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HISA Under Discussion at ARCI Conference’s Tuesday Session

LEXINGTON, KY–The Horseracing Integrity and Safety Act (HISA) was a popular topic of discussion on Tuesday at the Association of Racing Commissioners International's (ARCI) 88^th Annual Conference on Safe Horses and Honest Sport.

Early in the day's session, a panel was held on the potential legal issues that could arise with the implementation of HISA. John Roach, HISA's general counsel, joined panelists Nolan Jackson and Joel Turner of Frost, Brown, Todd, LLC.

The first issue examined concerned HISA's possible qualification as a Federal Advisory Committee Act (FACA), a federal law that places special emphasis on open meetings, public involvement and reporting. The legal implications of if HISA does qualify could mean that its authority would be required to give advanced notice of its meetings and make meetings available to the general public. Jackson said that HISA's authority appears to have taken the position that FACA does not apply.

“It's important to note that HISA has not complied with the Federal Advisory Committee Act, at least not up until this point in time,” he explained. “Perhaps that is because FACA is fairly narrow in scope. It only applies to advisory committees that are established by law or utilized by the federal government in some way. It only applies to federal advisory committees that exist to provide advise or recommendations to the federal government, generally meaning the President or a federal agency of some kind.”

The second issue put forward during the panel focused on the six-month limbo period later this year concerning HISA's anti-doping and medication control policies.

While HISA's Racetrack Safety Program is scheduled to go into effect on July 1, 2022, yesterday HISA CEO Lisa Lazarus said they will be making an announcement about an agreement with an enforcement agency for the Anti-Doping and Medication Regulation Control (ADMC) program by next month and hope to launch the program on January 1, 2023. While she said yesterday that until then, states would continue with their own oversight, several legal questions were brought up in the panel regarding potential issues that could arise for state regulators.

“I think we have a couple different issues here,” Turner said. “First, HISA has not promulgated the rules yet, so you [regulators] are scratching your heads and asking what happens after July 1. Second, there's a statement [within the act] of exclusive and independent jurisdiction that would seem to raise the question about whether or not you can continue to regulate on a state-by-state basis.”

Turner emphasized HISA's burden to create a detailed anti-doping and medication regulation program in the short period since Congress passed the bill enabling HISA in December 2020.

“Under the circumstances, I think it's very understandable why we haven't gotten to the point where we have medication and anti-doping rules,” he said. “They're very complex to begin with and to get consensus on those rules can be very challenging. I'm looking at it from the perspective of an owner or trainer that is charged with a medication violation after July 1. What is the lawyer going to tell them about how he can defend that case? In this instance, we really have a gap.”

“The problem is that the authority's jurisdiction as defined in the act is really broad,” Jackson later added. “The act talks about national, exclusive, independent jurisdiction on the part of the authority. It leaves little room for states to think about what they're left to address. I think that while HISA has taken the position that states are able to continue enforcing their rules beyond July 1, there is an expressed preemption clause in the act, albeit specific, that could be an obstacle if this were to come up in litigation.”

While Jackson and Turner expressed their opinion that there was a definite gray area for regulators regarding anti-doping and medication regulation within the later half of this year, Roach said he believed the matter was much more clear cut, stating that HISA has taken the position that they will not preempt until they act.

“As it relates to the preemption issue, the text in this statute is pretty clear to me,” he said. “We do not preempt your laws until we promulgate regulations that are approved by the Federal Trade Commission. If we have not promulgated, you are free to continue to do what you are doing.”

Roach used the example of regulations regarding the riding crop to explain further. On July 1, HISA standards regarding the riding crop will go into effect because they are addressed in the Racetrack Safety Program. Other issues concerning safety on the racetrack that are not addressed in HISA's new regulation–in his example he mentioned drunkenness on the backside–will be left for the states to take on themselves.

Roach pointed out the advantages for state regulators once the ADMC program does go into effect as cases begin going through HISA's appeal system.

“When we talk about cases in the news for drug violations that have gone on for over a year, once HISA is up and running, the state courts have no more role,” he explained. “We will have a consistent approach and from a legal standpoint, you're not going to have to worry about injunctions in all different kinds of state courts. The one assurance I can give you, whether it's with lawsuits filed or any kind of legal issue, we are hiring the best that we can find to help us make sure we can implement this act in a way that can be defended at every point because we know how important it is to this industry.”

Roach later added that if an issue does arise in a state before January 1, 2023, HISA and possibly the Federal Trade Commission would be available to extend their assistance.

Later in Tuesday's session Steve Keech, HISA's Technology Director, gave a presentation on HISA's database registration process. The database is in the works now but has no set launch date. It will include data on horses and industry participants involved in 64 different racing-related occupations.

Keech gave an overview on how an owner will register within their system and he also explained that the system will link with other databases such as Equibase and InCompass Solutions. The database will include information on every horse in the system, from their current location and vaccination record to when they were last on a vet's list.

The 'Q and A' section of Keech's session led to much discussion on what this data would be used for and what would happen if an individual did not register. Attendees raised questions regarding how grooms would know to register, noting the current challenges behind getting backside workers appropriately licensed. They also asked who would be a responsible if a groom did not register.

Lazarus jumped in to explain that their authority is aware of and working through these issue. She said HISA will soon be launching a communication campaign to spread the word and that they have already asked several jockeys for help in advising on how to make the registration process user friendly. Lazarus explained that the program will also be offered in Spanish and said that no one will be responsible if an individual is not registered, instead it will become a question of whether or not they will be able to participate and be allowed onto the backside.

The ARCI convention continues April 13 with several presentations including an analysis of the pending federal court challenges to HISA.

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Opening Session of 2022 ARCI Conference

LEXINGTON, KY – The Association of Racing Commissioners International (ARCI) hosted the first day of their 88^th annual conference on Safe Horses and Honest Sport on Monday, April 11 at the Griffin Gate Marriott in Lexington. The three-day event is held in conjunction with the meetings of The National Racing Compact and The Horseracing Integrity and Safety Authority.

ARCI President Ed Martin opened the first session, emphasizing that racing currently sits at a crossroads in the sport's history with the impending implantation of the Horseracing Integrity and Safety Act.

“We are going through a massive change in the regulation of the sport in general,” he said. “We have a responsibility ultimately to the general public, secondly to the industry and sport that everyone in this room loves and in many cases comes from, and we have a moral responsibility to these wonderful animals that are the cornerstone of our sport.”

Martin introduced speaker Liza Lazarus, the CEO of the Horseracing Integrity and Safety Authority (HISA), who spoke on the current state of HISA and implored regulators that to “give us a chance” as they begin to put their regulations into action.

“The industry is facing pressure from the public and from owners, trainers and riders [asking] where is this industry going and what we can do to make it the best version of itself,” she said. “I know that all of you who work for state racing and gaming commissions are on the front lines regulating and doing good work. We are not coming in to say that your work isn't good work, instead we want to take it further and really focus on uniformity.”

She noted that there is much for racing to do in order for it to catch up with other sports in terms of uniformity.

“Our mission it to make the sport safer for horses and jockeys and to provide consistency and clarity around rules and consequences for racing participants,” Lazarus said. “Above all else, we must adhere to our mission of enhancing equine safety and the integrity of the sport. We believe that national uniform standards will benefit all participants who want to play by the rules and we approach the creation and implementation of the rules with a spirit of collaboration with the industry.”

The start date for HISA's Racetrack Safety Program is July 1 of this year. Lazarus said this program will have a significant impact on equine safety by establishing national standards for racetrack accreditation, expanding veterinary oversight, enhancing claiming rules, setting surface maintenance and measurement standards, collecting nationwide data and conducting research on medications, treatments, injuries and fatalities.

At the end of 2021, it was announced that HISA Authority was unable to reach an agreement with The United States Anti-Doping Agency (USADA) as an enforcement agency for the Horseracing Integrity and Safety Authority. Lazarus said to expect an announcement next month regarding an anti-doping control program, which will likely start in January of 2023. Until then, the states will continue with their own oversight.

Lazarus also discussed the economic impact that will come with the implementation of HISA.

“The cost allocation model approved by the FTC [Federal Trade Commission] accounts for the number of starts and the purse levels per start in each state to ensure that costs are distributed fairly and equitably across the board. We're going to work diligently to make sure that we use efficiencies and minimize costs. We are looking for supplemental funding to help the industry bear the cost of these rules and regulations.”

She continued, “The promise to you is that at HISA, we are going to do our very best. We really want this to work. We love this industry, we care about the horse and we recognize that many of you have spent your lifetime in this industry. We're going to do our best to get it right and our philosophy will always be to collaborate. Our one ask in return is that you would just give us a chance. We are going to do our very best to get it right, but we are going to make mistakes and we're going to have to look at things over again because this has never been done before. I ask that you give us a chance to get it right and that if you have a criticism, you tell us and give us a chance to fix it so we can work together. There's not going to be positive change unless it is done as an industry.”

Robert Lopez, Chair of the Washington State Horse Racing Commission and outgoing Chair of the ARCI, also spoke via teleconference about HISA in the opening session of the day, but pointed out that he had hoped a closer relationship could have developed already between the ARCI and HISA.

“We see many exciting possibilities to improve upon the good work that we collectively do,” he said. “But we also see how missteps and missed opportunities might make it more difficult for the industry and those in it to survive in the highly-competitive marketplace. During my tenure, we offered to help guide HISA through the maze of various state governments. We offered our best advise on how to make this all work, but [this advise] was often ignored. Perhaps it was the enormity of the challenge they face and the fact that almost all involved have never done this before. They are certainly within their rights to do so, but to ignore the wisdom of those who understand the challenges of the state government was inexcusable.

He concluded by saying that he hoped their partnership could improve in the future throughout the implementation of HISA rules.

“The HISA Racetrack Safety rules going into effect this summer are based upon the hard work that has been done by all of you [regulators] over the years as they have relied heavily on the ARCI model rules. We take that as a compliment. I trust that our new colleagues at HISA will come to the level of commitment and expertise we all share for the safety and honesty of the sport of horseracing and the welfare of both human and equine participants.”

During the day's second session, Dr. Susan Stover, a professor at the University of California at Davis School of Veterinary Medicine, Chair of the Racetrack Safely Committee and board member of the Horseracing Integrity and Safety Authority, gave a lecture on 'Protecting Our Horses.' She discussed current data on injuries and fatalities in horse racing, noting that almost all come from pre-existing conditions. She emphasized that if such conditions can be caught early, horses are able to return to the racetrack in many cases without issue.

The day's third session featured a panel of the Equine Welfare Committee.

Scott Chaney, the Executive Director of the California Horse Racing Board, spoke on the many changes that have taken place in California since 2019. He said that the year brought forth a watershed moment for the state not necessarily because of an increased number of fatalities, but because of increased media attention. Chaney said that in implementing new regulations, which have now proven to be successful, they focused on four different categories: medication control, identifying high-risk horses, education and research, and perception and transparency.

Scott Palmer, the Equine Medical Director of the New York Gaming Commission, represented the Mid-Atlantic Program.

In regards to medication, Palmer said that there was a significant decrease in the total number of positive tests in the Mid-Atlantic region in 2016 and 2017 following the implementation of their Mid-Atlantic Strategic Plan. Since then, the total number of positive tests were constant from 2017 to 2021 except for a decrease in 2020.

Ann McGovern concluded the panel as the representative for HISA's Safety Program, which goes into effect July 1. She said that the positive results outlined by Chaney and Palmer are an example of what can be achieved under effective regulations and noted that HISA looked at various pre-existing successes in the industry as they were outlining their program.

“We want to assist racetracks as they adopt the medication and safety standards that are outlined by HISA,” she said. “We want to provide educational opportunities for all the industry members and through research, we want to identify injury-reducing best practices. Our regulations rely heavily on the industry sending us data and we are requiring members of the industry to provide data.”

McGovern explained that with the collected data, HISA will conduct research to give input to the industry and make improvements. She added that the data will not be used to monitor trainers and veterinarians, but to give everyone more information.

John Roach joined McGovern on the panel to explain the different components of HISA, specifically the differences between Rule Series 2100 and 2200.

Roach said the 2100 series revolves around the accreditation process for racetracks, noting that every racetrack under HISA authority will be granted an interim accreditation as many racetracks will have work to do in order to meet HISA standards. Rule violations will not take place during that time as long as racetracks are working in good faith as they move forward to meeting the outlined standards.

“We realize that there are going to be tracks that this is going to be a bit of a heavy lift for,” McGovern said. “Most racing jurisdictions [present today] are meeting the majority of the standards already and I don't think it will be that difficult to get to standard of HISA if you are not already there, but for the smaller tracks that might find it more difficult, we're not going to ask them to have all this in place on July 1. What we're looking for is a good-faith effort to do what is necessary to save horses and reduce injuries in jockeys.”

In contrast, Rule Series 2200 includes rules that will be enforced starting on July 1. Examples of these regulations include the limited use of the riding crop, as well as enforcement of safety vests and safety helmets. These rules will be enforced with sanctions set forth in the regulations immediately upon implementation.

“We know that things change and as research tells us and as you tell us, these rules will evolve,” McGovern said. “If there's something we didn't get right, we are open to suggestions. We are working as hard as we can to get everything up and running, but the next steps are to education everyone in the industry as to what HISA means, what the regulations are, and what will be needed in order to comply. I think we're all in this for the same reason. We want to save horses lives, reduce jockey injuries and deter and remove the bad actors in our industry who make the good guys look bad.”

Monday's session concluded with a panel on the topic of if cheaters should be given a pass for cooperating, which featured United States Trotting Association President Russell Williams and Nebraska Racing and Gaming Commission's Executive Director Tom Sage, as well as a panel on Federal-Jurisdiction Cooperation in Canada with Canadian Pari-Mutual Agency's Executive Director Lisa Foss, Alcohol and Gaming Commission of Ontario's Director of Regulatory Compliance Brent Stone and Horse Racing Alberta's Supervisor of Racing Doug Fenske.

The ARCI conference continues on Tuesday.

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Global Views: Maintaining Racing’s Social Licence

In ages past horseracing was accepted as a part of global culture. Initially a pastime of the aristocratic, the invention of syndicates gave opportunity for working people to become a part of the sport. This was a goal that many strove towards and achieved during the twentieth century. The practices within the mystical realm of racing were not questioned; it simply was not done. The dawn of a new millennium has seen society change, animals have been humanised and a group within society now question our practices and the morality behind them. To maintain our social licence, our right to keep racing, we need to answer these questions and make the sport of horseracing a comfortable concept for the wider public.

These questions have been met with outrage and indignation by some within our industry, be they media, horsemen or otherwise. The suggestion has long been that we are pandering to a group that has no understanding of what we do, that cannot fathom the relationship between horse and human. While I agree that this group can lack balanced understanding and comprehension of our relationship with the horses in our care, the outrage and defensiveness we display at this questioning sets us on a dangerous path toward alienation.

A highlight of the British jumps calendar is the Grand National, run at Aintree on Saturday. It was designed as a four-mile-plus slog over daunting obstacles. Heralded as the “ultimate test of horse and rider” fatalities were commonplace until public and political pressure eventually forced the organisers to lessen the jumping test. This occurred in 2013, with the new fence design seeing a less attritional event showcased to the wider public. Still the statesmen lament “it's not the race it was”. Undoubtedly true, but surely a good thing, given the temperament of the wider public?

The whip has long been the subject of conjecture. The image of jockeys with raised swords in a finishing duel is a powerful one, for those unfamiliar with the nuances of horsemanship and horseracing. The adoption of the foam-padded, energy-absorbing whip approved for use in racing occurred in 2003 and 2007, for National Hunt and Flat racing, respectively. In 2011, after extensive research, the whip rules as we know them today were implemented in Great Britain. Recently the British Horseracing Authority (BHA) has conducted a public consultation on the use of the whip involving industry participants, non-industry stakeholders and the public, the results of which are due to be presented this month. This review is part of a larger policy being pushed by the BHA regarding equine welfare within horseracing. When this review was announced, we as an industry reacted with indignation at the thought of yet more change to this historical sport. Once again, it was expressed that people who have no knowledge of what we do are interfering.

The torrent of change is not limited to Europe or Great Britain. In America the passing of the Horseracing Integrity and Safety Act (HISA) will potentially see an almost complete overhaul in racetrack safety and anti-doping practices in the USA. The reaction from some of the racing community with the passing of this bill has been typically negative. Lawsuits are ongoing against HISA on the grounds of it being unconstitutional, while other industry participants rattle their sabres and cry out homeostasis. This is an industry where the predominant dirt surface sees a higher breakdown rate and regular medication violations. Surely the racing population should be glad of a law that will improve track safety for horses and implement a uniform code of testing and medication procedures? Is it the fear of the unknown? Full details of how the system will work and the financial implications behind it have yet to be revealed.

I have heard some people express the opinion that we need something, but that HISA is not the answer. My response to that is: well, what is? Nobody seems to have an answer to that one. Surely this is a step in the right direction. Even if it isn't the solution, it is a move toward a sport centred around equine welfare and integrity. A sport beyond reproach, one might say.

The twenty-first century seems to move at a pace that Frankel (GB) himself might struggle to lay up with. We face more issues than just those mentioned above. Changes are being made to regulation fences and hurdles across Britain. I think we can all agree that the establishment of the Retraining of Racehorses, Treo Eile and the Thoroughbred Aftercare Alliance is changing the public's perception on a thoroughbred's life after racing. Diversity is being encouraged and we are opening our doors to participants from all walks of life. Change is a concept that we must embrace. Change is a good thing, and because of it the industry today looks far different than it did in the 1980s and 1990s.

We are judged by the public; we all know the trial by social media concept. In reviewing our practices and changing, when necessary, we are not “pandering”. With global urbanisation, the distance between human and animal has grown. This distance has seen the formation of the animal rights groups, but the public majority neither supports nor denounces racing.

This is the group we are focusing on, and it is essential to our survival. Yes, more change is imminent. That doesn't mean we will capitulate on every point, but I would call on all our participants to welcome the opportunity. It is an opportunity to research and educate, it gives us a chance to ensure the survival and prosperity of both our industry and our sport.

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HISA: FTC Approves Rules, Distribution of Cost

The Federal Trade Commission (FTC) has approved the proposed Enforcement and Methodology Assessment Rules in addition to the distribution of the 2022 cost assessments to state racing commissions, according to the Horseracing Integrity and Safety Authority (HISA) Friday. The effective date for the start of the Racetrack Safety Program is July 1.

“These developments bring us closer to fulfilling our mandate to protect the wellbeing of both horse and rider through uniform rules and accreditation standards,” said HISA CEO Lisa Lazarus. “The Racetrack Safety Program will expand veterinary oversight, impose surface maintenance and testing requirements, enhance jockey safety and implement voided claim rules, among other important measures that will go into effect on July 1.”

The Enforcement Rule (8000 Series) describes a range of violations and civil sanctions, establishes procedures for disciplinary and racetrack accreditation hearings, and grants the Authority investigatory powers.

The annual assessments were determined by the FTC approved Methodology Assessment Rule (8500 Series), outlining a process that aims to ensure fairness and equity across Thoroughbred racing jurisdictions.

The cost calculations represent each state's proportionate share of HISA's 2022 budget as required under the Act. Under the rule, HISA calculated 50% of each state racing commission's cost according to the total number of starts in covered races and the remaining half based on starts weighted for purses in covered races.

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