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In re Adoption of Amendments to N.J.A.C. 13:70-14A.13

December 4, 2009


On appeal from a Final Decision of the New Jersey Racing Commission, Proposal Nos. PRN-2007-239 and PRN-2007-240.

Per curiam.


Submitted December 9, 2008

Before Judges Skillman, Graves and Grall.

The New Jersey Thoroughbred Horsemen's Association (Association) challenges the validity of four regulations approved by the New Jersey Racing Commission (Commission). The Commission was created to "regulat[e] horse racing, [and] to advocate the growth, development and promotion of the horse racing industry in this State." N.J.S.A. 5:5-22. One of the regulations, N.J.A.C. 13:70-14A.13, authorized the taking of blood samples from thoroughbred racehorses for the purpose of testing for Epogen and other blood doping agents on non-race days*fn1 and race-days (pre-race) at the Commission's discretion. The other three regulations, N.J.A.C. 13:70-14A.14, N.J.A.C. 13:70-14A.15, and N.J.A.C. 13:70-14A.16, established a post-race blood gas testing program to detect whether alkalinizing agents, commonly called "milkshakes," were administered to horses in an effort to enhance their performance during a race. The Association contends, among other things, that the regulations were adopted by the Commission in violation of the Administrative Procedure Act (APA), N.J.S.A. 52:14B-1 to -25, and the Open Public Meetings Act (OPMA), N.J.S.A. 10:4-6 to -21. After reviewing the Association's claims in light of the record and the applicable law, we find no justification for invalidating the regulations.

Prior to adopting or amending any rule or regulation, the APA requires an administrative agency to "[g]ive at least 30 days' notice of its intended action[,]" N.J.S.A. 52:14B-4(a)(1), and the agency must afford interested parties a "reasonable opportunity to submit data, views, or arguments, orally or in writing." N.J.S.A. 52:14B-4(a)(3). If sufficient public interest is demonstrated in the proposed rules, then the comment period may be extended. Ibid. In addition, the APA requires the agency to "consider fully all written and oral submissions respecting the proposed rule[s]." Ibid. Administrative rules and regulations are not valid "unless adopted in substantial compliance" with the APA. N.J.S.A. 52:14B-4(d).

In this case, the proposed rules were published in the New Jersey Register, together with the statement required by N.J.S.A. 52:14B-4(a)(2), on July 16, 2007. 39 N.J.R. 2593-99. Pursuant to the published notice, any comments to the proposed rules had to be submitted to the Commission by no later than September 14, 2007.

In a letter from the Association to the Commission dated September 5, 2007, the Association's attorney stated there was "no lawful justification for compelling the drawing of blood without some probable cause or some reasonable basis," and there was "no need" for post-race gas testing because there was no proof "that the use of the bicarbonate milkshaking technique has a positive effect on the performance of thoroughbred race horses." The Association also requested a "full hearing" to "exchange information" with the Commission prior to the adoption of the proposed regulations, and it submitted form letters signed by members of the Association in support of the request for a hearing.

However, in a second letter dated September 14, 2007, the Association withdrew its opposition to the proposed regulations and the request for a public hearing:

It has been called to our attention that the Breeders' Cup organization has requested the adoption of these rules for the purpose of the upcoming Breeders' Cup races scheduled for October 26th and 27th, 2007 at Monmouth Park. The purpose of these rules is to ensure that the horses entered into the races are tamper free and that the Racing Commission has taken every possible step to ensure that fact. For the purposes of the remainder of this Thoroughbred racing year,

[t]he New Jersey Thoroughbred Horsemen's Association hereby withdraws its opposition to the adoption of these rules and request for a hearing. In so doing, the New Jersey Thoroughbred Horsemen's Association reserves [its] right to challenge the enforcement and administration of both rules, procedurally and substantively, as being in violation of the Administrative Procedure Act, the Open Public Meetings Act, and the substantive needs of the thoroughbred racing industry in New Jersey.

After the comment period expired on September 14, 2007, the Commission considered the adoption of the proposed testing rules during a public meeting on September 17, 2007. During that meeting, the Commission responded to each of the comments it received regarding the proposed rules, including the concerns initially raised by the Association in its letter dated September 5, 2007. The Commission noted that "[t]he administration of foreign substances to a horse to enhance its racing performance strikes at the heart of the public's confidence in horse racing." In addition, the Commission's response to the Association's comments regarding out-of-competition testing included the following:

The NJTHA's comment that the Racing Commission's inability to test for Epogen post-race pursuant to its traditional post-race testing protocol, should not serve as a basis for unwarranted expansion of testing to non-race days is factually incorrect. The summary to the rule proposal clearly indicates that the Racing Commission has developed a direct testing strategy for Epogen. However, the Racing Commission believes Epogen administrations dosing are initiated during training many weeks in advance of race day, in an attempt to improve the red cell condition of the horse for race day. Considering the fact that the half life of this drug in blood is extremely short, this administration approach renders any race day test for Epogen ineffective. This is why the International Scientific Community endorses the concept of out-of-competition testing for blood doping products....

Accordingly, the Racing Commission believes that the proposed rule through its absolute prohibition of such administrations to race horses at any time, and at any location, coupled with the ability of the Racing Commission to sample racehorses for the presence of such substances close to the administration and ...

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