N.Y. Comp. Codes R. & Regs. tit. 9 § 4012.5

Current through Register Vol. 46, No. 25, June 18, 2024

Section 4012.5 - Out-of-competition testing

(a) Out-of-competition testing authorized. The commission may at a reasonable time on any date take blood, urine or other biologic samples (e.g., hair) from a horse to enhance the ability of the commission to enforce the commission's equine drug and anti-doping rules (e.g., the prohibitions of section 4043.12 of this Article). The commission shall own such samples. This rule authorizes only the collection and testing of samples and does not independently make impermissible the administration to or presence in any horse of any drug or other substance. A race-day prohibition or restriction of a substance by a commission rule is not applicable to an out-of-competition test unless there is an attempt to race the horse in a manner that violates such rule.

(b) Horses eligible to be tested. Any horse that has been engaging in activities related to competing in pari-mutuel horse racing in New York may be tested. This includes without limitation any horses that are training outside the jurisdiction to participate in racing in New York and all horses that are training in New York, but excludes weanlings, yearlings and horses no longer engaged in horse racing (e.g., retired broodmares).

(1) A horse is presumed eligible for out-of-competition testing if such horse:

(i) is on the grounds at a racetrack or training center under the jurisdiction of the commission;

(ii) is under the care or control of a trainer licensed by the commission;

(iii) is owned by an owner licensed by the commission;

(iv) is entered or nominated to race at a premises licensed by the commission;

(v) has raced within the previous 12 months at a premises licensed by the commission; or

(vi) is nominated to a program based on racing in New York, including without limitation breeders' awards, the thoroughbred breeding and development fund and thoroughbred stakes races.

(2) Such presumptions are conclusive in the absence of evidence that a horse is not engaged in activities related to competing in horse racing in New York State.

(c) Selection of horses to be tested.

(1) Horses shall be selected for sampling by a commission veterinarian, executive director, director of horse racing and pari-mutuel wagering, equine medical director or steward, or a designee of any of the foregoing.

(2) Horses may be selected to be tested at random, for cause or as otherwise determined in the discretion of the commission.

(3) Collectors shall for suspicionless collections of samples abide by a plan that has been approved by a supervisor not in the field and that identifies specific horses or provides neutral and objective criteria to follow in the field to determine which horses to sample. Such a supervisor may consider input from persons in the field during the operation of the plan and select additional horses to be sampled.

(d) Cooperation with the commission

(1) Licensees of the commission are required to cooperate and comply fully with the provisions of this rule.

(2) Persons who apply for and are granted a trainer or owner license shall be deemed to have given their consent for access at such premises as their horse may be found for the purpose of commission representatives collecting out-of-competition samples. Licensees shall take any steps necessary to authorize access by commission representatives at such premises.

(3) No other person shall knowingly interfere with or obstruct a sampling.

(e) General procedure for collecting samples.

(1) Samples shall be taken under the supervision and direction of a person who is employed or designated by the commission. All blood samples shall be collected by a veterinarian licensed in the jurisdiction where the sample is collected or by a veterinary technician who is acting under appropriate supervision of the veterinarian.

(2) Upon request of a representative of the commission, the trainer, owner or the specified designee of the trainer or owner shall provide the location of their horses eligible for out-of-competition testing.

(3) The commission need not provide advance notice before arriving at any location to collect samples, whether such location is controlled by a commission licensee or not.

(4) The trainer, owner or the specified designee of the trainer or owner shall cooperate with the person who takes samples for the commission, which cooperation shall include, without limitation:

(i) assisting in the immediate location and identification of the horse;

(ii) making the horse available as soon as practical upon arrival of the person who is responsible for collecting the samples;

(iii) providing a stall or other safe location to collect the samples;

(iv) assisting the person who is collecting samples in properly procuring the samples; and

(v) witnessing the taking of samples, including sealing of sample collection containers.

(5) The management and employees of a licensed racetrack or training facility at which a horse may be located shall cooperate fully with a person who is authorized to take samples. The person who collects samples for the commission may require that the collection be done at a specified location on such premises.

(6) The commission, if requested and in its sole discretion, may permit the trainer, owner or the specified designee of the trainer or owner to present a horse that is located in New York State, but not at a racetrack or training center licensed by the commission, to be sampled at a time and location designated by the commission.

(f) Procedure for collecting samples from horses located outside New York State.

(1) The commission may arrange for the sampling of an out-of-state horse by the racing commission or other designated person in the jurisdiction where the horse is located. Such racing commission or other designated person shall follow the relevant provisions of this rule, including paragraph (1) of subdivision (e) of this section.

(2) The test results shall be made available for regulatory use to each jurisdiction that has participated in the process of collecting any out-of-competition sample, subject to any restrictions on public disclosure of test results that apply to the commission that selected the horse for sampling.

(3) The commission, if requested and in its sole discretion, may permit the trainer or owner instead to transport the horse into New York State for sampling at a time and place designated by the commission.

(g) Additional procedures.

(1) The person who takes samples for the commission shall provide identification and disclose the purpose of the sampling to the trainer or designated attendant of the horse.

(2) A written protocol for the collection of samples shall be made generally available.

(3) An owner or trainer does not consent to a search of the premises by making a horse that is not located at a licensed racetrack available for sampling.

(4) If the trainer or other custodian of a selected horse refuses or declines to make the horse available for sampling and the managing owner has previously provided the commission with a means for the commission to give immediate notification to the managing owner in such situation, then the commission shall attempt to notify the managing owner and the eligibility of the horse shall be preserved if the managing owner is able to make the horse available for immediate sampling. The commission is not required to make repeated attempts to notify the managing owner.

(5) The chain-of-custody record for the sample shall be maintained and made available to the trainer, owner or the designee of the trainer or owner when an adjudicatory proceeding results from an out-of-competition test.

(h) Analysis of collected samples.

(1) The commission may have out-of-competition samples tested to produce information that may enhance the ability of the commission to enforce the commission's equine drug and anti-doping rules.

(2) The rules and procedures for post-race testing shall apply to out-of-competition testing.

(3) The commission may use any remaining sample for research and investigation.

(i) Penalties for non-cooperation. (1) Willful failure to make a horse available for sampling or other willfully deceptive acts or interference in the sampling process shall carry a minimum penalty of a one-year license suspension and be referred to the commission for further action.

(2) A selected horse that is not made available for out-of-competition sampling shall be placed on the Steward's List. The horse shall remain on the Steward's List for a minimum of 180 days unless the owner can establish extraordinary mitigating circumstances.

(3) A selected horse that is presumed eligible for out-of-competition testing shall be placed on the Steward's list and be ineligible to race in New York State for 180 days if the horse is not sampled upon the trainer, owner or the designee of the trainer or owner asserting that the horse is not engaged in activities related to competing in horse racing in New York State. This restriction shall not apply if the trainer, owner or the designee of the trainer or owner instead permits voluntarily an immediate collection of such samples from the horse, which shall not constitute a waiver of asserting that the commission lacks jurisdiction over the horse.

N.Y. Comp. Codes R. & Regs. Tit. 9 § 4012.5

Amended New York State Register December 16, 2020/Volume XLII, Issue 50, eff. 12/16/2020