Rules for HISA's anti-doping program posted for public comment

The Federal Trade Commission on Thursday posted a batch of rules governing the Horseracing Integrity and Safety Authority’s anti-doping program on its website, triggering the start of a public-comment period and the potential approval of the rules in 60 days.

The rules, which govern the policies and protocols for a HISA drug-testing and medication enforcement program, will be open for public comment for two weeks, after which the FTC will review the rules as part of its approval process. The rules are the second of two batches that HISA has submitted to the FTC as part of its mandate to take over most aspects of horse-racing regulation in the U.S.

In a release, HISA said that FTC approval of the rules at the end of the 60-day period would lead to the implementation of the program by the end of March. HISA first submitted the rules to the FTC last year in the hopes of implementing the program by Jan. 1, but the FTC declined to approve the rules after the U.S. Fifth Circuit Court of Appeals in November called HISA’s enabling legislation “facially unconstitutional” due to violations of the so-called “non-delegation clause” of the U.S. Constitution, which prohibits federal agencies from assigning regulatory power to private companies.

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Late in 2022, Congress included an amendment to HISA’s enabling legislation designed to address the ruling in a year-end omnibus spending bill. Supporters of HISA contend that the amendment nullifies the Fifth Circuit ruling, but that court, and the U.S. Sixth Circuit Court of Appeals, which has yet to rule on a similar lawsuit to the one filed in the Fifth Circuit, have both asked parties to the suit to file additional briefs arguing whether the Congressional amendment satisfied the concerns of the plaintiffs.

Those plaintiffs include the National Horsemen’s Benevolent and Protective Association and a number of state racing commissions, attorneys general, and racing companies. They have argued against HISA’s enabling legislation on several fronts, and it is not yet clear if the courts will clear the way for HISA to move forward. The briefs in both courts were filed in mid-January.

Earlier on Thursday, the National HBPA had announced that 10 federal legislators have indicated that they will file public comments “urging the FTC to disapprove” the proposed rules. The legislators represent Arizona, Iowa, Louisiana, and Texas. All are Republicans, with the exception of Joe Manchin, a senator from West Virginia who is nominally a Democrat but votes more closely with Republicans on issues pertaining to states’ rights.

Most of those same legislators had registered their displeasure with HISA prior to the amendment being included in the year-end spending bill. Racing constituencies in Iowa, Louisiana, and Texas have been some of the most vocal opponents of HISA, on the grounds that racing is better regulated on a state-by-state basis, as has been the case for the entire history of racing in the U.S.

HISA said in its release that it anticipated that the FTC would consider all public comments that had been submitted to the commission last year as well as any comments that are submitted in the current public-comment period. The batch of rules posted yesterday includes regulations governing drug-testing, laboratory accreditation, lists of prohibited and regulated medications, investigatory powers, and sanctions for violations, among other rules.

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