(1) Refusal to take such test shall constitute a violation of this section.

(2) The presence of.05 percent or more alcohol in the blood by weight per volume as indicated by said device shall constitute alcoholic impairment and be a violation of this section. Blood alcohol concentration (BAC) means the weight amount of alcohol contained in a unit volume of blood, measured as grams ethanol/100ml blood and expressed as "percent BAC."

4104.12. Test for alcoholic consumption.

(a) Each track shall provide a device approved by the board[commission] in the paddock capable of measuring the presence of alcohol by weight within the blood. The Board shall only approve the use of breath analysis instruments that have been approved by the National Highway Traffic Safety Administration. The use of such device shall be under the supervision of the [track] board steward or board designee. [and tests]

(b) Tests shall be administered to such licensees and officials at such times as directed by the [track] board steward or board designee. Tests shall be administered to licensees and officials at such times as directed by the board presiding judge or board designee, and shall only be administered by qualified individuals employed by the Board.

(1) Refusal to take such test shall constitute a violation of this section.

(2) The presence of.05 percent or more alcohol in the blood by weight per volume as indicated by said device shall constitute alcoholic impairment and be a violation of this section. Blood alcohol concentration (BAC) means the weight amount of alcohol contained in a unit volume of blood, measured as grams ethanol/100ml blood and expressed as "percent BAC."

(d) A driver who is alcoholically impaired or who refuses to be tested shall not compete and may be fined or suspended. An official who is alcoholically impaired or refuses to be tested shall not be assigned his duties and a report thereof shall be made immediately to the [commission]board. Any other licensee who is alcoholically impaired or refuses to be tested shall not be permitted to continue to perform in a licensed capacity on that day. In the event of a violation of this section, the board may take such other action as is deemed appropriate, including fine, revocation, suspension or the conditioning of continued licensing upon the satisfactory enrollment in and completion of a state certified treatment program.

1. Statutory authority: Racing, Pari-Mutuel Wagering and Breeding Law Sections 101(1) and 301(1). 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.

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 to ensure that jockeys, other licensees and racing officials at thoroughbred and harness race tracks are not intoxicated or alcohol-impaired while performing their duties, thereby making certain that horse racing is conducted safely and the integrity of pari-mutuel racing is preserved. It is necessary to deter alcohol intoxication under an effective regulatory framework that excludes intoxicated persons and is capable of imposing penalties and/or compulsory treatment. Currently, there is no Board rule requiring alcohol testing at a thoroughbred race track. The proposed thoroughbred rule amendment is similar to the existing harness racing rule in that both require that the track provide the breathalyzer equipment, place the use of the device under the track steward, make it a violation to refuse to submit to an alcohol test, establish the blood alcohol content at.05 percent, and establish exclusion and reporting requirements for positive tests. This thoroughbred rule will bring uniform testing for alcohol consumption to all of New York State horseracing. These rules are similar to the model rules of the Association of Racing Commissioners International, which prohibits racing officials and licensees from being intoxicated or impaired by alcohol, establishes limit of.05 percent of alcohol in the blood, and makes it a violation for a person to refuse to submit to alcohol testing. A jockey, exercise rider, outrider or any other person on a horse respectively risks injury or death, for himself or other jockeys, if riding while intoxicated during a race, during training or in preparation for a race. The job of a jockey involves unique risks, riding atop a horse that weighs an average of 1100 pounds and races at speeds averaging 40 miles per hour, with spurts of speed that exceed that average. Exercise riders ride thoroughbreds every day at a race meet for workouts and training, and while they don't actually race horses, they ride horses in conditions similar to an actual race. All jobs involving riding a horse require a keen sense of awareness, finely-honed reflexes, coordination, balance and highly-developed motor skills. Alcohol impairs all of these abilities and therefore impairs the ability of the jockey or rider to safely control his or her horse. Furthermore, the integrity of a thoroughbred race is undermined when a jockey or any person involved in officiating a horse race is under the influence of alcohol. A jockey is required to give their best effort when racing, and a jockey who is impaired and performing at less than their normal abilities cannot give his or her best effort. Race officials are required to pass eye exams as a licensing condition, and their duties require them to be mentally alert and employ superior judgment. Obviously, a judge who is whose judgment and senses are impaired by alcohol will adversely impact his or her ability to do his or her job properly. This rule is beneficial because it will help the Board ensure that racing officials are not impaired while performing their duties.

The amendments to the harness rule are necessary to subject all on-duty licensees at a harness racetrack to testing for alcohol consumption, to remove obsolete references to the racing "commission" and "track steward," to give the board steward the authority to delegate supervision and administration duties related to alcohol testing, and prescribe procedures for on-duty licensees and officials who test in excess of allowable BAC levels. The amendment to include all harness track licensees for alcohol testing is necessary because, in addition to drivers and officials, there are licensees who operate motorized vehicles, handle horses, prepare and handle horse racing equipment and tack, prepare official documentation related to pari-mutuel wagering events, and perform their duties in the public eye, all of which require safe, sober and professional conduct. This rule would benefit horse racing by giving the Board the power to test those individuals for excess alcohol consumption while on duty and exclude them from their duties if they are intoxicated.

The amendment is also beneficial because it makes proper references to the "board" and "board steward" rather than the "commission" and "track steward." These amendments are technical in nature, but necessary nonetheless to ensure that the Board's rules reflect current terminology.

The amendment to the harness rule also gives the board steward the authority to name a designee for the purposes of supervising and administering the alcohol test. This delegation authority is necessary because the board steward is often occupied before a race with a host of other regulatory matters related to horse racing, such as supervision of equine drug testing, equine drug administration, processing claims for claiming races, reviewing driver assignments and directing the activities of other judges, such as the starting judge and the paddock judge.

Both the thoroughbred and harness rule amendments include a provision that authorizes the Board to take appropriate action in the event a violation of the respective alcohol testing rules. This provision is necessary to enable the Board to deal with persons who are intoxicated by removing them from their official duties and prescribing appropriate remedies.

4. Costs:

(a) Costs to regulated parties for the implementation of and continuing compliance with the rule. There are four thoroughbred race tracks in New York. Belmont, Aqueduct and Saratoga race tracks are all operated by the New York Racing Association. NYRA already has 2 breathalyzer machines for testing blood alcohol content, and paid $650 for both. It is unclear whether these machines are NHTSA approved. Finger Lakes Race Track is operated by Delaware North, and would have to purchase an alcohol testing device, which would cost between $250 and $500 per device. The Monticello harness racetrack purchased its alcohol testing machine for $480. If a track currently has an alcohol tester that is not NHTSA approved, an approved model will have to be purchased for between $250 and $500. All tracks will be required to purchase the disposable breath tubes, which cost approximately 16 cents apiece and are purchased in bulk packages of a thousand at $161. The bottled gas that is used to calibrate the machines costs approximately $170 per tank. These costs are based on purchases made by the Racing and Wagering Board, which uses the tubes and gas to calibrate the alcohol testing machines used at harness tracks.

(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. This rule would impose no costs upon the Racing and Wagering because the equipment and machines would be purchased by the race track operator.

(c) The information related to costs was obtained by the New York State Racing and Wagering Board based upon inquiries to racetrack operators that have alcohol testing devices and from Board staff who administer alcohol testing at harness tracks. Board staff also researched costs through vendors' internet websites.

5. Paperwork: This rule will not require any additional paperwork.

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. Alternative approaches: This Board did not consider an alternative thoroughbred rule because it intended to adopt a rule similar to the harness rule. No other alternatives were considered in regards to the provisions.

9. Federal standards: There are no federal standards for thoroughbred racing.

10. Compliance schedule: This rule will go into effect permanently on the day that it is published in the State Register under a Notice of Adoption.

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 determine whether an individual licensee working at a racetrack is alcoholically intoxicated. 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 thoroughbred and harness businesses that employ licensees at the racetrack by ensuring that the jockeys, outriders and other licensees who ride their horses or work at the tracks are not impaired, thereby reducing the probability of personal injury or property damage by an intoxicated employee. There will be no impact for reporting, recordkeeping or other compliance requirements on public or private entities in rural areas. There will also be no adverse impact on small businesses and jobs in rural areas. A Jobs 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. Thoroughbred race tracks may use alcohol sensing devices that have been in use by harness tracks for years, and which require no special training or knowledge. Calibration of a modern alcohol testing device does not require any special knowledge other than the ability to follow the manufacturer's instructions.