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Paragraph 1 of subdivision (a) of Section 4120.2 would be amended as follows:

4120.2 Restricted use of drugs, medication 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,] leg rubs, leg paints and liniments) which may contain antibiotics but do not contain benzocaine, DMSO, steroids or other drugs;

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A new paragraph 21 would be added to subdivision (e) of Section 4120.2 as follows:

(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:

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1. Statutory authority and legislative objectives of such 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 standardbred horses and human participants in pari-mutuel racing, while generating reasonable revenue for the support of government.

3. Needs and benefits: This rulemaking is necessary to limit the administration to race horses of drugs and other substances that can be administered close to race day, and to simplify compliance by horsepersons and enforcement of the equine drug rules in New York, by adopting another one of the national regulatory laboratory thresholds for drugs that are necessary and sufficient to provide good veterinary care close to race day.

The proposed rule would apply the regulatory laboratory threshold that was developed by the Racing Medication and Testing Consortium (“RMTC”) and adopted as a model rule by the Association of Racing Commissioners International, Inc. (“ARCI”) for the drug dimethyl sulfoxide (i.e., DMSO). These thresholds established by RMTC and ARCI are intended to apply in all horse racing jurisdictions and are intended to encompass all of the medications that would be needed for routine veterinary care close to race day of any racing horses and that can be effectively regulated by means of laboratory testing. Such drugs were identified after lengthy consultation by the RMTC with the American Association of Equine Practitioners and many of the horse racing industry’s leading chemists and pharmacologists.

The net effect of the proposed rule would be to help ensure, in conjunction with New York’s restricted time period equine drug rules, that no pharmacologically significant residue of DMSO from an administration that could affect race performance will be present in the standardbred horse during a pari-mutuel race, while recognizing that this medication is well-accepted, necessary, and capable of being regulated by known threshold values. This rule would make it an automatic (“Per Se”) violation of the Commission’s equine drug rules to race a standardbred horse whose race-day blood or urine samples exceed this drug’s proposed regulatory laboratory threshold. This rule making would also amend Section 4120.2(e) to prohibit the administration of DMSO within 48 hours of a race. Currently, topical administration of DMSO is permitted any time (under Section 4120.2(a)(1)), and other administrations of DMSO are permitted up to one week before a race (under the general restriction of Section 4120.2(h)). The proposed regulatory laboratory threshold for DMSO is consistent with an administration of DMSO at least 48 hours before a horse’s next race.

The new rule will provide an advantage for horsepersons because the permissible concentrations of drugs in a horse on race day will become more uniform among the racing jurisdictions. All of the racing commissions in the neighboring mid-Atlantic states and Massachusetts, for example, have publicly pledged to adopt this threshold by January 2014. The rule will therefore simplify the veterinary treatment issues faced by trainers who are licensed to race in more than one jurisdiction, many of whom train their horses and obtain veterinary care in reference primarily to their host state’s rules. The adoption of more uniform equine drug rules will make it easier for an out-of-state trainer to decide to race a horse in New York when abiding by the equine drug rules of the other jurisdiction. Horsepersons who are confident that they will not commit an unintended violation of New York’s equine drug rules are more likely to enter their horses to race in New York, which will improve the depth and quality of the fields in New York races. The new rule will, therefore, make it easier for trainers and owners who race in multiple states to comply with the New York equine drug rules and to race in New York, while affording protection to the betting public against the manipulation of a horse’s race performance with drugs and other substances.

The Per Se rule also will make it easier for the Commission to establish that an improper equine drug administration has occurred. The proposed regulatory threshold can be enforced without requiring either expert opinion evidence of the time of administration or direct evidence (e.g., veterinary records) to establish that an administration occurred within the restricted time period. This will simplify the enforcement of the Commission’s equine drug rules.

The proposed adoption of this new Per Se equine drug rule for DMSO and related changes to the restricted time periods for its administration will enhance the integrity of horse racing by creating regulatory thresholds for this drug whose use close to race day is well-accepted, necessary, and capable of control by means of laboratory testing. The new rule will encourage the entry into New York races of more horses that are stabled out-of-state by making the New York rules more consistent with those of other states.

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.

(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: The Commission has determined that no costs will be imposed based upon the fact that the rule does not create any new 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 harness racing activities.

6. Paperwork: There will be no additional paperwork.

7. Duplication: None.

8. Alternatives: This rule amendment is based upon the finding and recommendations of the RMTC and the ARCI, and no other alternatives were considered.

9. Federal standards: None.

10. Compliance schedule: It is expected that regulated parties will be able to comply as soon as the proposed rule is adopted.

This proposal does not require a Regulatory Flexibility Statement, Jobs Impact Statement or Rural Area Flexibility Statement as the amendment merely proposes the adoption of the national regulatory laboratory threshold for dimethyl sulfoxide (i.e., DMSO) when used on standardbred horses and adjusts the restricted time periods after the treatment of the horse with such drug to accord sufficient time for the proposed DMSO thresholds not to be violated, if the horse were sampled on race day and tested for this drug. The rule is entirely limited to equine drug standards and testing, and merely modifies the restriction on administration of an approved drug for race horses. This rulemaking will not have a positive or negative impact on jobs. The 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 or 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.