Horseracing Integrity and Safety Authority releases first draft rules

The Horseracing Integrity and Safety Authority on Thursday posted its first proposed draft rules to govern certain aspects of the sport’s medication rules, drug-testing protocols, and safety practices, and it invited industry comment on the regulations before submitting them to federal authorities.

The tranche of rules released on Thursday morning are the first batch of what are expected to be several releases over the next several weeks, according to a statement issued by HISA announcing the publication of the proposed rules. HISA said in the release that it intended to review public comment on the rules until “early December,” when they will be submitted to the Federal Trade Commission for formal review and adoption.

The proposed rules cover an enormous breadth of ground in establishing the liability of racing licensees for drug violations and the powers that will be given to the authority to investigate and prosecute drug violations. They include new rules requiring horsemen to communicate the locations of their horses in order to expand the sport’s out-of-competition testing program, and they include language indicating that HISA will attempt to establish “equine passports” for the purposes of conducting doping investigations, among other new features.

In addition, the proposed rules contemplate issuing suspensions to horses that have been treated with medications or drugs that constitute a “major violation” of the rules. While the rules generally retain elements of the “absolute insurer” rule holding a trainer responsible for violations regardless of intent, the rules also broaden liability to other licensees connected to horses, including veterinarians and owners.

The full batch of rules can be viewed at the HISA website.

The rules were formulated by HISA’s two standing committees. The formulation of the rules dealing with drug testing and enforcement were overseen by the U.S. Anti-Doping Agency, a non-profit company that is expected to administer the drug-related components of the plan. USADA, as the company is known, conducts drug-testing and enforcement actions for the U.S. Olympic Team under a contract with the federal government.

HISA was established by legislation passed late last year as part of a sprawling, omnibus bill built around economic relief related to the coronavirus pandemic. The authority will have the powers to enforce rules regarding medication use, drug testing, and safety practices at racetracks in all U.S. racing jurisdictions.

HISA is operating on a tight schedule. Under the legislation passed late last year, HISA has an operational effective date of July 1, 2022, and in order to be fully functional, the rules that will govern medication, drug testing, and safety at U.S. tracks will have to be submitted to the FTC by the end of the year in order to be enforced on the July 1 date.

“The rulemaking process is still underway, and we encourage experts, other industry stakeholders, racing fans and the general public to review and comment through our website,” said Charles Scheeler, the chairman of HISA, in the release. “Although the final decision on which regulations will be approved and implemented ultimately lies with the FTC, we want to ensure that any interested party has the opportunity to offer their perspective and input. While the FTC will authorize the final set of rules for the official launch of the authority in July 2022, it is the authority’s full intention to continue to work with the industry to evolve and improve the rules beyond that time.”

The legislation establishing HISA is facing two legal challenges, one in Texas and one in Kentucky, in which opponents of the authority contend that the powers granted to the board violate Constitutional doctrines on the delegation of powers to private companies. A leading racing-law expert has said that the issues raised by the lawsuits have become ripe for judicial review and that courts may be interested in examining the doctrine in more detail.

The organization is also facing pressure to determine how to assess fees on racing states to fund its operations, though the timetable to determine the formulas is not as pressing as the effort to formulate rules and regulations. Under the legislation, HISA, which was set up as a non-profit company, can borrow money to fund its operations through the middle of 2023, and it is currently operating under a loan provided by supporters of the authority.

Some highlights of the proposed rules appear below:

* Licensees will be given 30 days to appeal penalties. That appeal will be heard within 30 days of the appeal having been filed in front of an administrative law judge, who will conduct a “de novo” hearing – or one in which the previous ruling is not considered as part of the new hearing. The ruling of the administrative law judge will be released “within 60 days” of the hearing's conclusion and considered “final and binding,” with some exceptions related to appeal based on a “prejudicial error” or an “erroneous application” of the rules.

* The rules will require that “all treatments administered to any of the responsible person’s covered horses” be submitted to “an electronic database,” vastly expanding the paperwork required to be maintained by veterinarians. Those treatment records “must be updated within 24 hours of administration,” and all treatments must conform to a policy that they were administered “in the best interests of the covered horse’s health and welfare, justified by the horse’s medical condition upon advice from a licensed veterinarian, and do not contain a prohibited substance or prohibited method.”

A number of racing states, such as California and Kentucky, already require treatments to be filed with a database maintained by The Jockey Club, the organization that led the effort to lobby for the legislation establishing HISA.

* The proposed rules also contain lengthy lists of prohibited substances, including all anabolic steroids, along with the penalties for violations for substances on the prohibited list. Violations for the unapproved use of bisphosphonate or for gene- or cell-doping will generate lifetime bans, according to the proposed rules. Under the rules, clenbuterol, the heavily regulated bronchial dilator that can build muscle mass when used regularly, would be treated as a prohibited anabolic agent.

* As per an agreement reached as part of the legislation passing, the administration of raceday furosemide will continue to be allowed in races in accordance with rules in place at state racing commissions or as house rules. Most high-profile racing jurisdictions currently prohibit the use of raceday furosemide in races for 2-year-olds and in stakes races. The rules also permit the intra-articular injection of approved corticosteroids 14 days prior to a race.

* Under the proposed rules dealing with safety, any racetracks that “have graded stakes races” will be required to have a “safety officer” with a long list of duties, including monitoring starting-gate procedures, conducting random barn and veterinary vehicle inspections, and conducting random inspections "to protect against equine neglect." The rules state that the safety officer can be a steward.

* Under the heading of “claiming races,” the proposed rules state that no purse of a claiming race will be in excess of a ratio of 1.6-to-1 of the claiming price, a regulation that was put in place briefly in New York within the last decade but which has since been watered down. Many racetracks that receive subsidies from casinos have claiming purses well in excess of the ratio.

* The claiming rules also allow the new owners of claimed horses to void the claim if the horse dies on the racetrack; is euthanized “before leaving the racetrack”; is vanned off at the direction of a regulatory vet; or if a regulatory vet determines “within one hour of the race that the horse will be placed on the Veterinarian’s List as bled, unsound, or lame.” The new owner of the claimed horse retains the discretion to accept the horse under any of those circumstances, however.

* The rules require that necropsies be performed on all horses “that die or are euthanized on the racetrack” within 24 hours of its death.

* On use of the whip, jockeys will be limited to a maximum of six uses of the crop “on the hindquarters to activate and focus the horse,” in “increments of two or less.” Jockeys can also use the crop “to preserve the safety of horses and riders” without limitation. A number of racing jurisdictions in the U.S. have approved restrictions on the use of the crop over the past two years, and those rules often differ substantially from jurisdiction to jurisdiction.

Terry Meyocks, the president of The Jockeys’ Guild, which has lobbied against some of the state restrictions in the past, said that the proposed HISA rule “didn’t go far enough in protecting riders’ safety” due, for example, to the lack of exemptions on using the crop in the first stages of the race, as is the case in states like Kentucky and Florida. However, Meyocks said that he understood the rules were proposals, and he said the guild would participate in providing feedback on the rules.