RWB-24-12-00003-E Reimbursement of Costs to the State of New York for Associate Judges and Starters at Harness Races

6/13/12 N.Y. St. Reg. RWB-24-12-00003-E

NEW YORK STATE REGISTER

VOLUME XXXIV, ISSUE 24

June 13, 2012

RULE MAKING ACTIVITIES

RACING AND WAGERING BOARD

EMERGENCY RULE MAKING

 

I.D No. RWB-24-12-00003-E

Filing No. 482

Filing Date. May. 24, 2012

Effective Date. May. 24, 2012

Reimbursement of Costs to the State of New York for Associate Judges and Starters at Harness Races

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

Action taken:

Addition of section 4101.41 to Title 9 NYCRR.

Statutory authority:

Racing, Pari-Mutuel Wagering and Breeding Law, sections 101, 301 and 308

Finding of necessity for emergency rule:

Preservation of general welfare.

Specific reasons underlying the finding of necessity:

The Board has determined that immediate adoption of this rule is necessary for the preservation of general welfare and that compliance with the requirements of subdivision 1 of Section 202 of the State Administrative Procedure Act would be contrary to the public interest.

This rule is proposed to conform with Part Y of Chapter 58 of the Laws of 2012, which was part of the 2012 budget for the State of New York. The budget was painstakingly crafted and negotiated to ensure that the economy of New York once again becomes robust and grows to its fullest potential. Over 40,000 jobs exists in the horse racing industry annually in the State of New York. In the face of budget cuts and the potential loss of racing officials that are essential to ensuring the integrity of harness racing, the 2012 state budget calls for the preservation of those critical regulatory jobs by requiring the reimbursement of compensation costs by the operators of harness race tracks.

This rule is necessary to ensure that harness racing officials are hired and compensated, thereby further ensuring the integrity of harness racing, the continuity of harness racing and jobs that are created therewith, and the millions of dollars in revenue that are generated in support of government derived from pari-mutuel wagering on harness racing.

Subject:

Reimbursement of costs to the State of New York for associate judges and starters at harness races.

Purpose:

To implement reimbursement for the costs of hiring certain harness racing officials.

Text of emergency rule:

Section 4101.41 of 9 NYCRR is hereby added to read:

4101.41. Reimbursement for racing officials.

(a) All licensed racing corporations shall reimburse the racing and wagering board for the per diem cost to the board to employ one associate judge and the starter at and in relation to racing meetings conducted by the licensed racing corporation. Reimbursement shall include the per diem rate accorded to the title as well as fringe benefits and any indirect costs attributable to the position.

(b) The board shall notify each licensed racing corporation of the costs to be reimbursed prior to the beginning of each month.

(c) Payment of the reimbursement shall be made to the board no later than the last business day of each month and shall be accompanied by a report, under oath, on a form prescribed by the board. The report shall contain such information as the board may require.

(d) A penalty of five percent of the payment due with interest at the rate of one percent per month calculated from the last business date of the month when payment is due to the date of payment shall be payable in the event that any reimbursement or part thereof is not paid when due.

(e) The board or its duly authorized representatives shall have the power to examine or cause to be examined the books and records of the corporations required to provide the reimbursement for the purpose of examining and checking the same and ascertaining whether the proper amounts are being paid.

(f) If the board determines that any reimbursement received by it was paid in error or exceeded the actual amount required, the board may cause the same to be refunded without interest out of the monies collected or credited to the racing corporation, provided an application therefore is filed with the board within one year from the date the incorrect payment was made.

(g) If the board determines that any reimbursement received by it was insufficient due to an increase in racing days or other circumstance, the board shall direct the racing corporation to provide for such reimbursement by notifying the racing corporation of the obligation and requiring payment by issuance of an assessment fixing the correct amount. Such assessment may be issued within three years from the filing of any report. Any such assessment shall be final and conclusive unless an application for a hearing is filed by the racing corporation within thirty days of the date of the assessment. The action of the board in making such final assessment shall be reviewable in the supreme court in the manner provided by and subject to the provisions of Article 78 of the Civil Practice Law and Rules.

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 21, 2012.

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

John J. Googas, New York State Racing and Wagering Board, One Broadway Center, Suite 600, Schenectady, New York 12305, [phone], email: [e-mail]

Regulatory Impact Statement

1. Statutory authority: Racing, Pari-Mutuel Wagering and Breeding Law Sections 101(1), 301(1) and 308(2). Section 101 subdivision (1) vests the Board with general jurisdiction over all horse racing and all pari-mutuel wagering activities in New York State. Section 301 subdivision (1) grants the Board the power to supervise generally all harness race meetings in this state at which pari-mutuel betting is conducted, and adopt rules and regulations consistent with provisions of the Racing Law. Section 308 subdivision 2 requires the Board to promulgate rules and regulations to ensure the proper reimbursement of costs related to the employment of one associate judge and one starter at each harness horse race meeting.

2. Legislative objectives: To enable the New York State Racing and Wagering Board to preserve the integrity of pari-mutuel racing, while generating reasonable revenue for the support of government.

3. Needs and benefits: This harness racing rule is necessary to comply with the provisions of Chapter 58 of the Laws of 2012 (Part Y), which amended section 308 of the Racing, Pari-Mutuel Wagering and Breeding Law. Under Chapter 58, licensed racing corporations shall reimburse the Racing and Wagering Board for the per diem cost to the Board to employ one associate judge and a starter at each harness race meeting.

The rule is also needed to specify costs that comprise the employment compensation for associate judges and starters at harness race meets. Currently, these costs are borne through the budget of the New York State Racing and Wagering Board. Under Chapter 58 of the Laws of 2012, the costs for associate judges and starters will be reimbursed by each licensed racing corporation where the associate judge or starter is employed.

4. Costs:

a. Costs to regulated parties for the implementation of and continuing compliance with the rule. There are seven harness tracks located in New York State that are subject to the proposed rule and the requirement of Section 308(2) of the Racing Law: Buffalo Raceway, Batavia Downs, Monticello Raceway, Saratoga Harness Raceway, Vernon Downs, Tioga Downs, Yonkers Raceway. Costs will vary among the various tracks due to inconvenience pay, location pay, fringe benefits and indirect costs. The approximate monthly total rate for all tracks combined will be $100,139, although it should be noted that not all harness tracks are open at the same time and most meets overlap. The monthly cost and daily average rates for each respective track starter and associate judge will be as follows: Buffalo Raceway with 18 days of racing per month for 6.5 months (99 total racing days): starter $7,982 per month/$443 per day, associate judge $7,785 per month/$432 per day. Monticello with 16 days of racing per month for 12 months (207 total racing days): starter $7,056 per month/$441 per day, associate $6,880 per month/$430 per day. Saratoga, with 22 days of racing per month for 8.5 months (169 total racing days): starter $9,759 per month/$443 per day, associate $9,518 per month/$432 per day. Vernon Downs, with 13 days of racing per month for 7.5 months (90 total racing days): starter $5,774.20 per month/$444 per day, associate $5,632 per month/$433 per day. Yonkers with 20 days of racing per month for 12 months (238 totals racing days): starter $8,864 per month/$443 per day, associate $9,069 per month/$453 per day. Tioga Downs with 14 days of racing for 4.5 months (61 total racing days): starter $$6,206 per month/$443 per day, associate $6,052 per month/$432 per day. Batavia Downs with 17 days of racing per month for 4.5 months (72 total racing days): starter $7,550 per month/$444 per day, associate $7,364 per month/$433 per day.

It should be noted that these figures are estimates. The figures are subject to adjustments due to factors that arise from collective bargaining agreements, fringe benefits, holiday pay, and increased number of draws and qualifying races.

b. Costs to the agency, the state and local governments for the implementation and continuation of the rule: None. Local governments would bear no costs because the regulation of thoroughbred racing is exclusively regulated by the New York State Racing and Wagering Board. As is apparent from the intent of the statutory amendment, this rule would impose no costs upon the Racing and Wagering Board.

c. The information related to costs was obtained by the Personnel Office New York State Racing and Wagering Board based upon historical payroll information, projected race dates, current compensation scales for the respective tracks. The total costs include per diem rates, inconvenience pay, location pay, fringe benefits and indirect costs for the various tracks.

5. Paperwork: This rule will require harness track operators to maintain books and records for the purpose of allowing Racing and Wagering Board auditors to examine and check whether proper reimbursement amounts have been made. In order give force and effect to the rule, the Board will use Form RRO-1, which is a "Report of Reimbursement for Racing Officials. Form RRO-1 will be submitted to the harness racetrack operator by the Racing and Wagering Board. The Board will also require the use of Form AC-909 to withdraw funds from the reimbursement fund in instances where the Board determines that a reimbursement was made in error and a refund to the track is due.

6. Local government mandates: Since the New York State Racing & Wagering Board is solely responsible for the regulations of pari-mutuel wagering activities in the State of New York, there is no program, service, duty or responsibility imposed by the rule upon any county, city, town, village, school district, fire district or other special district.

7. Duplication: There are no relevant rules or legal requirements of the state and federal governments that duplicate, overlap or conflict with the rule.

8. Alternatives: This Board did not consider an alternative because this rule is based upon the directives of Chapter 58 of the Laws of 2012.

9. Federal standards. There are no federal standards for harness racing.

10. Compliance schedule. This rule will go into effect on the day that it is submitted to the Department of State, which was May 24, 2012.

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

As is evident by the nature of this rulemaking, this proposal affects operations at thoroughbred and harness racetracks and will not adversely impact rural areas, jobs, small businesses or local governments and does not require a Regulatory Flexibility Statement, Rural Area Flexibility Statement or Job Impact Statement because it will not impose an adverse impact on rural areas, nor will it affect jobs. This rule is intended to conform with a statutory amendment to Section 308 of the Racing, Pari-Mutuel Wagering and Breeding Law that requires harness track operators to reimburse the New York State Racing and Wagering Board for the salaries and costs of associate judges and starters. A Regulatory Flexibility Statement and a Rural Area Flexibility Statement are not required because the rule does not adversely affect small business, local governments, public entities, private entities, or jobs in rural areas. The rule will have a positive impact on the harness industry by ensuring that proper officiating of pari-mutuel wagering events occurs, thereby ensuring the uninterrupted conduct of harness racing and thousands of jobs that are affiliated with the harness racing industry. A Job Impact Statement is not required because this rule amendment will not adversely impact jobs. This rulemaking does not impact upon a small business pursuant to such definition in the State Administrative Procedure Act § 102(8) nor does it negatively affect employment. The proposal will not impose 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 technological changes on the industry either.