RWB-35-11-00002-P Inspection of Harness Racing Sulkies

8/31/11 N.Y. St. Reg. RWB-35-11-00002-P

NEW YORK STATE REGISTER

VOLUME XXXIII, ISSUE 35

August 31, 2011

RULE MAKING ACTIVITIES

RACING AND WAGERING BOARD

PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. RWB-35-11-00002-P

Inspection of Harness Racing Sulkies

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

Proposed Action:

Amendment of section 4116.10 of Title 9 NYCRR.

Statutory authority:

Racing, Pari-Mutuel Wagering and Breeding Law, sections 101(1) and 301(1)

Subject:

Inspection of harness racing sulkies.

Purpose:

This rule require that sulkies involved in an accident during a race are removed from service and inspected by the manufacturer.

Text of proposed rule:

Section 4116.10 is amended to designate the existing section as subdivision (a) and add new subdivisions (b) and (c) as follows:

4116.10. Sulkies

(a) Every sulky used in a race at a licensed harness racing meeting shall be equipped with such special equipment as the commission shall order. The obtaining and installation of special equipment are the responsibility of each owner. A driver shall not drive a sulky not equipped with special equipment as so ordered. Mud fenders must be available and must be used whenever ordered by the presiding judge. Every sulky shall be equipped with wheel discs of a type approved by the commission, which shall be of a solid color or transparent; no stripes or designs upon wheel discs shall be permitted.

(b) If a sulky is involved in an accident, the Paddock Judge will affix a tag to the sulky that says "Do Not Use." An accident is any unintended event or occurrence during a race or exercise run where a sulky is operated in a manner in which it was not designed, including collision with any fixed or moveable object other than brief contact made between the wheel hubs of sulkies travelling in the same direction, locking of wheels with another sulky where a wheel loses contact with the ground, or an ejection of the driver from the sulky. The owner of the sulky that receives the "Do Not Use" tag must then have the sulky inspected by its manufacturer or an authorized representative. The "Do Not Use" tag may be removed by the manufacturer or authorized representative only after inspecting the sulky and making any necessary repairs. Only the manufacturer or authorized representative is approved to remove the "Do Not Use" tag. Documentation identifying the sulky and repairs made must be filed by the trainer with the Paddock Judge prior to its introduction back into use.

(c) The owner of a sulky is responsible for the overall integrity and soundness of his or her sulky used during training, qualifying or racing.

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

Kristen M. Buckley, Acting Secretary to the Board, New York State Racing & Wagering Board, One Broadway Center, Suite 600, Schenectady, New York 12305-2553, [phone], email: [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.

Regulatory Impact Statement

1. Statutory Authority and Legislative Objectives of Such Authority: The Board is authorized to promulgate these rules pursuant to Racing Pari-Mutuel Wagering and Breeding Law ("RPMWBL") sections 101 and 301. Under section 101, the Board has general jurisdiction over all horse racing activities and all pari-mutuel racing activities. Section 301of the RPMWBL authorizes the Board to supervise generally all harness race meetings in New York at which pari-mutuel betting is conducted, and to adopt rules and regulations to carry into effect the provisions of sections 222 through 705 of the RPMWBL.

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 rule is necessary for the health and safety of the drivers in harness racing.

This rule would require that when a sulky is involved in an accident during a race or in training, the sulky is taken out of service by the Presiding Judge pending inspection by the manufacturer of the sulky or a designated representative of the manufacturer. If the sulky is damaged, the rule requires that the sulky be repaired before being used in a race, qualifier or training at a licensed harness track. This rule is necessary to ensure the safety of both the drivers and the horses, and to ensure that all equipment used in a pari-mutuel wagering horse race is in good working condition.

Adoption of this rule was requested by the Standardbred Owners Association, Inc. The post-accident inspection provision of this rule is similar to the New Jersey Rule regarding sulkies [New Jersey Athletic Commission 13:71-29.2 Certification]. This rule will ensure that all sulkies are safe for the purpose that they were designed, which is to travel behind a standardbred horse at approximately 35 miles per hour carrying a driver while negotiating through a competitive field of other horses and drivers. Failure of any one part of the defective sulky could result in a catastrophe. Harness horses and their drivers remain close to each other throughout a race. If a sulky at the front of the racing pack fails, the result could include a pileup of every horse and driver behind it.

This rule is intended to make sure that all sulkies are fit for use and that there are no defects in the sulky as a result of an accident. This rule also clearly states that the owner of the sulky is responsible for the integrity and soundness of a sulky whether the sulky is used in racing, qualifiers, or training. This is necessary because the owner of the sulky is the person who exercises control over the equipment and therefore is the proper party to assign such responsibility.

The rule is also necessary to make clear that the responsibility for ensuring the integrity of a safe sulky is not just limited to races, but also includes the use of sulkies in qualifier runs and training.

If a sulky is removed from service as a result of an accident, the estimated time of repair or replacement varies based on circumstances. According to information provided by the tack shop owners at various New York State harness tracks, the total time for replacement of a sulky is 14 days at all harness tracks throughout New York State. If damage affects the intrinsic integrity of the one-piece frame itself, which is usually caused by shock or twisting the frame, then the sulky must be replaced. If the damage is less than major, involving wheel repair or welding new shafts or forks, then the repairs can be made at the track itself within a matter of a day or two. According to tack shop owners at Vernon Downs, Monticello and Saratoga harness tracks, it is customary that drivers typically own more than one sulky and allow other drivers to borrow their sulkies while awaiting repair or replacement.

4. Costs:

(a) Costs to regulated parties for the implementation of and continuing compliance with the rule: Owners of sulkies will be required to pay for the inspection and repair of any sulky involved in an accident, which can be covered by insurance. The cost of a sulky ranges between $2,000 for a metal-frame sulky and as high as $6,000 for a state-of-the-art carbon fiber sulky. In New York, members of the respective Harness Horsemen's Associations are eligible for sulky insurance as part of their membership dues. A driver will bring his damaged sulky to a tack shop for an estimate, at which time a decision will be made whether to scrap the sulky or make repairs. At that point, the driver submits a claim to the harness horsemen's association. According to Oliver Peterson from Peterson's Harness at Vernon Downs, there only 1 accident this year due to a horse running away with a sulky without a driver. He said there were no accidents in 2009. At Saratoga, Adam Murray of the Pacesetter tack shop said there were only 3 sulkies that had to be replaced last year. He said in previous years, the average was about 5 or 6 per year based on the age of sulky frames, rather than the fact they were involved in an accident. In New Jersey, where a similar rule is already in effect, the Standardbred Breeders and Owners Association of New Jersey (SOBANJ) offers such insurance as a membership benefit. According to Leo McNamara, Executive Administrator of the SOBANJ, the total amount paid for all claims in any year due to sulky accidents in New Jersey could range between $10,000 and $12,000. Mr. McNamara characterized those amounts as something that would only occur in "a bad year" and said the annual amounts are much lower. Under the NJSOA membership benefit, the sulky owner pays a $50 deductible and insurance pays up to $2,500. It should be noted that while drivers at Yonkers Raceway typically own several sulkies, some trainers and drivers at upstate race tracks may own only one sulky. If their sulky is taken out of service for purposes of inspection as a result of an accident, the loss of the sulky is due to the accident and not this rule. This rule does not impose additional costs on those upstate owners. If a trainer or driver only owns one sulky and is unable to compete because of the inspection, it should be considered a loss due to the accident and not this rule.

(b) Costs to the agency, the state and local governments for the implementation and continuation of the rule: There will be minimal costs to the Board for the purchase of tags to be affixed to sulkies involved in accidents. Paddock judges can use tags (Form RC-30) that are currently used for identifying laboratory samples, and affix self-sticking, laser-printed labels to the back of tags that identify the tag as a "Do Not Use" tag. Currently, the Board has over 200,000 such tags in stock. There will be no costs to state and local governments.

(c) The information, including the source(s) of such information and the methodology upon which the cost analysis is based: The cost analysis was obtained from Leo McNamara, Executive Administrator for the Standardbred Owners and Breeders Association of New Jersey. The manufacturer's inspection rule contained in this amendment mirrors the New Jersey sulky inspection rule and costs are expected to be similar here in New York.

(d) Where an agency finds that it cannot provide a statement of costs, a statement setting forth the agency's best estimate, which shall indicate the information and methodology upon which the estimate is based and the reason(s) why a complete cost statement cannot be provided. There will be no cost to the agency.

5. Local Government Mandates: None. See above.

6. Paperwork: The New York State Racing and Wagering Board will provide "Do Not Use" tags. After inspection, manufacturers will need to provide documentation stating that a sulky is sound and fit for service, if that is the case. Otherwise, there are no paperwork requirements.

7. Duplication: None.

8. Alternatives: The Board considered allowing the Horsemen's Association or the Presiding Judge to inspect the sulkies. Given the technical nature of metallurgical inspection, identification of structural flaws in carbon fibre, the inability to detect latent defects in the sulky frame and axle system, it was determined that the best qualified individuals for inspecting a sulky would be the actual manufacturer of the sulky, who would be most knowledgeable of the engineering tolerances and safe performance parameters of the specific sulky model. In light of this fact, and the fact that both the horsemen's associations and the Board could face possible liability for structural failure of a sulky that was previously cleared by either entity, it was determined to require post-accident inspections be conducted by the sulky manufacturer.

9. Federal Standards: None.

10. Compliance Schedule: Once adopted and published, the rule can be implemented immediately.

Regulatory Flexibility Analysis

1. Effect of Rule: This rule will affect small businesses that employ harness drivers.

2. Compliance Requirements: Harness drivers whose sulkies have been involved in an accident will need to have the sulkies inspected prior to being used again. Drivers who own their own sulkies will need to have a contingency plan in the event of an accident, which would involve making sure that a second sulky is available for them to continue competing. This should not be burdensome because drivers currently need to have such plans if they are involved in an accident. This rule will merely prescribe the process for ensuring that their sulkies are safe for use. In doing so, this rulemaking ensures the health, safety or general welfare of participants in harness racing. It also ensures that the equipment used in racing events where pari-mutuel wagering is conducted is serviceable and reliable, and the outcome of the competition is dependant upon the skill and ability of the competitors and not the frailty of their equipment. The only recordkeeping that is required on behalf of small business is that the owner of the sulky must provide satisfactory documentation that the sulky was inspected and/or repaired prior to be allowed in competition.

3. Professional Services: Manufacturers and distributors of sulkies used in harness racing will be needed to inspect sulkies that have been involved in an accident. Drivers will likely go to the vendor from whom they purchased the sulky.

4. Compliance Costs: There are no initial capital costs for this rule. Cost of complying with this rule is dependant on the cost of inspection, repairs and/or replacement of the sulky, which can range from as low as no cost to as much as $6,000 for total replacement of the sulky. If total replacement of the sulky is required, it's likely that the damage would be so apparent that expert inspection and any associated costs would not be needed.

5. Economic and Technological Feasibility: The Board could not identify or estimate the number drivers who are limited to only one sulky. It is difficult to determine this because drivers may make informal arrangements with other drivers on a day-by-day to provide backup sulkies. This rule is technologically feasible because it relies on current inspection techniques and practices for sulkies and harness racing equipment.

6. Minimizing Adverse Impact: The rule is designed to minimize any adverse economic impact on small businesses by mirroring a rule that is currently in effect in New Jersey and by allowing small businesses to deal with manufacturers directly, rather than have Board officials serve as the sulky inspectors.

7. Small Business and Local Government Participation: The Board assured that small businesses had the opportunity to participate in the rulemaking process. On May 19, 2010, the proposed rule was sent out to industry participants in New York State harness racing, including the Harness Horse Association of Central New York, the Standardbred Owners Association, Inc., and the Saratoga Harness Horsepersons Association Inc. This rule will not affect local government. Harness racing is regulated entirely by the State of New York. Local governments are not involved in harness racing activities.

Rural Area Flexibility Analysis

This rule will not have an adverse impact on public entities in rural areas because no public entity is involved as a driver or competitor in harness racing.

This rule will not have an adverse impact on owners of sulkies and drivers at harness tracks located in rural areas, which includes Saratoga, Vernon Downs, Tioga Downs, Monticello and Batavia. The minimal impact will involve recordkeeping, which requires that an owner of a sulky that was involved in an accident provide satisfactory documentation of inspection prior to it being used in harness racing activities.

The Board determined that this recordkeeping was the least burdensome approach based upon discussions with harness horsepersons' groups in New York State and New Jersey.

Job Impact Statement

This rule will not adversely impact jobs or employment opportunities. In fact, the rule may enhance job opportunities for manufacturers or their representatives who will be required to inspect, repair or replace sulkies that have been involved in accidents. This will not adversely impact drivers who own and race their sulkies. Most drivers have more than one sulky. If a driver owns only one sulky, the driver can make prior arrangements to ensure the manufacturer has a replacement sulky available. In some cases, repairs may be made right at the track and there may be no loss of employment opportunities for the driver. By requiring such inspections, this rule creates an incentive for manufacturers and their representatives to be available at the harness track and provide timely on-track inspections, repairs or replacement. It is important to note that if a sulky is taken out of service due to an accident, and a driver is unable to race due to a lack of a sulky, such a loss is the result of an accident and not this rule. No prudent driver should be driving a sulky that is involved in an accident without conducting a thorough examination of their equipment.