HISA Questions and Answers: Part Two

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Coglianese

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This last week has witnessed a flurry of developments and information drops as the countdown to July 1–the official take-off for the Horseracing Integrity and Safety Act (HISA)–continues apace.

Just last Friday, for example, HISA representatives fielded questions in an online industry forum, while the law's draft Anti-Doping and Medication Control (ADMC) rules have been issued for public comment.

HISA's official website can be found here, while the online registration portal can be found here.

Aside from providing a cheat sheet to help guide industry participants through the launch, TDN has been fielding unanswered questions that industry participants have about the process to register, and about the new playing field come July 1, forwarding them to HISA for response.

TDN published the first batch of questions last week. The latest batch is posted below, and includes this registration warning:

“Beginning July 1, 2022, horses will not be allowed to run in a race if the trainer has not registered the horse with HISA.”

Some of the following questions have been edited for brevity and clarity. If any submitted questions aren't answered here, we will endeavor to include them in the next batch.

Question: My question concerns horses at a farm or a lay-up facility. While it doesn't look like everyone employed at one of these places will need to be registered as a covered person, some of these people (like farm managers and veterinarians) will have a lot of responsibility over prescribed medications and veterinary treatments given to the horses in their care. 

I see that there are important lay-up and treatment records that need to be made available to HISA. And so, if some of the people administering treatments and medications at a farm or facility aren't registered as “covered persons” under HISA, who's going to be ultimately responsible for what goes on there? The trainers? The owners?

HISA: You're correct, most of the employees who work at farms and lay-up facilities are not required to register with HISA. Employees that are licensed with a State Racing Commission and work directly with covered horses are required to register with HISA. For example, if a veterinarian is licensed by a state racing commission and is treating a covered horse at a lay-up facility, he/she is required to register with HISA.

The responsible person, usually the trainer, must obtain and maintain all exercise and medication treatment records for horses that are at farms, lay-up facilities and training centers. In the circumstances that the trainer is not the responsible person for the horse, the owner will be responsible for maintaining all exercise and medication treatment records for horses that are at farms and lay-up facilities.

Q: According to the jockey whip rule, in certain violations, the owner loses the purse. My understanding is that it's just the purse that's lost, while the horse keeps its place. If that's correct, where will the purse money go?

H: There are three classes of jockey crop use violations. Class 1 violations do not result in a loss of purse. If a crop violation is a Class 2 or Class 3 violation, the horse will be disqualified from purse earnings.

HISA's Racetrack Safety Committee will provide guidance on how that purse money will be used/allocated in the coming weeks.

Q: What if I am confused by the new regulations and I was supposed to register, but I don't? What are the consequences? And who enforces them?

H: Beginning July 1, 2022, horses will not be allowed to run in a race if the trainer has not registered the horse with HISA.

HISA is focused on getting as many people and horses as possible registered before July 1. This includes educating, assisting and engaging with stakeholders across the industry to ensure everyone is well-informed and well-equipped to get registered as soon as possible.

Q: Once we register ourselves, with our physical address being one of the requirements, we are authorizing the 'Authority' free access to our homes/farms. Please can you explain in detail why?

H: HISA will always exercise its authority in good faith and for the benefit of the sport. The Act passed by Congress provides that the Authority shall develop uniform procedures and rules authorizing “access to offices, racetrack facilities, other places of business, books, records, and personal property of covered persons that are used in the care, treatment, training, and racing of covered horses.”

Our original regulation stated: The Authority “[s]hall have free access to the books, records, offices, racetrack facilities, and other places of business of Covered Persons that are used in the care, treatment, training, and racing of Covered Horses, and to the books, records, offices, facilities, and other places of business of any person who owns a Covered Horse or performs services on a Covered Horse.”

The FTC in approving the Enforcement Rules noted that commentators who objected to this rule were really objecting to the Act since our rule tracked the Act. Despite the rule being approved by the FTC, we have revised the rule and will be sending the revisions to the FTC in the next few days. The relevant rule now states:

(1) Shall have free access to:

(i) with regard to Covered Persons, books, records, offices, racetrack facilities, and other places of business of Covered Persons that relate to the care, treatment, training, and racing of Covered Horses, and

(ii) with regard to any person who owns a Covered Horse or performs services on a Covered Horse, books, records, offices, facilities, and other places of business that relate to the care, treatment, training, and racing of Covered Horses.

Even if the revised rules are not approved by the FTC by July 1, 2022, HISA will abide by these portions of the amended regulations.

And finally, it is important to note that the language that Congress utilized is not novel. For example, current Kentucky law utilizes similar language as HISA's original regulation. It states:

“The racing commission, its representatives and employees, may visit, investigate and have free access to the office, track, facilities, or other places of business of any licensee, or any person owning a horse or performing services regulated by this chapter on a horse registered to participate in a breeders incentive fund under the jurisdiction of the racing commission.”

Q: Rule 8400 Investigatory Powers section a) subsection 1). This rule also allows HISA to seize “medication, drugs, paraphernalia, or substance in violation or suspected violation of the 'Authority,” along with all your books and files.

In every state, it's against the rules for any person not a vet to have injectables, needles, and syringes on the track. But under this rule, if you're in a rural area (which most farms, by definition, are) and have such perfectly legal medications on your property to treat your horses in an emergency when a vet may be hours away from you, you would be in violation of the “Authority's” rules and subject to seizure, fines, and suspension of racing privileges.

If accurate, this makes absolutely no sense, so please can you provide the reasons behind this?

H: HISA's regulations regarding hypodermic needles and syringes apply to Covered Racetracks and Covered Training Facilities. These regulations do not apply to farms.

Q: Under the “Authority's” revised rules (not yet submitted to the FTC) weekends and holidays are no longer “working days” and won't be considered “counted” days. If I'm reading this right, if you receive a five-day suspension starting Tuesday, you cannot return to work on Sunday because it's not a “working day”? And by waiting until Monday, you will have served six days? In horse racing, every day is a working day!

H: This is incorrect. The new provisions for calculation of time addresses only the response dates set forth in the Enforcement Rules.

For example, it makes clear that if an individual is given a certain number of days to file an appeal or file a brief and that day falls on a holiday or weekend then the deadline is the next working day. The calculation of time rule in the Enforcement Rules has nothing to do with the numbers of days someone serves for a suspension.

Additionally, this method of calculating time helps horsemen by giving them extra days to respond and not requiring them to count weekends which are often busy race days.

Q: I read the Q&A, and the answer to who needs to register says someone who works regularly in the stable area. Others who have access but don't work in the stable in the normal course of their job do not have to be registered. Access to the stable is still controlled by state commission licensing. This clears it up except their site says the complete opposite. Their site says any employee who has any access to the stables must register. Can you please try to clarify the clarification which clarified nothing?

H: This language has been updated on the HISA website. To be clear: you must register as a Covered Person if you are licensed by a State Racing Commission, unless you have no contact with Covered Horses and you do not have access to the restricted areas of a racetrack in the ordinary course of carrying out your duties. This means that if your job does not regularly require you to access the stable area in the normal course of your work, you are not required to register. Examples of other persons who do not need to register include, but are not limited to: vendors of goods or services and racetrack employees or contractors who do not have access to restricted areas (i.e. food service providers, ticket takers, mutuel employees, etc.). EVERYONE ELSE MUST REGISTER AS A COVERED PERSON.

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