SGC-23-16-00006-P Voidable Claims Based on Race Day Samples
6/8/16 N.Y. St. Reg. SGC-23-16-00006-P
NEW YORK STATE REGISTER
VOLUME XXXVIII, ISSUE 23
June 08, 2016
RULE MAKING ACTIVITIES
NEW YORK STATE GAMING COMMISSION
PROPOSED RULE MAKING
NO HEARING(S) SCHEDULED
I.D No. SGC-23-16-00006-P
Voidable Claims Based on Race Day Samples
PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:
Proposed Action:
Amendment of sections 4038.19(a) and 4109.7(a) of Title 9 NYCRR.
Statutory authority:
Racing, Pari-Mutuel Wagering and Breeding Law, sections 103(2), 104(1), (19) and 301(1)
Subject:
Voidable claims based on race day samples.
Purpose:
To enhance the safety and integrity of horse racing while generating a reasonable return for government.
Text of proposed rule:
Subdivision (a) of Section 4038.19 of 9 NYCRR would be amended as follows:
§ 4038.19. Certain voidable claims.
(a) [Post race] Race-day positive. Should the analysis of a [post-race] race-day blood or urine sample taken from a claimed horse result in a [post-race] positive test, or if the race-day test results of a previous race have not been cleared by the date of the claim and result in a [post-race] positive test, the claimant's trainer shall be promptly notified by the stewards and the claimant shall have the option to void said claim within five days of such notice by [the claimant’s] such trainer. An election to void a claim shall be submitted in writing to the stewards by the claimant or the claimant’s trainer. In the event the claim is voided, the horse shall be returned to the owner of the horse who subjected the horse to claiming in the race from which the positive test resulted.
* * *
Subdivision (a) of Section 4109.7 of 9 NYCRR would be amended as follows:
§ 4109.7. Certain voidable claims.
(a) [Post-race] Race-day positive. Should the analysis of a [post-race] race-day blood or urine sample taken from a claimed horse result in a [post-race] positive test, or if the race-day test results of a previous race have not been cleared by the date of the claim and result in a positive test, the claimant's trainer shall be promptly notified in writing by the judges and the claimant shall have the option to void said claim within five days of receipt of such notice by such trainer. An election to void a claim shall be submitted in writing to the judges by the claimant or such claimant’s trainer.
* * *
Text of proposed rule and any required statements and analyses may be obtained from:
Kristen M. Buckley, New York State Gaming Commission, 1 Broadway Center, PO Box 7500, Schenectady, New York 12301, (518) 388-3407, email: gamingrules@gaming.ny.gov
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), and 301(1). Under Section 103(2), the Commission is responsible for supervising, regulating and administering 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. Under Section 301, which applies to only harness racing, the Commission is authorized to supervise generally all harness race meetings.
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 is necessary to amend the Commission’s claiming rules to permit a claimant of any horse to void the claim when samples collected the day of the claiming race test positive for an impermissible drug administration. The rule making will also permit a claimant of a Standardbred horse to void the claim based on an equine drug positive in the race before the claiming race, when such positive test result is revealed only after the claiming race, as already permitted by the Commission’s rules for Thoroughbred racing.
The current rules permit a claimant of a Thoroughbred or Standardbred horse to void a claim when samples collected from the horse after racing, called post-race samples, show in later laboratory testing that the claimed horse was raced in the claiming race in violation of Commission rules restricting the use of drugs and certain other substances in race horses. 9 NYCRR §§ 4038.19(a) and 4109.7(a). This permits a claimant to avoid owning a horse that was illegally drugged while under the care and control of the previous owner and trainer. Such illegal drugging can contribute to a false impression of the health and racing ability of the horse, key considerations that a prospective claimant considers before entering a claim for a horse. Allowing the claimant to void a claim when laboratory tests later reveal such impermissible drug use ensures greater fairness in the claiming transactions. It also serves as a disincentive to owners or trainers who might attempt to secure a higher price for a claiming horse by manipulating its health and performance with drugs. Such misconduct not only misrepresents the horse’s condition, it sometimes endangers the health of the horse and other participants in the claiming race.
The Commission has adopted per se regulatory thresholds this year that apply to all samples collected on race day, even before the race. The positive test results based on such race-day samples should also permit a claimant to void a claim because of impermissible drug administrations to the claimed horse.
The proposal would amend the governing rules to allow a claimant to void a claim when any sample collected on race day, not just post-race samples, are later tested and demonstrate that the claimed horse was impermissibly drugged.
The proposal would also amend subdivision (a) of section 4109.7 to permit the claimant of a Standardbred horse to void a claim based on an equine drug positive from the race preceding the claiming race, when such positive drug test result is revealed only after the claiming race. The race before a claiming race is influential to prospective claimants, who should be able to void a claim, entered before the start of the next (claiming) race, upon learning only later that the prior race was misleading because of impermissible drug administrations to the horse.
This protection was extended to the claimants of Thoroughbred horses in 2006, and has worked well to provide additional protection to claimants and a further disincentive to those who might seek to manipulate horses with drugs.
Finally, the proposal makes various changes in style to clarify the rules.
4. Costs:
(a) Costs to regulated parties for the implementation of and continuing compliance with the rule: These amendments will not add any new costs to the existing rules.
(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. 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: N/A.
5. Local government mandates: None. The Commission is the only governmental entity authorized to regulate pari-mutuel thoroughbred racing activities.
6. Paperwork: There will be no additional paperwork.
7. Duplication: No relevant rules or other legal requirements of the state and/or federal government exist that duplicate, overlap or conflict with this rule.
8. Alternatives. The Commission considered no alternatives to the adoption of this rule.
9. Federal standards: There are no minimum standards of the Federal government for this or a similar subject area.
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 rulemaking proposal because it will not adversely affect small businesses, local governments, rural areas, or jobs.
The amendments would permit a claimant, who currently can void a claim when post-race samples test positive after the claiming race, to void a claim when any race-day sample tests positive after the claiming race. The Commission recently adopted regulatory thresholds that apply to any sample collected on race day. The proposal will ensure that a claimant may void the claim of a drugged horse when such drugging is revealed by any test of the Commission.
The amendments would also update the Standardbred rule to correspond to the rule for Thoroughbred claims, by allowing a claimant to void a claim upon learning after the claiming race that the claimed horse in its preceding race was raced while drugged.
These amendments will not impose an adverse economic impact or reporting, record keeping, or other compliance requirements on small businesses in rural or urban areas or on employment opportunities. No local government activities are involved.
