The emergency rule would authorize the Commission, as may be appropriate, to allow a horse to resume racing without first participating in a qualifying race following an unspecified period of time while the horse did not race because of interference caused by an unexpected event. The current rule limits this discretion to horses that have raced within the previous 60 days.

A harness horse that does not regularly race must demonstrate its proficiency in a timed workout, called a qualifying race. This ordinarily occurs when the horse has not raced on the typical weekly race schedule due to health or other training issues. The novel coronavirus pandemic (“COVID-19”), however, has interrupted the racing of virtually all harness horses that participate in New York racing without regard to race proficiency. As a result, when the harness racetracks reopen, there would be a logjam of hundreds of horses that would need to requalify before racing could resume at the racetrack.

The congregation of very large numbers of owners, trainers and drivers for the purpose of requalifying the hundreds of their horses that have been unable to race due to the novel coronavirus pandemic would pose a substantial risk to public health. The COVID-19 virus is very contagious and can be spread by asymptomatic persons. It may cause death or serious debilitation to those who contract the infection. The public health risk that would result from making all harness horses requalify is unacceptable, and having the horses requalify a few at a time would prevent the racetracks from reopening.

In the absence of this emergency rulemaking, hundreds of horses would be brought to New York harness racetracks, delaying the resumption of racing that has experienced serious economic damage due to COVID-19 and causing a serious public health risk.

The emergency rule eliminates this prospect and will facilitate the safe resumption of harness racing in New York.

§ 4113.5. Unqualified horses.

(a) A horse shall be deemed unqualified and must qualify once before being allowed to start in any overnight pari-mutuel event for the following reasons:

(1) The horse does not show a charted line of a current performance meeting the qualifying standards at the track for the class of race. Current performance shall be defined as a start within 30 days of the date of the race to which declared. Official workouts shall be acceptable as qualifying performances for this paragraph for horses with previous satisfactory races. The commission may extend the qualifying standards from 30 to as many [as 60] days as appropriate to account for [appropriate reasons, including] track closings, equine sickness, inclement weather or other unexpected events that interfere with the opportunities for otherwise eligible horses to race.

1. Statutory authority: The New York State Gaming Commission (“Commission”) is authorized to promulgate these rules pursuant to Racing Pari-Mutuel Wagering and Breeding Law (“Racing Law”) Section 103(2) and 104(1, 19). Pursuant to Section 103(2), the Commission is responsible for supervising, regulating and administering all horse racing and pari-mutuel wagering activities in the State. Subdivision (1) of Section 104 confers upon the Commission general jurisdiction over all such gaming activities within the State and over the corporations, associations and persons engaged in such activities. Subdivision (19) of Section 104 authorizes the Commission to promulgate any rules and regulations that it deems necessary to carry out its responsibilities.

2. Legislative objectives: To enhance harness racing in New York and generate reasonable revenue for the support of government.

3. Needs and benefits. This emergency rule permits the hundreds of harness horses that have been prevented from racing by the novel coronavirus pandemic (“COVID-19”) to resume racing when the harness racetracks reopen without having to requalify before being eligible to enter the races.

Harness horses that fail to race regularly, namely, within the preceding 30 days, are required to demonstrate their competitive proficiency in a timed workout, called a qualifying race, before the horse is eligible to enter races again. 9 NYCRR § 4113.5(a)(1). The current rule provides an exception when unexpected events, such as track closings or equine sickness, have interfered with the opportunity for horses to race. In such circumstances, the Commission may extend the number of days before a horse must requalify, but only for as many as 60 days since the horses raced.

Hundreds of harness horses will have had no opportunity to race for more than 60 days before New York harness racetracks are permitted to reopen, following the complete closure of these nonessential business to control the spread of the deadly COVID-19 virus.

When these racetracks reopen, all the horses would need to be brought to the racetrack and complete a qualifying race before the racetrack can let any of them be entered in races under the current rule. This would create an enormous impediment to reopening the racetracks because about 100 eligible horses must be entered for each racetrack to be able to schedule a single day of racing. Moreover, the congregation of hundreds of horse owners, trainers and drivers to participate in a qualifying race would not be consistent with the necessary COVID-19 prohibition of large gatherings.

4. Costs:

(a) Costs to regulated parties for the implementation of and continuing compliance with the rule: None.

(b) Costs to the agency, the state and local governments for the implementation and continuation of the rule: There will be no costs to the agency. There will be no cost to local government because the Commission is the only governmental entity authorized to regulate pari-mutuel horse racing.

(c) The information, including the source(s) of such information and the methodology upon which the cost analysis is based: n/a.

5. Local government mandates: None. The Commission is the only governmental entity authorized to regulate harness racing activities.

6. Paperwork: There will be no required paperwork to comply with the rule.

7. Duplication: No relevant rules or other legal requirements of the state and/or federal government exist that duplicate, overlap or conflict with this rule.

8. Alternatives. The Commission considered and rejected the alternative of requiring hundreds of horses to requalify that were all deprived of any opportunity to race by the COVID-19 emergency restrictions. This alternative was rejected because the wagering public is well aware that none of these horses has raced during the pandemic and the benefits that accrue from facilitating a prompt, orderly and safe resumption of harness racing outweigh any disadvantage that may result from horses participating in pari-mutuel races without having raced or completed a qualifying race in the past 60 days.

9. Federal standards: There are no minimum standards of the Federal government for this or a similar subject area.

10. Compliance schedule: The Commission believes that regulated persons will be able to achieve compliance with the rule upon adoption of this rule.

A regulatory flexibility analysis for small business and local governments, rural area flexibility analysis and job impact statement are not required for this rulemaking because it will not adversely affect small businesses, local governments, rural areas or jobs.

This rulemaking removes an impediment to entering a horse in a harness race without a qualifying race when unexpected events, including without limitation the novel coronavirus pandemic, have interfered with the horses having an opportunity to race for more than 60 days. Under current rules, the requirement to requalify cannot be waived for horses that have not raced for more than 60 days, which is less than how long all racetracks may be closed. The proposed amendment will remove this impediment. This action will have a positive effect on pari-mutuel horseracing, wagering and breeding in New York.

This rule will not impose an adverse economic impact or reporting, record keeping or other compliance requirements on small businesses in rural or urban areas or on employment opportunities. No local government activities are involved.