RWB-43-09-00001-P Out of Competition Drug Testing of Race Horses
10/28/09 N.Y. St. Reg. RWB-43-09-00001-P
NEW YORK STATE REGISTER
VOLUME XXXI, ISSUE 43
October 28, 2009
RULE MAKING ACTIVITIES
RACING AND WAGERING BOARD
PROPOSED RULE MAKING
NO HEARING(S) SCHEDULED
I.D No. RWB-43-09-00001-P
Out of Competition Drug Testing of Race Horses
PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:
Proposed Action:
Amendment of sections 4043.1, 4120.1; and addition of sections 4043.12 and 4120.17 to Title 9 NYCRR.
Statutory authority:
Racing, Pari-Mutuel Wagering and Breeding Law, sections 101(1), 301(2)(a) and 902(1)
Subject:
Out of competition drug testing of race horses.
Purpose:
To supplement existing equine drug testing requirements to include race horses that are not formally scheduled to race.
Text of proposed rule:
Rule 4043.1 Definitions.
A new paragraph (g) is added to read:
(g) Out-of-competition positive test. A finding by the laboratory that any of the prohibited substances described in Rule 4043.12 was present in the sample.
Paragraphs (g) and (h) are relettered respectively to be paragraphs (h) and (i).
A new Rule 4043.12 is added to read:
Rule 4043.12 Out-of-Competition Testing.
(a) Any horse on the grounds of a racetrack under the jurisdiction of the Board or stabled off track grounds is subject to testing without advance notice for blood doping, gene doping, protein and peptide-based drugs, including toxins and venoms, and other drugs and substances while under the care or control of a trainer or owner licensed by the Board.
(b) Horses to be tested shall be selected at the discretion of the State judges or any Board representative. Horses to be tested shall be selected from among those anticipated to compete at New York tracks within 180 days of the date of testing or demand for testing.
(c) The State judges or any Board representative may require any horse of a licensed trainer or owner to be brought to a track under the jurisdiction of the Board for out-of-competition testing when that horse is stabled out-of-state at a site located within a radius not greater than 100 miles from a New York State racetrack. The trainer is responsible to have the horse or horses available at the designated time and location.
(d) A Board veterinarian or any licensed veterinarian authorized by the State judges or any Board representative may at any time take a urine or blood sample from a horse for out-of-competition testing.
(e) Prohibited substances are:
(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, and/or cells that have the capacity to enhance athletic performance or produce analgesia;
(3) protein and peptide-based drugs, including toxins and venoms.
(f) The presence of any substance at anytime described in subsections (1), (2) or (3) of subdivision (e) is a violation of this rule for which the horse may be declared ineligible to participate until the horse has tested negative for the identified substance, and for which the trainer shall be responsible pursuant to Board Rule 4043.4.
(g) The trainer, owner, and/or their designees and any licensed racing corporation shall cooperate with the Board and its representatives/designees by:
(1) assisting in the immediate location and identification of the horse selected for out-of-competition testing;
(2) providing a stall or safe location to collect the samples;
(3) assisting in properly procuring the samples; and
(4) obeying any instruction necessary to accomplish the provisions of this rule.
The failure or refusal to cooperate in the above by any licensee or other person shall subject the licensee or person to penalties, including license suspension or revocation, the imposition of a fine and exclusion from tracks or facilities subject to the jurisdiction of the Board.
(h) Any horse which is not made available for testing as directed, including the failure to grant access on a timely basis, shall in the absence of acceptable mitigating circumstances, be ineligible to participate in racing for one hundred twenty days.
(i) In the absence of extraordinary mitigating circumstances, a minimum penalty of a ten (10) year suspension will be assessed for any violation set forth in subdivision (f).
(j) An application to the Board for an occupational license shall be deemed to constitute consent for access to any off-track premises on which horses owned and/or trained by the individual applicant are stabled. The applicant shall take any steps necessary to authorize access by Board representatives to such off-track premises.
Rule 4120.1 Definitions.
A new paragraph (g) is added to read:
(g) Out-of-competition positive test. A finding by the laboratory that any of the prohibited substances described in Rule 4120.17 was present in the sample.
Paragraphs (g) and (h) are relettered respectively to be paragraphs (h) and (i).
A new Rule 4120.17 is added to read:
Rule 4120.17 Out-of-Competition Testing.
(a) Any horse on the grounds of a racetrack under the jurisdiction of the Board or stabled off track grounds is subject to testing without advance notice for blood doping, gene doping, protein and peptide-based drugs, including toxins and venoms, and other drugs and substances while under the care or control of a trainer or owner licensed by the Board.
(b) Horses to be tested shall be selected at the discretion of the State judges or any Board representative. Horses to be tested shall be selected from among those anticipated to compete at New York tracks within 180 days of the date of testing or demand for testing.
(c) The State judges or any Board representative may require any horse of a licensed trainer or owner to be brought to a track under the jurisdiction of the Board for out-of-competition testing when that horse is stabled out-of-state at a site located within a radius not greater than 100 miles from a New York State racetrack. The trainer is responsible to have the horse or horses available at the designated time and location.
(d) A Board veterinarian or any licensed veterinarian authorized by the State judges or any Board representative may at any time take a urine or blood sample from a horse for out-of-competition testing.
(e) Prohibited substances are:
(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, and/or cells that have the capacity to enhance athletic performance or produce analgesia;
(3) protein and peptide-based drugs, including toxins and venoms.
(f) The presence of any substance at anytime described in subsections (1), (2) or (3) of subdivision (e) is a violation of this rule for which the horse may be declared ineligible to participate until the horse has tested negative for the identified substance, and for which the trainer shall be responsible pursuant to Board Rule 4120.4.
(g) The trainer, owner, and/or their designees and any licensed racing corporation shall cooperate with the Board and its representatives/designees by:
(1) assisting in the immediate location and identification of the horse selected for out-of-competition testing;
(2) providing a stall or safe location to collect the samples;
(3) assisting in properly procuring the samples; and
(4) obeying any instruction necessary to accomplish the provisions of this rule.
The failure or refusal to cooperate in the above by any licensee or other person shall subject the licensee or person to penalties, including license suspension or revocation, the imposition of a fine and exclusion from tracks or facilities subject to the jurisdiction of the Board.
(h) Any horse which is not made available for testing as directed, including the failure to grant access on a timely basis, shall in the absence of acceptable mitigating circumstances, be ineligible to participate in racing for one hundred twenty days.
(i) In the absence of extraordinary mitigating circumstances, a minimum penalty of a ten (10) year suspension will be assessed for any violation set forth in subdivision (f).
(j) An application to the Board for an occupational license shall be deemed to constitute consent for access to any off-track premises on which horses owned and/or trained by the individual applicant are stabled. The applicant shall take any steps necessary to authorize access by Board representatives to such off-track premises.
Text of proposed rule and any required statements and analyses may be obtained from:
John Googas, New York State Racing and Wagering Board, One Broadway Center, Suite 600, Schenectady, New York 12305, (518) 395-5400, email: info@racing.state.ny.us.
Data, views or arguments may be submitted to:
Same as above.
Public comment will be received until:
45 days after publication of this notice.
Regulatory Impact Statement
Statutory authority: The Racing, Pari-Mutuel Wagering and Breeding Law (Sections 101.1, 902.1, and 301.2[a]) authorizes the New York State Racing and Wagering Board ("Board") to prescribe and promulgate regulations to specify the use of and testing for drugs and medications in race horses. Section 101.1 creates the Board, and provides that the Board has general jurisdiction over all horse racing activities and all pari-mutuel betting activities, both on-track and off-track, in the state, and over the corporations, associations, and persons engaged therein. Section 301.2(a) authorizes the Board to prescribe rules and regulations for effectually preventing the administration of drugs or stimulants or other improper acts for the purpose of affecting the speed of harness horses in races in which they are about to participate. Section 902.1 authorizes the Board to promulgate any rules and regulations necessary to implement equine drug testing, and sets forth that equine drug testing at race meetings shall be conducted by a land grant university within New York State, with a regents approved veterinary college facility. Further, section 902.1 provides that the Board shall promulgate rules and regulations to implement administrative penalties of loss of purse money, fines, or denial, suspension or revocation of a license for drugged horses.
2. Legislative objectives: To enable the Board to assure the public's confidence and preserve the integrity of racing at pari-mutuel betting tracks by regulating the use of drugs and medications in race horses so that their natural racing ability is not compromised or enhanced by such use.
3. Needs and benefits: This rulemaking is necessary to detect and deter the administration of prohibited performance-enhancing drugs and substances in race horses that are not stabled on the grounds of a racetrack. Currently, the Board's equine drug testing rules only apply to pre-race and post-race testing, and samples are only taken at the track. This rule would allow drug testing samples to be taken from a race horse at any time if stabled in New York, and requires that licensees bring the horse for testing when requested to do so if stabled out of state within a radius of one hundred miles from a New York track. Many trainers and owners have opted to keep their horses in stables off of a race track. In doing so, they may be able to evade Board investigation of whether a trainer or owner is administering prohibited substances. Despite advances in drug testing procedures and equipment, certain drugs and substances are still difficult (if not impossible) to detect, including certain blood doping agents and gene doping agents. In the case of blood doping agents, the time frame for detecting these substances is limited, but the performance-enhancing benefits of the agent remain with the horse long after the detection period has passed. To evade testing, an unscrupulous owner or trainer only need stable a horse off of the race track grounds, administer the doping agent, and bring the horse to the track on the day of the race, well after the time for detection has passed but well within the timeframe for enhancing the horse's performance.
This rule is similar to an out of competition testing rule that New Jersey adopted in 2006, which allows testing at anytime at race tracks and farms. In 2008, New Jersey regulators conducted testing on six harness horses that raced at Meadowlands and trained at an off-site track, and returned six positives for the presence of blood doping. The owner and veterinarian were subsequently suspended for 15 and a half years, fined $56,000 and had their licenses revoked. Indiana has also adopted a similar out of competition testing rule.
The Ontario Racing Commission adopted an out of competition rule in 2006 and as of July 2008, found five positives for blood doping out of 500 samples taken.
This rule is based in part on the model rule for Out of Competition testing proposed by the Association of Racing Commissioners International, which is supported by the National Thoroughbred Racing Association and the Racing Medication and Testing Consortium.
This rule also expands the listed of prohibited substances for equine medication to include gene doping. Currently, gene therapy has a legitimate use in the therapeutic treatment of ill or injured horses. On the other hand, given the risk of abuse in pari-mutuel wagering activity and the threat to the integrity of thoroughbred and standardbred breeding, it obviously has no place in horse racing. This rule would allow the Board to test for gene doping.
4. Costs
(a) Costs to regulated parties for the implementation of and continuing compliance with the rule: The only costs that may be imposed on the owners or trainers will be the cost of transporting a horse from out of state when requested by Board officials. The cost of transporting the horse to track will differ on a case by case basis. The costs can be determined by figuring the cost of fuel, the consumption rate of the transport vehicle and the distance traveled. Assuming that a horse needs to be transported 100 miles (the maximum radius described in the rule) by a trailer hauled by a pick-up truck that gets 10 miles to the gallon, and the per-gallon cost of diesel (which is priced higher than unleaded gasoline) is $2.41, then the cost of transporting the horse a maximum distance to the race tack is $24.00 one way. Naturally, there may also be toll costs that vary based upon specific locations, such as the toll at the Tappan Zee Bridge, where a four-axle vehicle/trailer over seven-foot, six-inches in height will cost $13.25 for the eastbound trip (there is no toll in the westbound direction). There are also individual New York State Thruway tolls that vary on a case by case basis. At most, the cost of transporting the horse for testing should not exceed $80 factoring in the highest tolls and using the current cost of fuel as a basis. Cost will also include the wages for the person who may be asked to drive the horse to the track. The Board is unable to calculate those costs because they are dictated on a case by case basis, including variations in travel time, rate of pay per individual based upon their employment terms, and whether or not the cost of transporting the horse to testing is actually an added cost (since owners may need to transport the out of competition horse to the vicinity of the track anyway, or the cost of paying a trainer to attend to the horse would be same as if the horse were stabled on track.)
(b) Costs to the agency, the state and local governments for the implementation and continuation of the rule: There are no costs to local governments because the New York State Racing and Wagering Board is solely responsible for the regulation of horseracing. There will be new costs to the Racing and Wagering Board in relation to the Board's drug testing program. These costs are those associated with personnel requirements to collect and ship samples and travel costs related to collection of samples. The actual costs will depend upon the intensity of the program as implemented but are estimated to range from hundreds to thousands of dollars. The Board's actual drug testing is conducted at Cornell University. This rule will add costs to the existing drug testing program. These costs will depend upon the intensity of the program implemented and are estimated to be thousands of dollars.
(c) The information, including the source(s) of such information and the methodology upon which the cost analysis is based: This information was compiled by Racing and Wagering Board staff based on cost associated with existing and projected testing and information commonly available to the public, including fuel costs and toll rates.
5. Local government mandates: None. See above.
6. Paperwork: None. The existing paperwork system used for the equine drug and medication system will be used.
7. Duplication: None.
8. Alternatives:
a) The Board did not consider any significant alternatives to the ARCI Model Rule approach.. The model rule would afford uniformity among the various racing jurisdictions, and the Board could not identify any compelling reason to deviate from the general standards included in the model rule. Failure to amend the existing rule would defeat uniformity and result in the loss of significant stakes racing in New York State.
As a result of the Board's preliminary public comment solicitation period, the Board made the following amendments to the rule:
• Inserted changes as necessary to accommodate thoroughbred steward vs. harness judges, need to reference thoroughbred franchised corporation, and references specific to each type of racing.
• After review, inserted a new definition to Rules 4043.1 and 4120.1 for an "out-of-competition positive test". This is necessary to preclude arguments that the respective trainer responsibility rules apply only to post-race positive tests.
• Inserted "Board representative" in place of "designee of the Board" in several locations to address apparent belief that the Board would designate a non-Board employee, e.g. track operator employee.
• Paragraph c-inserted text to limit distance required to travel to racetrack to a radius of 100 miles from horse's location; intended to apply only for horses stabled out-of-state. Board employees will travel to locations to collect samples within New York State.
• Inserted a new (h) to make horse ineligible for 120 days in the event of failure to produce or grant access.
• Revised (i) to refer to violation set forth in (f) rather than violation of (f) since (f) establishes the violation.
• Relettered old (h) and (i).
The Board considered whether or not to impose a maximum distance required to be traveled in the event a horse is stabled out of the State. The Board considered the cost and impracticality of shipping a horse for testing great distances (e.g. across the country). The distance of 100 miles set forth is based in part on the fact that many horsemen ship approximately that distance in order to compete at New York tracks. The Board further considered the distances that might be required to be traveled in New York State by horsemen for purposes of testing and determined that Board staff should travel to these horses if stabled in New York.
The Board considered whether or not to establish a time limit to modify the applicability of the testing requirement for horses selected to be tested. The Board chose a 180 day period in relation to anticipated race time (Rules 4034.12b and 4120.17b) this is based on a reasonable relationship between the purpose of testing and the anticipated race time.
The Board proposed a 120 day ineligibility period in order to provide a meaningful sanction related to the purpose and scope of the testing, as well as notice to the licensees of the consequence of non-compliance.
The Board did consider the nature of the penalty based upon public comment that the penalty was too harsh. The Board decided to retain the penalties as written because they are consistent with the penalties adopted in New Jersey and Indiana.
9. Federal standards: None.
10. Compliance schedule: Once adopted, the rule can be implemented as soon as it is published in the State Register. Due to the fact that the amendments merely amend the time and place where samples may be taken, there are no significant compliance requirements imposed on regulated parties. Similarly, given the fact that the Board already has an extensive drug testing and investigations program, the Board is ready to move forward with implementation of this rule once it is published in the State Register as a Notice of Adoption.
Regulatory Flexibility Analysis
1. Effect on Small Businesses and Local Governments:
These amendments will affect small businesses that stable/train horses for the purpose of competing in New York State horse racing. There are an unknown number of farms and stables located throughout the State that may house horses for training and rehabilitation purposes. The impact of these amendments is slight because the owner/trainer or his/her employee is the caretaker and the rule is clear that the owner/trainer is merely required to make the horse(s) available for testing. There is no impact on local governments.
2. Compliance Requirements:
The owner/trainer is merely required to make the horse(s) available for testing. There are no reporting or recordkeeping requirements. No additional licenses are required.
3. Professional Services:
None are required to comply.
4. Compliance Costs:
There should be no additional costs to comply because the owner/trainer and/or employee is generally present or in the vicinity of the stable located in New York State.
5. Economic and Technological Feasibility:
The rule does not impose any technological requirements on the industry.
6. Minimizing Adverse Impact:
The impact of these amendment is slight for the owner/trainer stabled in New York. Board staff will travel to horses in New York State and provide or arrange for the necessary personnel and equipment for collection of the samples.
7. Small Business and Local Government Participation:
Comments were solicited from industry groups, including representative horsemen's associations. These associations (generally one per track) are membership organizations that include small businesses. No local government comments were solicited because the rules have no impact on local governments.
Rural Area Flexibility Analysis
1. Types and Estimated Numbers:
These rules will apply to any rural areas where farms and stables located throughout the State house horses for training and rehabilitation purposes. These include most of the counties other than the downstate area of New York State.
2. Compliance Requirements:
The owner/trainer is merely required to make the horse(s) available for testing. There are no reporting or recordkeeping requirements. No additional licenses are required and there is no need for professional services to achieve compliance.
3. Costs:
The owner/trainer is merely required to make the horse(s) available for testing. There should be no additional costs to comply because the owner/trainer and/or employee is generally present or in the vicinity of the stable located in New York State.
4. Minimizing Adverse Impact:
The impact of these amendment is slight for the owner/trainer stabled in New York. Board staff will travel to horses in New York State and provide or arrange for the necessary personnel and equipment for collection of the samples. Thus the owner/trainer does not bear any costs for labor or equipment and associated expenses that would be incurred if the New York owner/trainer was required to bring the horse(s) to a New York track.
5. Rural Area Participation:
Comments were solicited from industry groups, including representative horsemen's associations. These associations (generally one per track) are membership organizations that include small businesses in rural areas. No local government comments were solicited because the rules have no impact on local governments.
Job Impact Statement
These amendments will not have a substantial adverse impact on jobs. This is apparent because the amendments merely expand the Board’s equine drug testing program by including the collection of samples from horses at a time other than the existing pre-race and post-race timeframes. The owner/trainer is merely required to make the horse(s) available for testing.
