8/6/14 N.Y. St. Reg. SGC-15-14-00005-A
PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Action taken:
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 or summary was published
in the April 16, 2014 issue of the Register, I.D. No. SGC-15-14-00005-P.
Final rule as compared with last published rule:
No changes.
Text of rule and any required statements and analyses may be obtained from:
Kristen Buckley, New York State Gaming Commission, 1 Broadway Center, PO Box 7500, Schenectady, New York 12301, (518) 388-3407, email:
gamingrules@gaming.ny.govInitial Review of Rule
As a rule that does not require a RFA, RAFA or JIS, this rule will be initially reviewed in the calendar year 2019, which is no later than the 5th year after the year in which this rule is being adopted.
Assessment of Public Comment
One public comment was received in response to the publication of the proposed rule-making in the April 16, 2014 State Register. The comment came from an organization representing six of the harness horseperson’s groups in New York; they wrote in opposition to the proposed amendments. The comment argued, first, that the Commission has no authority to collect samples from racehorses while the rule’s prohibited doping agents that are known to profoundly undermine the integrity of racing can still be detected, unless the racehorses are at the racetrack and/or entered to race. In litigation, the Appellate Division has rejected this legal argument, as well as others in the comment. Matter of Ford v. N.Y.S. Racing and Wagering Bd., 107 A.D.3d 1071 (3rd Dep't 2013). The comment says that the Commission should not have a conflict among its rules by prohibiting all protein-based substances while allowing, for example, antitoxins. Such prohibition is limited in paragraph (c)(1)(iii), as amended, to only those substances that produce analgesia or enhance a horse’s performance beyond its natural abilities. The comment asserts that the samples have to be tested by the regulated parties in addition to testing that is done by the Commission, but provides no rationale for duplicative testing. The regulated parties are free to collect their own samples, in any event; and no law enforcement program in the State, including prosecutions for driving while intoxicated, requires collection of samples for the defense. Finally, the comment makes several vague and conclusory assertions that some of the proposed amendments do not improve the original rule, but the Commission disagrees.
