RWB-24-07-00006-P Disqualification of a Horse for Intentional or Careless Interference

6/13/07 N.Y. St. Reg. RWB-24-07-00006-P

NEW YORK STATE REGISTER

VOLUME XXIX, ISSUE 24

June 13, 2007

RULE MAKING ACTIVITIES

RACING AND WAGERING BOARD

PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. RWB-24-07-00006-P

Disqualification of a Horse for Intentional or Careless Interference

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:

Proposed action:

This is a consensus rule making to amend section 4035.2(d) of Title 9 NYCRR.

Statutory authority:

Racing, Pari-Mutuel Wagering and Breeding Law, sections 101(1), 207 and 212

Subject:

Disqualification of a horse for intentional or careless interference.

Purpose:

To prohibit intentional or careless interference by a horse during the course of a race. During the course of a recent administrative hearing where a horse was disqualified due to a jockey striking another horse in the head with a whip as the second horse was advancing, the appealing party successfully argued that the contact was not willful and that since subdivision (d) of section 4035.2 of the board's thoroughbred rules did not expressly prohibit a jockey from carelessly striking another horse, the disqualification was erroneous. In fact, existing section 4035.2(d) prohibits a jockey from riding “willfully or carelessly” while the prohibition against striking another horse or jockey merely had to be willful in order to be a violation. There is no provision for “carelessness” in the existing rule as it pertains to striking another horse or jockey. This loophole creates a dangerous racing environment whereby stewards would have to determine that a jockey acted willfully in striking another horse or jockey with a whip before disqualifying a horse for such misconduct. This rulemaking will close that loophole and is necessary to ensure the integrity of horseracing.

Text of proposed rule:

Subdivision (d) of Section 4035.2 of 9E NYCRR is amended to read as follows:

(d) [If a jockey willfully strikes another horse or jockey or rides willfully or carelessly so as to injure another horse, which is in no way in fault, or so as to cause other horses to do so, his horse is disqualified.] A jockey shall not ride carelessly or willfully such that his mount, equipment, or any item or object under his or her control interferes with, impedes, intimidates, or injures another horse or jockey in the race, including that a jockey shall not carelessly or willfully strike another horse or jockey or his or her equipment or with his or her whip. The stewards may disqualify such a horse if the foul was willful or may have altered the finish of the race; the stewards may also take into consideration mitigating factors such as whether the impeded horse was partly at fault or the foul was caused by the fault of some other horse or jockey.

Text of proposed rule and any required statements and analyses may be obtained from:

Gail Pronti, Secretary to the Board, Racing and Wagering Board, One Broadway Center, Suite 600, Schenectady, NY 12305, [phone], e-mail: [e-mail]

Data, views or arguments may be submitted to:

Same as above.

Public comment will be received until:

45 days after publication of this notice.

Consensus Rule Making Determination

Board staff has determined that no person is likely to object to the rule as written because it closes a technical loophole in the thoroughbred Foul Riding Rule, and the new language of the rule is consistent with the long-accepted spirit of the rule, which is that a jockey risks disqualification by the stewards for striking another jockey or horse in any manner.

The rulemaking includes more specific language than the current rule as to what constitutes foul riding, which eliminates any ambiguities about what constitutes foul riding. Board staff has determined that no person is likely to object to this amendment because it clarifies exactly what conduct is prohibited and eliminates grey areas of conduct.

This amendment also grants the track stewards more discretion in considering whether a disqualification is appropriate in the totality of circumstances of a race, rather than impose mandatory disqualification based on inconsequential contact between horses or jockeys. Board staff has determined that no person is likely to object to the rule as written because it allows the stewards to take into consideration the totality of circumstances in each race before determining whether or not a horse should be disqualified. This rule would allow stewards to make a reasonable decision based upon the circumstances of the race, rather than bind them to a mandatory disqualification penalty. Board staff has determined that no person is likely to object to granting the stewards such discretion.

Job Impact Statement

This proposal does not require a Job Impact Statement as the amendment addresses the conduct of jockeys during a professional sporting event. It does not diminish their substantive job duties or their opportunity to earn a living. The rule prohibits a jockey from striking or injuring another jockey or horse during a thoroughbred race, and allows race stewards to disqualify a horse if its jockey violates the rule. As is apparent from the nature of the rule, the rule neither affects small business, local governments, jobs nor rural areas. Prohibiting riding fouls during the course of a thoroughbred race, or otherwise disqualifying such horse, does not impact upon a small business pursuant to such definition in the State Administrative Procedure Act § 102(8). Nor does it affect employment. The proposal will not impose an adverse economic impact on reporting, recordkeeping or other compliance requirements on small businesses in rural or urban areas nor on employment opportunities. The rule does not impose any significant technological changes on the industry. The rule can be enforced using existing regulatory methods and technology.