SGC-39-15-00005-RP Thoroughbred Restricted Time Periods for Various Drugs
6/8/16 N.Y. St. Reg. SGC-39-15-00005-RP
NEW YORK STATE REGISTER
VOLUME XXXVIII, ISSUE 23
June 08, 2016
RULE MAKING ACTIVITIES
NEW YORK STATE GAMING COMMISSION
REVISED RULE MAKING
NO HEARING(S) SCHEDULED
I.D No. SGC-39-15-00005-RP
Thoroughbred Restricted Time Periods for Various Drugs
PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following revised rule:
Proposed Action:
Amendment of section 4043.2(a) and (e) of Title 9 NYCRR.
Statutory authority:
Racing, Pari-Mutuel Wagering and Breeding Law, sections 103(2), 104(1), (19) and 122
Subject:
Thoroughbred restricted time periods for various drugs.
Purpose:
To enhance the integrity and safety of thoroughbred horse racing.
Text of revised rule:
Section 4043.2 of 9 NYCRR would be amended as follows:
§ 4043.2. Restricted use of drugs, [medication] medications and other substances.
Drugs and medications are permitted to be used only in accordance with the following provisions.
(a) The following substances are permitted to be used at any time up to race time:
(1) topical applications (such as antiseptics, ointments, salves, [DMSO,] DMSO leg rubs, leg paints and liniments) which may contain antibiotics but do not contain benzocaine, steroids or other drugs;
* * *
(e) The following substances are permitted to be administered by any means until 48 hours before the scheduled post time of the race in which the horse is to compete:
(20) an oral or intravenous administration of dimethyl sulfoxide (i.e., DMSO).
* * *
Revised rule compared with proposed rule:
Substantial revisions were made in section 4043.2(a)(1) and (e)(20).
Text of revised proposed rule and any required statements and analyses may be obtained from
Kristen M. Buckley, New York State Gaming Commission, One Broadway Center, PO Box 7500, Schenectady, NY 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:
30 days after publication of this notice.
Revised 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 Sections 103(2), 104 (1), (19) and 122. 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.
2. Legislative objectives: To enable the Commission to protect the integrity of pari-mutuel horse races and the health and safety of thoroughbred horses and human participants in pari-mutuel racing, while generating reasonable revenue for the support of government.
3. Needs and benefits: This revised rulemaking is necessary to adjust the Commission’s restricted time period governing the administration of the drugs dimethyl sulfoxide, i.e., DMSO, and diclofenac, a non-steroidal anti-inflammatory drug (“NSAID”), to be consistent with the regulatory thresholds for the drugs that have been adopted by the Commission.
The proposal would amend the restricted time period for DMSO to permit the oral or intravenous administration of DMSO within 48 hours of a race. Currently, in 9 NYCRR, topical administration of DMSO is permitted at any time under Section 4043.2(a)(1) and other administrations of DMSO are not permitted until one week before a horse’s next race under the restrictions of Section 4043.2(h). The Commission has adopted a regulatory threshold on race day for DMSO that is consistent with an oral or intravenous administration of DMSO at least 48 hours before a horse’s next race. The proposed amendment would add such administrations of DMSO to the list, in subdivision (e) of Section 4043.2, of drugs that may be administered until 48 hours before racing. A 48-hour restricted time period for DMSO will also provide an assurance to thoroughbred horsepersons that compliance would protect them from violation of such threshold.
The Commission will continue to permit topical use of DMSO at any time. The most recent indications from the Racing Medication & Testing Consortium are that such administrations of DMSO will not result in violations of the new regulatory threshold.
The proposal would also amend subdivision (e) Section 4043.2 to add diclofenac to the list of permissible NSAIDs that appears at paragraph 14. This change will make the restricted time period for diclofenac, which currently is regulated for one week before racing pursuant to subdivision (h) of Section 4043.2, consistent with the regulatory threshold that the Commission has adopted for diclofenac. A 48-hour restricted time period will provide an assurance to thoroughbred horsepersons that compliance would protect them from violation of such threshold.
4. Costs:
(a) Costs to regulated parties for the implementation of and continuing compliance with the rule: There are no new or additional costs imposed by this rule upon regulated persons. The rule merely revises an existing rule in regard to allowable time of administration of various medications.
(b) Costs to the agency, the state and local governments for the implementation and continuation of the rule: There are no costs imposed upon the Commission, the State, or local government. The rule will be implemented using the Commission’s existing regulatory and medication testing program. There will be no costs to local governments because they do not regulate pari-mutuel racing activities.
(c) The information, including the source(s) of such information and the methodology upon which the cost analysis is based: The Commission has determined that no costs will be imposed based upon the fact that the rule does not create any new mandatory duty or obligation, utilizes an existing regulatory framework and medication testing program, and merely modifies a medication rule.
5. Local government mandates: None. The New York State Gaming Commission is the only governmental entity authorized to regulate pari-mutuel racing activities.
6. Paperwork: There will be no additional paperwork.
7. Duplication: None.
8. Alternatives. This rule amendment is to assure horsepersons that the Commission’s restricted time periods are consistent with the separately proposed national regulatory laboratory thresholds for these equine drugs that have been recommended by the RMTC and the ARCI. No other alternatives were considered.
9. Federal standards: None.
10. Compliance schedule: Regulated persons will be able to achieve compliance with the rule upon publication of a Notice of Adoption in the New York State Register.
Revised Regulatory Flexibility Analysis, Rural Area Flexibility Analysis and Job Impact Statement
This rulemaking proposal does not necessitate a revision to the previously published analyses and statement and does not have an adverse effect on small businesses, local governments, jobs, or rural areas.
Assessment of Public Comment
Two public comments were received in response to the publication of the proposed rule-making in the September 30, 2015 State Register. The Racing Medication & Testing Consortium wrote to recommend that the Commission continue to permit topical use of DMSO at any time, and has indicated that it will be revising its recommended withdrawal guideline for topical use of DMSO from 48 hours before racing to race day. The New York Thoroughbred Horseman’s Association wrote to request that race-day topical use of DMSO continue to be permitted. The Commission agrees with these suggestions and its revised proposal will result in greater ease of enforcement of agency rules that restrict the use of equine drugs in a manner that promotes the participation of racehorses in New York and enhances the health and safety of horses and jockeys.
