N.Y. Comp. Codes R. & Regs. tit. 9 § 4120.17

Current through Register Vol. 46, No. 16, April 17, 2024

Section 4120.17 - Out-of-competition testing

(a)Out-of-competition collection of samples.

(1) The commission may at a reasonable time on any date take a blood, urine or other biologic sample from a horse that is on a nomination list or under the care or control of a trainer or owner who is licensed by the commission, in order to enhance the ability of the commission laboratory to detect or confirm the impermissible administration of a drug or other substance to the horse.

(2) Horses to be tested may be selected at random, for cause or as determined by a commission judge or executive official.

(3) A selected horse that is not made available for sampling is ineligible to race for 180 days, unless the commission determines that circumstances unavoidably prevented the owner and trainer from making the horse available for sampling.

(4) If a selected horse is not involved in activities related to racing in New York, then the trainer or owner may represent this to the commission and the commission will not sample the horse. If the trainer makes such a representation and the managing owner has previously provided the commission with a means for the commission to give immediate telephonic notification to the managing owner that the trainer made such a representation, then the commission shall transmit such notification to 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.

(b)Sampling procedure.

(1) Samples shall be taken under the supervision and direction of a person who is employed or designated by the commission and is qualified to safeguard the health and safety of the horse. A veterinarian shall collect all blood samples.

(2) 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.

(3) The owner, trainer and/or their designees shall cooperate with the person who takes samples for the commission by immediately assisting in the location and identification of the horse, making the horse available at a stall or other safe location to collect the samples, and witnessing the taking of the samples.

(4) The commission, if requested and in its sole discretion, may permit the owner or trainer to present an off-track horse for sampling at a time and licensed racetrack designated by the commission.

(5) An owner or trainer does not consent to a search of the premises by making a horse available for sampling at an off-track location.

(6) 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 and the test results shall be available to the jurisdiction in which the horse is located for its regulatory use. The commission, if requested and in its sole discretion, may permit the owner or trainer instead to present the horse for sampling in New York State at a time and place designated by the commission.

(7) A commission judge or executive official may require any horse of a licensed trainer or owner to be brought promptly to a racetrack under the jurisdiction of the commission for out-of-competition testing when:

(i) the commission has reasonable grounds to believe that the horse might have been impermissibly administered a drug or other substance;

(ii) the commission has no other practical means to collect such samples without reducing the ability of the commission laboratory to detect or confirm the impermissible administration of a drug or other substance to a horse; and

(iii) the horse is stabled out-of-state but within a radius not greater than 100 miles from such New York State racetrack.

The trainer is responsible to have the horse or horses available at the designated time and location.

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

(9) A licensed racetrack 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 on track may require that the collection be done at the test barn.

(c)Prohibited substances.

(1) The presence in or administration to a horse of the following doping agents or drugs, in the absence of extraordinary mitigating circumstances that excuse the owner and trainer from their failure to fulfill their duties and responsibilities, is prohibited at any time:

(i) Blood doping agents: any substance, including a protein- or peptide-based agent or drug, that is capable of abnormally enhancing the oxygenation of body tissues, including but not limited to erythropoietin (EPO), darbepoetin (e.g., Aransep), Oxyglobin, aminoimidazole carboxamide ribonucleotide ("AICAR"), Myo-Inositol Trispyrophosphate ("ITTP") and Hemopure.

(ii) Gene doping agents: a gene, genetic element, or cell that alters the expression of genes for normal physiological functions and that may produce analgesia or enhance the performance of a horse beyond its natural ability, including but not limited to thymosin beta-4 ("TB500"). This shall not apply to such agents when used off-track in an accepted veterinary treatment to assist a disabled horse to become healthy, without producing analgesia or potentially enhancing the performance of the horse beyond its natural ability, provided that such use is documented in the contemporaneous veterinary records of the horse.

(iii) Any other protein- or peptide-based agent or drug that may produce analgesia or enhance the performance of a horse beyond its natural ability, including but not limited to toxins, venoms and allosteric effectors.

(iv) The substances described in this paragraph are prohibited regardless of any of the provisions of section 4120.2 of this Part.

(2) No person shall possess or use the prohibited substances described in paragraph (1) of this subdivision on the premises of any licensed racetrack.

(3) It shall be an affirmative defense to a violation of this section that the person used the prohibited substance only in a time, place and manner specifically permitted in writing by the commission before the administration of such substance, for a recognized therapeutic use, and subject to such appropriate limitations as the commission shall place on the return of the horse to running races.

(d) Penalties.

(1) A horse found to be in violation of this rule shall be ineligible to participate in racing until it is certain that the horse is no longer affected by the prohibited substance and for not less than 180 days, after which the horse must qualify in a workout satisfactory to the judges and test negative for doping agents and drugs. The minimum fixed period of ineligibility for a horse in violation of this rule shall be reduced from 180 to 30 days if the trainer had never violated this rule or similar rules in other jurisdictions and had, for any violations of Part 4120 or similar rules in other jurisdictions, fewer than 180 days in lifetime suspensions or revocations and fewer than two suspensions or revocations of 15 days or more in the preceding 24 months.

(2) A person who is found responsible for a violation of paragraph (c)(1) of this section shall, in the absence of extraordinary mitigating circumstances, incur a minimum penalty of a 10-year suspension in addition to any other penalties authorized in this Subchapter.

(e) A buyer who was not aware that a horse is or may be determined ineligible under this section may void the purchase, provided that the buyer does so within 10 days after receiving notice of the horse's ineligibility.

(f) An application to the commission for an occupational license shall be deemed to constitute consent for access to any off-track premises on which horses owned and/or trained by the individual applicant are stabled. The applicant shall take any steps necessary to authorize access by commission representatives to such off-track premises.

N.Y. Comp. Codes R. & Regs. Tit. 9 § 4120.17

Amended, New York State Register, Volume XXXVI, Issue 31, effective 8/6/2014