RWB-52-11-00007-P Authorizing and Prohibiting the Use of Phenylbutazone, or "Bute"

12/28/11 N.Y. St. Reg. RWB-52-11-00007-P

NEW YORK STATE REGISTER

VOLUME XXXIII, ISSUE 52

December 28, 2011

RULE MAKING ACTIVITIES

RACING AND WAGERING BOARD

PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. RWB-52-11-00007-P

Authorizing and Prohibiting the Use of Phenylbutazone, or "Bute"

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:

Proposed Action:

Amendment of sections 4043.2(d) and 4120.2(d) of Title 9 NYCRR.

Statutory authority:

Racing, Pari-Mutuel Wagering and Breeding Law, sections 101(1), 301(2)(a) and 902(1)

Subject:

Authorizing and prohibiting the use of phenylbutazone, or "bute."

Purpose:

To make bute a 48-hour drug only (vice 24- and 48-hour) in both harness and thoroughbred racing.

Text of proposed rule:

Subdivision (d) of Section 4043.2 of 9 NYCRR is amended to read as follows:

(d) [Either one, but no more than one, of the]The following [two] non-steroidal anti-inflammatory drug[s] may be administered by intravenous injection until 24 hours before the scheduled post time of the race in which the horse is to compete[:].

[(1)] flunixin[;].

[(2) phenylbutazone.]

Subdivision (d) of Section 4120.2 of 9 NYCRR is amended to read as follows:

(d) [Either one, but no more than one, of the] The following [two] non-steroidal anti-inflammatory drug[s] may be administered by intravenous injection until 24 hours before the scheduled post time of the race in which the horse is to compete[:].

[(1)] flunixin[;].

[(2) phenylbutazone.]

Text of proposed rule and any required statements and analyses may be obtained from:

John J. Googas, New York State Racing and Wagering Board, One Broadway Center, Suite 600, Schenectady, New York 12305-2553, [phone], email: [e-mail]

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

1. Statutory authority: Racing, Pari-Mutuel and Breeding Law, sections 101 and 902, authorizes the New York State Racing and Wagering Board ("Board") to prescribe and promulgate regulations to specify the use and testing of drugs and substances in thoroughbred and harness race horses. Racing, Pari-Mutuel and Breeding Law sections 301 directs the Board to prescribe rules and regulations for the administration of drugs to harness horses and quarterhorses, respectively for the purpose of affecting the speed of such horses.

2. Legislative objectives: To enable the Board to assure the public's confidence and preserve the high degree of integrity of racing at pari-mutuel betting tracks by regulating the use of drugs and medications in race horses so that the horses are fit and healthy, but not running on substances that have the potential to affect the outcome of a given race.

3. Needs and benefits: This rule is necessary to ensure that horses are not overmedicated to the point of adversely affecting the integrity of horseracing, and after a five-year period, the Board believes that a previous 48-rule phenylbutazone administration rule is more appropriate than one adopted in 2005. Furthermore, as of Jan. 1, 2012, the American Graded Stakes Committee will require races to be run at the lower level (48 hours, 2 micrograms per milliliter testing level) in order for New York State thoroughbred racing to maintain grade eligibility.

Phenylbutazone, commonly known as "Bute," is a non-steroidal anti-inflammatory drug used in racehorses. On or before 1971 to 2005, the administration of Bute was not permitted less than 48 hours before races in New York. There were few post-race positives during that 30 year period.

Prompted by an effort of the Mid-Atlantic Consortium of Racing States to achieve regional uniformity, the Board adopted a rule to allow Bute as a 24-hour drug effective January 4, 2006. Among the benefits sought was to create consistency throughout the racing states so that veterinarians could have a certain threshold under which they could provide therapeutic treatment.

Since 2006, the Mid-Atlantic States have embraced the Board's original 48-hour rule. In addition, the RMTC has revisited the matter and now recommends that the permitted Bute levels return to New York's pre-2006 levels. Accordingly, the Board's proposed rule would return to the longstanding, time-tested, and familiar New York practice of restricting the administration of Bute to 48 hours. The Board and industry have considerable experience with banning Bute for 48 hours as a result of this being our rule from 1971 through 2005. During those 30-plus years, there were virtually no post-race positives, or complaints about the rule from horsemen, or veterinary complaints about the care, treatment, health, or safety of our race horses.

Additionally, in 2010 the Association of Racing Commissioners International Model Rules Committee voted to lower the Bute threshold. This proposed rulemaking is consistent with that model rule.

Concerns that veterinarians will be restricted in their ability to treat a horse up to 24 hours before a race are minimized by the extensive experience in New York of more than 30 years of restricting Bute to 48 hours or more before a race, during which time there were virtually no complaints about the rule from veterinarians or horsemen about the care, treatment, health, or safety of the race horses.

4. Costs:

(i) There are no new or additional costs imposed by this rule upon regulated persons. The rule merely revises an existing rule in regards to allowable dosage of a medication.

(ii) There are no costs imposed upon the Racing and Wagering Board, the state or local government. The rule will be implemented using the Board's existing regulatory and medication testing program. There will be no costs to local governments because they do not regulate pari-mutuel racing activities.

(iii) The Board has determined that no costs will be imposed based upon the fact that the rule does not create any new duty or obligation, utilizes an existing regulatory framework and medication testing program, and merely makes a quantitative modification to a medication rule.

(iv) Since the Board has determined that based upon the nature and subject of the amendment, the rule will not impose any new costs, the Board did not conduct an analysis of costs.

5. Paperwork: No new paperwork will be required. This rule will be implemented utilizing existing regulations and procedures.

6. Local government mandates: The supervision and regulation of pari-mutuel racing activities are the sole responsibility of the New York State Racing and Wagering Board, and do not involve local governments. Therefore, this rule will not impose any local government mandates.

7. Duplication: Since the New York State Racing and Wagering Board is exclusively responsible for the regulation of pari-mutuel racing activities in New York State, there are no other relevant rules or other legal requirements of the state or federal governments regarding the administration of furosemide to race horses.

8. Alternative approaches: The American Graded Stakes Committee requirement eliminates the adoption of any alternatives other than a 48-hour/2 microgram per milliliter testing threshold in thoroughbred racing. No other alternative was considered in light of the Board preferred course of action to specifically revert to the previous standard.

9. Federal standards: There are no federal standards applicable to the subject area of state-regulated pari-mutuel racing activities.

10. Compliance schedule: This rule will become effective upon filing as a Notice of Adoption with the New York State Department of State.

Regulatory Flexibility Analysis, Rural Area Flexibility Analysis and Job Impact Statement

This proposal does not require a Regulatory Flexibility Statement, Jobs Impact Statement or Rural Area Flexibility Statement as the amendment merely removes the 24-hour rule allowing for the administration of the drug phenylbutazone to race horses. Phenylbutazone will still be allowed as a 48-hour drug, and the comparable drug flunixin is still allowed as a 24-hour drug. The rule is entirely limited to equine drug standards and testing, and merely modifies the restriction on administration of an approved drug for race horses. This rulemaking will not have a positive or negative impact on jobs. These amendments do not impact upon State Administrative Procedure Act § 102(8), nor do they affect employment. The proposal will not impose an adverse economic impact on reporting, recordkeeping or other compliance requirements on small businesses in rural or urban areas nor on employment opportunities. The rule does not impose any significant technological changes on the industry for the reasons set forth above.