A new section 4043.3 would be added to Part 4043 of 9 NYCRR to read as follows:

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 thoroughbred horses and human participants in pari-mutuel racing, while generating reasonable revenue for the support of government.

3. Needs and benefits: This revised rule making is necessary to make it an automatic (“Per Se”) rule violation in New York to exceed a set of national regulatory laboratory thresholds for 24 drugs that are among the most commonly used to provide veterinary care close to race day.

Section 4043.3(a) of the proposed rule would establish as Per Se rule violations in New York the regulatory laboratory thresholds developed by the Racing Medication and Testing Consortium (“RMTC”) with the participation and support of the New York Thoroughbred Horsemen’s Association (“NYTHA”) that represents the thoroughbred trainers and owners who participate in racing at tracks operated by The New York Racing Association (“NYRA”), and adopted as a model rule by the Association of Racing Commissioners International, Inc. (“ARCI”). These thresholds are intended by RMTC and ARCI to apply in all horse racing jurisdictions.

Subdivision (a) has been revised to state explicitly that a violation occurs when a thoroughbred threshold is exceeded and to improve the technical description of test uncertainty for quantified laboratory test results.

The revised rule omits a previously proposed subdivision (b). The original concept of RMTC and ARCI included a limit-of-detection threshold for all other, “unapproved” drugs (the “LOD-threshold”), which reduces a lengthy list to just 24 medications that are allowed to treat illness and injury of any racing horse close to race day. RMTC instructed that “approved” intra-articular corticosteroids, for example, “are the only [ones] that can be present in race-day samples” in February 2013. NYTHA’s attorney in March 2013 stated, “The presence of … any other medication or drug in a sample collected from a horse will be strictly prohibited” and “You can’t find any other sport that allows just 24 drugs.” An RMTC official approved the wording of New York’s LOD-threshold proposal in March 2013. ARCI wrote that all other substances “will be considered ‘prohibited,’ meaning they should not be present in a post-race sample at any level [except for suggested limits for endogenous substances and environmental contaminants]” in April 2013. The New York draft proposal was shared as a reference document with other ARCI member states in July 2013. The Commission proposed the LOD-threshold in November 2013, then such national leaders independently “backed away” from recommending a “level of detection” policy and now encourage all racing commissions to continue their separate policies with regard to “unapproved” drugs.

New York is known for equine drug rules that are among the strictest in the nation to restrict the use of legal (including “unapproved”) drugs on horses and to require trainers to disclose what treatments their horses have received. These restrictions reduce the field size of New York racing, sometimes substantially, such as when horsepersons are unable to plan far enough ahead to discontinue some of the drug regimens that their home states permit. New York’s restrictions nevertheless serve the salutary purpose of enhancing the health and safety of horses and jockeys, and the integrity of New York racing. Were the Commission to adopt a much stricter, LOD-threshold, without the support of other racing jurisdictions or national leaders, however, it may severely reduce the horses that ship in to race in New York, cause racehorses to compete in less protective jurisdictions, and ultimately result in net damage to racehorses and New York racing. As a result, the Commission has revised its original proposal to eliminate its proposed subdivision (b), the LOD-threshold.

The remaining proposed thresholds for 24 drugs will help ensure, in conjunction with New York’s restricted time period equine drug rules, that no pharmacologically significant residue of any drug or medication that endanger a horse or jockey or affect race performance will be present in the horse during a pari-mutuel race. The rule will make it an automatic or “Per Se” violation of the Commission’s equine drug rules to race a horse whose race-day blood or urine samples exceed these regulatory laboratory thresholds. This will supplement the Commission’s rule in Section 4043.2 that restricts the time periods in which certain drugs can be used before a horse’s next race. Between them, the two rules will provide clear standards governing when and how various drugs or other substances can permissibly be administered to race horses.

The new rule will provide an advantage for horsepersons helping to make impermissible concentrations of 24 common drugs in a horse on race day more uniform among all the racing jurisdictions. Most racing commissions, including the neighboring mid-Atlantic states and Massachusetts, have publicly pledged to adopt these thresholds. 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 home 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 more 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 and for the health and safety of the horses and jockeys.

The Per Se rule also will make it easier for the Commission to establish that an improper equine drug administration has occurred. The new rule, unlike the restricted time period rule set forth in Section 4043.2, can be enforced without requiring either expert opinion or direct evidence (e.g., veterinary records) of the time of administration to demonstrate that an administration occurred within a restricted time period. This will simplify the enforcement of the Commission’s equine drug rules.

The adoption of the proposed Per Se equine drug rule will enhance the integrity of horse racing and help protect the health and safety of thoroughbred race horses and their exercise riders and jockeys with uniform Per Se thresholds for 24 common equine drugs, and will encourage the entry into New York races of more horses that are stabled out-of-state.

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: Commission staff reviewed the cost factors and determined that the rule can be implemented with little or no additional costs.

5. Local government mandates: None. The New York State Gaming Commission is the only governmental entity authorized to regulate pari-mutuel 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 rulemaking proposal does not necessitate a revision to the previously published analyses and statement and does not have an adverse affect on small businesses, local governments, jobs, or rural areas.

One public comment was received in response to the publication of the proposed rule-making in the December 4, 2013 State Register. A member of the public wrote in support of any legitimate attempt to curtail an alleged widespread abuse of medication in horse racing. The Commission agrees with this suggestion and its revised proposal will result in greater ease of enforcement of agency rules that restrict the use of equine drugs in a manner that promotes the participation of racehorses in New York and enhances the health and safety of horses and jockeys.