must be available for testing at the request of a person
accused of a violation of chapter 7890. In
the absence of urine for split sample testing, urine from the original testing
laboratory, if available, may be sent to the designated split sample laboratory
for analysis.
This change establishes the official testing
laboratory as an option for obtaining a split sample for further testing when a
violation of rules is alleged and eliminates the confusion between “must” in
the second sentence and “may” in the third sentence. The change is needed and reasonable and would not
be a substantial change from the rules as proposed.
III. Recommended Technical
Corrections
The Administrative Law Judge recommends several technical
corrections to the rules. The technical corrections are not defects in the
rules, but are recommendations for corrections to the rules that the agency may
adopt if it chooses to do so to aid in the administration of the rule. Each of the changes recommended below is
needed and reasonable and would not be a substantial change from the rules as
proposed.
Part
7890.0120, subpart 1
This rule deals with a form that must be prepared and
filed by a treating veterinarian reporting all horses the veterinarian treats
on a daily basis. The new language
states that the form is considered “confidential.”
The SONAR states that the “rule change . . . is needed
to bring us into compliances with the statutes and rules of the Minnesota Board
of Veterinary Medicine regarding the confidentiality of medical records.”[5]
The Board of Veterinary Medicine’s rules require that
the “[c]ontents of medical records must be kept private . . .” Minn. R.
9100.0800, subp. 4.F. This
language is consistent with the Minnesota Data Practices Act, under which
“private” data is available to the subject of the data while “confidential”
data is not.[6]
The Administrative Law Judge recommends that the word
“confidential” in this subpart be changed to “private.” This will maintain consistency with both the
Data Practices Act and the Veterinary Board rules.
7897.0100,
subpt. 20.A
The new language in this rule includes
a prohibition of possession or use “of a drug, substance, medication,
biological product, or venom on the premises of a facility under the
jurisidiction of the commission . . . the use of which may adversely affect the
integrity of racing.”
The SONAR states “[t]his rule needs to
be added as it is found elsewhere in the rules (chapter 7890).”[7] While there is somewhat similar language at
Minn. R. 7890.0110, subp. 6, there is
nothing that parallels the broad language:
“use of which may adversely affect the integrity of racing.”
The Administrative Law Judge recommends that that this
language be deleted because it is overbroad.
Any drug or substance, even an approved one, can adversely affect the
integrity of racing, if it is not used correctly. Since this is a prohibition of possession or
use, not a rule that governs how substances are used, this very broad language
could easily be misapplied.
7897.0100,
subpt. 20.B
The proposed wording of this provision is:
No person may possess or use a drug, substance,
medication, biological product, or venom on the premises of a facility under
the jurisdiction of the commission that has not been approved by the USDA or
FDA for any use in human or animal without prior permission of the stewards and
commission veterinarian.
The Administrative Law Judge recommends rearranging
the words in this provision to clarify its meaning, as follows:
No person may possess or use, on the premises of a
facility under the jurisdiction of the commission, a drug, substance,
medication, biological product, or venom that has not been approved by the USDA
or FDA for any use in human or animal without prior permission of the stewards
and commission veterinarian.
7897.0150,
subp.4
This rule part deals with Disciplinary
and Appeal Procedures. The changes to
subpart 4 are meant to expand the authority of the Director or Deputy Director
to initiate an appeal of a steward’s ruling, rather than simply file a
complaint with the Commission.[8] In making this change, the Commission deleted
references to its own authority to initiate a review of a steward’s decision,
although it left intact subpart 9 of the rule which sets forth the procedure to
be followed “[w]hen the commission institutes an appeal on its own motion . . .
.”
To clarify that the Commission retains the authority
to initiate a review or an appeal, the Administrative Law Judge recommends
adopting the following language in subpart 4:
Review or
Appeal by Commission, Director or Deputy Director. Nothing in this chapter precludes the commission,
the director or deputy director from instituting proceedings to appeal a
steward’s decision; or the commission from instituting proceedings to review a
steward’s decision on its own motion.
M.J.C.
[1] Minnesota Rule part 1400.2100.
[2] To be constitutional, a rule must be
sufficiently specific to provide fair warning of the type of conduct to which
the rule applies. Cullen v.
[3]
Statement of Need and Reasonableness (SONAR) at page 8 (July 19, 2009)
[4] SONAR at page 10.
[5] SONAR at page 9.
[6]
[7] SONAR at page 10.
[8] SONAR at page 11.