Section 71 IAC 8-3-5 - Out of competition testingAuthority: IC 4-31-3-9
Affected: IC 4-31-12
Sec. 5.
(a) Any horse eligible to race in Indiana under this subsection is subject to testing without advance notice for prohibited substances, practices, and procedures as specified in subsection (f), while the horse is located on the grounds of a racetrack under the jurisdiction of the commission, or stabled off association grounds while under the care or control of trainer or owner licensed by the commission under the restrictions listed in subsection (e). A horse is eligible to race in Indiana if it is listed:(1) on an owner's or trainer's license application;(2) on a stall application or nomination list; or(3) on the horse sign-in sheet at any time during the meet; or has raced at any Indiana race meet during the preceding three hundred sixty-five (365) days. A horse shall be presumed eligible if it is a racing breed, at least two (2) years old, and an Indiana bred or sired horse. The owner of such an Indiana bred or sired horse may render the horse ineligible for the testing as described in this rule by indicating in writing the Indiana bred or sired horse is not intended to race in Indiana under subsection (b), provided that the owner of such an Indiana bred or sired horse provides written notice to the office of the commission thirty (30) days before the horse turns two (2) years old or within thirty (30) days after the owner acquires the horse. In this event, the horse shall be deemed ineligible for racing in Indiana as provided for in subsection (b).
(b) If a horse to be tested is not covered under subsection (a), the executive director or judges may nevertheless test any such horse as eligible to race in Indiana for prohibited substances, practices, and procedures specified in subsection (f), unless the owner or trainer or other authorized representative or designee of such horse immediately represents in writing that the horse is not intended to be, and will not be, raced in Indiana for a minimum of three hundred sixty-five (365) days. If the owner, trainer, or other authorized representative or designee so represents, the horse shall be deemed ineligible for racing in Indiana for no less than three hundred sixty-five (365) days from that date. This three hundred sixty-five (365) day ineligibility to race in Indiana shall follow the horse even if sold or transferred to another owner or trainer. An owner or trainer may, however, consent to the collection of a sample from a horse selected for testing under this rule, even if the horse is not presently intended to be raced in Indiana, and if such horse tests negative, it will remain eligible to race in Indiana.(c) The executive director or judges may order any horse of a licensed trainer or owner to report to a track under the jurisdiction of the commission for out of competition testing. The trainer or owner is responsible to have the horse or horses available at the designated time and location. In the event that a horse is ordered to report to a track pursuant to the authority granted by this subsection, a licensed trainer or owner is entitled to reimbursement by the commission for mileage (at the current rate paid by the state of Indiana as specified in the current Indiana financial management circular) to and from the location where the horse was stabled when the horse was ordered to report to the track. Under no circumstances will a trainer or owner be entitled to reimbursement for mileage in excess of the actual mileage to the track from the place where the horse was stabled when ordered to report and from the track to the place where the horse is first stabled following the testing. The trainer or owner is not entitled to receive reimbursement from the commission for any other expense relating to any order under this subsection to report to a track for out of competition testing.(d) The official veterinarian, a licensed veterinarian authorized by the commission, or a veterinary technician under the direct supervision of the official veterinarian or a licensed veterinarian authorized by the commission may take a urine, blood, or hair sample from a horse for testing as provided for in this section.(e) Unless sample collection occurs on the grounds of a racetrack or other location within Indiana under the commission's jurisdiction, the commission's representatives may arrive at a reasonable time for the taking of blood, urine, or hair samples from an eligible horse, as defined in subsection (a) or (b), after announcing their presence at the premises where the horse or horses to be tested are located and showing their credentials to collect samples from the horse or horses selected for testing for prohibited substances, practices, and procedures as specified in subsection (f). The commission's representatives or designees will request to meet with the trainer or owner of the selected horse or horses. If neither is available, the collection will be deferred until the trainer or owner, or both, or their representative or designee, becomes reasonably available, but the collection must occur not later than one (1) hour after the commission's designee arrives at the premises in the case of an eligible horse under subsection (a), and not later than two (2) hours in the case of an eligible horse under subsection (b). If the collection does not occur within the time provided for in this subsection, any horse that would have been subject to testing and eligible to race in Indiana will be deemed to be ineligible for racing in Indiana pursuant to the provisions of subsections (a) and (b). In addition, the owner or trainer, or both, of the horses may be subject to any other sanctions allowed by Indiana law and regulations, including, but not limited to, a fine, suspension, or summary suspension. It is a defense to any action brought against an owner or trainer, or both, for sanctions or as a result of any declaration a horse is ineligible because the sample collection did not occur within the time provided for by this subsection that good cause existed that prohibited the owner or trainer or their representative or designee from complying with the time limits set forth in this subsection. The owner or trainer or their representative or designee has the burden of proving the good cause defense by a preponderance of the evidence.(f) Prohibited substances, practices, methods, and procedures are defined as the following: (1) Blood doping agents, including, but not limited to, erythropoietin (EPO), darbepoetin, Oxyglobin, Hemopure, Aranesp, or any substance that abnormally enhances the oxygenation of body tissues.(2) Gene doping agents or the nontherapeutic use of genes, genetic elements, or cells, or all, that have the capacity to enhance athletic performance or produce analgesia.(3) Naturally produced venoms, synthetic analogues of venoms, derivatives of venoms, or synthetic analogues of derivatives of venoms.(4) Substances capable of producing a repartitioning effect that are not FDA-approved for use in horses, including, but not limited to, ractopamine, zilpaterol, or any similar agent.(5) Androgenic-anabolic steroids (AAS) other than endogenous concentrations of the naturally occurring substances as defined in 71 IAC 8-1-8 or AAS in a horse placed on the veterinarian's list in accordance with 71 IAC 8-1-8(f).(6) Cobalt in excess of the threshold provided in 71 IAC 8-1-9. In the event a sample from a horse results in cobalt in excess of the threshold, the horse shall be placed on the veterinarian's list until the concentration of cobalt in serum has fallen below the designated threshold, or until the conclusion of the race meet. However, horses testing at a concentration of one hundred (100) parts per billion shall be placed on the veterinarian's list for a minimum of thirty (30) days.(7) Any substance or method not otherwise referenced in this rule, which is present in Version 11.1 of the Association of Racing Commissioners International Model Rules of Racing Annex I (Prohibited Substances), as revised by ARCI in July 2022, and any subsequent revision effective after said date, which are incorporated by reference herein, and copies of which are available at the commission office.(8) The presence of any substance at any time listed in subdivision (1), (2), (3), (4), (5), or (7) in an eligible horse, as defined in subsections (a) and (b), is prohibited and is a violation of this rule.(9) The use of a prohibited method, as defined in Version 11.1 of the Association of Racing Commissioners International Model Rules of Racing Annex I (Prohibited Substances), as revised by ARCI in July 2022, and any subsequent revision effective after said date, which are incorporated by reference herein, and copies of which are available at the commission office, on an eligible horse, as defined in subsections (a) and (b), is prohibited and is a violation of this rule.(g) The trainer or owner or his or her designees shall cooperate with the official veterinarian or any licensed veterinarian or licensed veterinary technician authorized by the commission or any commission employee by:(1) assisting in the immediate location and identification of the eligible horse selected for out of competition testing; and(2) providing a stall or safe location to collect the samples. The executive director or judges may summarily suspend, exclude, or otherwise penalize any trainer or other authorized representative or designee who does not fully cooperate with a commission employee or representative in assisting and identifying an eligible horse or providing a safe stall to collect samples in a timely fashion. If any such person is summarily suspended, excluded, or otherwise penalized, she or he shall be entitled to a hearing in accordance with Indiana law and regulations. A summary suspension, exclusion, or sanctions for failure to cooperate shall not issue, however, if a horseman meets his or her burden to establish the good cause defense set forth under subsection (e). This provision does not apply to an owner or trainer who timely provides written notice under subsection (a) or (b) that a horse sought to be tested is not intended to be raced in Indiana and thereby renders the horse ineligible pursuant to subsection (b).
(h) The collection of blood or urine samples under this rule shall be collected as provided by 71 IAC 8-4-1 and shall be analyzed as follows:(1) Approved primary laboratory for screening.(2) Approved primary laboratory for confirmation.(3) Approved laboratory for split sample testing as chosen by the owner or trainer. The commission shall approve the laboratories for screening, confirmation, and split sample testing.
(i) The collection of hair samples under this rule shall be collected as provided by 71 IAC 8-4-1 and shall be analyzed as follows: (1) Approved primary laboratory for screening.(2) Approved primary laboratory for confirmation. The commission shall approve the primary laboratories for screening and confirmation. A hair sample shall be ineligible for split sample testing.
(j) The licensed trainer of the horse is responsible for the condition of the horse sampled for an out of competition test while on the grounds of a licensed training facility or racetrack as follows:(1) If the horse is sampled while not on the grounds of a licensed facility or racetrack, then the licensed owner shall be presumed to be the responsible person unless the owner can establish by substantial evidence that another licensed person had accepted the responsibility for the care, custody, and control of the horse, making such person the responsible person.(2) If a horse sampled for an out of competition test was claimed, sold, or otherwise transferred during the time the substance giving rise to the positive test may have been administered, then the commission shall investigate to determine, by a preponderance of the evidence, the identity of the responsible person at the time such substance may have been administered.(3) If the commission cannot determine a responsible person, then the commission may deem the owner responsible and place the horse on the veterinarian's list for such time as is necessary to protect the integrity of racing.(4) A claimed horse is ineligible to be subjected to out of competition testing in the forty-eight (48) hours post claim unless the horse was subjected to post-race testing.(k) In the absence of extraordinary mitigating circumstances, a minimum penalty of a ten (10) year suspension will be assessed for any violation of subsection (f)(1) and (f)(2). The Association of Racing Commissioners International, Inc. Uniform Classification Guidelines for Foreign Substances and Recommended Penalties and Model Rule will be considered for violations of subsection (f)(3), (f)(4), and (f)(5) with additional penalties for any drug not FDA approved for use in horses. Indiana Horse Racing Commission; 71 IAC 8-3-5; emergency rule filed Jul 23, 2007, 9:16 a.m.: 20070808-IR-071070461ERA, eff Jul 18, 2007 [IC 4-22-2-37.1 establishes the effectiveness of an emergency rule upon filing with the Publisher. LSA Document #07-461(E) was filed with the Publisher July 23, 2007.]; errata filed Aug 14, 2007, 1:28 p.m.: 20070829-IR-071070461ACA; emergency rule filed Mar 12, 2008, 1:53 p.m.: 20080326-IR-071080191ERA, eff Mar 11, 2008 [IC 4-22-2-37.1 establishes the effectiveness of an emergency rule upon filing with the Publisher. LSA Document #08-191(E) was filed with the Publisher March 12, 2008.]; emergency rule filed Mar 19, 2009, 11:07 a.m.: 20090401-IR-071090195ERA, eff Mar 12, 2009 [IC 4-22-2-37.1 establishes the effectiveness of an emergency rule upon filing with the Publisher. LSA Document #09-195(E) was filed with the Publisher March 19, 2009.]; emergency rule filed Mar 3, 2011, 11:50 a.m.: 20110309-IR-071110100ERA; emergency rule filed Sep 10, 2012, 2:01 p.m.: 20120912-IR-071120525ERAErrata filed 3/29/2019, 10:12 a.m.: 20190403-IR-071190167ACAEmergency rule filed 12/5/2019, 1:56 p.m.: 20191211-IR-071190646ERAEmergency rule filed 6/1/2020, 1:57 p.m.: 20200610-IR-071200295ERAEmergency rule filed 10/6/2022, 3:34 p.m.: 20221012-IR-071220305ERAReadopted filed 4/20/2023, 3:49 p.m.: 20230517-IR-071230071RFAReadopted filed 8/3/2023, 12:49 p.m.: 20230830-IR-071230428RFA