An out-of-competition testing regulation that was put into effect in Kentucky prior to the Breeders’ Cup World Championships will soon become permanent.
During a meeting Nov. 30, the Kentucky Horse Racing Commission’s rules committee made a few modifications before sending the regulation on to the full commission for consideration.
The regulation was implemented on an emergency basis so some testing could take place prior to the Nov. 5-6 World Championships at Churchill Downs. The rules committee’s action is the final step before the commission votes on making the regulations permanent.
Despite concerns raised by representatives of horsemen’s groups at previous meetings, the out-of-competition testing went smoothly during the Breeders’ Cup and the Grand Circuit Standardbred meet at Lexington’s Red Mile racetrack, according to Dr. Mary Scollay, the KHRC’s equine medical director.
Scollay said 55 Breeders’ Cup participants were tested under the out-of-competition testing format and that all tested negative for any of the prohibited substances identified in the regulation. Scollay said there were no problems with KHRC staff or their designated representatives in other states having access to the horses to be tested or the tests themselves.
The regulation allows the KHRC to conduct tests on horses regardless of location if there is a likelihood the horse ordered for testing will race in Kentucky. The tests are aimed at detecting prohibited substances, mainly blood-doping agents, that cannot be detected in post-race tests and which are specifically identified in the regulation. KHRC veterinary staff members have said the substances targeted by the regulation can be detected for only a short period after being administered--meaning they would not show up in regular post-race tests—but can have a lengthy positive effect upon a horse’s performance.
First-time offenders under the regulation face license revocation of between five to 10 years and up to a $50,000 fine. Also, those same penalties would apply to an owner, trainer, or anyone entrusted with a horse’s care refusing to permit a horse to be tested. Horses that test positive under the regulation would be barred from racing in the state for 180 days.
Under the protocol established under the regulation, a licensee would be required to apply to the commission’s license review committee upon completion of the revocation period in order to be re-licensed. Also, a horse that tests positive under the regulation would be required to have a negative test before it could resume racing following the 180-day ban from competition.
Any horse that tested positive in a post-race test for the substances for which the out-of-competition regulation is aimed would face the stiffer penalties imposed under out-of-competition regulations.
Marty Maline, executive director of the Kentucky Horsemen’s Benevolent and Protective Association, said Nov. 30 that some horsemen had concerns about the testing procedures for a horse located on premises where neither the owner or trainer are present and the property owner/manager refuses to permit a horse to be tested.
Tim West, deputy general counsel for the KHRC, said the regulations provide the horse can be relocated to a location mutually agreed upon by the KHRC staff or representative and the horse’s designated representative.
Prior to approval, the rules committee deleted one section of the regulation pertaining to which horses can be designated for testing.
Based on a review of the regulations by the state’s Legislative Research Commission staff and feedback from attorney Doug McSwain, the rules committee agreed the provision could be interpreted as being overly broad. Also, West said, other parts of the regulation specifying horses to be targeted for testing make the provision unnecessary.
West noted that no one attended a public hearing held to receive comments on the regulation and that a letter from McSwain, who has represented the Kentucky and National HBPA in the past but was acting on his own behalf in this case, was the only feedback received by the commission.
“I would like for us to have a regulation that withstands legal challenges and I believe this does that,” said rules committee member Ned Bonnie.