RWB-19-07-00004-P Post-Race Blood Gas Testing Procedures for Thoroughbred and Harness Race Horses

5/9/07 N.Y. St. Reg. RWB-19-07-00004-P

NEW YORK STATE REGISTER

VOLUME XXIX, ISSUE 19

May 09, 2007

RULE MAKING ACTIVITIES

RACING AND WAGERING BOARD

PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. RWB-19-07-00004-P

Post-Race Blood Gas Testing Procedures for Thoroughbred and Harness Race Horses

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

Proposed action:

Addition of sections 4043.8, 4043.9, 4043.10, 4038.19(g), 4120.13, 4120.14, 4120.15 and 4109.7(f) to Title 9 NYCRR.

Statutory authority:

Racing, Pari-Mutuel Wagering and Breeding Law, sections 101, 207, 227, 301, 305 and 902

Subject:

Post-race blood gas testing procedures for thoroughbred and harness race horses.

Purpose:

To detect and deter the prohibited practice known as “milkshaking.”

Text of proposed rule:

A new section 4043.8 is added to read as follows:

4043.8 TCO2 blood gas testing program

(a) The board may obtain pre-race blood samples from horses for subsequent testing for total carbon dioxide level (TCO2). The board may also obtain post-race blood samples from horses for subsequent testing for TCO2, after a minimum one-hour standing at rest period after its race. It shall be a violation of this rule where the horse's TCO2 level equals or exceeds thirty-seven (37) millimoles per liter or, for horses administered furosemide pursuant to Rule 4043.2(b)(6), thirty-nine (39) millimoles per liter.

(b) It shall be an affirmative defense that the horse's physiologically normal TCO2 level was not exceeded. To demonstrate a horse's physiologically normal TCO2, its owner or trainer must comply with the following procedure. The owner or trainer must, in writing to the stewards within three calendar days of receiving notice of the horse's TCO2 test result, contend that the horse's reported TCO2 level is physiologically normal and request that the horse be held in guarded quarantine. If so, the racetrack operator shall make available a guarded quarantine for a time determined by the state steward, not to exceed 72 hours, at the sole expense of the requesting licensee. During the quarantine, the horse shall be retested periodically, and although the horse shall not race, it may be exercised and trained at times prescribed by the racetrack operator provided this does not interfere with monitoring, sampling, and testing the horse. The state steward shall then determine whether the horse's pre-race TCO2 level was physiologically normal for it. The state steward may also require, at least 45 days later, that the horse re-establish its normal TCO2 level with another guarded quarantine to be made available at the sole expense of the racetrack operator.

(c) Any guarded quarantine provided by the racetrack operator shall ensure that, at a minimum:

(1) Such horse shall be under direct surveillance by at least one guard at all times;

(2) Access to the horse shall be restricted to licensed persons who are directly affiliated with such horse, track stewards, or employees of the New York State Racing and Wagering Board, all of whom shall provide their respective track identification badge or Board-issued photo identification card prior to entry;

(3) A written or electronic log of all persons who have had access to the horse shall be maintained by the guard, indicating the name and license number or track identification badge number of the person, the date and time of the visit (including time in and out of the restricted area), the nature and purpose of the visit, a description of any and all equipment, paraphernalia, tack, medications, or feed brought to the horse, and all activity observed by the guard during the visit; and

(4) The racetrack operator shall maintain such written or electronic logs of guarded quarantine activity for a minimum period of 90 days after the conclusion of the applicable guarded quarantine period.

(d) The penalty for violations of this rule shall be not less than (i) for a first violation, a 60-day license suspension and one-thousand dollar ($1000) fine; (ii) for a second violation, a 75-day license suspension and two-thousand five-hundred dollar ($2500) fine; and (iii) for additional violations, a one-year suspension and five-thousand dollar ($5000) fine together with a referral to the board for further action including a possible license revocation. Where independent evidence shows that the horse was treated within 24 hours of its race by means not permitted by section 4043.2 of this subtitle, however, every license suspension shall be for at least two years. Every suspension shall include denial of the privileges of the grounds.

(e) For a violation of this rule, a horse shall be disqualified, any purse monies shall be forfeited and redistributed pursuant to Rule 4043.5, and pre-race detention shall be imposed.

A new section 4043.9 is added to read as follows:

4043.9 Pre-race detention

(a) A horse that tests in violation of Rule 4043.8 shall be placed under pre-race detention, without regard to whether the horse is transferred to a new trainer, for a period of six (6) months from the date of violation. If during the detention period a horse again tests in violation of Rule 4043.8, then the detention period shall be extended as the stewards shall deem appropriate. The racetrack operator sponsoring the race shall make such pre-race detention available, at the sole expense of the trainer, for at least six (6) hours before the start of the race program and as required by the stewards. Where a claimed horse is found to have excess TCO2, the costs of a pre-race detention shall be the responsibility of the party requesting detention.

(b) All horses of a trainer who has violated Rule 4043.8 more than once in the preceding 12 months shall be placed under pre-race detention, without regard to whether the horses are transferred to a new trainer, for a period of eight (8) months from the date of the most recent violation. The racetrack operator sponsoring the race shall make such pre-race detention available, at the sole expense of the trainer, for at least six (6) hours before the start of the race program and as required by the stewards. If during a detention period a trainer violates Rule 4043.8, then the detention period shall be extended for such time as the stewards deem appropriate.

A new section 4043.10 is added to read as follows:

4043.10 TCO2 testing: punishment for failure to cooperate

It shall be a violation of Rule 4042.1(f) for any person subject to the jurisdiction of the Board to fail to cooperate with the blood gas testing program.

A new subdivision (f) of section 4038.8 is added to read as follows:

(f) Excess TCO2 levels. In the event that a claimed horse tests in violation of Rule 4043.8, and it is not determined that such TCO2 level is physiologically normal for that particular horse, the claimant or his trainer shall have the option to void the claim upon written notice to the stewards within five (5) days of receiving notice of the violation.

A new section 4120.13 is added to read as follows:

4120.13 TCO2 blood gas testing program

(a) The board may obtain pre-race blood samples from horses for subsequent testing for total carbon dioxide level (TCO2). The board may also obtain post-race blood samples from horses for subsequent testing for TCO2, after a minimum one-hour standing at rest period for the horse after its race. It shall be a violation of this rule where the horse's TCO2 level equals or exceeds thirty-seven (37) millimoles per liter or, for horses administered furosemide pursuant to Rule 4120.2(b)(6), thirty-nine (39) millimoles per liter.

(b) It shall be an affirmative defense that the horse's physiologically normal TCO2 level was not exceeded. To demonstrate a horse's physiologically normal TCO2, its owner or trainer must comply with the following procedure. The owner or trainer must, in writing to the judges within three calendar days of receiving notice of the horse's TCO2 test result, contend that the horse's reported TCO2 level is physiologically normal and request that the horse be held in guarded quarantine. If so, the racetrack operator shall make available a guarded quarantine for a time determined by the presiding judge, not to exceed 72 hours, at the sole expense of the requesting licensee. During the quarantine, the horse shall be retested periodically, and although the horse shall not race, it may be exercised and trained at times prescribed by the racetrack operator provided this does not interfere with monitoring, sampling, and testing the horse. The presiding judge shall then determine whether the horse's pre-race TCO2 level was physiologically normal for it. The presiding judge may also require, at least 45 days later, that the horse re-establish its normal TCO2 level with another guarded quarantine to be made available at the sole expense of the racetrack operator.

(c) Any guarded quarantine provided by the racetrack operator shall ensure that, at a minimum:

(1) Such horse shall be under direct surveillance by at least one guard at all times;

(2) Access to the horse shall be restricted to licensed persons who are directly affiliated with such horse, judges, or employees of the New York State Racing and Wagering Board, all of whom shall provide their respective track identification badge or Board-issued photo identification card prior to entry;

(3) A written or electronic log of all persons who have had access to the horse shall be maintained by the guard, indicating the name and license number or track identification badge number of the person, the date and time of the visit (including time in and out of the restricted area), the nature and purpose of the visit, a description of any and all equipment, paraphernalia, tack, medications, or feed brought to the horse, and all activity observed by the guard during the visit; and

(4) The racetrack operator shall maintain such written or electronic logs of guarded quarantine activity for a minimum period of 90 days after the conclusion of the applicable guarded quarantine period.

(d) The penalty for violations of this rule shall be not less than (i) for a first violation, a 60-day license suspension and one-thousand dollar ($1000) fine; (ii) for a second violation, a 75-day license suspension and two-thousand five-hundred dollar ($2500) fine; and (iii) for additional violations, a one-year suspension and five-thousand dollar ($5000) fine together with a referral to the board for further action including a possible license revocation. Where independent evidence shows that the horse was treated within 24 hours of its race by means not permitted by section 4120.2 of this subtitle, however, every license suspension shall be for at least two years. Every suspension shall include denial of the privileges of the grounds.

(e) For a violation of this rule, a horse shall be disqualified, any purse monies shall be forfeited and redistributed pursuant to Rule 4120.5, and pre-race detention shall be imposed.

A new section 4120.14 is added to read as follows:

4120.14 Pre-race detention

(a) A horse that tests in violation of Rule 4120.13 shall be placed under pre-race detention, without regard to whether the horse is transferred to a new trainer, for a period of six (6) months from the date of violation. If during the detention period a horse again tests in violation of Rule 4120.13, then the detention period shall be extended as the judges shall deem appropriate. The racetrack operator sponsoring the race shall make such pre-race detention available, at the sole expense of the trainer, for at least six (6) hours before the start of the race program and as required by the judges. Where a claimed horse is found to have excess TCO2, the costs of a pre-race detention shall be the responsibility of the party requesting detention.

(b) All horses of a trainer who has violated Rule 4120.13 more than once in the preceding 12 months shall be placed under pre-race detention, without regard to whether the horses are transferred to a new trainer, for a period of eight (8) months from the date of the most recent violation. The racetrack operator sponsoring the race shall make such pre-race detention available, at the sole expense of the trainer, for at least six (6) hours before the start of the race program and as required by the judges. If during a detention period a trainer violates Rule 4120.13, then the detention period shall be extended for such time as the judges deem appropriate.

A new section 4120.15 is added to read as follows:

4120.15 TCO2 testing: punishment for failure to cooperate

It shall be a violation of Rule 4119.7 for any person subject to the jurisdiction of the Board to fail to cooperate with the blood gas testing program.

A new subdivision (f) of section 4109.7 is added to read as follows:

(f) Excess TCO2 levels. In the event that a claimed horse tests in violation of Rule 4120.13, and it is not determined that such TCO2 level is physiologically normal for that particular horse, the claimant or his trainer shall have the option to void the claim upon written notice to the stewards within five (5) days of receiving notice of the violation.

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

Gail Pronti, Secretary to the Board, Racing and Wagering Board, One Broadway Center, Suite 600, Schenectady, NY 12305, [phone], e-mail:[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

(a) Statutory authority. Racing, Pari-Mutuel Wagering and Breeding Law, sections 101, 207, 227, 301, 305 and 902.

(b) Legislative objectives. This amendment advances the legislative objective of regulating the conduct of pari-mutuel wagering in a manner designed to maintain the integrity of racing while generating a reasonable revenue for the support of government.

(c) Needs and benefits. This rulemaking is necessary to assure the public's confidence and continue the high degree of integrity in racing at the pari-mutuel betting tracks. Through pre-race and post-race testing, this rulemaking will detect and deter the administration of alkali agents to thoroughbred racehorses and harness racehorses for the purpose of affecting the performance of such horse during a pari-mutuel wagering race.

The administration of alkali agents into a racehorse is commonly known as “milkshaking,” where a person administers a mixture of sodium bicarbonate, sugar and water to a horse prior to a race mitigate the effects of lactic acid on the horse's muscles during the race, thereby gaining an advantage. Lactic acid is a naturally occurring byproduct of intense muscular exercise in mammals, and the accumulation of lactic acid in such muscles causes fatigue. Some people associated with racehorses believe that the administration of an alkaline substance, such as bicarbonate of soda, can neutralize the effect of lactic acid in a horse's muscles. This has resulted in the use of alkalizing agents, or “milkshakes” which are administered to a racehorse in an attempt to alter the performance of the horse. Based on this belief, people have administered milkshakes to racehorses on the day of a race with the intent to gain a racing advantage.

This rulemaking is necessary to establish empirical standards and testing procedures for the enforcement of Board Rule 4043.3(d) and Board Rule 4120.3(d), which apply to thoroughbred and harness racehorses respectively and state “No person shall, attempt to, or cause, solicit, request, or conspire with another or others to… administer a mixture of bicarbonate of soda and sugar in any of their forms in any manner to a horse within 24 hours of a racing program at which such horse is programmed to race. It shall be the trainer's responsibility to prevent such administration.”

Horses that have received an alkalizing agent will exhibit elevated levels of TCO2 over and above normal levels. This rulemaking will establish the ion selective electrode method with a clinical auto analyzer as a standard means of detecting elevated TCO2 in horses. The rule will establish a TCO2 threshhold of 37 millimoles per liter for horses who have not been administered furosemide (Lasix) prior to a race, and 39 millimoles for horses that have been administered furosemide prior to a race.

In January 2005, the U.S. Justice Department arrested a New York licensed thoroughbred trainer and a prominent New York harness driver and charged the two with milkshaking a thoroughbred at Aqueduct Raceway in December 2003 to increase the odds that the horse, A One Rocket, would win. According to the Justice Department, this was not an isolated incident and such violations occurred regularly. This case has brought national attention to the issue of milkshaking and the need to adopt testing programs and penalties for such “milkshaking” practices. Clearly, the practice of milkshaking race horses is detrimental to the integrity of the sport of horse racing, erodes public confidence in pari-mutuel wagering events, and invites criminal abuse and exploitation.

This rulemaking will benefit thoroughbred and harness racing by ensuring the betting public that horses that compete in pari-mutuel races have not been tampered with through the administration of alkali agents, thereby ensuring that no extraodinary advantage has been given to the horse through prohibited substances.

(d) Costs.

(i) Thoroughbred horse owners may be subject to the cost of a pre-race guarded quarantine imposed upon any single horse found to have excess TCO2 levels that has not been determined to be physiologically normal for such horse. The licensed track association sponsoring the race is responsible for making available a pre-race quarantine stall, and for maintaining an access log system in either paper or electronic form. The length of time for such quarantine shall be determined by the stewards or judges, and will have an impact on the cost of guarded quarantine. The cost of a paper log is approximately $10 retail for a ring binder and 500 pages of paper. The cost of an electronic record, such as a personal computer or laptop computer, starts at $400 in ordinary retail stores.

(ii) There are no costs imposed upon the Racing and Wagering Board, the state or local government because the TCO2 testing program will be implemented utilizing the Board's existing medication testing program, personnel and facilities.

(iii) The Board cannot fully provide a statement of costs the trainers for pre-race guarded quarantine because the actual cost of establishing a pre-race guarded quarantine varies greatly from location to location in New York State, and the physical characteristics of the buildings within which a horse of quarantined. All horses that race at a New York State thoroughbred or harness racetrack are currently afforded stable space for free, so the only added cost that can be expected will be the cost of a guard. A pre-race guarded quarantine may require one guard per horse, or one guard for many horses, depending upon the access points that need to be controlled for an effective guarded quarantine. The Board's rulemaking requires that the subject horse is kept in an area where access to the subject horse is restricted to authorized licensed trainers, owners and veterinarians as submitted by the owner, that guards maintain a record of all licensed persons who have had access to the horse while in guarded quarantine, along with the time and purpose of the visit. In addition to the distinctive limitations that the guarded quarantine barn will have upon the cost, the wages of a guard varies depending upon the racetrack itself. According to track representatives, the hourly cost of guard may range from $7 per hour up to $20 per hour, depending on the individual racetrack, experience required for the specific duties (e.g. a stable guard who is responsible for surveillance only compared to a quarantine supervisor who is responsible for also identifying illegal paraphernalia, treatments or procedures) and local pay scale. The minimum time that a horse is to be quarantined is six hours, and the maximum time for quarantine is 72 hours.

(e) Local government mandates. This rulemaking will not impose any program, service, duty, or responsibility upon any county, city, town, village, school district fire district or other special district.

(f) Paperwork. Owners of any horse that has been found to have an excess levels of TCO2 will be required to submit a letter to the steward or judge of the track where the subject horse is to race, stating that the subject horse has a normally elevated level of TCO2. Such a letter is necessary for a horse to continue racing while under a guarded quarantine. Track associations will be required to maintain access logs, either paper or electronic, for a period of 90 days after the guarded quarantine period.

(g) Duplication. Since the New York State Racing & Wagering Board is exclusively responsible for the regulation of pari-mutuel wagering activities in New York State, there are no other relevant rules or other legal requirements of the state or federal government regarding total carbon dioxide testing of thoroughbred racehorses and harness racehorses in New York State.

(h) Alternative approaches. The Board did not consider any other significant alternatives because no other significant alternates are available. The rulemaking is based upon an established TCO2 testing program already adopted and in use by the New Jersey Racing Commission. The testing procedure included in this rulemaking is the only TCO2 test that has been reviewed and declared reliable by a state court, in this case, the New Jersey Supreme Court recognized the reliability of the Beckman test generally and as applied by the New Jersey Racing Commission (Campbell v. New Jersey Racing Commission,New Jersey Supreme Court, 169 N.J. 579, 781 A.2d 1035, October 11, 2001.) The TCO2 threshold levels in this rule are supported by findings of the Canadian Pari-Mutual Agency, which are published “Effects of Sampling and Analysis Times and Furosemide Administration on TCO2 Concentrations in Stadardbred and Thoroughbred Horses.”This paper was presented at the 13th International Conference of Racing Analysts and Veterinarians in Cambridge, U.K., in 2000 and published in the Conference Proceedings. The data in this study supports the thresholds of 37 mmol/L (non-furosemide) and 39 mmol/L (furosemide) which has been adopted in both Canada and Australia.

(i) Federal standards. There are no federal standards applicable to the subject area of state-regulated parimutuel wagering activity.

(j) Compliance schedule. The practice known as “milkshaking” of horses in already prohibited by rule under 9E NYCRR 4043.3 for thoroughbred racehorses and 9E NYCRR 4120.3 for harness racehorses. All of the provisions of this rulemaking shall be effective immediately upon filing with the Department of State.

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

This proposal does not require a Regulatory Flexibility Statement, Rural Area Flexibility Statement or Job Impact Statement as the amendment would expand the existing medication testing rules to include a test for alkalizing agents in thoroughbred and harness race horses. This testing will utilize the current framework for post-race testing. The pre-race testing component will merely require that a veterinarian take a few minutes to obtain a blood sample from a horse, which is a routine procedure and imposes no new burden upon regulated parties. These amendments do not impact upon State Administrative Procedure Act section 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, because the Board rules has exisiting rules for post-race testing for the presence of performance altering drugs and other substances.