A new section 4043.9 is added to read as follows:

A new section 4043.10 is added to read as follows:

A new subdivision (g) of section 4038.19 is added to read as follows:

A new section 4120.13 is added to read as follows:

A new section 4120.14 is added to read as follows:

A new section 4120.15 is added to read as follows:

A new subdivision (f) of section 4109.7 is added to read as follows:

A revised Regulatory Impact Statement and a revised Consolidated Statement of Non-assessment is not necessary because this Notice of Adoption contains a minor revision to the rule text that corrects a typographical error. It is not a substantive change to the rule, and therefore it does not change the accuracy of the previously published Regulatory Impact Statement and Consolidated Statement of Non-Assessment.

This Notice of Adoption corrects a typographical error in the rule text numbering that was published in the Notice of Proposed Rulemaking. The text in the May 9, 2007 State Register stated that a new subdivision (f) of section 4038.18 of 9 NYCRR would be added. In fact, this rulemaking will create a new subdivision (g) of section 4038.18 of 9 NYCRR.

The Board received public comments from Jim Gallagher, Executive Director of the New York Thoroughbred Horsemen's Association, Inc., and Dr. W. T. Hill, a veterinarian and the Jockey Club Steward in New York State. No changes were made as a result of the comments received.

Mr. Gallagher stated that while NYTHA is generally supportive of the adoption of the TCO2 testing rules, the NYTHA has “serious reservations and concerns about the proposed penalties as outlined” and requested that “mitigating and aggravating circumstances should be considered by the New York State Racing and Wagering Board for a high concentration” in light of factors that may cause a horse to have excessive TCO2 levels other than from the administration of alkalinizing agents.

Board staff considered these factors in drafting the rule and has included a provision in the rules that allow horses that exhibit naturally high TCO2 levels to re-test and demonstrate that the horse does in fact have naturally high TCO2 levels [see sections 4043.8(b) and 4120.13(b)]. Board staff also considered the affect of furosemide on TCO2 levels in a horse and established a higher threshold level for horses that compete on furosemide. The threshold levels for a horse competing on furosemide is 39 millimoles per liter, while threshold levels for all others are 37 millimoles per liter. In the event that there is a violation, the trainer is afforded an opportunity to appeal the penalty before a hearing officer as prescribed by Board rules and present evidence of factors that may have produced elevated levels other than the administration of alkalinizing agents.

Mr. Gallagher suggested lower penalties and recommended the adoption of uniform penalties prescribed by the Racing Medication and Testing Consortium for TCO2 violations. Those uniform penalties include: first offense, 15- to 60-day suspension and/or $500 to $1,000 fine; second offense, 30- to 180-day suspension and/or $1,000 to $2,500 fine; and third offense, 60-day to 1 year suspension. The Board considered the entire spectrum of penalty levels in light of the grave impact of “milkshaking” on the integrity of horse racing, the loss of public confidence in pari-mutuel wagering, a cost/benefit analysis of average purse sizes versus fines, and the need for hefty suspensions. Unlike other horse racing violations, such as equipment violations or riding violations, administering alkalanizing agents to a horse in order to intentionally gain an advantage is cheating, plain and simple, and as such undermines the sport itself. The best way to deter cheating is to make it more costly than the possible benefits to be gained through cheating. This can only be achieved through hefty fines and lengthy suspensions (some of which exceed the length of the race meet season itself, rather than a shorter suspension which some licensees view as a state-imposed “vacation” rather than a punishment.) As such, the Board developed penalties that are fixed, uniform, and unambiguous.

The Board also considered that, while the Racing Medication and Testing Consortium has worked nationally to develop uniform rules which take into consideration the needs of smaller racing jurisdictions, New York State racing is held to a higher standard and offers a superior racing product, and therefore has a duty to impose more stringent penalties to protect both the legacy and future of New York horse racing. It should be noted that the New York penalties are identical to the New Jersey penalties for TCO2 violations.

Mr. Gallagher also asks whether the Board has a standard operating procedure for sample collection and custody, and notes that such procedures aren't in the rules. Dr. Hill also asked if the Board has a written protocol for sampling and custody. The Board does have standard collection and custody procedures, which have been established by the College of Veterinary Medicine at Cornell University, which conducts the Board's equine medication and TCO2 testing. These collection and custody procedures are not incorporated into the rules because they are implemented through agency directives and policies. These collection and custody procedures are routinely examined in the hearings and appeals process for cases of equine drug violations. The Board's collection and custody procedures are uniform and designed to achieve accuracy of testing and integrity of the process.

Dr. Hill commented that the 37 millimole per liter for non-furosemide horses was too high, noting that the International Federation of Horseracing Authorities has lowered the TCO2 blood gas threshold to 36 mmol/liter, and the Racing Medication and Testing Consortium also recommends a lower threshold. According to Dr. Hill, a review of TCO2 blood gas testing results conducted by the New York Racing Association indicates that “some trainers may still be beating the system and frequently have numbers (under) 33 or 34 (mmol/liter), while the mean of all horses is just over 31.” Dr. Hill added that “Our sample size is quite small, but interesting nonetheless.”

The Board has decided to remain with the current levels of 37 mmol/liter for non-furosemide horse and 39 mmol/liter for horses competing on furosemide because these are generally accepted thresholds in various jurisdictions, including New Jersey, Illinois, California and Canada. The Board acknowledges the fact that ongoing assessment of these threshold levels is appropriate and necessary in light of new research and studies. Nevertheless, the current peer-reviewed scientific data that the Board evaluated with the Cornell University lab indicates that the 37/39 threshold is sound and reliable and should remain as the regulatory standard.

Dr. Hill also commented that the RMTC recommends a 1.5 hour post-race rest period prior to blood sampling, compared to the one-hour post-race rest period required by the Board's rules. The Board elected to implement the one-hour rest period based upon the best available scientific information and sampling currently available. The Board will continue to review authoritative sources regarding testing standards and make appropriate changes to the TCO2 testing rule if such compelling data is obtained. For the current rule, based upon the best available scientific date, the current one-hour post-race rest period will be the regulatory testing standard.