24274752, 61DER21-2 - Florida Administrative Rules, Law, Code, Register

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Florida Department of State and Division of Library and Information Services

Notice: 24274752

Notice of Emergency Rule

Department:

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION

Division:

Division of Pari-Mutuel Wagering

Overview

RULE:

61DER21-2

Testing Methodologies; Measurement Uncertainties; Screening Limits

SPECIFIC REASONS FOR FINDING AN IMMEDIATE DANGER TO THE PUBLIC HEALTH, SAFETY OR WELFARE:

The Division of Pari-Mutuel Wagering (“Division”) must supervise and regulate the welfare of racing animals in this state’s pari-mutuel facilities. § 550.0251(11), Fla. Stat. (2020).  As part of its supervision, the Division routinely tests for and prosecutes the use of prohibited levels of permitted medications and prohibited substances that can cause injury or death to racing horses. Racing horses with prohibited levels of permitted medications, prohibited substances, or any combination thereof also compromises the integrity of the races conducted. On February 25, 2021, the Division received a 30-day notice alleging that an unadopted rule challenge would be filed for the Division’s alleged failure to promulgate testing methodologies and measurement uncertainties for the testing of biological specimens collected from racing horses. Although the Division rejects the allegation that it has failed to comply with statute, the Division believes that the immediate promulgation of an emergency rule that provides clarification as to the University of Florida Racing Laboratory’s testing methodologies and measurement uncertainties is necessary to ensure the continued safety of racing horses and the integrity of the racing industry.
The ordinary rulemaking process would not address this emergency. Thousands of horses will be racing in the near future. At this time, there are 59 performances scheduled in the month of March, 57 performances scheduled in April, and 42 performances scheduled in May. Without this emergency rule, there would be an immediate danger to the wagering public and the integrity of pari-mutuel horse racing caused by a potential disruption in the Division’s ability to detect and prosecute the use of prohibited levels of permitted medications, prohibited substances, or any combination thereof, in thousands of racing horses. Only this emergency rule can ensure that horse races occurring during the pendency of any existing or imminent legal challenges are conducted under safe conditions. The persons who may be affected by the emergency rule therefore have long been on actual or constructive notice of the testing methodologies and measurement uncertainties now memorialized in the emergency rule, rendering the use of emergency rulemaking procedures fair under the circumstances.
Based on the hundreds of races scheduled, the Division fears an immediate danger to the health, safety, and welfare of racing animals, the wagering public, and the integrity of racing as a whole will exist without this emergency rule.

REASON FOR CONCLUDING THAT THE PROCEDURE IS FAIR UNDER THE CIRCUMSTANCES:

The procedure used to adopt this emergency rule is fair under the circumstances. Thousands of racing horses will be participating in over a hundred and fifty performances in the coming months alone. The safety of these racing horses and the integrity of the races must be safeguarded. The Division has determined that this emergency rule will not have an adverse impact on small business and is not likely to directly or indirectly increase regulatory costs. Furthermore, the procedure used to adopt this emergency rule provides at least the procedural protection given by other statutes, the State Constitution, or the United States Constitution. The testing methodologies set forth in the emergency rule have been utilized by the University of Florida Racing Laboratory and the Division since 2015. While scientific advances throughout the years have resulted in slight improvements to the measurement uncertainties for some of the substances, the measurement uncertainties in this emergency rule are substantially similar to the measurement uncertainties that have been used by the University of Florida Racing Laboratory and the Division since 2015. Additionally, these measurement uncertainties have been published repeatedly in the form of drug positive reports and administrative complaints during that time.
This emergency rule addresses the specific concerns identified by members of the horseracing industry. As such, the Division is only taking action necessary to protect the public under the procedure used to adopt this emergency rule.

SUMMARY:

Emergency Rule 61DER21-2, F.A.C., prescribes the testing methodologies, measurement uncertainties, and screening limits applicable to the testing of biological specimens sent to the University of Florida Racing Laboratory for analysis as well as clarifying when these testing methodologies and measurement uncertainties apply. These changes address specific concerns identified by the pari-mutuel industry and are a valid exercise of delegated legislative authority.

THE PERSON TO BE CONTACTED REGARDING THE EMERGENCY RULE IS:

Bryan Barber, Division of Pari-Mutuel Wagering, bryan.barber@myfloridalicense.com, 2601 Blair Stone Rd., Tallahassee, FL 32399, (850)717-1761.

PRINT PUBLISH DATE:

3/5/2021 Vol. 47/44

OVERSIGHT COMMITTEE:

Joint Administrative Procedures Committee
Florida Administrative Law Central Online Network (F.A.L.C.O.N.)

RELATED COURT CASES:

Division of Administrative Hearings

FEDERAL eRULEMAKING
WEB PORTAL:

Regulations.gov

HOW TO LINK TO
THIS NOTICE:

http://flrules.org/gateway/ruleno.asp?id=61DER21-2&PDate=3/5/2021&Section=4

REFERENCE MATERIALS:

No reference(s).

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