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Observations and notes on the HISA Act

NOTE: This bill is scheduled to go into effect on 07/01/2022 

Observations and notes on the HISA act.

The Horse Racing Integrity and Safety Act was signed into law this week by President Trump.

It represents the culmination of 6 years of effort by The Jockey Club and other industry groups. 

The bill was originally introduced in the House of Representatives by congressman Andy Barr (KY)

and congressman Paul Tonko (NY). Once Senate Majority Leader Mitch McConnell got on board, it became a foregone conclusion.

The HISA bill enjoyed the support of key players throughout the horse racing industry, including Churchill Downs, and the Coalition for Horse Racing Integrity (CHRI), which includes The Jockey Club, the Breeders Cup, Keeneland Racecourse, the New York Racing Association, The Stronach Group, the Thoroughbred Owners & Breeders Association, and of course the Water Hay Oats Alliance.   

This bill will most likely go into effect on July 1st, 2022. There are provisions for earlier implementation, but given the scope of the bill, I think this is unlikely.

The HISA Authority
The HISA Authority is described in the bill as a private, independent, self-regulatory, nonprofit corporation. The HISA Authority will be governed by a Board of Directors – four from within the industry and five independent members from outside the racing industry. The chair of the Board will be an independent member from outside the industry. This group will conduct studies and within 120 days of the implementation of the law, adopt laboratory standards, drug classifications, and penalty guidelines. My guess is that they will use current RMTC guidelines and the ARCI Uniform Classification System for Foreign Substances along with the ARCI Controlled Therapeutic Medication Schedule, but this is far from certain.

This Authority will create two committees: An Anti-Doping and Medication Control Standing Committee and a Racetrack Safety Standing Committee.  “The nominating committee of the Authority shall be comprised of seven independent members selected from business, sports, and academia.” A majority of the members of each of these committees shall be independent members selected from outside the equine industry.

The Racetrack Safety Committee will adopt safety standards and protocols. Those standards include racetrack design and maintenance, oversight of human and equine injury reporting and prevention, and the procedures for undertaking investigations at racetrack and non-racetrack facilities related to safety violations.

According to the bill The Anti-Doping and Medication Control Standing Committee “shall seek to enter into an agreement with the United States Anti-Doping Agency under which the Agency acts as the anti-doping and medication control enforcement agency under this Act for services consistent with the horseracing anti-doping and medication control program.” 

LASIX
There is no ambivalence about the position this bill takes on Lasix.  The Jockey Club’s anti Lasix stance is well known, and it plays out in specific details in the HISA act. Despite considerable opposition from some horsemen, the bill’s sponsors had no appetite for compromise when it came to Lasix prohibition.

Recently NYRA and The Stronach Group have banned the use of Lasix in “all stakes races” in 2021.  This echoes the language in the HISA bill. As you all know Lasix has been banned in 2YOs this year. This prohibition will continue when the bill takes effect on July 1st.  Dr. Dionne Benson of the Stronach Group has stated she would conducted studies on the effects of this on the horses involved. We have been told the results of that study will be available this spring.

HISA AND LASIX
Where the rubber meets the road is Section (d) of SEC 6 Entitled HORSERACING ANTI-DOPING AND MEDICATION CONTROL PROGRAM. It reads: (d) PROHIBITION. —Except as provided in subsections (e) and (f), the horseracing anti-doping and medication control program shall prohibit the administration of any prohibited or otherwise permitted substance to a covered horse within 48 hours of its next racing start, effective as of the program effective date. 

This effectively prohibits the use of Lasix within 48 hours of the race, however there are provisions to apply for a three-year exemption from this rule as per below.

EXEMPTIONS –Except as provided in paragraph (2), only during the three-year period beginning on the program effective date, a State racing commission may submit to the Authority, at such time and in such manner as the Authority may require, a request for an exemption from the prohibition in subsection (d) with respect to the use of furosemide on covered horses during such period.  S

So the bill does provide an avenue to waive the Lasix prohibition but only upon the request of the governing state racing commission and only for the three year study period. This exemption will not cover 2YOs or stake races.

The Authority will conduct a three-year study on the effects of Lasix on the racing horse beginning when the bill goes into effect on July 1st, 2022. From the bill: “Not later than the program effective date, the Authority shall convene an advisory committee comprised of horseracing anti-doping and medication control industry experts, including a member designated by the anti-doping and medication control enforcement agency, to conduct a study on the use of furosemide on horses during the 48-hour period before the start of a race, including the effect of furosemide on equine health and the integrity of competition and any other matter the Authority considers appropriate.”

This report will be submitted to the Authority for consideration of modifying the prohibition in Section (d), and any such modification will apply to all States, however, the vote must be unanimous and must include the following findings as per the rule:

(i) That the modification is warranted.

(ii) That the modification is in the best interests of horse racing.

(iii) That furosemide has no performance enhancing effect on individual horses.

(iv) That public confidence in the integrity and safety of racing would not be adversely affected by the modification.

This language seems to indicate that the Authority is not going to be favorably disposed to allowing the use of Lasix as it is currently being used in most states.  We will just have to await the results of the mandated study and see how the Authority interprets its findings.

To recap: As of July 1st, 2022 Lasix, will not be permitted within 48 hours of the race UNLESS the jurisdiction involved applies for and is granted the three-year exemption from the Authority. The exemption does not apply to 2YO or Stakes races.

HISA Authority/Jurisdiction
Section 5 of the HISA appears to give the HISA Authority jurisdiction over State Racing Commissions, if such Racing Commissions have rules that are in conflict with rules adopted by the Authority. The act also provides authority for the Agency to “commence a civil action against a covered person or racetrack that has engaged, is engaged, or is about to engage, in acts or practices constituting a violation of this Act or any rule established under this Act in the proper district court of the United States, the United States District Court for the District of Columbia, or the United States courts of any territory or other place subject to the jurisdiction of the United States, to enjoin such acts or practices, to enforce any civil sanctions imposed under that section, and for all other relief to which the Authority may be entitled.”

Licensing
The act continually references “covered persons”. The term “covered persons” means “all trainers, owners, breeders, jockeys, racetracks, veterinarians, persons (legal and natural) licensed by a State racing commission and the agents, assigns, and employees of such persons and other horse support personnel who are engaged in the care, training, or racing of covered horses.” According to the act, a covered person “shall register with the Authority in accordance with the rules promulgated by the Authority…”  as a condition of participation. I suppose this means a National License of some sort, although the act does not elaborate. Nor does it mention any licensing fees.

Spending Bill provisions
The spending bill that HISA was part of extends the three-year tax depreciation for all racehorses less than 24 months of age when purchased and also includes a second round of the Paycheck Protection Program (PPP) that eligible racetracks, farms, etc. will be allowed to participate in. It also includes provisions for an increased number and extension of H-2B visas.

Funding
It appears that the HISA authority will be funded by the industry with costs being shared proportionately between the Racing Commissions of each state based on the amount of covered racing starts for the year in each state.

End Notes
It remains to be seen how all of this will play out. There is a lot that we don’t know, for instance – who will choose or appoint the initial members of the Authority?  Who will be in charge of enforcement and how will that be implemented? Will there be a National body that hears medication violations, or will the State Racing Commissions continue to oversee medication violation prosecutions under the auspices of the Authority’s rules? Where will the Independent non-industry directors be chosen from? The act only states that they will be chosen from “business, sports, and academia.” That is a fairly broad category. It is striking to me that the majority of Board of Directors, including the chairman, must be people from outside of the horse racing industry. It seems counterintuitive to me to place people from outside the industry in charge of the central governing authority for the sport. I don’t see how that is a formula for success, but that is where we are. Time will tell.

Since the State of Florida does not have a Racing Commission and the individual racetracks operate as jurisdictions unto themselves, my best guess is that Gulfstream and Tampa Bay Downs would have to apply individually for the Lasix exemptions. It could be that the HISA Authority will require the State of Florida’s Division of Pari-Mutuel Wagering (the State regulatory agency that oversees horse racing) to apply for the Lasix waiver, in which case, whether they apply or not, it would in all likelihood, equally affect Gulfstream Park and Tampa Bay Downs. It will be interesting to see which states eventually do apply.  Hopefully, we will not end up in a situation where half of the country allows race day Lasix and half does not. I cannot see how three years of racing under circumstances like that could possibly be good for the sport.

Kevin Scheen – Executive Director
FHBPA