Saying the Federal Trade Commission jumped the gun by giving the Horseracing Integrity and Safety Authority (HISA) the go-ahead to launch its Anti-Doping and Medication Control program on the same day the FTC approved its regulations on March 27, a federal judge in Texas ordered the program's implementation to be delayed until May 1, 2023.
Judge James Wesley Hendrix, U.S. District Court Judge for the Northern District of Texas in Lubbock, made the order in response to a motion from plaintiffs in a lawsuit seeking a preliminary injunction to stop the HISA program from going into effect as planned.
Hendrix agreed with what he called a “narrow procedural claim” made by the National HBPA and a number of affiliates that “not enough time passed between when the rule was published as final and when the rule took effect.”
Ruling that when an agency makes a “substantive rule” (described as one that “controls our behavior”) it must ordinarily wait 30 days for it to take effect, Hendrix wrote in his order that the delay “ensures that regulated parties have the time to challenge the rule's validity or bring themselves into compliance.”
Section 553 of the Administrative Procedure Act was cited as the basis for the required 30-day waiting period. HISA officials said the program was launched on March 27 based on a statement in the Federal Register indicating the rule would take effect immediately on approval by the FTC.
“Obviously we are disappointed by the decision,” HISA chief executive officer Lisa Lazarus said during a media call. “As a result we're going to suspend operations for 30 days … we're going to hand the keys back to the states.”
HISA will continue to operate its racetrack safety program, which is unaffected by the District Court order.
Lazarus said 700 samples were collected in HISA's first five days of operations, but those samples now will be subject to the state racing rules that were in place before March 27 – not the HISA rules approved by the FTC. State rules will be reinstated until the 30-day delay is over on May 1.
“We discussed appealing, or trying to reverse the order, but ultimately we are here to serve the industry and I think that just creates more chaos,” Lazarus said. “We felt that, weighing all the interests and considering the importance of bringing as much stability to such an unstable scenario to the industry, it's best to accept the decision, communicate it, plan for it and use this 30 days to improve our processes and our functions.”
John Roach, outside general counsel for HISA, said the transition back to the states should not be a problem, as the personnel used to collect samples for HISA previously worked for state commissions.
“We're going to bend over backwards following the order but also to offer assistance and transition in any way we can,” Roach said.
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