LAW & PUBLIC SAFETY NEW JERSEY RACING COMMISSION Horse Racing Out-of-Competition Testing (on Non-Race Days and on Race Days Pre-Race) of Racehorses for Erythropoietin (Epogen, EPO), DarbEPO, or Other Blood Doping Agents; Penalties, Procedures and Testing Costs for Positive Test Results for Erythropoietin (Epogen, EPO), DarbEPO, or Other Blood Doping Agents, as a Result of Out-of- Competition Testing; Penalties, Procedures and Testing Costs for Positive Test Results for Erythropoietin (Epogen, EPO), DarbEPO, or Other Blood Doping Agents, as a Result of Post-Race Blood Sample Testing (on Race Days) Conducted Pursuant to Other Provisions of this Chapter Authorized By: New Jersey Racing Commission Frank Zanzuccki, Executive Director Authority: N.J.S.A. 5:5-30 Calendar Reference: See Summary below for explanation of exception to calendar requirement Proposal: PRN 2007-239 Submit written comments by September 14, 2007 to: The agency proposal follows: Michael Vukcevich, Deputy Director New Jersey Racing Commission 140 East Front Street P.O. Box 088 Trenton, New Jersey 08625-0088 Foreign substances, including blood doping agents such as Erythropoietin (Epogen, EPO) and DarbEPO, may not be present in a racehorse=s system on race day (regardless of the date of administration). See N.J.A.C. 13:70-14A.1. Further, the administration of foreign substances to a race horse, on race day, is
prohibited. The Racing Commission presently takes fluid samples from racehorses, for the purposes of testing them for numerous prohibited foreign substances, on race day only. With regard to the prohibited foreign substance Erythropoietin (hereinafter AEpogen@), a blood doping agent, the Racing Commission promulgated a rule in March 2006, which implemented a testing methodology focused on detecting elevated titers of anti-recombinant human EPO antibody. See N.J.A.C. 13:70-14A.12. The Racing Commission presently takes blood samples from horses post-race on race day, and tests those samples pursuant to that existing rule and other provisions of Chapter 70 to the New Jersey Administrative Code. Notwithstanding this current testing program, the Racing Commission believes that Epogen, DarbEPO, and other blood doping agents continue to be administered to a limited number of racehorses prior to the date such horses are scheduled to compete. The Racing Commission also believes that these agents, particularly Epogen and/or DarbEPO, are administered to these racehorses for reasons which may include attempting to impact the horse=s performance in a race, and in a manner to avoid detection by the present race day testing methodology. More particularly, racehorses are administered these substances, well in advance of race day, to enhance their race day performance and avoid detection through conventional race day testing methodology. The Racing Commission believes that any horse which is administered a blood doping agent at anytime and for any reason, or has present in its system such substance at
anytime and for any reason, should not participate in horse racing. The Racing Commission further believes that such administrations may be adverse to the welfare of the animal. In order to respond to this situation, through this proposed new rule (hereinafter Arule@), the Racing Commission seeks to implement a new testing program which involves two key components. First, the Racing Commission through this rule seeks to implement a new testing methodology encompassing a direct test for the prohibited foreign substance Epogen and/or DarbEPO. The Commission, through this rule, also seeks to expand its present testing program by giving it discretion to take racehorse blood samples on non-race days and on race-days (pre-race), for the purpose of testing such for Epogen, DarbEPO, and other blood doping agents (either on the date the sample is taken or on a subsequent date). This so-called Aout-of-competition@ testing, to be conducted on non-race days or on race days pre-race in the Commission=s discretion, would be beneficial because blood doping agents, and specifically Epogen and/or DarbEPO, are deemed adverse to the bests interests of the racehorse in that such condition alters its normal physiological state. The Racing Commission believes that the implementation of this rule, with its stringent penalties as described below, will accomplish the purposes of detecting offenders, punishing offenders, and importantly, deterring improper administrations at anytime. The rule provides in subsection (b) that Racing Commission representatives may without prior notice appear at in-state off-track stabling facilities and
permitted racetracks subject to its jurisdiction, for the purpose of taking blood samples from racehorses. The subsection further provides that, upon arrival at either of these premises for out-of-competition testing, the Racing Commission representatives shall provide notice to the premises owner and to the trainer of the horse or horses to be sampled, if present. In addition to appearing at such premises for this purpose, the Racing Commission Board of Stewards may also require that any in-state or out-of-state licensed trainer, at his or her cost, produce a racehorse or racehorses under that trainer=s care and custody at a New Jersey permitted racetrack for the purpose of out-of-competition testing. As a result of this latter provision, trainers who stable their horses outside the State of New Jersey, which are premises not subject to the jurisdiction of the Racing Commission, can be required to produce in this State a New Jersey racehorse for sampling purposes. In the event a sampled horse is determined to test positive for Epogen, DarbEPO or other blood doping agent, as a result of out-of competition testing and as set forth in subsection (c) to the rule, the Racing Commission Board of Stewards shall: authorize a search of the in-state premises occupied by the stable subject of the positive test; notify the State Veterinarian, for the purpose of immediate placement of the horse which experienced the positive on the Veterinarian=s list pending the conduct of a hearing by the Board of Judges (thereby rendering the horse ineligible to compete); notify the owner and trainer of the horse of the test result and of the placement of the horse on the Veterinarian=s
list; and provide written notice to the trainer and other responsible person of the alleged rule violations and place and date of the related hearing. Subsection (d) to the rule requires that a trainer, whose horse is subject of a positive test finding pursuant to this rule, reimburse the Racing Commission for the administrative and testing costs in the amount of $2,000. In the event any appeal of the initial positive test finding results in a final determination that no violation was committed, the $2,000 shall then be returned to the trainer. For a first violation of the rule, subsection (e) provides that the license of the trainer and any other responsible person shall be suspended for 10 years, and that a fine of $50,000 shall be imposed. For a second violation of the rule, the penalty of a license revocation shall be imposed. During the period of any license suspension or permanent revocation, the subsection provides that the person subject of such penalty shall be prohibited from appearing on any premises subject of the Racing Commission=s jurisdiction. Additionally, as set forth in subsection (f) to the rule, any horse which experiences a positive test result shall be ineligible to compete for 120 days, after which it shall be eligible to compete where subsequent testing (at a cost of $2,000 to the trainer or owner who requests such testing) determines that it is negative for Epogen, negative for DarbEPO, negative for elevated titers of anti-recombinant human EPO (pursuant to N.J.A.C. 13:70-14A.12), and negative for other blood doping agents. Subsection (g) to the rule provides that, where these restrictions are imposed upon a horse which tests positive, those same restrictions shall apply
where the horse is sold, or otherwise transferred. The penalties set forth in subsection (e), and the ineligibility restrictions imposed upon the horse pursuant to subsection (f) of the rule, are also applicable where a trainer or agent thereof fails to cooperate with the Racing Commission by producing a horse for sampling pursuant to out-of-competition testing. Subsection (h) to the rule provides that the split sample procedure set forth at N.J.A.C. 13:70-14A.4 is not applicable to this proposed rule, because that procedure is limited to urine samples and the sampling procedure here involves blood samples. Subsection (i) to the rule provides that, in the event of a positive test for the presence of Erythropoietin (Epogen, EPO), DarbEPO, or other blood doping agent, as a result of traditional post-race blood sample testing (that is, sampling of the horses blood on race day following the race, for testing of the sample on that date or on a subsequent date), conducted pursuant to N.J.A.C. 13:70-14A.4 and other provisions of Chapter 70 of the New Jersey Administrative Code, the procedures set forth in subsection (c) to this proposed rule, as well as the provisions of subsections (d) though (f) of this rule, shall apply. Accordingly, and in such case, the penalties, costs and horse ineligibility criteria set forth in this rule shall be imposed. The Racing Commission provides for a 60-day comment period on this notice of proposal. Therefore, this proposal is exempt from the rulemaking calendar requirement in accordance with N.J.A.C. 1:30-3.3(a)5.
Social Impact The proposed new rule will have a positive social impact. The presence of Erythropoietin (Epogen, EPO), DarbEPO, or other blood doping agents in the racehorse is considered by the Racing Commission as adverse to the bests interests of the racehorse in that such condition alters its normal physiological state. The rule, in that it authorizes out-of-competition testing with stringent penalties (and the same penalties for positive tests resulting from traditional postrace testing), will have a positive deterrent impact regarding the administration of Epogen, DarbEPO, and other blood doping agents. This will also positively impact (that is, decrease) the number of horses that compete in pari-mutuel races with blood doping agents in their system, thus enhancing the fairness and competitiveness of race competitions. As a result, the Racing Commission believes that the public=s confidence in horse racing will be fostered, which may result in increased racetrack attendance and wagering.
Economic Impact It is anticipated that the proposed new rule will have a limited significant impact on horsemen found to be in violation thereof. The rule allows for out-ofcompetition testing for Erythropoietin (Epogen, EPO), DarbEPO, or other blood doping agents, and imposes significant penalties consisting of a $50,000 fine and a 10-year license suspension for a first violation, and a license revocation for a second violation. Either of these penalties would result in a significant economic impact to a determined offender. The rule also imposes these same penalties where non-cooperation with the Commission is determined. Further, the rule provides for these same penalties where such testing is done as a result of postrace testing pursuant to N.J.A.C. 13:70-14A.4. Where a violation is determined as a result of post-race testing, an economic impact would further arise due to loss of any purse won pursuant to N.J.A.C. 13:70-14A.7. The Racing Commission may, pursuant to the proposed rule, appear on premises subject to its jurisdiction for the purpose of such testing, as defined within the rule. The State Steward, at cost to the trainer, may alternatively require that a horse or horses be produced at a permitted racetrack for such testing. As compliance with such a production request would result in transport costs to an in-state or out-of-state licensed trainer, an economic impact would occur. Further, the rule imposes administrative and testing costs ($2,000) on the
trainer where a violation is determined. Also, before a horse that is subject of a positive test may again be eligible to compete as set forth in the rule, that horse must be retested after 120 days and found to be negative, at a cost to the requesting trainer or owner of $2,000 per test. In addition to this economic impact, a negative economic impact would result to the trainer and owner as a result of the horse=s inability to compete upon a positive test finding, as the horse could not therefore earn purse monies. As this ineligibility remains in effect despite a horse=s sale or transfer, an economic impact would arise to the acquirer of the animal as that horse would be ineligible to compete until found upon retesting (at a cost of $2,000 per test) to be negative consistent with the rule. A potential economic impact may also arise regarding permitted racetracks. The implementation of this rule, and the ineligibility of horses from race competitions in the event of a positive test result, could negatively impact permitted racetrack facilities as less horses or wagering interests may be available for racing. However, the Racing Commission believes that any such potential will be offset by the deterrent aspect of the rule, which will ultimately benefit permitted racetracks by decreasing incidents of illicit foreign substance usage, which will foster the public confidence in the sport and thereby positively impact the economic interests of the racetracks.
Federal Standards Statement A Federal standards analysis is not necessary as there are no Federal standards or requirements applicable to the proposed new rule. The Racing Commission proposes this rule pursuant to the rulemaking authority set forth in N.J.S.A. 5:5-30 and 5:5-22 et seq., respectively. Jobs Impact The proposed new rule will not result in the generation or loss of jobs. The proposed rule imposes additional responsibilities on the Racing Commission staff and its equine testing laboratory. The Racing Commission believes these additional job responsibilities can be assumed by its existing staff, without the need to hire additional personnel. Agriculture Industry Impact The proposed new rule will have no impact on the agriculture industry in the State. Regulatory Flexibility Analysis The proposed new rule does not impose reporting or recordkeeping requirements. Compliance requirements are imposed on personnel of the Racing Commission, which is not a small business under the Regulatory Flexibility Act, N.J.S.A. 52:14B-16. Although compliance requirements are imposed on racetracks in terms of providing the facilities for testing at racetrack premises, track associations employ more than 100 people full time, and also do not qualify as small businesses.
The rule does impose requirements on licensed owners, trainers, and offtrack stabling facilities where testing pursuant to the rule may occur, some of which are small businesses. The penalties and costs associated with a violation of the rule, as discussed in greater detail in the Summary and Economic Impact above, would have economic ramifications to such a small business. No professional services would need to be employed to comply with the proposed rule. Since the purpose of this rule is to advance the integrity of the State=s racing industry, and to protect the health of the horse=s that compete in that industry, uniform application of its requirements is needed to most effectively meet these objectives. Therefore, no exemption or differentiation in requirements are provided based on business size. Smart Growth Impact The proposed new rule will have no impact on the achievement of smart growth or the implementation of the State Development and Redevelopment Plan. Full text of the proposed new rule follows: 13:70-14A.13 Out-of-competition testing (on non-race days and on race days pre-race) of racehorses for Erythropoietin (Epogen, EPO), DarbEPO, or other blood doping agents; penalties, procedures and testing costs for positive test results for Erythropoietin (Epogen, EPO), DarbEPO, or other blood doping agents, as a result of out-of-competition testing; penalties, procedures and testing costs for positive test results for Erythropoietin (Epogen, EPO), DarbEPO, or other blood doping agents,
as a result of post-race blood sample testing (on race days) conducted pursuant to other provisions of this chapter (a) The presence of Erythropoietin (Epogen, EPO), DarbEPO or other blood doping agents in the racehorse is deemed adverse to the bests interests of thoroughbred racing, and adverse to the best interests of the racehorse in that such condition alters its normal physiological state. Accordingly, in addition to such substances being prohibited from being present in the body of a racehorse on race day pursuant to N.J.A.C. 13:70-14A.1 and in addition to elevated titers of anti-recombinant human EPO antibodies being prohibited from being present in the body of a racehorse on race day pursuant to N.J.A.C. 13:70-14A.12, the presence of Erythropoietin (Epogen, EPO), DarbEPO, or other blood doping agents in any racehorse under the trainership of any licensed New Jersey trainer is hereby prohibited at any location and at anytime, including days where a race horse is neither entered to or scheduled to participate in a race. (b) Racing Commission representatives may, without prior notice, appear upon off-track stabling facilities and permitted racetrack facilities subject to its jurisdiction in furtherance of out-of-competition testing, that is, for the purpose of taking blood samples from racehorses on race days (pre-race) or on non-race days to test such samples (on the same date the sample is taken, or on a subsequent date) for the presence of Erythropoietin (Epogen, EPO), DarbEPO, or other blood doping agents. Upon arrival at such premises and if present, the Racing Commission representative shall advise the facility=s owner, and the
trainer of the racehorse or racehorses from which blood samples are to be taken, of its purpose. Additionally, the Racing Commission State Steward may require that any New Jersey licensed trainer stabled within New Jersey, at his or her cost, produce at a permitted New Jersey racetrack (as designated by the State Steward), and within 24 hours of a State Steward request, any racehorse under his or her custody and control for out-of-competition testing. Additionally, the State Steward may require that any New Jersey licensed trainer stabled outside this State, at his or her cost, produce at a permitted New Jersey racetrack (as designated by the State Steward), and within 48 hours of a State Steward request, any racehorse under his or her custody and control (which racehorse or racehorses competed in New Jersey in the same calender year of the request, or which racehorse was intended or is intended to compete in New Jersey in the calender year of the request), for out-of-competition testing. The State Steward may, in his or her discretion, and for good cause shown, extend these time frames for a trainer=s requested production of the horse at a permitted New Jersey racetrack. In the event of the failure of any licensed New Jersey trainer or agent thereof to timely produce a racehorse for out-of-competition testing at a permitted racetrack facility as requested by the State Steward, or in connection with the Racing Commission=s appearance on a premises subject to its jurisdiction for such purpose, the penalties set forth in (e) below shall be imposed upon the trainer and any responsible person where said failure to produce the horse is due to noncooperation. Also, in the event of such non-production of a horse due the non-
cooperation of the trainer and any other responsible person, the ineligibility restrictions as to the racehorse subject of the request for production, as set forth in (f) below, shall be imposed. (c) In the event of a positive test for the presence of Erythropoietin (Epogen, EPO), DarbEPO, or other blood doping agent, as a result of out-of-competition testing, the following actions shall be taken by the Racing Commission Board of Stewards: 1. They shall authorize a search of the New Jersey premises occupied by the stable pursuant to N.J.A.C. 13:70-14A.5; 2. They shall cause the horse to be immediately placed on the Veterinarian=s list pursuant to N.J.A.C. 13:70-19.36 (thereby rendering the horse ineligible to compete), pending the conduct of a hearing by the Board of Stewards; 3. The owner and trainer of the horse shall be notified in writing by the Board of Stewards, by personal service or by mail sent to the address listed in their respective applications on file with the Racing Commission, of the initial out-of-competition testing result and of the horse s placement on the Veterinarian=s list pending the conduct of a hearing by the Board of Stewards. The writing shall further set forth, in a designated space, the date it was mailed or personally served by the Board of Stewards; and 4. The Board of Stewards shall schedule a hearing, by written notice to the trainer and any other responsible person, which hearing notice sets forth the alleged violations of the Racing Commission=s rules, as well as the date and
time of the hearing. The hearing notice may be incorporated into the written notice provided pursuant to (c)3 above. Where the owner of the horse is not a subject of the hearing, the owner shall be provided a copy of the notice of hearing as an interested party. The written notice of hearing shall be by personal service or by mail sent to the address listed in their respective applications on file with the Racing Commission. (d) In the event a violation of this section is determined, following the conduct of a hearing by the Board of Stewards pursuant to (c)4 above, the trainer of the horse subject of the violation shall, within five days of the issuance of the related ruling, provide the State Steward with $2,000 as reimbursement to the Racing Commission for the administrative and testing costs associated with the initial positive test. In the event the positive test result finding is appealed, and in the event such appeal results in a final determination that no violation was committed, the $2,000 shall then be returned to the trainer. (e) In the event a violation of this section is determined, following the conduct of a hearing by the Board of Stewards pursuant to (c)4 above, the license of the trainer, as the absolute insurer of the horse pursuant to N.J.A.C. 13:70-14A.6, and any other responsible person, shall be suspended by the Board of Stewards for 10 years for a first violation. In addition, said trainer and any other responsible person shall be fined $50,000 for a first violation, and shall be prohibited from appearing upon or at any premises subject to the Racing Commission=s jurisdiction for the 10-year license suspension period. For a
second violation, the penalty of license revocation shall be imposed. A person whose license has been revoked, as a result of a violation of this section, shall permanently be prohibited from licensure in any capacity and from appearing upon or at any premises subject to the jurisdiction of the Racing Commission. Where a violation of this section is determined, the ineligibility period as to the horse, as set forth in (f) below, shall also be imposed by the Board of Stewards. Such ineligibility period shall be calculated to begin running on the date the horse was placed on the Veterinarian=s list pursuant to (c)2 above. Where no violation is determined, as a result of the conduct of a hearing by the Board of Stewards, the horse shall be promptly removed from the Veterinarian=s list and shall then be eligible to compete in racing. (f) In the event a violation of this section is determined, following the conduct of a hearing by the Board of Stewards pursuant to (c)4 above, a horse determined to test positive for the presence of Erythropoietin (Epogen, EPO), DarbEPO, or other blood doping agent shall be ineligible to compete in racing in this State for a period of 120 days. Following said 120-day period of ineligibility, the horse which tested positive shall continue to be ineligible to compete in racing in this State until: following a written request to the Racing Commission State Steward by the owner or trainer of the horse and the production of that horse for testing (at cost to the requesting party and at a location determined by the State Steward) accompanied by a $2,000 payment for administrative and testing costs payable to the Racing Commission, the horse is determined by the Racing
Commission to test negative for the presence of Erythropoietin (Epogen, EPO), DarbEPO, or other blood doping agents; and said horse is determined by the Racing Commission to test negative for elevated titers of anti-recombinant human EPO antibody, pursuant to the testing methodology set forth at N.J.A.C. 13:70-14A.12. Where such testing results in a determination that the horse either tests positive for presence of Erythropoietin (Epogen, EPO), DarbEPO, or other blood doping agent, or for elevated titers of anti-recombinant human EPO antibody, the owner or trainer may not request that the horse be retested until 21 days following the date of the last positive retest as reported to the Racing Commission by the Racing Commission=s Equine Testing Laboratory. In the event of any such retest, and subject to payment of the requisite administrative and testing costs (that is, $2,000) to the Racing Commission, the horse shall be retested for the presence of Erythropoietin (Epogen, EPO), DarbEPO, or other blood doping agents, and for elevated titers of anti-recombinant human EPO antibody. (g) A horse which tests positive for the presence of Erythropoietin (Epogen, EPO), DarbEPO or other blood doping agent, as a result of out-of-competition testing, remains subject to the requirements of (f) above despite its being sold, or otherwise transferred. (h) The split sample testing provisions of N.J.A.C. 13:70-14A.4, which is limited to where testing is conducted on a horse=s urine sample, shall not be applicable to the out-of-competition testing authorized pursuant to this section. (i) Nothing contained in this section shall be construed to disallow the
Racing Commission to conduct post-race blood testing (that is, sampling of a horse=s blood on race day following the race, for testing on that same date or on a subsequent date) for Erythropoietin (Epogen, EPO), DarbEPO, or other blood doping agents, pursuant to post-race testing otherwise authorized by this chapter. See N.J.A.C. 13:70-14A.4. In the event of a positive test for the presence of Erythropoietin (Epogen, EPO), DarbEPO, or other blood doping agent, as a result of post-race testing, the procedures set forth in (c) above, as well as the provisions of (d) though (f) above, shall apply and the penalties, testing costs and horse ineligibility criteria set forth in this section shall therefore be imposed. In the event of such a positive, determined as a result of post-race testing, any purse won by the offending horse shall be forfeited pursuant to N.J.A.C. 13:70-14A.7. Frank Zanzuccki, Executive Director director/document/mike/rules/out of competition tbred rule