SGC-15-14-00005-P Prohibited Substances and Out of Competition Drug Testing for Harness Racing

4/16/14 N.Y. St. Reg. SGC-15-14-00005-P

NEW YORK STATE REGISTER

VOLUME XXXVI, ISSUE 15

April 16, 2014

RULE MAKING ACTIVITIES

NEW YORK STATE GAMING COMMISSION

PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. SGC-15-14-00005-P

Prohibited Substances and Out of Competition Drug Testing for Harness Racing

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

Proposed Action:

Amendment of section 4120.17 of Title 9 NYCRR.

Statutory authority:

Racing Pari-Mutuel Wagering and Breeding Law, sections 103(2), 104(1), (19), 122 and 902(1)

Subject:

Prohibited substances and out of competition drug testing for harness racing.

Purpose:

To enhance the integrity and safety of standardbred horse racing.

Text of proposed rule:

Section 4120.17 of 9 NYCRR would be amended as follows:

§ 4120.17. Out-of-competition testing.

(a) Out-of-competition collection of samples.

(1) The commission may at a reasonable time on any date take a blood, urine or other biologic sample from a horse that is on a nomination list or [(a) Any horse on the grounds of a racetrack under the jurisdiction of the commission 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 who is licensed by the commission, in order to enhance the ability of the commission laboratory to detect or confirm the impermissible administration of a drug or other substance to the horse.

(2) Horses to be tested may be selected at random, for cause or as determined by a commission judge or executive official.

[(b) Horses to be tested shall be selected at the discretion of the State judges or any commission representative.]

(3) A selected horse that is not made available for sampling is ineligible to race for 180 days, unless the commission determines that circumstances unavoidably prevented the owner and trainer from making the horse available for sampling.

(4) If a selected horse is not involved in activities related to racing in New York, then the trainer or owner may represent this to the commission and the commission will not sample the horse. If the trainer makes such a representation and the managing owner has previously provided the commission with a means for the commission to give immediate telephonic notification to the managing owner that the trainer made such a representation, then the commission shall transmit such notification to the managing owner and the eligibility of the horse shall be preserved if the managing owner is able to make the horse available for immediate sampling. [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.]

(b) Sampling procedure.

(1) Samples shall be taken under the supervision and direction of a person who is employed or designated by the commission and is qualified to safeguard the health and safety of the horse. A veterinarian shall collect all blood samples.

(2) The person who takes samples for the commission shall provide identification and disclose the purpose of the sampling to the trainer or designated attendant of the horse.

(3) The owner, trainer and/or their designees shall cooperate with the person who takes samples for the commission by immediately assisting in the location and identification of the horse, making the horse available at a stall or other safe location to collect the samples and witnessing the taking of the samples.

(4) The commission, if requested and in its sole discretion, may permit the owner or trainer to present an off-track horse for sampling at a time and licensed racetrack designated by the commission.

(5) An owner or trainer does not consent to a search of the premises by making a horse available for sampling at an off-track location.

(6) The commission may arrange for the sampling of an out-of-state horse by the racing commission or other designated person in the jurisdiction where the horse is located. Such racing commission or other designated person shall follow the relevant provisions of this rule and the test results shall be available to the jurisdiction in which the horse is located for its regulatory use. The commission, if requested and in its sole discretion, may permit the owner or trainer instead to present the horse for sampling in New York State at a time and place designated by the commission.

(7) A commission judge or executive official [(c) The State judges or any commission representative] may require any horse of a licensed trainer or owner to be brought promptly to a racetrack under the jurisdiction of the commission for out-of-competition testing when:

(i) the commission has reasonable grounds to believe that the horse might have been impermissibly administered a drug or other substance;

(ii) the commission has no other practical means to collect such samples without reducing the ability of the commission laboratory to detect or confirm the impermissible administration of a drug or other substance to a horse; and

(iii) the horse is stabled out-of-state but [at a site located] within a radius not greater than 100 miles from such [a] New York State racetrack.

The trainer is responsible to have the horse or horses available at the designated time and location.

[(d) A commission veterinarian or any licensed veterinarian authorized by the State judges or any commission representative may at any time take a urine or blood sample from a horse for out-of-competition testing.]

(8) No person shall knowingly interfere with or obstruct a sampling.

(9) A licensed racetrack at which a horse may be located shall cooperate fully with a person who is authorized to take samples. The person who collects samples for the commission on track may require that the collection be done at the test barn.

(c) [(e)] Prohibited substances. [are:]

(1) The presence in or administration to a horse of the following doping agents or drugs, in the absence of extraordinary mitigating circumstances that excuse the owner and trainer from their failure to fulfill their duties and responsibilities, is prohibited at any time:

(i) Blood [blood] doping agents [including, but not limited to,]: any substance, including a protein- or peptide-based agent or drug, that is capable of abnormally enhancing the oxygenation of body tissues, including but not limited to erythropoietin (EPO), darbepoetin (e.g., Aransep), Oxyglobin, aminoimidazole carboxamide ribonucleotide (“AICAR”), Myo-Inositol Trispyrophosphate (“ITTP”) and Hemopure[, Aransep, or any substance that abnormally enhances the oxygenation of body tissues;].

[(2)] (ii) Gene [gene] doping agents: [or the nontherapeutic use of] a gene[s], genetic element[s], [and/] or cell[s] that alters the expression of genes for normal physiological functions and that may [have the capacity to enhance athletic performance or] produce analgesia or enhance the performance of a horse beyond its natural ability, including but not limited to thymosin beta-4 (“TB500”). This shall not apply to such agents when used off-track in an accepted veterinary treatment to assist a disabled horse to become healthy, without producing analgesia or potentially enhancing the performance of the horse beyond its natural ability, provided that such use is documented in the contemporaneous veterinary records of the horse.[;]

[(3)] (iii) Any other protein- [and] or peptide[-] based agent or drug[s,] that may produce analgesia or enhance the performance of a horse beyond its natural ability, including but not limited to toxins, [and] venoms and allosteric effectors.

(iv) The substances described in this Paragraph are prohibited regardless of any of the provisions of section 4120.2 of this Part.

(2) No person shall possess or use the prohibited substances described in Paragraph (1) of this subdivision on the premises of any licensed racetrack.

(3) It shall be an affirmative defense to a violation of this section that the person used the prohibited substance only in a time, place and manner specifically permitted in writing by the commission before the administration of such substance, for a recognized therapeutic use, and subject to such appropriate limitations as the commission shall place on the return of the horse to running races.

[(f) The presence of any substance at any time described in paragraphs (1), (2) or (3) of subdivision (e) of this section is a violation of this section 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 section 4120.4 of this Part.]

[(g) The trainer, owner, and/or their designees and any licensed or franchised racing corporation shall cooperate with the commission and the commission’s representatives and 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 section.]

[The failure or refusal to cooperate in the above by any franchisee, licensee or other person shall subject the franchisee, 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 commission.]

(d) Penalties

(1)[(h)] A[ny] 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,] found to be in violation of this rule shall be ineligible to participate in racing until it is certain that the horse is no longer affected by the prohibited substance and for not less than 180 [for one hundred twenty] days, after which the horse must qualify in a workout satisfactory to the judges and test negative for doping agents and drugs. The minimum fixed period of ineligibility for a horse in violation of this rule shall be reduced from 180 to 30 days if the trainer had never violated this rule or similar rules in other jurisdictions and had, for any violations of Part 4120 or similar rules in other jurisdictions, fewer than 180 days in lifetime suspensions or revocations and fewer than two suspensions or revocations of 15 days or more in the preceding 24 months.

(2) A person who is found responsible for a violation of paragraph (1) of subdivision (c) of this section shall, in [(i) In] the absence of extraordinary mitigating circumstances, incur a minimum penalty of a 10-year suspension in addition to any other penalties authorized in this Article. [will be assessed for any violation set forth in subdivision (f).]

(e) A buyer who was not aware that a horse is or may be determined ineligible under this section may void the purchase, provided that the buyer does so within 10 days after receiving notice of the horse’s ineligibility.

(f) [(j)] An application to the commission 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 commission representatives to such off-track premises.

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

Kristen Buckley, New York State Gaming Commission, 1 Broadway Center, P.O. Box 7500, Schenectady, New York 12301, [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: The New York State Gaming Commission (“Commission”) is authorized to promulgate these rules pursuant to Racing Pari-Mutuel Wagering and Breeding Law (“Racing Law”) Sections 103(2), 104(1), (19), 122, and 902(1). Under Section 103(2), the Commission is responsible to supervise, regulate, and administer all horse racing and pari-mutuel wagering activities in the State. Subdivision (1) of Section 104 confers upon the Commission general jurisdiction over all such gaming activities within the State and over the corporations, associations, and persons engaged in such activities. Subdivision (19) of Section 104 authorizes the Commission to promulgate any rules and regulations that it deems necessary to carry out its responsibilities. Section 122 continues previous rules and regulations of the legacy New York State Racing and Wagering Board, subject to the authority of the Commission to modify or abrogate such rules and regulations. Section 902(1) prescribes that a state college within New York with an approved equine science program shall conduct equine drug testing to assure public confidence in and to continue the high degree of integrity at pari-mutuel race meetings, and authorizes the Commission to promulgate any rules and regulations necessary to implement such equine drug testing program and to impose substantial administrative penalties for racing a drugged horse.

2. Legislative objectives: To enable the Commission to preserve the integrity of pari-mutuel racing while generating reasonable revenue for the support of government.

3. Needs and benefits: This rule making proposes amendments to the Commission’s harness racing out-of-competition testing (“OCT”) rule to clarify the existing rule, incorporate enforcement protocols of the Commission, and make it more uniform with the Commission’s OCT rule for thoroughbred racing. The proposal would also reorganize the existing rule into new subdivisions.

The Commission’s OCT program requires New York licensed owners and trainers to allow their racehorses to be sampled on request. The primary reason for OCT is to detect the administration of doping agents that unnaturally change the physiology of the horse, can be administered many weeks or even months before racing in New York, powerfully affect the speed of horses as they are about race, are not required to provide veterinary care, and cannot be detected in samples collected from a racehorse on race day. Out-of-competition testing also makes it possible to detect “drug cocktails.” A drug cocktail is the administration of various drugs in sub-clinical doses, thus creating laboratory results in race-day samples that are consistent with being administered too long before race day to affect the race but which are efficacious because of drug interactions. Such purposes for OCT are set forth in paragraph (a)(1) of the rule.

Out-of-competition testing is needed because the Commission does not require that the racehorses be stabled on the grounds of the New York racetracks. Rather, the owners and trainers who are in the business of racing their horses in New York harness races may do so no matter where they stable and train their harness horses or engage in other horse racing activities in preparation for racing in New York. The only requirement for such owners and trainers is that they must have an occupational license granted to them by the Commission. Such persons are engaged in New York racing activities when their racehorses are not yet entered to race, as this generally occurs only a few days before race day, and regardless of where their racehorses are located.

The existing OCT testing rule provides that the Commission will not select racehorses for testing that are not anticipated to race in New York for 180 days. Paragraphs (a)(1) and (a)(4) of the rule clarify that this means the Commission may select any horse that is under the care or control of a New York licensed owner or trainer, but that such licensees may excuse from sampling a racehorse that is not involved in activities related to racing in New York. Pursuant to new paragraph (a)(3) of the rule, such horse would then not be permitted to race in New York for at least 180 days. An innocent owner or trainer would have no reason to object to sampling. This period of exclusion serves to deter guilty parties from misrepresenting their intentions, solely to evade sampling, by imposing a substantial period of ineligibility before such horse may race in New York. New paragraph (a)(4) also provides a safeguard for a racehorse owner whose trainer refuses to permit a sampling. The Commission would attempt to reach the owner by telephone, if it has the contact information, so the owner could countermand the trainer and cause the horse to be sampled.

Subdivisions (a) and (b) of the rule have been revised to set forth or clarify a number of the Commission’s existing OCT protocols and procedures that ensure that OCT does not unreasonably burden owners and trainers. Paragraph (b)(2) provides that persons collecting samples will present their credentials and disclose the purpose of the sampling. Paragraph (b)(4) states that the owner and trainer may request permission to bring an off-track horse to a licensed racetrack for its sample to be taken. Paragraph (b)(5) states that when an owner or trainer allows a horse to be sampled at an off-track location, this does not constitute consent to a search of the premises. Paragraph (a)(1) states that samples shall be collected at a reasonable time, which is obviously necessary if the Commission is going to obtain the assistance of the racehorse’s caretaker to locate and identify the horse, provide a safe location, and witness the sampling. When a horse is located out-of-state, paragraph (b)(6) states that the Commission will have samples collected by a designee or the state racing commission in that jurisdiction. In the rare instances when another racing commission or a designee of the Commission cannot readily collect a sample from an out-of-state racehorse, new paragraph (a)(7) authorizes the Commission to require that the horse be shipped (no more than 100 miles) to a New York racetrack for sampling. The amendment explicitly states the Commission policy to order this only if there is reasonable cause to believe such racehorse might have been doped. Although the delay in waiting for a racehorse to arrive in New York is disadvantageous for the Commission, this authority will continue to help prevent out-of-state racehorses from being insulated from OCT.

If a horse is made available on track, then new paragraph (b)(9) will allow the person who takes samples to require that the racehorse be brought to a central area, the test barn. This minimizes the burden on racetracks, which are required to facilitate the sampling process, when the Commission is unable to deploy its inspectors and veterinarians throughout the racetrack.

The amendments to subdivision (c) will improve the description of substances that are prohibited. The general prohibition of peptide- or protein-based substances is limited, in paragraph (c)(1)(iii), to those that produce analgesia or enhance a horse’s performance beyond its natural abilities. This removes an apparent conflict with certain provisions in other Commission rules. In paragraph (c)(1)(i) of the rule, the prohibition of blood doping agents is broadened to include any substances that can abnormally oxygenate bodily tissues. Paragraph (c)(1)(ii) expressly permits the use of gene-doping therapies for treating disabled racehorses when it cannot produce analgesia or enhance a horse’s performance beyond its natural abilities. Such therapies may be used off-track without advance permission, and under paragraph (c)(3), any substance that an owner, trainer, or veterinarian is concerned might be prohibited by section 4120.17(c) can be used at any location by first getting the written permission of the Commission (e.g., presiding judge).

Paragraph (d)(1) sets forth the period of the ineligibility of a racehorse after testing positive for prohibited substances. There will be a fixed period of ineligibility, which depends in part on the trainer’s record for equine drugging, and a period of ineligibility equivalent to a substance’s withdrawal period.

Finally, new subdivision (e) allows a buyer who has learned after the purchase that the racehorse was ineligible to race 10 days to void the sale.

4. Costs:

(a) Costs to regulated parties for the implementation of and continuing compliance with the rule: These amendments will not add any new mandated costs to the existing rules, and the cost of making a horse available for sampling may be reduced in some instances. The new rule gives the owner or trainer the option to ask for permission to produce the horse at a nearby racetrack, including one located in the horse’s home state, and sets forth the limited circumstances in which the Commission would direct a person to bring a horse, stabled out-of-state but within 100 miles of a New York racetrack, to such racetrack for sampling.

(b) Costs to the agency, the state and local governments for the implementation and continuation of the rule: None. The amendments will not add any new costs. The new rule will potentially reduce administrative costs by encouraging horsepersons to bring their horses to a licensed racetrack’s test barn for sampling. The cost of samples taken by sister states from out-of-state horses will remain constant, as the owner or trainer will make the horse available during normal training or racing hours when staff is available to collect samples, and the cost of collections by one state will be offset by collections obtained for it by its sister state. The cost to comply for a horseperson to transport a horse to New York from a nearby state could be reduced, although the Commission has never required such transport because of the general availability of out-of-state surrogates that collect samples much more promptly for the Commission. Both states will be able to use a single laboratory test to enforce their own state rules, which will cost less than the normal practice of each state conducting its own laboratory tests. The samples require separate shipping whether collected in or out of state.

There will be no costs to local government because the Commission is the only governmental entity authorized to regulate pari-mutuel harness racing.

(c) The information, including the source(s) of such information and the methodology upon which the cost analysis is based: The Commission relied on its experience in collecting samples for collaborating states and on the studies and/or advice provided by the Director of the New York State Drug Testing and Research Program, Dr. George A. Maylin.

5. Local government mandates: None. The Commission is the only governmental entity authorized to regulate pari-mutuel harness racing activities.

6. Paperwork: There will be no additional paperwork. The Commission will utilize the existing documents for its chain-of-custody protocol and memorandums of understanding with other state racing commissions, as well as administrative adjudication to determine whether a violation has occurred and what sanctions may be appropriate.

7. Duplication: None.

8. Alternatives. The Commission considered as an alternative a requirement that the trainer of a horse must be notified by certified mail and respond to such notice before any selected horse could be sampled by the Commission. This alternative was rejected because it would involve significant delay and could readily be manipulated by a guilty party to delay or even preclude any attempt by the Commission to collect a timely sample from a racehorse. The Commission also considered a suggestion by a representative of a horseperson’s group that the Commission require all off-track stables in New York to be licensed and subject to inspection by the Commission. This alternative was rejected because the administrative costs would be prohibitive and the alternative was far more intrusive than necessary to address the concerns that underlie the out-of-competition program.

9. Federal standards: None.

10. Compliance schedule: The Commission believes that regulated persons will be able to achieve compliance with the rule upon adoption of this rule.

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

A regulatory flexibility analysis for small business and local governments, a rural area flexibility analysis, and a job impact statement are not required for this rule making proposal because it will have no adverse effect on small businesses, local governments, rural areas, or jobs.

The proposed amendments serve to narrow and simplify the Commission’s existing out-of-competition equine drug testing rule for harness racing by codifying the protections afforded to horse owners and trainers and clarifying both the definition of prohibited substances and the rights of owners and trainers whose horses have been selected for sampling. These amendments do not expand the scope of the existing regulatory framework, but merely revise ministerial aspects within the existing out-of-competition rule. This rule will not impose an adverse economic impact on reporting, record keeping or other compliance requirements on small businesses in rural or urban areas or on employment opportunities. Due to the straightforward nature of the rulemaking, there is no need for the development of a small business regulation guide to assist in compliance. These provisions are clear as to what equine drugs are impermissible, when they are impermissible, how the Commission’s program will be implemented, and what is necessary to comply with the rule.