PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:

Amendment of sections 4038.17 and 4109.5 of Title 9 NYCRR.

The testing of horses in a claiming race.

To remove the requirement that all claiming horses be tested and allow the Board to test based on race results or integrity.

Section 4038.17 of 9 NYCRR is amended to read as follows:

4038.17 Horses claimed-testing

[Each horse claimed in a race shall be designated by the stewards for post-race blood and urine testing.] In the event a horse is claimed, and the claimant has indicated on the claiming form, an election to have the horse tested for drugs pursuant to Part 4012, and has paid the prescribed fee therefore, the horse shall be subject to drug testing. In the event the claimed horse is otherwise subject to testing based upon order of finish or designation by the stewards, the prescribed fee shall be returned to the claimant. The original trainer shall remain responsible for the claimed horse until the on-track post-race sample collection has been completed.

Section 4109.5 of 9 NYCRR is amended to read as follows:

4109.5 Horses claimed-testing

[Each horse claimed in a race shall be designated by the judges for post-race blood and urine testing.] In the event a horse is claimed, and the claimant has indicated on the claiming form, an election to have the horse tested for drugs pursuant to Part 4120, and has paid the prescribed fee therefore, the horse shall be subject to drug testing. In the event the claimed horse is otherwise subject to testing based upon order of finish or designation by the judges, the prescribed fee shall be returned to the claimant. The original trainer shall remain responsible for the claimed horse until the on-track post-race sample collection has been completed.

John Googas, New York State Racing and Wagering Board, One Broadway Center, Suite 600, Schenectady, New York 12305-2553, (518) 395-5400, email: [email protected]

Same as above.

45 days after publication of this notice.

1. Statutory authority and legislative objectives of such authority: The Board is authorized to promulgate these rules pursuant to Racing Pari-Mutuel Wagering and Breeding Law sections 101(1), 301(1) and 301(2)(a). Under section 101, the Board has general jurisdiction over all horse racing activities and all pari-mutuel thoroughbred racing activities. Section 301, subdivision (1), authorizes the Board to prescribe rules and regulations for harness racing. Section 301, subdivision (2), paragraph (a) directs the Racing and Wagering Board to prescribe rules and regulations for effectually preventing the administration of drugs or improper acts for the purpose of affecting the speed of harness horses in races in which they are about to participate.

2. Legislative objectives: To enable the New York State Racing and Wagering Board to preserve the integrity of pari-mutuel racing, while generating reasonable revenue for the support of government.

3. Needs and benefits: This rulemaking is necessary to allow the Board the flexibility to determine which claiming horses should be tested consistent with current enforcement needs and realities. Both the harness and thoroughbred claiming test rules were adopted in 1983 and require revision to reflect current equine testing priorities.

Under the current rules, the Board must test all horses that are claimed, which is problematic given the cost of testing when weighed against realistic fiscal limitations and the priorities of the Board's equine drug testing program. All claiming horses have to be tested whether there is a basis for testing or not and Board has no flexibility in determining which claiming horses should be tested, nor is there any discretion granted to withhold testing in the absence of any basis for testing a claiming horse.

In claiming, testing is not directly related to the integrity of the racing contest as is other drug testing. A claiming horse is, in effect, offered for sale at a designated price within the range of the claiming race at which they are entered by their owners. The potential buyer of a horse in a claiming race must enter his claim before the race. By entering a horse in a claiming race, the owner is offering his horse up for sale to another other individual. There is no rationale for testing every claiming horse simply because it was sold to another owner.

Since the new owner can nullify a claim in the event of a positive drug test, the testing program appears to only serve as a distinct benefit to new owner of a claimed horse who is a private party to what amounts to a sale.

The Board's other equine testing rules are more directly related to the results, and therefore the integrity, of a race. Under thoroughbred rule 4012.3 and harness rule 4120.8, equine drug testing is conducted on every winner and at least one other horse designated by the respective steward or judge. These equine testing rules will still apply to winners and steward/judge designated horses from claiming races if the proposed amendments are adopted.

This amendment to 9 NYCRR 4109.5 is also necessary to bring the harness rule into uniformity with the thoroughbred rule by including the clause, "The original trainer shall remain responsible for the claimed horse until the on-track post-race sample collection has been completed." This amendment is necessary to expressly assign responsibility, which, although it has been done in practice, it has not been included in the harness rule.

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. This rule amendment will have no effect on the cost of testing by the New York State Racing and Wagering Board. It will merely permit it to reallocate limited equine testing funds to various types of equine drug testing.

(c) The information, including the source(s) of such information and the methodology upon which the cost analysis is based: The Board relied on the studies and/or advice provided by its Director of the New York State Racing and Wagering Board's Drug Testing and Research Program, Dr. George A. Maylin.

(d) Where an agency finds that it cannot provide a statement of costs, a statement setting forth the agency's best estimate, which shall indicate the information and methodology upon which the estimate is based and the reason(s) why a complete cost statement cannot be provided. Not applicable.

5. Local government mandates: None. The New York State Racing and Wagering Board is the only governmental entity authorized to regulate pari-mutuel harness racing activities.

6. Paperwork: There will be no additional paperwork. The Board will utilize the existing documents for administrative adjudication to determine whether the suspension of a pre-race detention order is appropriate.

7. Duplication: None.

8. Alternatives. The Board considered the recommendation of the Empire State Harness Horsemen's Alliance that would preserve the current method of equine testing of claiming horses, but create general fiscal savings by testing one horse randomly in all races. This alternative was not considered feasible given the fact that random testing has no bearing on the results of a race nor was the alternative considered adequate to justify testing claiming horses merely because the horses to be tested were involved in a claiming race.

The Board originally considered adopting a rule that did not include a provision that allows the new horse owner to obtain testing for a fee. Based upon public comments, the Board decided that such testing should be made available so long as the costs of the testing are borne by the person requesting the testing.

9. Federal standards: None.

10. Compliance schedule: The rule can be implemented immediately upon publication as an adopted rule.

This proposal does not require a Regulatory Flexibility Statement, Rural Area Flexibility Statement or Job Impact Statement as the amendment merely enables the Board to describe the regulatory requirements pertaining to the claiming of thoroughbred and harness race horses in accordance with sections 101 and 301 of the New York Racing Wagering Pari-Mutuel and Breeding Law. Consequently, the rule does not adversely affect small business, local governments, jobs nor rural areas. Prescribing testing requirements associated with claiming does not impact upon a small business pursuant to such definition in the State Administrative Procedure Act § 102(8). Nor does it negatively affect employment. The proposal will not impose adverse economic impact on reporting, recordkeeping or other compliance requirements on small businesses in rural or urban areas nor on employment opportunities. The rule does not impose any technological changes on the industry either.

The rule allows owners of claimed horses to elect to have their horse tested for a fee. The testing is not required under the rule, and therefore the fee is not imposed by this rulemaking.

Pursuant to the requirements of Chapter 524 of the Laws of 2011, this rulemaking will neither establish nor modify a violation, nor will it require a provision for a period of time to afford small businesses or local governments a period of time to come into compliance with the rule before it is enforced.