Could Maryland's Racing Commission let a track hold Arabian horse races with betting in 1987, and did it need to write new regulations first?

Plain-English summary

The Executive Director of the Maryland Racing Commission asked the Attorney General three questions after the Laurel Racing Association requested permission to hold Arabian horse races, with wagering, during its fall meeting: whether the Commission had statutory authority to grant the request, whether the Commission had to adopt formal regulations first, and whether the law's purse-money allocation formula needed clarification if Arabian racing were allowed.

The Attorney General concluded that the Commission did have authority to permit Arabian racing at a track licensed under Article 78B, §7, because the 1920 law that created that licensing section used the broad, undefined word "racing" rather than limiting licensees to thoroughbred racing, and the legislative history showed the General Assembly's central concern in 1920 was whether to allow wagering at all, not which breed of horse would race. However, the opinion found the Commission could only exercise that authority by first adopting formal regulations under the Administrative Procedure Act, since authorizing an entirely new type of racing would be a significant policy decision with wide future effects on tracks, breeders, owners, and trainers, not an adjudication limited to Laurel's specific request. Finally, the opinion concluded that the statute's existing purse-money formula would apply in full to Arabian racing unless the General Assembly changed it, even though some resulting allocations, such as sending wagering revenue from Arabian races to the fund for thoroughbred breeding, might seem to fit awkwardly.

Currency note

This opinion was issued in 1987. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Did Maryland's original 1920 horse racing law limit licensed tracks to thoroughbred racing only?
No, according to this opinion. The word "thoroughbred" did not even appear in Maryland's racing law until 1962. The 1920 Act that created the general licensing section, Article 78B, §7, used the undefined term "racing," and the Attorney General found the legislative debates focused on whether to allow wagering at all, not on restricting the breed of horse that could compete.

Why couldn't the Maryland Racing Commission just approve Laurel's request for a one-time Arabian racing experiment without going through rulemaking?
The opinion applied a four-factor test the office had used in a prior opinion about Sunday racing, and concluded that authorizing Arabian racing for the first time was a significant, forward-looking policy decision affecting the whole industry, not a narrow adjudication about Laurel alone, since once authorized for one track the Commission could not easily refuse the same request from others. That made it the kind of decision that required formal regulations under the Administrative Procedure Act, regardless of how the request was labeled.

If Arabian racing had been approved in 1987, would betting revenue from those races have automatically funded thoroughbred breeding programs, and was that intentional?
The opinion flagged that outcome as a likely side effect of applying the existing purse-money statute (which sends a share of wagering revenue to the Maryland-Bred Race Fund, created to benefit Maryland-foaled thoroughbreds) without amendment, calling it a "seemingly odd" result the General Assembly had not clearly intended, though it remained a policy question for the Commission and ultimately the legislature to address rather than something the opinion resolved on its own.

Background and statutory framework

Article 78B, §1 gives the Racing Commission "the powers necessary or proper to enable it to carry out fully and effectually all the purposes of this article," and §11(a) grants power "to prescribe rules, regulations and conditions under which all horse races shall be conducted." Section 7, the licensing provision under which Laurel operates, simply authorizes licenses "to conduct racing" without naming any particular breed, in contrast to other sections of the Act that separately address trotting and pacing, steeplechase, matinee, and quarterhorse racing. The opinion traced this back to the Act's 1920 origin, when Maryland was one of only three states permitting wagering on horse racing and the central legislative battle was over whether to ban wagering entirely, not over what type of horse racing the new Commission would oversee; a provision that would have limited the Commission's view of racing to horse breeding and sport was in fact deleted before passage. The Commission's own early practice, licensing harness and steeplechase racing at various tracks in the years after 1920, reinforced this reading, since an agency's contemporaneous construction of a statute is entitled to substantial weight.

On the second question, the opinion applied the office's established test for when agency action requires notice-and-comment rulemaking under the Administrative Procedure Act: whether the action is a prospective policy decision with a significant effect on the public or a regulated industry, rather than an adjudication resolving a unique set of facts. Drawing on a prior opinion addressing the Commission's approval of Sunday racing, the opinion found that authorizing Arabian racing, even framed as Laurel's limited experiment, would set a significant precedent for licensed tracks generally and affect breeders, owners, and trainers beyond Laurel, so it required regulations rather than a one-off administrative approval.

On the third question, the opinion explained that Article 78B, §11(b)(4)'s purse-money percentages apply by their terms to all mutuel pools at a licensed track regardless of breed, so without a statutory amendment the same allocation formula, including the share directed to the Maryland-Bred Race Fund for thoroughbred breeding, would apply to Arabian racing as well. The opinion noted the Commission retained some regulatory authority under §11(a) to tailor purse allocation by breed, but characterized any broader fix as a policy matter for the Commission and the General Assembly rather than a legal deficiency.

Citations

Statutes:

• Article 78B, §7 of the Maryland Code (licensing of tracks to conduct "racing")
• Article 78B, §11(a) of the Maryland Code (Commission's general rulemaking authority)
• Article 78B, §11(b) of the Maryland Code (purse and mutuel pool allocation framework)
• Article 78B, §11(b)(4) of the Maryland Code (specific purse-money percentages)
• Article 78B, §17 of the Maryland Code (trotting and pacing racing)
• Article 78B, §27 of the Maryland Code (steeplechase racing)
• Article 78B, §27A of the Maryland Code (matinee racing)
• Article 78B, §27B of the Maryland Code (quarterhorse racing)
• §10-101(e) of the State Government Article (definition of "regulation" under the Administrative Procedure Act)

Cases:

• Jacobson v. Maryland Racing Comm'n, 261 Md. 180 (1971)
• Kaczorowski v. City of Baltimore, 309 Md. 505, 515 (1987)
• Department of Tidewater Fisheries v. Sollers, 201 Md. 603, 611 (1953)
• Holy Cross Hospital of Silver Spring, Inc. v. Health Services Cost Review Comm'n, 283 Md. 677, 685 (1978)
• Piercy v. Tarr, 343 F. Supp. 1120, 1128-29 (N.D. Cal. 1972)

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1987/Volume72_1987.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

Racing Commission—Administrative Law—Scope Of "Racing"—Commission Has Authority To Permit Arabian Racing But May Do So Only Through Adoption Of Regulation.

September 15, 1987

Mr. Kenneth A. Schertle, Executive Director
Maryland Racing Commission

You have requested our opinion on three questions concerning the Request of the Laurel Racing Association, Inc. ("Laurel") that the Racing Commission authorize it to conduct races for Arabian horses, with wagering, during its fall meeting. Specifically, you ask:

1. Does the Commission have the statutory authority to grant this request?

2. If so, is the Commission required to adopt regulations for the conduct of Arabian racing in order to exercise that authority?

3. If Arabian racing were authorized, is a clarification of Article 78B, §11(b)(4), regarding the allocation of purse money, necessary?

For the reasons given below, we conclude as follows:

1. The Commission has authority to permit Arabian racing at a track licensed under Article 78B, §7.

2. In order to exercise that authority, the Commission is required to adopt, pursuant to the Administrative Procedure Act, regulations governing the conduct of Arabian racing.

3. Article 78B, §11(b) must be given full effect as to the allocation of purses and mutuel pools resulting from Arabian racing. The Commission has some authority, consistent with the statute, to regulate the allocation of purse money, so as to take account of the fact that Arabian horses are racing. Whether any aspect of this subsection ought to be changed is a policy question that we do not address.

I
Statutory Authority

A. Commission Authority Generally

The Commission draws its authority from Article 78B of the Maryland Code (the "Act"). Section 1 vests the Commission with "the powers and duties in this article specified and also the powers necessary or proper to enable it to carry out fully and effectually all the purposes of this article." The Act further grants the Commission power "to prescribe rules, regulations and conditions under which all horse races shall be conducted within the State of Maryland." Article 78B, §11(a). This grant of power is necessarily broad in order to give the Commission the flexibility to respond to changing circumstances in racing. See Final Report of the Commission to Study the Racing Laws of the State of Maryland 2 (November 6, 1946). See generally Jacobson v. Maryland Racing Comm'n, 261 Md. 180 (1971).

Unlike racing laws in other states, Article 78B does not specifically provide for the licensing of "thoroughbred racing" as such; indeed, the word "thoroughbred" did not appear in the law until 1962, when the Maryland-Bred Race Fund was established. Chapter 137, Laws of Maryland 1962. Cf, e.g., Cal. Bus. & Prof. Code §1953; Fla. Stat. Ann. §550.40. Instead, §7, under which Laurel is licensed, simply provides for the licensing of "racing":

"Any person or person, association or corporation, desiring to conduct racing within the State of Maryland during any calendar year, shall apply to the Maryland Racing Commission for a license to do so." §7(a).

Similarly, §7(b) instructs the Commission to award dates "for racing." By contrast, Article 78B elsewhere addresses itself to several specific types of racing. See §§17 (trotting and pacing), 27 (steeplechase racing), 27A (matinee racing), and 27B (quarterhorse racing). The law is silent about Arabian racing.

The question, then, is one of legislative intent: Is the undefined term "racing" in §7 intended to refer to thoroughbred racing only, so that another form of racing may be permitted by the Racing Commission only under specific statutory warrant? Or is the term "racing" sufficiently inclusive that, coupled with the Racing Commission's plenary power over racing, the Commission may permit a §7 licensee to conduct a nonthoroughbred race? Answering this question requires consideration of the words of the Act against the background of its legislative history and "other material that fairly bears on the fundamental issue of legislative purpose or goal, which becomes the context within which we read the particular language before us in a given case." Kaczorowski v. City of Baltimore, 309 Md. 505, 515 (1987). See also, e.g., Department of Tidewater Fisheries v. Sollers, 201 Md. 603, 611 (1953).

B. Legislative History

What is now Article 78B was enacted as Chapter 273 (House Bill 183), Laws of Maryland 1920. The basic licensing provisions of §7 have, in all relevant aspects, remained the same from that time to the present.

Contemporaneous accounts of the consideration of House Bill 183 indicate that the primary issue facing the General Assembly was not what type of racing should be conducted.1 Rather, it was whether wagering on horse races should be prohibited, regulated, or left alone. The regulation of horse racing itself was simply a necessary corollary of the regulation of wagering.

Maryland was, in 1920, one of only three states (Kentucky and Nevada being the others) to permit wagering on horse races, and pressure was on to end it here as well. Bills had been introduced in 1916, 1918, and 1920 to eliminate wagering on horse racing.2 Each of those years also saw the introduction of bills to create a commission to regulate racing.3 Popular speculation was that advocates of a more laissez-faire approach to gambling would support the regulatory commission bills until the defeat of the anti-gambling measures was assured, then turn their energies to the defeat of the commission bills as well.4

The sole evidence of legislative consideration of the type of racing to be conducted is found in the testimony of opponents of the anti-gambling bill. These witnesses testified that horse racing is necessary to the breeding of quality horses for other purposes, and that wagering is necessary to the continued existence of horse racing.5 These witnesses' references would apply to any type of horse racing. In addition, although their arguments prevailed, in that gambling was not prohibited, the sole provision of the bill to mention breeding was deleted before the bill was passed.6

Other amendments also indicate that the concerns of the General Assembly involved issues other than the type of racing to be conducted or the effect of racing on the breeding of horses. Instead the amendments addressed such matters as the disposition of the license fees (to the State rather than the counties); the political affiliation of the Commissioners (no more than two from the same party); the number of days to be raced in a year (reduced from 112 to 100); and the tracks that could be licensed (only those conducting racing in each of the three years prior to 1920).

Thus the Act, as passed after long and detailed consideration by the General Assembly, did not contain either the word "thoroughbred" or any indication of the type of racing to be conducted. This omission is especially significant in comparison to another racing bill, Senate Bill 128, considered and rejected by the General Assembly in the 1920 Session. Senate Bill 128 specifically referred to "running races" and excluded trotting and pacing races from its coverage.7

The absence of a delineation of the types of racing to be conducted under that Act is also significant in light of the fact that many of the fair tracks, which also were to be licensed to "conduct racing," were conducting trotting and pacing matches in the summer and fall of 1919,8 and there is no indication in the Act that the General Assembly intended to change this practice.

C. Contemporaneous Construction

The early actions of the Racing Commission indicate that it construed the Act as authorizing it to license and regulate all types of horse racing. Early rules promulgated by the Commission specifically authorized the associations to conduct harness racing;9 and the fair tracks continued to do so.10 In addition, Commission minutes indicate that the Commission has required §7 tracks to conduct steeplechase racing, at which nonthoroughbred horses might run.11 This view, taken by the Commission soon after the passage of Article 78B, is persuasive evidence of the meaning of the statute and "should not be disregarded except for the strongest and most urgent reasons." Holy Cross Hospital of Silver Spring, Inc. v. Health Services Cost Review Comm'n, 283 Md. 677, 685 (1978).

D. Conclusion

In light of this background, we conclude that the 1920 Act authorized the Commission to license nonthoroughbred racing at the tracks existing at that time, and we do not believe that the Commission's authority to do so has since been removed. To be sure, the General Assembly has subsequently provided specifically for nonthoroughbred racing of various kinds. Article 78B, §§17, 27, 27A, and 27B. And, these provisions have been characterized as "authorizing" those forms of racing. See, e.g., 65 Opinions of the Attorney General 429, 431 (1980); 33 Opinions of the Attorney General 215 (1948).

However, in light of the scope of the 1920 Act, these later enactments can best be viewed as a legislative specification of racing dates, places, wagering, and related matters for types of racing that were authorized but otherwise unaddressed by the 1920 Act. As this office characterized the 1947 enactment of what is now §17:

"It seems clear that the Legislature had two purposes in mind when it passed this legislation. One is that it would provide a source of revenue to the State, and the other to limit the number of days on which such racing may be run at any one track, thus protecting the betting public and the community from unreasonable or excessive betting." 33 Opinions of the Attorney General at 216.

The provision on steeplechase racing, to take another example, is not at all worded like a grant of authority; instead, reads like a limitation on the Commission's existing authority.12

As the General Assembly added to the Act specific directions and limitations about other types of racing, it also added references to "thoroughbred" racing. E.g., §§2(a)(l), 8A(a), 11(b), and 14(a). These references serve to differentiate the General Assembly's requirements as to that form of racing from its requirements as to other forms, especially harness racing.

In short, we do not read the enactments since 1947 as intended to reduce the broad scope of "racing" originally authorized by §7 in 1920, or, indeed, to transform racing events previously licensed by the Commission into criminal acts. See Article 27, §240. In recent years, we recognize, §7 tracks have conducted thoroughbred races only, and the General Assembly has been aware of that fact and has legislated in light of it. But we do not believe that the General Assembly has repealed by implication the authority that it vested in the Commission in 1920. Therefore, it is our opinion that the Commission has the authority to permit the conduct of Arabian horse racing at the tracks of §7 licensees.13

II
Rulemaking

"Regulation" is defined, for purposes of the rulemaking requirements of the Administrative Procedure Act ("APA"), as follows:

"'Regulation' means a statement or an amendment or repeal of a statement that:

(i) has general application;

(ii) has future effect;

(iii) is adopted by a unit to:

1. detail or carry out a law that the unit administers;

2. govern organization of the unit;

3. govern the procedure of the unit; or

4. govern practice before the unit; and

(iv) is in any form, including:

1. a guideline;

2. a rule;

3. a standard;

4. a statement of interpretation; or

5. a statement of policy." §10-101(e) of the State Government Article ("SG" Article).

As we recently observed, "This office has consistently construed the definition of 'regulation' as broadly as its language and apparent underlying intent direct." 72 Opinions of the Attorney General 230, 233 (1987).

Indeed, one prior opinion that found rulemaking to be necessary is directly on point. In 65 Opinions of the Attorney General 396 (1980), this office considered whether the Racing Commission's action in authorizing Sunday racing for the first time required rulemaking. The opinion concluded that it did. In reaching this conclusion, the Attorney General considered four factors:

1. the significance of the change, in light of the Commission's longstanding policy against Sunday racing and the fact that in other states Sunday racing had been implemented by legislation;

2. the widespread effect of the Commission's action;

3. the fact that the action was not adjudicatory in nature; and

4. the fact that the action, although termed experimental, had the potential to be a permanent change.

See 65 Opinions of the Attorney General at 405-06.

However, these four factors are not to be viewed as if they were all necessary elements in a formula. Instead, as later opinions illustrate, these factors simply help to structure a more basic inquiry: Is the agency's action a prospective exercise in policymaking that will have a significant effect on members of the public, including members of a regulated industry? If so, the APA's rulemaking requirement applies. See 70 Opinions of the Attorney General 208, 211 (1985); 66 Opinions of the Attorney General 151, 160 (1981). This is especially likely if an agency uses its authority to set policy on a subject matter that the statute leaves unaddressed. 66 Opinions of the Attorney General at 160 n.6.

In this instance, the Commission's application of the term "racing" in §7 to Arabian racing would be a new and important policy decision. Although the Commission once permitted other types of racing at the tracks of §7 licensees, that policy has changed over the years and the §7 tracks have been widely understood as limited to thoroughbred racing. The first evidence of this change was in 1947, when the Commission determined that it would not award the new dates made available for harness racing to existing licensees.14 In addition, although the Commission may not have had "a conscious policy" of prohibiting Arabian racing (as it did with respect to Sunday racing), the Commission has rejected an application for Arabian racing with pari mutuel privileges.15 That this is an important policy question is further illustrated by its treatment in other states: of the eight states that currently permit Arabian racing, six have implemented that change by legislation.16

In our view, a Commission decision to authorize Arabian racing would have a widespread effect, the second pertinent factor discussed in the Sunday racing opinion. We recognize that, at present, only Laurel has expressed an interest in conducting this type of racing, and for a limited time at that. But, once the Commission has authorized Arabian racing, we do not see how it could decline to do so when asked again. Thus, the Commission would be opening up a significant future opportunity for §7 tracks generally. In addition, Arabian racing would affect not only the tracks but also the breeders, owners, and trainers of both Arabian and thoroughbred horses.

Moreover, like the Sunday racing decision, this decision has few of the indicia of agency adjudication. The decision would be based on judgments about future, not past, conduct and would have future effect only. In addition, the decision would not be a response to a unique set of facts before the Commission, nor based on characteristics unique to Laurel.

Because we view the action requested of the Commission as an important policy decision having a significant future effect on members of the public apart from Laurel, we think that the action comes within the APA's rulemaking requirements even though Laurel's request is for a limited time and has been described as an "experiment." Neither the labeling of an agency decision as an "experiment" nor the limiting of its duration excuses compliance with otherwise applicable rulemaking requirements. See Piercy v. Tarr, 343 F. Supp. 1120, 1128-29 (N.D. Cal. 1972) (certain "temporary instructions" of agency held to be "regulation" under federal APA).17

In summary, authorization for Arabian racing, even for a limited time, would be a significant interpretation by the Commission of the Act's broad authorization of "racing." Even in instances where the General Assembly has addressed itself specifically to a type of racing, the Commission has adopted implementing regulations. See COMAR 09.10.01 (thoroughbred racing); 09.10.02 (harness racing); 09.10.01.07X (steeplechase racing).18 In our view, the APA does not allow the Commission to authorize Arabian racing without comparable regulations.19

III
Purse Money Allocation

You have also asked whether Article 78B, §11(b)(4), regarding the allocation of purse money, needs to be clarified.

Section 11(b)(4) provides:

"(i) 7.70 percent of the regular mutuel pools, 8.70 percent of the multiple mutuel pools involving two horses, and 11.70 percent of the multiple mutuel pools involving three or more horses shall be allocated for purse money. The Commission may authorize a deduction from purse money of 0.25 percent of all mutuel pools to a Maryland Backstretch Employees' Pension Fund, if this Fund is established and administered by the organization representing a majority of horsemen racing in the State.

(ii) The formula for distribution of the purse money shall be determined by an agreement between an organization representing the horsemen and the tracks, the agreement to be subject to the approval of the Commission. It is the intention that the allocation shall be made in the approximate amount of 85 percent to the current year's overnight races and 15 percent not to exceed 17 percent to the current year's stake races.

(iii) An amount to be determined by the organization, equal to not less than 1 percent but not more than 2 percent, shall be deducted from all open purses and paid to the organization representing a majority of the horsemen in the State."

This provision must be read together with §11(a), which provides that the Commission "may regulate the size of the purse, stake or reward to be offered for the conduct of such races."20

Section 11(b) as a whole reflects the undoubted fact that §7 licensees in recent years have conducted thoroughbred racing only. The General Assembly has simply legislated in accordance with this state of facts. Hence, the subsection's application to nonthoroughbred racing leads to seemingly odd results. For example, money derived from betting on Arabian racing would go to support the Maryland-Bred Race Fund, established in 1962, the purpose of which is "to advance the breeding and racing of thoroughbreds foaled in Maryland." 62 Opinions of the Attorney General 755 (1977). See §11(b)(l)(iii).

Nevertheless, unless §11(b) is amended, all of its provisions apply fully to Arabian racing, including §11(b)(4). That paragraph does not specifically address the allocation of purses when a breed of horse other than thoroughbred is racing. Under this provision, the specified percentages of the mutuel pools from all races at §7 tracks, regardless of the breed of horse, are to be "allocated for purse money." The same broad language would permit purse money to be allocated to nonthoroughbred races, subject to the agreement of the horsemen's organization and the approval of the Commission. In addition, under §11(a) the Commission has the power to clarify the allocation of purses to some extent by regulation. For example, the Commission could require that money generated by wagering on one breed be allocated to purses for that breed. However, these are policy matters for the Commission in the first instance, and ultimately for the General Assembly.

IV
Conclusion

In summary, we conclude as follows:

1. The Commission has authority to permit Arabian racing at a track licensed under Article 78B, §7.

2. In order to exercise that authority, the Commission is required to adopt, pursuant to the Administrative Procedure Act, regulations governing the conduct of Arabian racing.

3. Article 78B, §11(b) must be given full effect as to the allocation of purses and mutuel pools resulting from Arabian racing. The Commission has some authority, consistent with the statute, to regulate the allocation of purse money, so as to take account of the fact that Arabian horses are racing. Whether any aspect of this subsection ought to be changed is a policy question that we do not address.

J. Joseph Curran, Jr., Attorney General
Kathryn M. Rowe, Assistant Attorney General

Jack Schwartz
Chief Counsel
Opinions and Advice

Editor's Note: In Chapter 7 (Senate Bill 88) of the Laws of Maryland 1988, the General Assembly barred the Commission from permitting "[t]he racing of breeds of horses not previously authorized by statute, regulation, or regulations proposed prior to" February 29, 1988. Article 78B, §11(a)(2)(i).

1 The law at the time did not limit racing to any particular breed of horse. Chapter 285, Laws of Maryland 1898, authorized wagering "within the ground of any agricultural association, race course or driving park, upon the result of any trotting, pacing or running race of horses. ..."

2 Senate Bill 166 (1916 Session); House Bill 218 (1916 Session); Senate Bill 50 (1918 Session); House Bill 33 (1918 Session); and Senate Bill 127 (1920 Session).

3 Senate Bill 508 (1916 Session); Senate Bill 501 (1916 Session); Senate Bill 498 (1916 Session); Senate Bill 495 (1916 Session); Senate Bill 128 (1920 Session); and House Bill 183 (1920 Session).

4 See Forces Marshalled on Race Track Fight, Baltimore Evening Sun, March 10, 1920; Law Makers Face Big Problem Over Question of Race Tracks, Baltimore Sun, March 6, 1920 at 7. The latter article also reflects a second issue facing the Legislature with respect to racing: that of race track involvement in politics. It was apparently believed at the time that regulation of the tracks would end this involvement, which some saw as a bad influence. See also Big Fight Due Over Racing in Maryland, Baltimore Sun, March 11, 1920; and Thomas Clyde, The Relation of Horse Breeding to Racing and How Racing Should Be Conducted (1920).

5 See Race Betting Friends and Foes Heard, Baltimore Sun, March 3, 1920; Yates, Sport of Kings and Kings of Sport, Baltimore Evening Sun, March 11, 1920, p. 18. Among those testifying were representatives of the U.S. Army, who testified that racing was crucial to the development of good horses for the cavalry.

6 That provision, removed from §11, stated: "In the performance of the powers granted to it in this Act the Commission shall regard horse racing in the light of an institution for the development of the breed of horses, and as a sport for the amusement of the public, and not as a means of profiting by the conduct of such races beyond a reasonable return on the investment in the permanent improvements necessary or advisable for the conduct of such meetings."

7 Some earlier bills had required that one or more commissioners be thoroughbred breeders. See Senate Bill 179 (1916 Session), Senate Bill 495 (1916 Session) and Senate Bill 498 (1916 Session).

8 The Baltimore Sun sports pages reported on three fairs, Pocomoke, Wicomico, and Rockville, that conducted trotting and pacing races between August 21 and August 29, 1919.

9 See minutes of June 25, 1923, amending Rule 258.

10 The Commission minutes of September 5, 1923 refer to an inconsistent driving case in Pocomoke City, and in September of 1946 the Carroll County Fair was licensed to conduct a harness meet.

11 This was done by rule in January of 1926. Some tracks were apparently required to conduct steeplechase as late as 1941. See minutes of July 19, 1941.

12 Section 27 was added to the Act in 1953. Chapter 781, Laws of Maryland 1953. It begins: "In addition to the other provisions of this article, there shall be no less than two or more than eight days for steeplechase or turf racing each year. The days of racing shall be held by the . . . Commission for the use of the Cecil County Breeders' Fair, Inc. ... at Fair Hill, Maryland."

13 We do not address the question of whether the Commission may authorize a §7 licensee to conduct a form of nonthoroughbred racing that, under the Act, is to be conducted by separately licensed tracks. See 51 Opinions of the Attorney General 180 (1966). Rather, the question we resolve is whether the Commission may authorize a §7 licensee to conduct a form of nonthoroughbred racing that is not specifically dealt with elsewhere in the Act.

14 See minutes for July 3, 1947.

15 This request was made by Timonium for its 1983 meeting. See minutes of February 10, 1983.

16 Cal. Bus. & Prof. Code §19543; Del. Code Title 28, §328(m); Fla. Stat. Ann. §550.02(8)(b); Mich. Stat. Ann. §18.966(39)(b); Okla. Stat. Ann. Title 3A §200.IA.5; Wash. Rev. Code Ann. §67.16.010.

17 We emphasize that not every agency action invokes the rulemaking process. See 65 Opinions of the Attorney General at 405. Some agency "experiments" may well not fit the definition of "regulation." But if the definition does apply, as here, the experimental nature of the action does not excuse compliance with the APA.

18 The one exception is for quarterhorse racing, for which there are no Commission rules. We do not know whether quarterhorse racing has in fact been authorized. In any event, the Act itself incorporates by reference other applicable provisions. Article 78B, §27B.

19 In light of this conclusion, we need not address the question of whether individual rules now applicable to races at thoroughbred tracks, dealing with matters like registration, the scale of weights, or the identification of horses, need to be changed.

20 This latter provision was in the 1920 Act and, therefore, authorized the Commission to regulate the purses of nonthoroughbred races.