RWB-30-12-00001-P Procedures and Penalties for the Testing of Thoroughbred and Harness Race Horses for the Presence of Excess TCO2 Levels

7/25/12 N.Y. St. Reg. RWB-30-12-00001-P

NEW YORK STATE REGISTER

VOLUME XXXIV, ISSUE 30

July 25, 2012

RULE MAKING ACTIVITIES

RACING AND WAGERING BOARD

PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. RWB-30-12-00001-P

Procedures and Penalties for the Testing of Thoroughbred and Harness Race Horses for the Presence of Excess TCO2 Levels

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

Proposed Action:

Amendment of sections 4043.8(a), (b), (e), 4043.9(a), (b), 4120.13(a), (b), (e), 4120.14(a), (b); and addition of sections 4043.9(c) and 4120.14(c) to Title 9 NYCRR.

Statutory authority:

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

Subject:

Procedures and penalties for the testing of thoroughbred and harness race horses for the presence of excess TCO2 levels.

Purpose:

To revise the TCO2 testing rule to reflect current scientific developments and revise penalties to best deter violations.

Text of proposed rule:

Subdivisions (a), (b) and (e) of Section 4043.8 of 9 NYCRR are amended to read as follows:

(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 37 millimoles per liter or, for horses administered furosemide pursuant to section 4043.2(b)(6) [of this Part] during the four hours before the blood sample was taken, 39 millimoles per liter.

(b) It shall be an affirmative defense that the horse's physiologically natural [normal] TCO2 level was not exceeded. To demonstrate [a horse's physiologically] natural TCO2, its owner or trainer must [comply with the following procedure. The owner or trainer must, in writing] make a written request 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 for this purpose. [If so, t] The racetrack operator shall make available a three-day guarded quarantine for a time determined by the State steward, [not to exceed 72 hours,] at the sole expense of the requesting party, [licensee. During the quarantine,] where blood samples shall be periodically taken for subsequent testing by the board. If the owner or trainer properly arranges with the board in advance, then samples shall also be taken and sent for independent testing at another laboratory at the sole expense of the requesting party. During quarantine [the horse shall be retested periodically, and although] the horse shall not race, but it may be exercised and trained at prescribed times [prescribed by the racetrack operator provided this] that do[es] not interfere with monitoring, sampling, and testing the horse. After the quarantine, the [The] State steward shall [then] determine whether the horse's [pre-race] TCO2 level was physiologically natural [normal] for it. The [state] State steward may also require, at least 45 days later, that the horse re-establish its natural [normal] TCO2 level with another guarded quarantine to be made available at the sole expense of the racetrack operator.

(e) For a violation of this rule, a horse shall be disqualified, any purse monies shall be forfeited and redistributed pursuant to section 4043.5 [of this Part], and the horse shall be subject to pre-race detention [shall be imposed] and shall be ineligible to race until it tests in compliance with this rule and tests negative for drugs.

Subdivisions (a) and (b) of Section 4043.9 of 9 NYCRR are amended, and new Subdivision (c) is added to Section 4043.9 to read as follows:

(a) A horse that tests in violation of section 4043.8 [of this Part] shall be [placed under] subject to pre-race detention, without regard to whether the horse is transferred to a new owner or trainer, for a period of six months [from the date of violation] and then until it tests in compliance with section 4043.8 and tests negative for drugs. If during the detention period a horse again tests in violation of section 4043.8 [of this Part], 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 hours before the start of the race program and as required by the stewards. Where a claimed horse is found to [have excess TCO2] be in violation of section 4043.8, the costs of a pre-race detention shall be the responsibility of the party requesting detention. A buyer who was not aware of its pre-race detention requirement for testing positive may void the purchase of a horse, provided it is done within 10 days after receiving notice of the horse's pre-race detention requirement.

(b) Each owner who is using a trainer at the time the trainer commits a repeat violation of section 4043.8 shall be required for four months to subject in pre-race detention all horses that were under the care or control of this trainer and any replacements of them. The pre-race detention requirement shall not continue to apply to a horse that is sold during the detention period to a third party in a good-faith, arms-length transaction. The pre-race detention requirement shall not apply unless the trainer's earlier violation happened within the past 12 months and the State steward made a ruling on the earlier TCO2 violation at least 10 days before the trainer's repeat violation. [All horses of a trainer who has violated section 4043.8 of this Part 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 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 hours before the start of the race program and as required by the stewards.

(c) If during a detention period a trainer violates section 4043.8 [of this Part], then the detention period shall be extended for such time as the stewards deem appropriate.

Subdivisions (a), (b) and (e) of Section 4120.13 of 9 NYCRR are amended to read as follows:

(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 37 millimoles per liter or, for horses administered furosemide pursuant to section 4120.2(b)(6) [of this Part] during the four hours before the blood sample was taken, 39 millimoles per liter.

(b) It shall be an affirmative defense that the horse's physiologically natural [normal] TCO2 level was not exceeded. To demonstrate [a horse's physiologically normal] natural TCO2, its owner or trainer must [comply with the following procedure. The owner or trainer must, in writing] make a written request to the judges, within three calendar days of receiving notice of the horse's TCO2 test result, [contend that the horse's reported TC02 level is physiologically normal and request] that the horse be held in guarded quarantine for this purpose. [If so, t] The racetrack operator shall make available a three day guarded quarantine for a time determined by the presiding judge, not to exceed 72 hours, at the sole expense of the requesting party, [licensee. During the quarantine,] where blood samples shall be periodically taken for subsequent testing by the board. If the owner or trainer properly arranges with the board in advance, then samples shall also be taken and sent for independent testing at another laboratory at the sole expense of the requesting party. During quarantine [the horse shall be retested periodically, and although] the horse shall not race, but it may be exercised and trained at prescribed times [prescribed by the racetrack operator provided this] that do[es] not interfere with monitoring, sampling, and testing the horse. After the quarantine, the [The] presiding judge shall [then] determine whether the horse's [pre-race] TCO2 level was physiologically natural [normal] for it. The presiding judge may also require, at least 45 days later, that the horse re-establish its natural [normal] TCO2 level with another guarded quarantine to be made available at the sole expense of the racetrack operator.

(e) For a violation of this rule, a horse shall be disqualified, any purse monies shall be forfeited and redistributed pursuant to section 4120.5 [of this Part], and the horse shall be subject to pre-race detention [shall be imposed], and shall be ineligible to race until it tests in compliance with this rule and tests negative for drugs.

Subdivisions (a) and (b) of Section 4120.14 of 9 NYCRR are amended, and new Subdivision (c) is added to Section 4120.14 to read as follows:

(a) A horse that tests in violation of section 4120.13 [of this Part] shall be [placed under] subject to pre-race detention, without regard to whether the horse is transferred to a new owner or trainer, for a period of six months [from the date of violation] and then until it tests in compliance with section 4120.13 and tests negative for drugs. If during the detention period a horse again tests in violation of section 4120.13 [of this Part], 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 hours before the start of the race program and as required by the judges. Where a claimed horse is found to [have excess TCO2] be in violation of section 4120.13, the costs of a pre-race detention shall be the responsibility of the party requesting detention. A buyer who was not aware of its pre-race detention requirement for testing positive may void the purchase of a horse, provided it is done within 10 days after receiving notice of the horse's pre-race detention requirement.

(b) Each owner who is using a trainer at the time the trainer commits a repeat violation of section 4120.13 shall be required for four months to subject to pre-race detention all horses that were under the care or control of this trainer and any replacements of them. The pre-race detention requirement shall not continue to apply to a horse that is sold during the detention period to a third party in a good-faith, arms-length transaction. The pre-race detention requirement shall also not apply unless the trainer's earlier violation happened within the past 12 months and the judges made their ruling on the earlier TCO2 violation at least 10 days before the trainer's repeat violation. [All horses of a trainer who has violated section 4120.13 of this Part 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 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 hours before the start of the race program and as required by the judges.

(c) If during a detention period a trainer violates section 4120.13 [of this Part], then the detention period shall be extended for such time as the judges deem appropriate.

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 and legislative objectives of such authority: The Board is authorized to promulgate these rules pursuant to Racing, Pari-Mutuel Wagering and Breeding Law sections 101(1), 301(1), 301(2)(a), and 902(1). Under section 101, the Board has general jurisdiction over all horse racing activities and all pari-mutuel betting activities in the state, both on track and off-track, and the persons engaged therein, including the authority to regulate the use of drugs to manipulate race performance. Section 301, subdivision (1), authorizes the Board to prescribe rules and regulations for harness racing. Section 301, subdivision (2), paragraph (a) directs the Racing and Wagering Board to prescribe rules and regulations for effectually preventing the administration of drugs or improper acts for the purpose of affecting the speed of harness horses in races in which they are about to participate. 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 Board 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 New York State Racing and Wagering Board to preserve the integrity of pari-mutuel racing, while generating reasonable revenue for the support of government.

3. Needs and benefits: This rulemaking is necessary to bring the Board's TCO2 testing rule for harness and thoroughbred horses in line with current enforcement needs and realities.

The amendment is necessary to restrict the higher TCO2 threshold for horses that were administered race day furosemide ("lasix") to the duration of its effect on TCO2. The board samples horses on race day by withdrawing plasma tested for TCO2. If the TCO2 concentration is substantially higher than normal, that is an indication that the horse has been alkalinized on race day to unfairly improve its performance. The current rule applies a higher TCO2 threshold for horses that received lasix before racing, a drug that can be administered in small doses to a race horse at four-and-one-half to four hours before the scheduled start time of its race (9 NYCRR sections 4043.2(b)(6) and 4120(b)(6)). But lasix causes only a temporary elevation of TCO2 in the horse's blood stream; the effect is gone before the horse races (e.g., within four hours). The plasma samples occasionally are withdrawn by the board more than four hours after its lasix shot, because sampling may occur as little as 20 minutes before a horse races. The new rule limits the extra 2 mmol/L allowance for lasix horses to the actual duration of the lasix-effect on TCO2. After four hours, when the effect of lasix on the horse's TCO2 has disappeared, the new rule will require that a lasix horse also meet the standard TCO2 concentration of 37 mmol/L. As a result, the new rule will close a loophole that could allow a lasix horse, at the time it actually raced, to compete with TCO2 above the level of non-lasix horses. This may create an advantage for a lasix horse because it could race after having been alkalized (the main cause of elevated TCO2), a practice associated with improving a horse's race performance. The new rule clearly applies the 2 mmol/mL allowance only to pre-race TCO2 samples taken during the four hours after a lawful administration of lasix to a horse on race day.

The rulemaking will also change the rule that required pre-race detention of a horse, despite its subsequent sale, because its owner had entrusted it to the care of a trainer who incurred two TCO2 violations in twelve months. The new rule releases the horse from the detention requirement when it is sold, and requires any substitute horse acquired by its original owner to undergo pre-race detention. [9 NYCRR 4043.9(b) and 4120.13(b)]. The benefit to changing the rule is that it keeps the pre-detention requirement on the owner who was willing to entrust horses to a suspect trainer, and does not penalize the horse's new owner, who may be blameless. The ownership of horses routinely changes under various circumstances, such as through claiming races or out of state sales, in which the board cannot ensure that the seller provides notice of the pre-race detention of the horse. The alternatives of having the board or a court adjudicate whether a new owner was unwitting or not would result in a time-consuming and uncertain process to assign liability. The new rule keeps a reasonable and consistent detention requirement on the original owner, who relied on a trainer who failed to guard the horses effectively or was willing to use unlawful means to seek an unfair advantage, at a level in proportion to the owner's initial error.

The amendment is also necessary to make pre-race detention less onerous and costly to licensees. The current eight-month pre-race requirement applies to all horses trained by a trainer who has a second TCO2 violation in a 12-month period, even though the horse that tests positive for excess TCO2 is subject to only a six-month pre-race detention. This rule change will now apply to owners for only four months. (The horse that tests positive will still faces a six-month pre-race detention requirement.) This will benefit trainers and owners of race horses, and will free up stall space otherwise needed for detention at race tracks. The purpose of the pre-race detention is mainly preventative. It is intended to create a controlled environment where all of the owner's horses can be prepared for a race without potential exposure to or contamination by prohibited substances. A controlled environment also provides a protective environment to prevent tampering with the horses. A four-month period provides enough time to accomplish these goals, where eight months is disproportionately long, costly, and has the potential to tie up an inordinate amount of racetrack stall space for one trainer or owner.

This rulemaking is also necessary to assure licensees of the opportunity to request split samples of blood during quarantine tests. The owner or trainer must pre-arrange to have a second sample taken daily and shipped to an independent laboratory, because TCO2 in a plasma sample rapidly dissipates making the board's own samples usually unsuitable for retesting. This will allow owners and trainers to obtain independent testing of the blood samples of a horse during the quarantine setting, which they may challenge at a hearing. [9 NYCRR 4340.8(b) and 4120.13(b)]. The rule will not automatically require split samples, but it will allow the licensees to request splits. This will ensure fairness and due process for licensees during the administrative adjudication process.

This rulemaking will require that a horse test negative for excess TCO2 at the end of its pre-race detention period. [9 NYCRR 4043.8(e) and 4120.13(e).] This is necessary to ensure that a horse is clean before returning to racing. Similar to the requirement that a horse that is found to have drugs in its system test "clean" before allowing it to race, this is a common sense requirement that allows the Board to confirm that the horse's system has normalized and the horse is in compliance with the allowable TCO2 thresholds.

This rulemaking is also necessary to create a 10-day "safe harbor" provision to allow an owner to remove horses to a new trainer after the owner has been notified that a current trainer is charged with violating the TCO2 rule. [9 NYCRR 4043.9(b) and 4120.14(b)]. This protects careful owners and allows them to keep their horses racing. If they fail to move the horses to a new trainer within the 10-day period, then the horses will be subject to pre-race detention if the current trainer has another TCO2 violation within 12 months.

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. If a licensee wishes to obtain a split sample, the costs of obtaining the split sample will be borne by the person requesting the split sample. Costs of pre-race detention will be lessened for owners who entrust their horses to a trainer who incurs two or more TCO2 violations within 12 months, by reducing their detention period from eight to four months. Owners will also be able to incur fewer detention orders if they take advantage of the new 10-day "safe harbor" in which they can remove horses from a trainer who has incurred a TCO2 positive.

(b) Costs to the agency, the state and local governments for the implementation and continuation of the rule: None.

(c) The information, including the source(s) of such information and the methodology upon which the cost analysis is based: Board staff conducted a basic review of this rule based upon experience and current practices and customs. There will be no new cost to the agency. There will be no costs to local government because the New York State Racing and Wagering Board is the only governmental entity authorized to regulate pari-mutuel harness racing activities.

(d) Where an agency finds that it cannot provide a statement of costs, a statement setting forth the agency's best estimate, which shall indicate the information and methodology upon which the estimate is based and the reason(s) why a complete cost statement cannot be provided. Not applicable.

5. Local government mandates: None. The New York State Racing and Wagering Board is the only governmental entity authorized to regulate pari-mutuel harness racing activities.

6. Paperwork: There will be no additional paperwork. The Board will utilize the existing documents for administrative adjudication to determine whether the suspension of a pre-race detention order is appropriate.

7. Duplication: None.

8. Alternatives. The Board considered reducing the owners' pre-race detention period to six months to make it equivalent to the pre-race detention period that is placed on a horse that tests positive for excessive TCO2. We rejected this alternative because it did not give sufficient relief to the owners or tracks involved in these detentions.

The Board considered changing the owners' pre-race detention to be triggered by two or more TCO2 positives of horses of the particular owner. We rejected this alternative because an owner who used more than one trainer could be exposed to detention based on the unforeseen failure of both, and instead created a 10-day "safe harbor" to allow every owner an opportunity to remove horses from a trainer who incurs a TCO2 violation before being exposed to a possible detention order. The new rule will apply only to owners who are on notice that the trainer has raced horses with excess TCO2 levels, assuring the owners a chance to remove their horses to a safe environment.

The Board considered requiring an owner to place all horses under pre-race detention upon failing to select a trainer who does not race horses with excess TCO2, with an exception only for horses the owner placed with a trainer who could safely guard them. This alternative would have potentially imposed a disproportionate burden on an owner whose stable was growing, as each new horse would have to undergo detention during the four month detention period. We rejected this alternative and tailored the detention burden to the size of the owner's error, the number of horses entrusted to a known problem trainer (and to the extent the owner might sell any of those horses, to any replacement of them).

The Board considered leaving the owner detention to apply to all the owner's horses (even after transfer) and creating various remedies and requirements to address the need to allow horses to participate in claiming races, which depend on the ability of qualified owners to buy the horses at the claiming price. While it is possible to allow an unwitting buyer to promptly void a sale once the buyer realizes the horse is subject to a detention order (and we added this to the situation in which a TCO2-positive horse is sold during its detention period), the ramifications for the integrity of the claiming races and the potentially enormous administrative and private legal burdens associated with the very large number of horses that could be subject to this led the board to reject this alternative.

9. Federal standards: None.

10. Compliance schedule: The rule can be implemented immediately.

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 merely simplifies and reduces the regulatory burden from enforcing of the Racing and Wagering Board’s rules against doping a horse with alkalizing agents. 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.

Pursuant to Section 202-b of the State Administrative Procedure Act (as amended by Chapter 524 of the Laws of 2011), when considering the promulgation of a rule or regulation that would establish or modify a violation or penalty associated with a violation, the Board is required to give ample consideration to include a provision in the rule’s text affording small business or local governments a period of time or other opportunity, prior to the rule’s enforcement, to come into compliance with the rule before it is enforced. This rule does not contain such a provision prescribing a period of time or other opportunity for several reasons. Local governments are not affected by this rule. Even though small businesses that own and train thoroughbred and harness horses will be affected, the use of alkalinizing agents in horses has been prohibited since 2003. The nature of TCO2 violations is not conducive to Section 202-b “grace periods.” The modification of penalties contained in this rulemaking is designed to make the penalties more equitable by differentiating between a penalty imposed on a trainer or owner that knew or should have known of the TCO2 violation, and those imposed on an unknowing third-party owner that acquired a horse after the TCO2 violation occurred. In terms of penalty that a horse may not be allowed to compete until it tests clean, there is no rational purpose for creating such a period of time or opportunity to come into compliance since the offense has already occurred and the horse is unfit for racing until it is cleared. Creating a period of time to cure the offense would be irrational given the nature of a drug test positive.