WSR 06-24-060

PROPOSED RULES

HORSE RACING COMMISSION


[ Filed December 4, 2006, 12:24 p.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 06-07-056.

Title of Rule and Other Identifying Information: WAC 260-84-090 Equine medication and prohibited substances -- Penalties, 260-84-110 Penalties for uniform classifications and repealing WAC 260-84-100, 260-84-120, and 260-84-130.

Hearing Location(s): Auburn City Council Chambers, 25 West Main, Auburn, WA 98001, on January 11, 2007, at 9:30 a.m.

Date of Intended Adoption: January 11, 2007.

Submit Written Comments to: Douglas Moore, 6326 Martin Way, Suite 209, Olympia, WA 98516-5578, e-mail dmoore@whrc.state.wa.us, fax (360) 459-6461, by January 8, 2007.

Assistance for Persons with Disabilities: Contact Patty Sorby by January 8, 2007, TTY (360) 459-6462.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: To amend WAC 260-84-090 in clear language and repeal applicable sections in chapter 260-84 WAC.

Reasons Supporting Proposal: To adopt the recommended model rules to comply with the international model rules and/or Racing Medication and Testing Consortium. This also incorporates sections into more understandable and clear language for licensees and stakeholders.

Statutory Authority for Adoption: RCW 67.16.020.

Rule is not necessitated by federal law, federal or state court decision.

Name of Proponent: Washington horse racing commission, governmental.

Name of Agency Personnel Responsible for Drafting: Douglas Moore, 6326 Martin Way, Suite 209, Olympia, WA 98516-5578, (360) 459-6462; Implementation and Enforcement: Robert Leichner, 6326 Martin Way, Suite 209, Olympia, WA 98516-5578, (360) 459-6462.

No small business economic impact statement has been prepared under chapter 19.85 RCW. Not applicable.

A cost-benefit analysis is not required under RCW 34.05.328. Not applicable.

December 4, 2006

R. M. Leichner

Executive Secretary

OTS-8903.2


AMENDATORY SECTION(Amending WSR 06-07-058, filed 3/10/06, effective 4/10/06)

WAC 260-84-090   Equine medication and prohibited substances -- ((Penalties -- )) Penalty guidelines.   (1) A report from the commission's approved laboratory of a positive test for a prohibited drug, medication or substance, or a medication exceeding threshold levels in WAC 260-70-630 or 260-70-640, or the presence or lack of presence of furosemide is prima facie evidence of a violation. In the absence of substantial evidence to the contrary, the trainer will be responsible.

(2) Upon a finding of a violation of the medication and prohibited substances rules in chapter 260-70 WAC, the stewards ((shall consider the classification level)) will use the penalty class of the medication, drug or substance ((prior to)) when imposing a penalty. During the stewards ruling conference the stewards ((shall)) may also ((consult with)) receive testimony from an official veterinarian to determine the nature and seriousness of the laboratory finding or the medication violation, and whether the violation was a result of the administration of a therapeutic medication ((as)) documented in a veterinarian's report received per WAC 260-70-540.

(((2))) (3) A lesser penalty than that established in ((WAC 260-84-110)) these rules may be imposed if a majority of the stewards determine that mitigating circumstances warrant a lesser penalty. ((If a majority of the stewards determine a greater penalty is appropriate or that a penalty in excess of the authority granted them is appropriate, they may impose the maximum penalty authorized and refer the matter to the commission with specific recommendations for further action.)) In determining if there are mitigating circumstances ((surrounding)) for a medication violation for substances referred to in chapter 260-70 WAC, ((at least)) the ((following shall be considered)) stewards may consider:

(a) The past record of the trainer ((and/or)), veterinarian, and owner in medication/drug cases;

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

(c) The legal availability of the medication/drug;

(d) Whether there is reason to believe the responsible party knew of the administration of the medication/drug used, or intentionally administered the medication/drug;

(e) The steps taken by the trainer to safeguard the horse;

(f) The probability of environmental contamination or inadvertent exposure due to human drug use;

(g) ((The purse of the race;

(h))) Whether the medication/drug found was one for which the horse was receiving a treatment as determined by the veterinarian report(s);

(((i))) (h) Whether there was any suspicious betting pattern in the race; ((and

(j))) (i) Whether the ((presence of the medication/drug in urine was confirmed in serum or plasma)) licensed trainer was acting under the advice of a licensed veterinarian; and

(j) Other mitigating information.

(((3) If a majority of the stewards determine a penalty greater than established in these rules is appropriate, they may impose the maximum penalty authorized and refer the matter to the commission with specific recommendations for further action.

(4) If the penalty is not otherwise established for a violation of chapter 260-70 WAC, the penalty shall be determined by the board of stewards.)) (4) For other violations of chapter 260-70 WAC, not specifically listed, the stewards have authority to impose penalties as provided in WAC 260-24-510 (3)(b).

[Statutory Authority: RCW 67.16.020 and 67.16.040. 06-07-058, 260-84-090, filed 3/10/06, effective 4/10/06; 05-07-064, 260-84-090, filed 3/11/05, effective 4/11/05.]


AMENDATORY SECTION(Amending WSR 05-07-064, filed 3/11/05, effective 4/11/05)

WAC 260-84-110   Penalties for uniform classifications.   (1) ((Penalties shall be assessed against any person found to be responsible or party to the improper administration of a drug or the intentional administration of a drug resulting in a positive test. In assessing penalties under this section, violations in the last three hundred sixty-five days from Washington and all recognized racing jurisdictions shall be considered.

(a) Class 1 - One to five year suspension and at least $5,000 fine and loss of purse.

(b) Class 2 - Six months to one year suspension and $1,500 to $2,500 fine and loss of purse.

(c) Class 3 - Sixty days to six months suspension and up to $1,500 fine and possible loss of purse.

(d) Class 4 - Zero to sixty days suspension and up to $1,000 fine and possible loss of purse.

(e) Class 5 - Warning to fifteen days suspension with a possible loss of purse and/or fine.

(2) A lesser penalty may be imposed if a majority of the stewards determine that mitigating circumstances, as outlined in WAC 260-70-090 exist.)) In issuing penalties against individuals in violation of medication or drug rules, a regulatory distinction will 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.

(2) The stewards or the commission will use the penalty class and schedule established in WAC 260-70-680 to determine the penalty for a violation of this section.

(3) If a licensed veterinarian is administering or prescribing a drug not listed in WAC 260-70-680, the stewards will notify the official veterinarian and provide the name and quantity to the Racing Medication and Testing Consortium (RMTC) for classification.

(4) Any drug or metabolite found to be present in a pre-or post-race sample, which is not classified in WAC 260-70-680 will be assumed to be a class 1 drug and the trainer and owner will be subject to the penalties for a penalty class A substance.

(5) The following are the penalties for drugs in penalty class A in WAC 260-70-680, including violations for exceeding thresholds established in WAC 260-70-630, and for violations of prohibited practices as listed in WAC 260-70-545:


1st Offense 2nd Lifetime Offense

in any Jurisdiction

3rd Lifetime Offense

in any Jurisdiction

Trainers, or any other person, including veterinarians, found to be responsible for the improper or intentional administration of any drug or substance resulting in a positive test. In the absence of mitigating factors - 1 year suspension and $10,000 fine (or 10% of the total purse, whichever is greater). If aggravating factors exist - Immediate suspension and referred to the commission for a 3-year suspension and a $25,000 fine or 25% of the purse (whichever is greater), or any other action the commission deems necessary. Immediate suspension and referral to the commission for a 3-year revocation, and a fine of not less that $25,000 and not more than $50,000 (or 50% of the purse, whichever is greater). Immediate suspension and referral to the commission for a 5-year revocation, and a fine of not less than $50,000 and not more than $100,000 (or 100% of the purse, whichever is greater).
Owners. Disqualification and loss of purse. The horse will be placed on the veterinarian's list for 90 days and must pass an examination conducted by an official veterinarian before being eligible to be entered. Disqualification and loss of purse. The horse will be placed on the veterinarian's list for 120 days and must pass an examination conducted by an official veterinarian before being eligible to be entered. 30 to 90 day suspension, disqualification, loss of purse and $50,000 fine. The horse will be placed on the veterinarian's list for 180 days and must pass an examination conducted by an official veterinarian before being eligible to be entered.

(6) The following are the penalties for penalty class B drugs in WAC 260-70-680, including exceeding thresholds established in WAC 260-70-630, the presence of more than one NSAID in a plasma/serum sample as provided in WAC 260-70-640, and for violations of the established level for total carbon dioxide as provided in WAC 260-70-675:


1st Offense 2nd Lifetime Offense

in any Jurisdiction

3rd Lifetime Offense

in any Jurisdiction

Trainers, or any other person, including veterinarians, found to be responsible for the improper or intentional administration of any drug or substance resulting in a positive test. 15 to 60-day suspension plus a $500 to $1000 fine 30 to 180-days suspension plus a $1,000 to $2,500 fine. 60-day to 1 year suspension plus a $2,500 to $5,000 fine (or 5% of the purse, whichever is greater), and possible referral to the commission.
Owners. Disqualification and loss of purse (in the absence of mitigating circumstances). The horse must pass an examination conducted by an official veterinarian before being eligible to be entered. Disqualification and loss of purse (in the absence of mitigating circumstances). The horse must pass an examination conducted by an official veterinarian before being eligible to be entered. Disqualification and loss of purse. In the absence of mitigating circumstances a $5,000 fine. The horse will be placed on the veterinarian's list for 45 days and must pass an examination conducted by an official veterinarian before being eligible to be entered.

(7) The following are the penalties for penalty class C drugs in WAC 260-70-680, including threshold levels in WAC 260-70-630, overages of permitted medications in WAC 260-70-640 and furosemide in WAC 260-70-650 and 260-70-660:


Phenylbutazone (5.1 - 9.9 mcg/ml)

Flunixin (21 - 99 ng/ml)

Ketoprofen (11 - 49 ng/ml)

Furosemide (>100 ng/ml) and no furosemide when identified as administered

1st Offense in

365-day period

2nd Offense in

365-day period

3rd Offense in

365-day period

Trainer (absent mitigating circumstances). Minimum fine of $250. Minimum fine of $500. Minimum fine of $1,000 fine and 15-day suspension.
Phenylbutazone (≥10.0 mcg/ml)

Flunixin (≥ 100 ng/ml)

Ketoprofen (≥ 50 ng/ml) and other penalty class C violations

1st Offense in

365-day period

2nd Offense in

365-day period

3rd Offense in

365-day period

Trainer (absent mitigating circumstances). Minimum fine of $500. Minimum fine of $1,000 and 15-day suspension. Minimum fine of $2,500 and 30-day suspension.
Owner. Loss of purse. Horse must pass an examination conducted by an official veterinarian before being eligible to be entered. Loss of purse. If same horse, placed on veterinarian list for 45 days and must pass an examination conducted by an official veterinarian before being eligible to be entered. Loss of purse. Minimum $5,000 fine. If same horse, placed on veterinarian list for 60 days and must pass an examination conducted by an official veterinarian before being eligible to be entered.

(8) The recommended penalty for a violation involving a drug that is a penalty class D drug is a warning to the trainer and owner. Multiple violations may result in fines and/or suspensions.

(9) Any licensee, including veterinarians, found to be responsible for the improper or intentional administration of any drug resulting in a positive test, may be subject to the same penalties set forth for the licensed trainer.

(10) The licensed owner, veterinarian or any other licensee involved in a positive laboratory finding will be notified of a stewards' ruling conference as provided in WAC 260-24-510. In addition their presence may be required at any stewards' ruling conferences relative to the case.

(11) Any veterinarian found to be involved in the administration of any drug carrying with the penalty class A will be referred to the department of agriculture, board of veterinary medicine for consideration of further disciplinary action. This is in addition to any penalties issued by the stewards or the commission.

(12) The stewards or commission will ensure that a licensed trainer is not able to benefit financially during the period for which the individual has been suspended. This includes, but is not limited to, ensuring that horses are not transferred to a family member licensed by the commission.

(13) Persons revoked under the provisions of this section may not reapply for a license during their period of revocation.

[Statutory Authority: RCW 67.16.020 and 67.16.040. 05-07-064, 260-84-110, filed 3/11/05, effective 4/11/05.]


REPEALER

     The following sections of the Washington Administrative Code are repealed:
WAC 260-84-100 Furosemide penalties.
WAC 260-84-120 Penalties relating to permitted medication.
WAC 260-84-130 Penalties for prohibited practices.

Washington State Code Reviser's Office