W. Va. Code R. § 178-1-49

Current through Register Vol. XLI, No. 16, April 19, 2024

Section 178-1-49 - Medications and Prohibited Substances

49.1. General. Upon a finding of a violation of this medication and prohibited substances rule, the stewards shall consider the classification level of the violation as listed in the Uniform Classification Guidelines for Foreign Substances as promulgated by the Association of Racing Commissioners International (RCI), Version 14.1 (revised January 2020), set forth in table 178-1D at the end of this rule. Imposition of penalties and disciplinary action by the stewards for a violation of this medication and prohibited substances rule shall be consistent with the penalty guidelines set forth in table 178-1E at the end of this rule. The stewards may also consult with a Racing Commission veterinarian to determine if the violation was a result of the administration of a therapeutic medication as documented in a veterinarian's treatment record per subsection 48.4. The stewards may also consult with the laboratory director or other individuals to determine the seriousness of the laboratory finding or the medication violation. Penalties for all medication and drug violations shall be investigated, reviewed and determined on a case by case basis. As a result of the investigation, there may be mitigating circumstances for which a lesser or no penalty is appropriate for the permit holder and aggravating factors, which may increase the penalty beyond the minimum. Factors that may be considered are:

49.1.a. The past record of the trainer, veterinarian and/or owner in drug cases;

49.1.b. The potential of the drug(s) to influence a horse's racing performance;

49.1.c. The legal availability of the drug;

49.1.d. Whether there is reason to believe the responsible party knew of the administration of the drug or intentionally administered the drug;

49.1.e. The steps taken by the trainer to safeguard the horse;

49.1.f. The probability of environmental contamination or inadvertent exposure due to human drug use;

49.1.g. The purse of the race;

49.1.h. Whether the drug found was one for which the horse was receiving a treatment as documented by the treating veterinarian's treatment records;

49.1.i. Whether there was any suspicious betting pattern in the race;

49.1.j. Whether the trainer was acting under the advice of a veterinarian licensed to practice in West Virginia and holding an occupational permit issued by the Racing Commission; and

49.1.k. Any other factors deemed relevant and documented in writing by the stewards.

49.2. Uniform Classification Guidelines. The following outline describes the types of substances placed in each category of the Uniform Classification Guidelines for Foreign Substances as promulgated by the Association of Racing Commissioners International (RCI), Version 14.1 (revised January 2020), set forth in table 178-1D at the end of this rule. The Guidelines shall be publicly posted in the offices of the Racing Commission veterinarian(s) and the association's racing secretary.

49.2.a. Class 1. Opiates, opium derivatives, synthetic opioids, psychoactive drugs, amphetamines and United States Drug Enforcement Agency (DEA) scheduled I and II drugs. Also found in this class are drugs which are potent stimulants of the nervous system. Drugs in this class have no generally accepted medical use in the racehorse and their pharmacological potential for altering the performance of a race is very high.

49.2.b. Class 2. Drugs in this category have a high potential for affecting the outcome of a race. Most are not generally accepted as therapeutic agents in the racehorse. Many are products intended to alter consciousness or the psychic state of humans, and have no approved or indicated use in the horse. Some, such as injectable local anesthetics, have legitimate use in equine medicine, but should not be found in a racehorse. The following groups of drugs are in this class:

49.2.b.1. Opiate partial agonists, or agonist-antagonists;

49.2.b.2. Non-opiate psychotropic drugs, which may have stimulant, depressant, analgesic or neuroleptic effects;

49.2.b.3. Miscellaneous drugs which might have a stimulant effect on the central nervous system (CNS);

49.2.b.4. Drugs with prominent CNS depressant action;

49.2.b.5. Antidepressant and antipsychotic drugs, with or without prominent CNS stimulatory or depressant effects;

49.2.b.6. Muscle blocking drugs which have a direct neuromuscular blocking action;

49.2.b.7. Local anesthetics which have a reasonable potential for use as nerve blocking agents (except procaine); and

49.2.b.8. Snake venoms and other biologic substances, which may be used as nerve blocking agents.

49.2.c. Class 3. Drugs in this class may or may not have an accepted therapeutic use in the horse. Many are drugs that affect the cardiovascular, pulmonary and autonomic nervous systems. They all have the potential of affecting the performance of a racehorse. The following groups of drugs are in this class:

49.2.c.1. Drugs affecting the autonomic nervous system which do not have prominent CNS effects, but which do have prominent cardiovascular or respiratory system effects (bronchodilators are included in this class);

49.2.c.2. A local anesthetic which has nerve blocking potential but also has a high potential for producing urine residue levels from a method of use not related to the anesthetic effect of the drug (procaine);

49.2.c.3. Miscellaneous drugs with mild sedative action, such as the sleep inducing antihistamines;

49.2.c.4. Primary vasodilating/hypotensive agents;

49.2.c.5. Potent diuretics affecting renal function and body fluid composition; and

49.2.c.6. Anabolic and/or androgenic steroids and other drugs.

49.2.d. Class 4. This category is comprised primarily of therapeutic medications routinely used in racehorses. These may influence performance, but generally have a more limited ability to do so. Groups of drugs assigned to this category include the following:

49.2.d.1. Non-opiate drugs which have a mild central analgesic effect;

49.2.d.2. Drugs affecting the autonomic nervous system which do not have prominent CNS, cardiovascular or respiratory effects;

49.2.d.3. Drugs used solely as topical vasoconstrictors or decongestants;

49.2.d.4. Drugs used as gastrointestinal antispasmodics;

49.2.d.5. Drugs used to void the urinary bladder;

49.2.d.6. Drugs with a major effect on CNS vasculature or smooth muscle of visceral organs;

49.2.d.7. Antihistamines which do not have a significant CNS depressant effect (This does not include H1 blocking agents, which are listed in Class 5);

49.2.d.8. Mineralocorticoid drugs;

49.2.d.9. Skeletal muscle relaxants;

49.2.d.10. Anti-inflammatory drugs -- those that may reduce pain as a consequence of their anti-inflammatory actions, which include:

49.2.d.10.A. Non-Steroidal Anti-Inflammatory Drugs (NSAIDs);

49.2.d.10.B. Corticosteroids (glucocorticoids); and

49.2.d.10.C. Miscellaneous anti-inflammatory agents.

49.2.d.11. Less potent diuretics;

49.2.d.12. Cardiac glycosides and antiarrhythmics including:

49.2.d.12.A. Cardiac glycosides;

49.2.d.12.B. Antirryhthmic agents (exclusive of lidocaine, bretylium and propanolol); and

49.2.d.12.C. Miscellaneous cardiotonic drugs.

49.2.d.13. Topical Anesthetics -- agents not available in injectable formulations;

49.2.d.14. Antidiarrheal agents; and

49.2.d.15. Miscellaneous drugs including:

49.2.d.15.A. Expectorants with little or no other pharmacologic action;

49.2.d.15.B. Stomachics; and

49.2.d.15.C. Mucolytic agents.

49.2.e. Class 5. Drugs in this category are therapeutic medications for which concentration limits have been established as well as certain miscellaneous agents. Included specifically are agents, which have very localized action only, such as anti-ulcer drugs and certain anti-allergenic drugs. The anticoagulant drugs are also included.

49.3. Penalties. The following provisions apply to penalties for violations of this medication and prohibited substance rule:

49.3.a. Upon a finding that an occupational permit holder is in violation of this medication and prohibited substance rule, the stewards or the Racing Commission may, in their discretion, issue a reprimand or warning, assess a fine, require forfeiture or redistribution of a purse or award, place a permit holder on probation, suspend a permit or racing privileges, revoke a permit, exclude the permit holder from grounds under the jurisdiction of the Racing Commission, or impose any combination of these penalties.

49.3.b. In issuing penalties against individuals found guilty of medication and drug violations a regulatory distinction shall be made between the detection of therapeutic medications used routinely to treat racehorses and those drugs that have no reason to be found at any concentration in the test sample on race day.

49.3.c. The stewards or the Racing Commission shall use the Racing Medication and Testing Consortium's (RMTC) penalty category (designated by the letters "A", "B", "C" and "D" as shown on the Uniform Classification Guidelines for Foreign Substances as promulgated by the Association of Racing Commissioners International (RCI), Version 14.1 (revised January 2020), set forth in table 178-1D at the end of this rule and the penalty guidelines set forth in table 178-1E at the end of this rule as a starting place in the penalty stage of the deliberations for a rule violation for any drug listed in the Uniform Classification Guidelines for Foreign Substances as promulgated by the Association of Racing Commissioners International (RCI), Version 14.1 (revised January 2020), set forth in table 178-1D at the end of this rule.

49.3.d. The penalty guidelines for those drugs designated a penalty category of "A", "B" or "C" are set forth in table 178-1E at the end of this rule. The recommended penalty for a violation involving a drug that carries a category "D" penalty is a written warning to the trainer and/or owner. Multiple violations may result in fines and/or suspensions.

49.3.e. If a practicing veterinarian is administering or prescribing a drug not listed in the Uniform Classification Guidelines for Foreign Substances as promulgated by the Association of Racing Commissioners International (RCI), Version 14.1 (revised January 2020), set forth in table 178-1D at the end of this rule, the identity of the drug shall be forwarded to a Racing Commission veterinarian(s) to be forwarded to the Racing Medication and Testing Consortium (RMTC) for classification.

49.3.f. In the event that any drug or metabolite thereof is found to be present in a pre- or post-race sample and the drug or metabolite is not classified in the Uniform Classification Guidelines for Foreign Substances as promulgated by the Association of Racing Commissioners International (RCI), Version 14.1 (revised January 2020), set forth in table 178-1D at the end of this rule, the Racing Commission shall cause the sample to be sent to the Racing Medication and Testing Consortium (RMTC) for a determination of the appropriate classification and penalty category. Upon a determination of classification and penalty category, the trainer and owner shall be subject to the appropriate penalties as set forth in table 178-1E at the end of this rule.

49.3.g. Any Racing Commission permit holder, including practicing veterinarians, found to be responsible for the improper or intentional administration of any drug resulting in a positive test may, after proper notice and hearing, be subject to the same penalties set forth in table 178-1E at the end of this rule for trainers holding occupational permits.

49.3.h. The owner, veterinarian or any other party holding an occupational permit involved in a positive laboratory finding shall be notified in writing of the hearing and any resulting action. In addition, their presence may be required at any and all hearings relative to the case.

49.3.i. Any practicing veterinarian found to be involved in the administration of any Class 1 drug may be referred to the West Virginia Board of Veterinary Medicine for consideration of disciplinary action against the veterinarian's license to practice in the state of West Virginia. This is in addition to any penalties issued by the stewards or the Racing Commission against the practicing veterinarian's occupational permit.

49.3.j. Any person who the stewards or the Racing Commission believe may have committed acts in violation of criminal statutes may be referred to the appropriate law enforcement agency.

49.3.k. Administrative action taken by the stewards or the Racing Commission in no way prohibits a prosecution for criminal acts committed, nor does a potential criminal prosecution stall administrative action by the stewards or the Commission.

49.3.l. Procedures shall be established by the stewards to ensure that a trainer holding an occupational permit is not able to benefit financially during the period for which he or she has been suspended. This includes, but is not limited to, ensuring that horses are not transferred to family members holding occupational permits.

49.3.m. Multiple Medication Violations. A trainer who receives a penalty for a medication violation based upon a horse testing positive for a Class 1-5 medication with a Penalty Class A-D, as provided in the Uniform Classification Guidelines for Foreign Substances as promulgated by the Association of Racing Commissioners International (RCI), Version 14.1 (revised January 2020), set forth in table 178-1D at the end of this rule, shall be assigned points as follows:

Penalty Class	Points if Controlled Therapeutic Substance	Points if Non-Controlled Substance
Class A	N/A	6
Class B	2	4
Class C	½ for first violation with an additional ½ point for each additional violation within 365 days. Points for NSAID violations only apply when the primary threshold of the NSAID is exceeded. Points are not to be separately assigned for a stacking violation.	1 for first violation with an additional ½ point for each additional violation within 365 days.
Class D	0	0

49.3.m.1. If the stewards or the Commission determine that the violation is due to environmental contamination, they may assign lesser or no points against the trainer based upon the specific facts of the case.

49.3.m.2. The points assigned to a medication violation by the stewards' or the Commission's ruling shall be included in the Association of Racing Commissioners International official database and the Association of Racing Commissioners International shall assign points consistent with the table set forth under subdivision 49.3.m. including, when appropriate, a designation that the points have been suspended for the medication violation. Points assigned by such regulatory ruling shall reflect, in the case of multiple positive tests as described in paragraph 49.3.m.3, whether they shall thereafter constitute a single violation. The stewards' or the Commission's ruling shall be posted on the official website of the Commission and within the official database of the Association of Racing Commissioners International. If an appeal is pending, that fact shall be noted in such ruling. No points shall be applied until a final adjudication of the enforcement of any such violation.

49.3.m.3. A trainer's cumulative points for violations in all racing jurisdictions shall be maintained by the Association of Racing Commissioners International. Once all appeals are waived or exhausted, the points shall immediately become part of the trainer's official Association of Racing Commissioners International record and shall be considered by the stewards or the Commission in their determination to subject the trainer to the mandatory enhanced penalties as provided in this rule.

49.3.m.4. Multiple positive tests for the same medication incurred by a trainer prior to delivery of official notice by the stewards or the Commission may be treated as a single violation. In the case of a positive test indicating multiple substances found in a single post-race sample, the stewards or the Commission may treat each substance found as an individual violation for which points will be assigned.

49.3.m.5. The official Association of Racing Commissioners International record shall be used to advise the stewards or the Commission of a trainer's past record of violations and cumulative points. Nothing in this rule shall be construed to confer upon a trainer the right to appeal a violation for which the remedies have been exhausted or for which the appeal time has expired as provided by West Virginia Code §§ 19-23-16(c) and 19-23-17.

49.3.m.6. The stewards or the Commission shall consider all points for violations in all racing jurisdictions as contained in the trainers' official Association of Racing Commissioners International record when determining whether the mandatory enhancements provided in this rule shall be imposed.

49.3.m.7. In addition to the penalty for the underlying offense, the following enhancements shall be imposed upon a trainer based upon the cumulative points contained in his or her official Association of Racing Commissioners International record:

Points	Suspension in days
5-5.5	15 to 30
6-8.5	45 to 60
9-10.5	90 to 180
11 or more	180 to 360

49.3.m.8. The multiple medication violation penalty system is not a substitute for the penalty system otherwise set forth in this rule and is intended to be an additional uniform penalty when a permit holder:

49.3.m.8.A. Has more than one violation for the relevant time period, and

49.3.m.8.B. Exceeds the permissible number of points.

49.3.m.9. The stewards and the Commission shall consider aggravating and mitigating factors, including the trainer's prior record for medication violations, when determining the appropriate penalty for the underlying offense. The multiple medication violation penalty is intended to be a separate and additional penalty for a pattern of violations.

40.3.m.10. The suspension periods as provided in the table set forth under paragraph 49.3.m.7. shall run consecutive to any suspension imposed for the underlying offense.

49.3.m.11. The stewards' or the Commission's ruling shall distinguish between the penalty for the underlying offense and any enhancement based upon a stewards' or Commission review of a trainer's cumulative points and regulatory record, which may be considered an aggravating factor in a case.

49.3.m.12. Points shall expire as follows:

Penalty Classification	Time to Expungement
A	3 years
B	2 years
C	1 year

49.3.m.13. In the case of a medication violation that results in a suspension, any points assessed expire on the anniversary date of the date the suspension is completed.

49.4. Medication Restrictions. The following provisions apply to medication restrictions:

49.4.a. A finding by a Racing Commission approved laboratory of a prohibited drug, chemical or other substance in a test specimen of a horse is prima facie evidence that the prohibited drug, chemical or other substance was administered to the horse and, in the case of a post-race test, was present in the horse's body while it was participating in a race. Prohibited substances include:

49.4.a.1. Drugs or medications for which no acceptable threshold concentration has been established;

49.4.a.2. Controlled therapeutic medications in excess of established threshold concentrations as set forth in the Association of Racing Commissioners International Controlled Therapeutic Medication Schedule, Version 3.2, contained in table 178-1F at the end of this rule;

49.4.a.3. Substances present in the horse in excess of concentrations at which such substances could occur naturally; and

49.4.a.4. Substances foreign to a horse at concentrations that cause interference with testing procedures.

49.4.b. Except as otherwise provided by this rule, a person may not administer or cause to be administered by any means to a horse a prohibited drug, medication, chemical or other substance, including any restricted medication pursuant to this rule during the twenty-four (24) hour period before post time for the race in which the horse is entered.

49.4.c. The pre-race treatment guidelines for the controlled therapeutic medications set forth in the Association of Racing Commissioners International Controlled Therapeutic Medication Schedule, Version 3.2, contained in table 178-1F at the end of this rule, are recommendations based upon current scientific knowledge and are specific to the dosing specifications listed therein. Adherence to the pre-race treatment guidelines does not relieve or lessen a trainer's responsibilities under subdivision 51.1.a. of this rule. Provided that, a trainer or other permit holder may present evidence of compliance with these guidelines to the stewards and/or the Racing Commission as a mitigating factor to be weighed in determining penalties for medication rule violations.

49.5. Medical Labeling. The following provisions apply to medical labeling:

49.5.a. No person on association grounds where horses are lodged or kept, excluding practicing veterinarians, shall have in or upon association grounds which that person occupies or has the right to occupy, or in that person's personal property or effects or vehicle in that person's care, custody or control, a drug, medication, chemical, foreign substance or other substance that is prohibited in a horse on a race day unless the product is labeled in accordance with this subsection.

49.5.b. Any drug or medication which is used or kept on association grounds and which, by federal or state law, requires a prescription must have been validly prescribed by a duly licensed veterinarian, and in compliance with the applicable state statutes. All such allowable medications must have a prescription label which is securely attached and clearly ascribed to show the following:

49.5.b.1. The name of the product;

49.5.b.2. The name, address and telephone number of the veterinarian prescribing or dispensing the product;

49.5.b.3. The name of each patient (horse) for whom the product is intended/prescribed;

49.5.b.4. The dose, dosage, duration of treatment and expiration date of the prescribed/dispensed product; and

49.5.b.5. The name of the person (trainer) to whom the product was dispensed.

49.6. Non-Steroidal Anti-Inflammatory Drugs (NSAIDs). The use of NSAIDs shall be governed by the following conditions:

49.6.a. NSAIDs included in the Association of Racing Commissioners International Controlled Therapeutic Medication Schedule, Version 3.2, contained in table 178-1F at the end of this rule are not to be used in a manner inconsistent with the restrictions contained therein.

49.6.b. NSAIDs not included in the Association of Racing Commissioners International Controlled Therapeutic Medication Schedule, Version 3.2, contained in table 178-1F at the end of this rule are not to be present in a racing horse biological sample at the laboratory concentration of detection.

49.6.c. The presence of more than one NSAID may constitute a NSAID stacking violation consistent with the following restrictions:

49.6.c.1. A Class 1 NSAID Stacking Violation (Penalty Class B) occurs when:

49.6.c.1.A. Two non-steroidal anti-inflammatory drugs are found at individual levels determined to exceed the following restrictions:

49.6.c.1.A.1. Diclofenac - 5 nanograms per milliliter of plasma or serum;

49.6.c.1.A.2. Firocoxib - 20 nanograms per milliliter of plasma or serum;

49.6.c.1.A.3. Flunixin - 20 nanograms per millileter of plasma or serum;

49.6.c.1.A.4. Ketoprofen - 2 nanograms per milliliter of plasma or serum;

49.6.c.1.A.5. Phenylbutazone - 2 micrograms per milliliter of plasma or serum; or

49.6.c.1.A.6. All other non-steroidal anti-inflammatory drugs - laboratory concentration of detection.

49.6.c.1.B. Three or more non-steroidal anti-inflammatory drugs found at individual levels determined to exceed the following restrictions:

49.6.c.1.B.1. Diclofenac - 5 nanograms per milliliter of plasma or serum;

49.6.c.1.B.2. Firocoxib - 20 nanograms per millileter of plasma or serum;

49.6.c.1.B.3. Flunixin - 3 nanograms per milliliter of plasma or serum;

49.6.c.1.B.4. Ketoprofen - 1 nanogram per milliliter of plasma or serum;

49.6.c.1.B.5. Phenylbutazone - 0.3 micrograms per milliliter of plasma or serum; or

49.6.c.1.B.6. All other non-steroidal anti-inflammatory drugs - laboratory concentration of detection.

49.6.c.2. A Class 2 NSAID Stacking Violation (Penalty Class C) occurs when:

49.6.c.2.A. Any one substance noted in subparagraph 49.6.c.1.A. of this subsection above is found in excess of the restrictions contained therein in combination with any one of the following substances at levels below the restrictions so noted but in excess of the following levels:

49.6.c.2.A.1. Flunixin - 3.0 nanograms per milliliter of plasma or serum;

49.6.c.2.A.2. Ketoprofen - 1 nanogram per milliliter of plasma or serum; or

49.6.c.2.A.3. Phenylbutazone - 0.3 micrograms per milliliter of plasma or serum;

49.6.c.3. A Class 3 NSAID Stacking Violation (Penalty Class C, fines only) occurs when:

49.6.c.3.A. Any combination of two of the following non-steroidal anti-inflammatory drugs found at or below the restrictions in subparagraph 49.6.c.1.A. of this subsection above but in excess of the noted restrictions:

49.6.c.3.A.1. Flunixin - 3 nanograms per milliliter of plasma or serum;

49.6.c.3.A.2. Ketoprofen - 1 nanogram per milliliter of plasma or serum; or

49.6.c.3.A.3. Phenylbutazone - 0.3 micrograms per milliliter of plasma or serum.

49.6.d. Any horse to which a NSAID has been administered shall be subject to having a blood and/or urine sample(s) taken at the direction of a Racing Commission veterinarian or the stewards to determine the quantitative NSAID level(s) and/or the presence of other drugs which may be present in the blood or urine sample(s).

49.7. Furosemide (Lasix®). The following provisions apply to furosemide (lasix®):

49.7.a. The administration of furosemide (lasix®) to a horse is permissible if:

49.7.a.1. The administration is recommended by a practicing veterinarian holding an occupational permit issued by the Racing Commission;

49.7.a.2. The recommendation is submitted to a Racing Commission veterinarian in writing; and

49.7.a.3. The trainer declares the use of furosemide (lasix®) at the time of entry.

49.7.b. Furosemide (Lasix®) shall only be administered on association grounds.

49.7.c. Furosemide (Lasix®) shall be the only authorized bleeder medication.

49.7.d. A Racing Commission veterinarian is responsible for maintaining up-to-date records of horses which are permitted to use furosemide (lasix®), and these records shall be available for inspection during the hours of operation of the racetrack.

49.7.e. Race day administration of furosemide (lasix®) shall be permitted as follows:

49.7.e.1. A horse scheduled to race that is permitted to use furosemide (lasix®) shall be administered furosemide (lasix®) by a veterinarian employed by the owner or trainer and holding a permit issued by the Racing Commission, unless, under subdivision 49.7.f. of this rule, the horse has been declared off of furosemide (lasix®) by its owner or trainer. The furosemide (lasix®) must be administered a minimum of four (4) hours before the scheduled post time for the race in which the horse is entered and must be administered under the supervision of a person employed by the Racing Commission.

49.7.e.2. The practicing veterinarian must deposit with a Racing Commission veterinarian an unopened and labeled supply of furosemide (lasix®) and sterile hypodermic needles and syringes to be used for the administration.

49.7.e.3. A trainer is responsible for ensuring that the horse is available at the appropriate time for its treatment.

49.7.e.4. The trainer is responsible for ensuring that a practicing veterinarian holding a permit issued by the Racing Commission has agreed to administer furosemide at the designated time.

49.7.e.5. A trainer or his or her designee shall be responsible for the guarding, condition, care, and handling of the horse at all times and the trainer or his or her designee shall be present to handle the horse and serve as a witness to the furosemide (lasix®) administration.

49.7.e.6. If the trainer or his or her designee is not present and the administration time has passed, no furosemide (lasix®) shall be administered and the stewards shall order the horse scratched.

49.7.e.7. The dose administered shall not exceed 500 mg, nor be less than 150 mg.

49.7.e.8. Furosemide shall be administered by a single, intravenous injection.

49.7.e.9. After treatment, the horse shall be required to remain in its stall in the care, custody and control of its trainer or the trainer's designee under general association and/or Commission security supervision until called to the saddling paddock.

49.7.e.10. Test results must show a detectable concentration of furosemide (lasix®) in the post-race serum, plasma or urine sample.

49.7.e.10.A. The specific gravity of post-race urine samples may be measured to ensure that samples are sufficiently concentrated for proper chemical analysis. The specific gravity shall not be below 1.010. If the specific gravity of urine is found to be below 1.010 or if a urine sample is unavailable for testing, quantitation of furosemide (lasix®) in serum or plasma shall be performed;

49.7.e.10.B. Quantitation of furosemide (lasix®) in serum or plasma shall be performed when the specific gravity of the corresponding urine sample is not measured or if measured below 1.010. Concentrations may not exceed 100 nanograms of furosemide (lasix®) per milliliter of serum or plasma.

49.7.f. The following provisions apply to racing off of furosemide (lasix®):

49.7.f.1. A horse on the furosemide (lasix®) program that races without furosemide (lasix®) in any jurisdiction which permits the use of furosemide (lasix®), may become re-eligible for the administration of furosemide (lasix®) if the horse has been observed to have bled by a Racing Commission veterinarian or a practicing veterinarian either:

49.7.f.1.A. Externally; or

49.7.f.1.B. By endoscopic examination.

49.7.g. The following provisions apply to program notice requirements for horses on furosemide (lasix®):

49.7.g.1. Of the horses scheduled to race, the official program shall denote the horses which have been administered:

49.7.g.1.A. Furosemide (lasix®); and

49.7.g.1.B. Furosemide (lasix®) for the first time.

49.7.g.2. If the official program contains past performance lines, each past performance line shall indicate if the horse was administered furosemide (lasix®).

49.8. Bleeder List. The following provisions apply to the bleeder list:

49.8.a. A list of all horses which have demonstrated external evidence of exercise induced pulmonary hemorrhage from one or both nostrils during or after a race or workout shall be maintained by the Racing Commission veterinarian(s) and the list shall be published in the association's racing secretary's office.

49.8.b. A first time bleeder shall be placed on the bleeder list and remain on the list for a minimum of ten (10) calendar days. A second time bleeder within a twelve (12) month period shall be placed on the bleeder list and remain on the list for a minimum of forty-five (45) calendar days. A bleeder in these categories is automatically released from the list after the expiration of these time periods. A horse that bleeds three (3) times within a twelve (12) month period shall be barred from further racing in West Virginia for a period of one (1) year.

49.9. Procaine Penicillin. The administration of procaine penicillin to a horse must be reported to a Racing Commission Veterinarian at a time and on a form prescribed by the Racing Commission. If a horse entered to run in a race has been administered procaine penicillin, it shall be required to be under surveillance for a minimum of six (6) hours prior to post time at a designated area on association grounds. The owner of the horse shall be responsible for all expenses related to such surveillance.

49.10. Environmental Contaminants and Substances of Human Use. The following provisions apply to environmental contaminants and substances of human use:

49.10.a. It is recognized that there are substances that can be environmental contaminants in that they are endogenous to the horse or that they can arise from plants traditionally grazed or harvested as equine feed or are present in equine feed because of contamination during the cultivation, processing, treatment, storage or transportation phases. It is also recognized that there are drugs of human use and addiction and which could be found in the horse due to its close association with humans. Therefore, if an owner/trainer wishes to contest a positive test by presenting a defense that the test is the result of environmental contamination or inadvertent exposure due to human drug use, he or she must prove such defense by a preponderance of evidence presented in a hearing. If an owner/trainer proves such defense by a preponderance of evidence, it may be considered as a mitigating factor in any disciplinary action taken against the affected owner/trainer.

49.10.b. Disciplinary action shall only be taken if test sample results exceed the regulatory thresholds in the Association of Racing Commissioners International Endogenous, Dietary, or Environmental Substances Schedule, Version 4.1, contained in table 178-1G at the end of this rule.

49.11. Androgenic-Anabolic Steroids (AAS). The following provisions apply to androgenic-anabolic steroids (AAS):

49.11.a. No AAS shall be permitted in test samples collected from racing horses except for residues of the major metabolite of stanozolol, nandrolone, and the naturally occurring substances boldenone and testosterone at concentrations less than the indicated thresholds.

49.11.b. Concentrations of these AAS shall not exceed the following threshold concentrations for total (i.e., free drug or metabolite and drug or metabolite liberated from its conjugates):

49.11.b.1. In urine:

49.11.b.1.A. 16[BETA]-hydroxystanozolol (metabolite of stanozolol (Winstrol)) -- 1 ng/ml in urine for all horses regardless of sex;

49.11.b.1.B. Boldenone (Equipoise® is the undecylenate ester of boldenone) in male horses other than geldings -- 15 ng/ml in urine. No boldenone shall be permitted in geldings or female horses;

49.11.b.1.C. Nandrolone (Durabolin® is the phenylpropionate ester and Deca-Durabolin is the decanoate ester):

49.11.b.1.C.1. In geldings -- 1 ng/ml in urine;

49.11.b.1.C.2. In fillies and mares -- 1 ng/ml in urine.

49.11.b.1.D. Testosterone:

49.11.b.1.D.1. In geldings -- 20 ng/ml in urine;

49.11.b.1.D.2. In fillies and mares -- 55 ng/ml in urine;

49.11.b.2. In plasma:

49.11.b.2.A. Stanozolol -- Screening limit no greater than 100 pg/ml in serum or plasma with a confirmatory threshold no greater than 25 pg/ml for all horses regardless of sex;

49.11.b.2.B. Boldenone -- Screening limit no greater than 100 pg/ml in serum or plasma with a confirmatory threshold no greater than 25 pg/ml for all horses regardless of sex;

49.11.b.2.C. Nandrolone -- Screening limit no greater than 100 pg/ml in serum or plasma with a confirmatory threshold no greater than 25 pg/ml for geldings and fillies and mares. Male horses other than geldings will not be tested;

49.11.b.2.D. Testosterone:

49.11.b.2.D.1. In geldings -- Screening limit no greater than 100 pg/ml in serum or plasma with a confirmatory threshold no greater than 25 pg/ml;

49.11.b.2.D.2. In fillies and mares -- Screening limit no greater than 100 pg/ml in serum or plasma with a confirmatory threshold no greater than 25 pg/ml;

49.11.b.2.D.3. In male horses other than geldings -- confirmatory threshold no greater than 2,000 pg/ml.

49.11.c. Any other anabolic steroids are prohibited in racing horses.

49.11.d. If a test on a horse exceeds the above-referenced thresholds for Boldenone, Nandrolone or Testosterone and the owner/trainer of the horse desires to have further testing to determine whether or not there is reliable proof that the amount found in the horse is naturally occurring, the owner/trainer may request that such testing be undertaken and the owner shall bear the costs of the additional testing.

49.11.e. Post-race urine and blood samples must have the sex of the horse identified to the laboratory.

49.11.f. Any horse to which an anabolic steroid has been administered in order to assist in the recovery from illness or injury may be placed on the veterinarian's list in order to monitor the concentration of the drug or metabolite in urine. After the concentration has fallen below the designated threshold for the administrated AAS, the horse is eligible to be removed from the list.

49.12. Alkalinizing Substances. The use of agents that elevate the horse's TCO2 or base excess level above those existing naturally in the untreated horse at normal physiological concentrations is prohibited. The following levels also apply to blood gas analysis:

49.12.a. The regulatory threshold for TCO2 in non-furosemide (lasix®) treated horses is 37.0 millimoles per liter of plasma/serum or a base excess level of 10.0 millimoles;

49.12.b. The regulatory threshold for TCO2 in furosemide (lasix®) treated horses is 39.0 millimoles per liter of plasma/serum or a base excess level of 12.0 millimoles; and

49.12.c. The measure of uncertainty in testing for TCO2 shall be .4 millimoles per liter of plasma/serum. A horse must show a base excess level of 10.4 millimoles or higher for non-furosemide (lasix®) treated horses and a base excess level of 12.4 millimoles or higher for a furosemide (lasix®) treated horse, in order for a violation to be reported under this rule.

49.13. Compounded Medications on Association Grounds. The following provisions apply to compounded medications on association grounds.

49.13.a. The possession or use of a drug, substance, or medication on association grounds that has not been approved by the appropriate federal agency (e.g., the United States Food and Drug Administration) for any use in (human or animal) is forbidden without prior permission of the Racing Commission or its designee.

49.13.b. It is a violation of this regulation to possess, use, or distribute a compounded medication on association grounds if there is an FDA approved equivalent of that substance available for purchase. A difference in available formulations or concentrations does not alleviate the need to use FDA approved products.

49.13.c. It is a violation of this rule to possess, use, or distribute a compounded medication on association grounds made from bulk substances if an FDA approved equivalent is available for purchase.

49.13.d. Combining two or more substances with pharmacologic effect constitutes the development of a new drug. This may only be done in accordance with state and local laws and must contain FDA approved medications, if available.

49.13.e. Veterinary drugs shall be compounded in accordance with all applicable state and federal laws. Compounded medications shall be dispensed only by prescription issued by a licensed veterinarian to meet the medical needs of a specific horse and for use only in that specific horse.

49.13.f. All compounded medications must be labeled in accordance with subdivision 49.5.b. of this rule.

49.13.g. Possession of an improperly labeled product by a person on association grounds is considered a violation of this rule.

49.14. Out of Competition Testing. The following provisions apply to out of competition testing:

49.14.a. The Racing Commission may at a reasonable time on any date take blood, urine or other biologic samples from a horse to enhance the ability of the Commission to enforce its medication and anti-doping rules, e.g., the Association of Racing Commissioners International (RCI) Prohibited List set forth in Table 178-1 I at the end of this rule. 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.

49.14.b. Any horse that has been engaging in activities related to competing in horse racing in West Virginia may be tested. This includes without limitation any horses that are training outside of West Virginia to participate in racing in West Virginia and all horses that are training in West Virginia, but excludes weanlings, yearlings and horses no longer engaged in horse racing (e.g., retired broodmares).

49.14.c. A horse is presumed to be eligible for out of competition testing if:

49.14.c.1. It is under the care, custody, or control of a trainer holding an occupational permit;

49.14.c.2. It is owned by an owner holding an occupational permit;

49.14.c.3. It is entered or nominated to race at licensed racetrack in West Virginia;

49.14.c.4. It has raced at a licensed racetrack in West Virginia within the previous twelve (12) months;

49.14.c.5. It is on the grounds of a licensed racetrack or training facility in West Virginia; or

49.14.c.6. It is eligible to participate in the West Virginia Thoroughbred Development Fund, the Accredited Race Fund, the Supplemental Purse Award Program or any other thoroughbred fund or program administered by the Racing Commission.

49.14.d. The eligibility presumptions set forth above are conclusive in the absence of evidence that a horse is not engaged in activities related to competing in horse racing in the jurisdiction.

49.14.e. Horses to be tested may be selected at random, with probable cause, or as determined in the discretion of the Racing Commission, a Racing Commission Veterinarian, the stewards, the Executive Director or their respective designees.

49.14.f. Collectors shall, for suspicion-less collections of samples, abide by a plan that has been approved by a supervisor not in the field and that identifies 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.

49.14.g. Persons holding permits issued by the Racing Commission are required to cooperate and comply fully with the provisions of this out of competition testing rule.

49.14.h. Persons who apply for and are granted a trainer or owner permit shall be deemed to have given their consent for access at such premises as their horses may be found for the purpose of Racing Commission representatives collecting out of competition samples. Permit holders shall take any steps necessary to authorize access by Commission representatives at such premises.

49.14.i. No person shall knowingly interfere with or obstruct out of competition sampling.

49.14.j. Samples shall be taken under the supervision and direction of a person who is employed or designated by the Racing Commission. All blood samples shall be collected by a veterinarian licensed in the state where the sample is collected, or by a veterinary technician who is acting under appropriate supervision of the veterinarian.

49.14.k. Upon request of a representative of the Commission, the trainer, owner or their specified designee shall provide the location of their horses eligible for out of competition testing.

49.14.l. The Commission need not provide advance notice before arriving at any location, whether or not licensed by the Commission, to collect samples.

49.14.m. The trainer, owner, or their specified designee shall cooperate with the person who takes the samples for the Racing Commission, which cooperation shall include without limitation:

49.14.m.1. Assist in the immediate location and identification of the horse;

49.14.m.2. Make the horse available as soon as practical upon arrival of the person who is responsible for collecting the samples;

49.14.m.3. Provide a stall or other safe location to collect the samples;

49.14.m.4. Assist the person who is collecting the samples in properly procuring the samples; and,

49.14.m.5. Witness the taking of the samples including the sealing of sample collection containers.

49.14.n. 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.

49.14.o. The Commission, if requested and in its sole discretion, may permit the trainer, owner, or their specified designee to present a horse that is located in West Virginia, but not at a racetrack or training center licensed by the Commission, to be sampled at a time and location designated by the Commission.

49.14.p. 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 related to the procedures for collecting samples.

49.14.q. Out of competition test results shall be made available, for their 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 may apply to the commission that selected the horse for sampling.

49.14.r. The Commission, if requested and in its sole discretion, may permit the trainer or owner instead to transport a horse into its jurisdiction for sampling at a time and place designated by the Commission.

49.14.s. 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.

49.14.t. A written protocol for the collection of samples shall be made generally available.

49.14.u. 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 or training center available for sampling.

49.14.v. If the trainer or other custodian of a selected horse refuses or declines to make a 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.

49.14.w. The chain of custody record for the sample (including a split sample where appropriate) shall be maintained and made available to the trainer, owner, or their designee when a complaint results from an out of competition test.

49.14.x. The Commission may have out of competition samples tested to produce information that may enhance the ability of the Commission to enforce its medication and anti-doping rules.

49.14.y. Split sample rules and procedures and procedures for post-race testing shall apply to out of competition testing.

49.14.z. The Commission may use any remaining out of competition samples for research and investigation.

49.14.aa. 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 (1) year permit suspension and referral to the Commission in addition to any other authorized penalties.

49.14.bb. A selected horse that is not made available for out of competition sampling shall be placed on the stewards' list. The horse shall remain on the stewards' list for a minimum of 180 days unless the owner can establish extraordinary mitigating circumstances.

49.14.cc. A selected horse that is presumed eligible for out of competition testing shall be placed on the stewards' list and be ineligible to race in West Virginia for 180 days if the horse is not sampled because the trainer, owner or their designee asserts that the horse is not engaged in activities related to competing in horse racing in West Virginia. This restriction shall not apply if the trainer, owner or their designee instead permits voluntarily an immediate collection of such samples from the horse.

49.14.dd. The trainer of the horse is responsible for the condition of a horse sampled for an out of competition test while on the grounds of a licensed training facility or racetrack.

49.14.ee. If the horse is sampled while not the grounds of a licensing training facility or racetrack, then the owner shall be presumed to be the responsible person unless the owner can establish, by substantial evidence, that another racing permit holder had accepted the responsibility for the care, custody, and control of the horse, making such person the responsible person.

49.14.ff. If a horse sampled for an out of competition test was claimed, sold, or otherwise transferred during the time the substance giving rise to the positive test may have been administered, then the Racing Commission shall investigate to determine, by a preponderance of the evidence, the identity of the responsible person at the time such substance may have been administered.

49.14.gg. If the Commission cannot determine a responsible person, then the Commission may deem the owner responsible and may place the horse on the veterinarian's list for such time as is necessary to protect the integrity of racing.

49.14.hh. A claimed horse is ineligible to be subjected to out of competition testing in the forty-eight (48) hours post claim unless the horse was subjected to post-race testing.

49.15. American Graded Stakes Races. For any race in this state that has been issued a grade by the American Graded Stakes Committee, the stewards may allow the drug testing protocol established by the American Graded Stakes Committee to be followed in that race. The association shall notify the Racing Commission and the stewards upon the issuance of a grade for a race by the American Graded Stakes Committee so that the stewards may allow the appropriate drug testing protocol to be administered and enforced. A copy of the drug testing protocol in graded stakes races shall be published in the office of the association's racing secretary.

W. Va. Code R. § 178-1-49