§ 4038.5. Requirements for claim; determination by stewards.

(a) All claims shall be in writing, sealed in an envelope and deposited in a locked box provided for this purpose by the racing secretary or the racing secretary’s designee, at least 10 minutes before post time. Claim slip forms must be completely filled out and must, in the judgment of the stewards, be sufficiently accurate to identify the claim, otherwise the claim will be void. No money shall accompany the claim. Each person desiring to make a claim, unless the person has such amount to the person’s credit with the association, must first deposit with the association the whole amount of the claim, in a manner approved by the racing secretary or designee for which a receipt will be given. All claims shall be passed upon by the stewards. If more than one person should enter a claim for the same horse, then the disposition of the horse shall be decided by lot by the stewards. Claimed horses shall be taken after the race to the test barn for a determination of soundness and for any test samples to be collected. The person determined [at the closing time for claiming] by the stewards to have the right of claim shall become the owner of the horse when the [start is effected] race is started, whether the horse is sound or unsound or injured before or during the race or after the race, except that:

(1) the claim is voidable at the discretion of the new owner pursuant to the conditions stated in section 4038.19 of this Part unless the age or sex of such horse has been misrepresented, and subject to the provisions of subdivision (b) of this section;

(2) a claim shall be void for any horse that dies during a race or is euthanized on the track following a race; [and]

(3) a claim is voidable at the discretion of the new owner, for a period of one hour after the race is made official, for any horse that is vanned off the track after the race[.]; and

(4) a claim is voidable at the discretion of the new owner if the horse is placed on the veterinarian’s list following an examination by the State veterinarian or other veterinarian who has been designated by the commission to examine claimed horses in the test barn following the race for a determination of soundness for either of the following reasons:

(i) the horse is grade two lame or higher on the American Association of Equine Practitioners lameness grading scale, meaning the lameness of the horse is consistently apparent under certain circumstances (e.g., weight carrying, circling, inclines, hard surface) even if such lameness is difficult to observe when the horse is at a walk or trotting in a straight line; or

(ii) the claimed horse has bled visibly from a nostril (epistaxis) that is attributable, because the bleeding is not caused wholly by a wound or superficial injury, to an episode of exercise induced pulmonary hemorrhage.

[In the event more than one person should enter a claim for the same horse, the disposition of the horse shall be decided by lot by the stewards. Any horse so claimed shall then be taken to the test barn for delivery to the claimant after any test sample is taken.]

Section 4038.17 of 9 NYCRR is amended as follows:

§ 4038.17. Horses claimed-testing and post-race examination.

(a) If the claimant of a horse has requested post-race testing, at the expense of the claimant, on the claim form, then the stewards shall designate such horse for post-race testing pursuant to subdivision (b) of section 4012.3 of this Article. The original trainer shall remain responsible for the claimed horse until any on-track post-race sample collection has been completed.

The only revision made to the rule was the addition of the phrase “on the American Association of Equine Practitioners lameness grading scale” to modify “grade two lame or higher” in section 4038.5(a)(4)(i). This clarification has no impact on the regulatory impact statement. This clarification does not change that no regulatory flexibility analysis, rural area flexibility analysis or job impact statement is necessary.

As a rule that does not require a RFA, RAFA or JIS, this rule will be initially reviewed in the calendar year 2025, which is no later than the 5th year after the year in which this rule is being adopted.

One public comment was received in response to the publication of the proposed rule making in the February 19, 2020 State Register. The General Counsel, Executive Vice President and Chief Administrative Officer of The New York Racing Association, Inc. (“NYRA”) wrote that NYRA supports the proposal to permit a claimant to void the claim if a horse is deemed unsound or to have bled at the conclusion of the claiming race. He recommends that the proposal expand the definition of an unsound horse to include any horse placed on the veterinarian’s list at the conclusion of the race, which is a model rule of the Thoroughbred Safety Coalition and might include a horse whose lameness is less than grade two. The proposal requires a finding of at least grade two lameness on the American Association of Equine Practitioners (“AAEP”) lameness scale, which means the lameness of the horse is consistently apparent under at least one condition, e.g., trotting on a hard surface. The Commission disagrees with the suggestion. When a regulatory veterinarian evaluates the lameness of a horse at the conclusion of a race pursuant to this rule, the AAEP grade two lameness standard provides the regulatory veterinarian and horsepersons with an objective standard. The lesser standard (grade one) means lameness that cannot be seen consistently under any circumstances. The decision to permit a claim to be voided should not depend on whether the lameness of the horse is or is not apparent during the particular opportunity the regulatory veterinarian has to examine the horse. The grade two standard means that the affected parties can themselves observe the lameness because it is defined by AAEP as lameness that can consistently be seen. The representatives of the claimant and owner who entered the horse can satisfy themselves at the time that the correct decision has been made by the regulatory veterinarian. Finally, grade two lameness is the general criteria used in the industry to determine whether a horse should be placed on the veterinarian’s list, another measure of consistency when determining whether to permit a claim to be voided. The proposal is thus a practical way to provide consistency and transparency and maximize confidence of the regulated parties in the objectivity and fairness of the evaluation of the claimed horse and implementation of the rule.