RWB-24-07-00007-E Disqualification of a Horse for Intentional or Careless Interference

6/13/07 N.Y. St. Reg. RWB-24-07-00007-E

NEW YORK STATE REGISTER

VOLUME XXIX, ISSUE 24

June 13, 2007

RULE MAKING ACTIVITIES

RACING AND WAGERING BOARD

EMERGENCY RULE MAKING

 

I.D No. RWB-24-07-00007-E

Filing No. 539

Filing Date. May. 25, 2007

Effective Date. May. 25, 2007

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 action:

Action taken:

Amendment of section 4035.2 of Title 9 NYCRR.

Statutory authority:

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

Finding of necessity for emergency rule:

Preservation of general welfare.

Specific reasons underlying the finding of necessity:

This rule is necessary to preserve the integrity of pari-mutuel racing and wagering in New York State, and thereby insure that the State can receive reasonable revenue in support of government arising from such wagering. This rule is designed to protect the betting public from intentional or negligent misconduct committed during the course of a horse race, and ensure that a jockey's conduct during the course of a race is both professional and beyond reproach. It is urgent that this rule be adopted to assure the public confidence and integrity of parimutuel racing on both a daily basis and in light of the fact that the Belmont Stakes, the Whitney Handicap at Saratoga (a Breeders' Cup qualifier) and scores of other world-class thoroughbred horse races will be conducted in New York over the course of the next several months. This rule is necessary to ensure public confidence in such events, as well as provide for the continuing safety of the participating horses and jockeys.

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 emergency 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.

This notice is intended

to serve only as a notice of emergency adoption. This agency intends to adopt this emergency rule as a permanent rule and will publish a notice of proposed rule making in the State Register at some future date. The emergency rule will expire August 22, 2007.

Text of emergency 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, New York 12305, [phone], e-mail: [e-mail]

Regulatory Impact Statement

1. Statutory authority: Racing, Pari-Mutuel Wagering and Breeding Law (RPWBL), subdivision 1 of section 101, section 207 and section 212. Subdivision 1 of the RPWBL grants the Racing and Wagering Board (Board) general jurisdiction over all horse racing activities in the state. Section 207 states that all thoroughbred races or race meetings shall be subject to such reasonable rules and regulations from time to time prescribed by the Board. Section 212 of the RPWBL requires that three stewards supervise each thoroughbred race meeting, and that such stewards shall exercise powers and perform such duties at each race meeting as may be prescribed by the rules of the Board.

2. Legislative objectives: To enable the Board to assure the public's confidence in — and preserve the integrity of — racing at pari-mutuel wagering tracks located in New York State, and to ensure that the state can receive reasonable revenue in support of government arising from such wagering.

3. Needs and benefits: This rule is necessary to ensure safe and professional conduct of jockeys during the course of a thoroughbred race, to preserve the integrity of pari-mutuel racing and wagering in New York State, and to insure that the state can receive reasonable revenue in support of government arising from such wagering. This rule is designed to protect the betting public from intentional or negligent misconduct committed during the course of a horse race, and ensure that a jockey's conduct during the course of a race is both professional and beyond reproach. This rule is necessary to ensure public confidence in such events.

The purpose of section 4035.2(d) is to prohibit intentional or careless interference during the course of a race. Previously, the rule generally prohibited such interference. However, 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, 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 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.

This amendment is also necessary from a legal perspective in that it adopts more specific language regarding what action or actions constitute foul riding. The language of the current rule is narrow and needs to define all conduct that comprises interference. In addition to interfering with another horse or jockey, the language of the amendment also prohibits a jockey from impeding, intimidating or injuring another horse. Similarly, current language is vague as to what constitutes striking. The amendment specifies the prohibited use of a mount, equipment or other object under a jockey's control. In short, this amendment is necessary to close all technical loopholes regarding foul riding.

This amendment is necessary to grant the stewards necessary discretion in considering mitigating factors as to whether disqualification is necessary.

4. Costs:

(a) Cost to regulated parties for the implementation of continuing compliance with the rule: None. This rule pertains to the conduct of jockeys during the course of a horse race, and imposes no costs upon them.

(b) Costs to the agency, state and local governments for the implementation and continuation of the rule: None. The Board is the sole government agency responsible for the regulation of thoroughbred racing in New York State. This rule can be enforced under the existing regulatory system with no added costs.

(c) The information, including the source of such information and the methodology upon which the cost analysis is based: This cost information was determined by the Office of Counsel of the New York State Racing and Wagering Board.

(d) There are no costs associated with this rule, so no estimates have been provided.

5. Local government mandates: None. Local governments do not regulate horse racing in the State of New York.

6. Paperwork: None. Stewards would use the existing paperwork requirements for riding violations.

7. Duplication: None. The Board is the only entity whose duty is to regulate horse racing in the State of New York, and there are no other controlling rules or regulations.

8. Alternatives: There are no other alternatives to consider. This rulemaking is designed to close technical loopholes in a rule that is designed to ensure the safety of jockeys and ensure the integrity of thoroughbred horse racing in New York State. The alternative would be to leave the existing rule in place, which is unacceptable given that it is not specific enough as it applies to prohibited conduct, nor does it grant adequate discretion to stewards in cases where disqualification is not merited.

9. Federal standards: None. However, the use of whip provision of this rule amendment is consistent with the Model Rule on Interference and Use of Whip prescribed by the Association of Racing Commissioners International, which states that “No jockey shall carelessly or willfully jostle, strike or touch another jockey or another jockey's horse or equipment.”

10. Compliance schedule: This rulemaking will be effective upon submission to the Department of State as an emergency rulemaking and will remain in effect for 90 days. This rulemaking will become permanent upon adoption after publication in the State Register and after the statutorily required 45-day public comment period.

Regulatory Flexibility Statement, Rural Area Flexibility Statement and Job Impact Statement

This proposal does not require a Regulatory Flexibility Statement, Rural Area Flexibility Statement or 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.