New Mexico Register / Volume XXX, Issue 23 / December 17, 2019
This is an amendment
to 15.2.6 NMAC, Sections 6, 9 and 12, effective date of December 19, 2019.
Explanatory
Paragraph: In 15.2.6.9 NMAC, Paragraphs (1)
through (12) of Subsection A, Subsection B, Paragraphs (1) through (7) and
Paragraphs (9) through 12 of Subsection C, and Subsections D through K,
Paragraphs (1) and (2) of Subsection L, Subsection M and N were not published
as there were no changes. Throughout 15.2.6
NMAC, number and rule citations have been changed to conform to correct
legislative style.
15.2.6.6 OBJECTIVE: [The objective of Part 6 of Chapter 2 is]
To describe requirements and procedures used to protect the integrity of horse
racing, to ensure the health and welfare of race horses and to safeguard the
interests of the public and the participants in racing.
[15.2.6.6 NMAC - Rp, 15 NMAC 2.6.6, 4/13/2001; A, 7/31/2012; A, 12/19/2019]
15.2.6.9 MEDICATIONS AND PROHIBITED SUBSTANCES: The classification guidelines contained within the "uniform classification guidelines for foreign substances and recommended penalties and model rule", January 2019 version 14.0 and “association of racing commissioners international inc. controlled therapeutic medication schedule for horses”, version 4.0, revised April 20, 2017 by the association of racing commissioners international, are incorporated by reference. Any threshold herein incorporated by reference by inclusion in one of the documents above shall not supersede any threshold or restriction adopted by the commission as specified by this section.
A. Penalties:
***
(13) Aggravating
and Mitigating Factors:
(a) In
reaching a decision on a penalty for a violation for the New Mexico horse
racing act or New Mexico racing commission rules and regulations, the
commission, the board of stewards, the hearing officer or the administrative
law judge shall consider the penalties set forth in paragraph (2) of this
subsection and any aggravating and mitigating circumstances. Deviation from these penalties is appropriate
where the facts of the particular case warrant such a deviation, for
example: there may be mitigating
circumstances for which a lesser or no penalty is appropriate, and aggravating
factors for which a greater penalty is appropriate.
(b) Mitigating
circumstances and aggravating factors, which must be considered, include but
are not limited to:
(1) The
past record of the licensee regarding violations of the New Mexico horse racing
act or New Mexico racing commission rules;
(2) the
potential of the drug(s) to influence a horse's racing performance and the
amount of the drug present;
(3) the
legal availability of the drug and whether the drug was prescribed to the horse
by a New Mexico racing commission licensed veterinarian;
(4) whether
there is reason to believe the responsible party knew of the administration of
the drug or intentionally administered the drug;
(5) the
steps taken by the trainer to safeguard the horse;
(6) the
steps taken by an owner to safeguard against subsequent medication violations
including, but not limited to, the transfer of the horse(s) to an unaffiliated
trainer.
An "unaffiliated trainer" means a trainer or an assistant trainer who
is not related by blood, marriage or domestic partnership, or who is not or was
never employed to the trainer from whose case such horse(s) were transferred.;
(7) the
probability of environmental contamination or inadvertent exposure due to human
drug use or other facts;
(8) the
purse of the race;
(9) whether
the drug found to be present in the official test sample was one for which the
horse was receiving treatment as determined and documented by an New Mexico
racing commission licensed veterinarian;
(10) whether
there was any suspicious wagering pattern on the race; or
(11) whether
the licensed trainer was acting under the advice of an New Mexico racing
commission veterinarian.
(c) The
stewards shall consider the classification of a drug substance and the "uniform
classification guidelines for foreign substances" if a determination is
made that an official test sample from a horse contained;
(1) Any
drug substance, medication, metabolites or analogues thereof foreign to the
horse, whose use is not expressly authorized in this section, or
(2) any
drug substance, medication or chemical authorized by this section in excess of
the authorized level or other restrictions as set forth in this section.
(d) Penalties
for violation of each classification level are listed in Subsection B of
15.2.6.9 NMAC.
***
C. Medication restrictions:
***
(8) Any horse that is the subject of a positive test report from the official laboratory for a drug in one of the following categories shall be placed immediately on the steward’s list:
(a) any drug categorized by the association of racing commissioner’s international “uniform classification guidelines for foreign substance and recommended penalties and model rule” incorporated by reference under 15.2.6.9 NMAC as a penalty class A substance;
(b) any prohibited anabolic androgenic steroid or any anabolic androgenic steroid in excess of the permitted concentrations listed in Subsection G of 15.2.6.9 NMAC;
(c) clenbuterol, albuterol, or other beta-agonist drugs with significant anabolic effects that are not currently penalty class A drugs (specifically Quarter Horses or Thoroughbreds);
(d) other drugs designed to promote growth or muscle including, but not limited to, growth hormones, somatotropins, insulin growth factors and gene modifying agents;
(e) cobalt
in excess of the allowable concentration specified pursuant to Subsection [M]
L of 15.2.6.9 NMAC.
***
L. Environmental contaminants and substances of human use:
***
(3) If the preponderance of evidence presented in the hearing shows that a positive test is the result of environmental contamination, including inadvertent exposure due to human drug use, or dietary intake, or is endogenous to the horse, those factors should be consider in mitigation of any disciplinary action taken against the affected trainer. Disciplinary action shall only be taken if test sample results exceed the regulatory thresholds listed below:
(a) Arsenic - 0.3 micrograms per milliliter total arsenic in urine;
(b) Benzoylecgonine - 150 nanograms per milliliter in urine;
(c) Caffeine - 100 nanograms per milliliter of plasma or serum;
(d) Cathinone - 10 nanograms per milliliter in urine;
(e) Cobalt
- 25 ppb in blood plasma or serum (penalties for cobalt vary depending on the
concentration; see uniform classification guidelines for foreign substances for
recommended penalty for concentrations of 25 parts per billion or greater of
blood plasma or serum). [and for concentrations of 50 parts per billion of
blood plasma or serum)];
(f) Estranediol - 0.045 micrograms per milliliter, free + conjugated 5α -estrange-3β, 17 α-diol, in the urine of male horses other than geldings;
(g) Gamma Aminobutryic Acid - 110 nanograms per milliliter of plasma or serum;
(h) Hydrocortisone - 1 microgram per milliliter of urine;
(i) Methoxytyramine - 4 micrograms per milliliter, free + conjugated in urine;
(j) Morphine/morphine glucuronides - 100 nanograms per milliliter in urine;
(k) Salicylate/Salicylic Acid - 750 micrograms per milliliter of urine or 6.5 micrograms per milliliter of serum or plasma;
(l) Scopolamine - 75 nanograms per milliliter of urine;
(m) Strychnine - 100 nanograms per milliliter of urine;
(n) Theobromine - 2 micrograms per milliliter of urine or 0.3 micrograms per milliliter of serum or plasma; and
(o) Theophylline - 400 nanograms per milliliter of urine.
***
O. Multiple Medication Violations (MMV):
(1) A
trainer who receives a penalty for a medication violation based upon a horse
testing positive for a class 1-5 medication with penalty class A-C, as provided
in the version of the ARCI "uniform classification guidelines for foreign
substances" listed in 15.2.6.9 NMAC, or similar state regulatory guidelines,
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 |
1/2 point for first
violation with an additional 1/2 for each additional violation within 365
days |
1 for first
violation with an additional 1/2 point for each additional violation with 365
days |
Class D |
0 |
0 |
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. 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.
(2) The
points assigned to a medication violation by the stewards or commission shall
be included in the ARCI official database.
The ARCI shall record points consistent with Paragraph (1) of this Subsection
including when appropriate, a designation that points have been suspended for
the medication violation. Points
assigned by such commission ruling shall reflect, in the case of multiple
positive tests as described in Paragraph (4) , whether they constitute a single
violation. The stewards or commission
ruling shall be posted on the official website of the commission and within the
official database of the ARCI. 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.
(3) A
trainer's cumulative points for violations in all racing jurisdictions shall be
maintained by the ARCI. Once all appeals
are waived or exhausted, the points shall immediately become part of the
trainer's official ARCI record and shall be considered by the commission in its
determination to subject the trainer to the mandatory enhanced penalties by the
stewards or commission as provided in this rule.
(4) Multiple
positive tests for the same medication incurred by a trainer prior to delivery
of official notice by 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 may treat
each substance found as an individual violation for which points will be
assigned, depending upon the facts and circumstances of the case.
(5) The
official ARCI record shall be used to advise the stewards or commission of a
trainer's past record of violations and cumulative points. Nothing in this administrative regulation
shall be construed to confer upon a licensed trainer the right to appeal a
violation for which all remedies have been exhausted or for which the appeal
time has expired as provided by applicable law.
(6) The
stewards or commission shall consider all points for violations in all racing
jurisdictions as contained in the trainer's official ARCI record when
determining whether the mandatory enhancements provided in this regulation
shall be imposed.
(7) In
addition to the penalty for the underlying offense, the following enhancements
shall be imposed upon a licensed trainer based upon the cumulative points
contained in their official ARCI record:
POINTS |
SUSPENSION IN DAYS |
5 - 5.5 |
15 to 30 |
6 - 8.5 |
30 to 60 |
9 - 10.5 |
90 to 180 |
11 or more |
180 to 360 |
MMV penalties are not a substitute for the current
penalty system and are intended to be an additional uniform penalty when the
licensee:
(a) Has
more than one medication violation for the relevant time period, and
(b) exceeds
the permissible number of points.
The stewards and commission shall consider aggravating
and mitigating circumstances, including the trainer's prior record for
medication violations, when determining the appropriate penalty for the
underlying offense. The multiple
medication penalty is intended to be a separate and additional penalty for a
pattern of violations.
(8) The
suspension periods as provided in this subsection shall run consecutive to any
supension imposed for the underlying offense.
(9) The
stewards or commission ruling shall distinguish between the penalty for the
underlying offense and any enhancement based upon a stewards or commission
review of the trainer's cumulative points and regulatory record, which may be
considered an aggravating factor in a case.
(10) Points
shall expire as follows:
Penalty Classification |
Time to Expire |
A |
3 years |
B |
2 years |
C |
1 year |
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.
[15.2.6.9
NMAC - Rp, 15 NMAC 2.6.9, 4/13/2001; A, 8/30/2001; A, 7/15/2002; A, 8/15/2002; A,
9/29/2006; A, 10/31/2006; A, 8/30/2007; A, 1/31/2008; A, 3/01/2009; A,
6/15/2009; A, 6/30/2009; A, 9/15/2009; A, 12/15/2009; A, 3/16/2010; A,
7/05/2010; A, 9/1/2010; A, 12/1/2010; A, 11/1/2011; A, 2/15/2012; A, 4/30/2012;
A, 7/31/2012; A, 12/14/2012; A, 5/1/2013; A/E, 5/2/2013; A, 9/30/2013; A,
4/01/2014; A, 5/16/2014; A, 8/15/2014; A, 9/15/2014; A, 3/16/2015; A, 9/16/15;
A, 3/15/2016; A, 6/15/2016; A/E, 6/28/2016; A, 9/15/2016; A, 12/16/2016; A,
7/1/2017; A, 10/31/17; A, 03/14/2018; A; 9/26/2018; A, 5/1/2019; A, 12/19/2019]
15.2.6.12 PHYSICAL INSPECTION OF HORSES:
***
B. Veterinarian's
list:
(1) The
official veterinarian or racing veterinarian shall maintain [a] the
veterinarian list of all horses which are determined to be unfit to compete
in a race due to [physical distress, unsoundness, infirmity or medical
condition.] illness, unsoundness, injury, infirmity, voluntary
administration of a medication invoking a mandatory stand down time,
administration of shock-wave therapy or any other assessment or determination
by the official veterinarian or racing veterinarian that the horse is unfit to
race.
(2) Horses
so listed are ineligible to enter to race in any jurisdiction until released by
the official veterinarian or racing veterinarian except when there is
an administrative issue in releasing the horse from a veterinarian's list of
another racing jurisdiction. [A horse may be removed from the
veterinarian's list when, in the opinion of the racing veterinarian, the horse
has satisfactorily recovered the capability of competing in a race.]
(3) A
horse placed on the veterinarian's list due to illness, injury or infirmity
unrelated to the racing soundness of the horse maybe released from the list
when a minimum of seven calendar days has passed from the time the horse was
placed on the list.
(4) A
horse placed on the veterinarian's list for unsoundness or lameness shall be
released from the list only after the following has been met:
(a) A
minimum of seven calendar days has elapsed;
(b) the
horse demonstrates to the satisfaction of the official veterinarian or racing
veterinarian that the horse is serviceably sound and in fit physical condition
to exert its best effort in a race;
(c) the
horse completes a published work after the seven calendar days has elapsed of
four furlongs at 0:52 seconds or better for thoroughbreds; or 220 yards at 13.3
seconds or better for quarter horses while being observed the official
veterinarian or racing veterinarian, and;
(d) the
horse submits to a post work official sample collection for laboratory
confirmation for compliance with 15.2.6.9 NMAC at the expense of the current
owner. Samples shall be subjected to the
same testing as conducted for post race official samples. The presence of a prohibited substance in the
post work sample shall result in the horse remaining on the veterinarian's
list.
(5) A
horse placed on the veterinarian's list for voluntary administration of a
medication invoking a mandatory stand down time shall be released from the list
subject to the provisions and restrictions set forth in Paragraph (1) of C of
15.2.6.9 NMAC.
(6) A
horse placed on the veterinarian's list for administration of shock-wave
therapy shall be released from the list subject to the provisions and
restrictions set forth in Subsection C. of 15.2.6.8.
***
[15.2.6.12 NMAC - Rp, 15 NMAC 2.6.12, 4/13/2001; A, 9/1/2010; A, 12/1/2010; A, 11/1/2011; A, 2/15/2012; A, 7/31/2012; A, 12/19/2019]