By T. D. Thornton
Even as the National Horsemen's Benevolent and Protective Association (NHBPA) is trying to halt the Horseracing Integrity and Safety Act (HISA) for good, its attorneys filed a response in federal court Thursday that criticized the Federal Trade Commission (FTC)'s Apr. 27 order that mandated the third delay in nearly a year for the implementation of the Anti-Doping and Medication Control (ADMC) program, this time from May 1 to May 22.
The NHBPA told the court that the FTC's issuance of the order to delay the program without first providing a 30-day public comment period on the date switch goes against the provisions set forth in the Administrative Procedure Act (APA), which governs the process by which federal agencies develop and issue regulations.
The NHBPA also stated that the FTC's decision to delay the ADMC program is “totally inconsistent” with the FTC and HISA Authority's previous arguments that the program needed to be implemented as swiftly and as uniformly as possible.
The NHBPA filing also pointed out that although the FTC cited a desire not to cause “confusion” by implementing the ADMC on May 1, five days before the Triple Crown series starts with the May 6 GI Kentucky Derby, the FTC's decision to go with a May 22 start date instead puts the new effective date right in the midst of that series, after the May 20 GI Preakness S. but before the June 10 GI Belmont S.
“The Horsemen will not challenge the Order as lacking good cause because they believe any delay is good for their members, their horses, and their industry-they are seeking a permanent delay in the rule, after all. But they cannot help but note that for a second time in as many months the FTC and Authority have steamrolled over the fundamental principles of notice-and-comment at the heart of the APA,” stated the NHBPA's filing in United States District Court (Northern District of Texas, Lubbock Division).
“The FTC says its order does not need a period of public comment because it has 'good cause' to issue the rule immediately,” the NHBPA filing stated, quoting portions from the FTC order. “'Good cause' is an 'emergency power,' normally reserved for dire circumstances where life and limb are in danger. The mere existence of a statutory deadline doesn't cut it…. The Authority has represented that immediate implementation of the rule is necessary to preserve life and limb; it is hard now to understand how the FTC can find good cause to delay the rule if that's the legal standard. The policy rationale the Order gives is at best thin gruel.”
The FTC's “notice of delay” filed with the same court, also on Thursday, stated that, “Because the ADMC Rule governs the treatment of horses weeks before a covered race, some affected parties who are treating horses in a manner consistent with state requirements may find it difficult to come into compliance in the five days between the ADMC Rule's scheduled effective date and the Kentucky Derby on May 6. Even in the absence of conflicts between the ADMC Rule and applicable state regulations, implementing new testing requirements just days before the start of the Triple Crown creates an appreciable risk of errors, confusion, and inconsistent treatment of similarly situated horses-harms that could frustrate the purposes of the Act.”
The FTC stated that the HISA statute “authorizes the [FTC] to abrogate, add to, or modify the Authority's rules for specified reasons, including 'to ensure the fair administration of the Authority,' [and that while the] APA typically provides for notice-and-comment rulemaking, [that comment period is] not required with respect to a rulemaking when an 'agency for good cause finds…that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.”
The FTC's filing continued: “Here, the [FTC] finds, for good cause, that notice and comment is impracticable and unnecessary with respect to the final rule. Given the short time remaining before commencement of the Triple Crown races, providing advance notice would delay the effect of the final rule until after the Kentucky Derby, defeating the rule's purpose. Obtaining comments after issuance of the rule is unnecessary because the full effect of the Commission's rule-which merely provides for a brief delay in the effective date of the ADMC Rule-will have occurred prior to the Commission's collection and consideration of any comments.”
The NHBPA countered with this explanation in its filing: “As the FTC has reminded us in the past, “[t]he bedrock principle of the Act is the need for uniformity.' [But now] the rules for the three Triple Crown races will not be uniform, because the Defendants have chosen May 22 rather than June 12 as the start date for the ADMC. As a result, the Kentucky Derby and the Preakness will be governed by state law, while the Belmont will be governed by the ADMC (unless it is enjoined or delayed again)…
“Now the FTC is saying that the Authority is not ready to roll?” the NHBPA filing asked rhetorically. “In Kentucky, home state of the Kentucky Derby, where a voluntary state implementation agreement with the Authority and the state racing commission was signed March 21, 2023? Again, if this were before the Court as an APA challenge, would this fly?
“Again, the Horsemen are not going to file an as-applied APA challenge that the Order is inconsistent with the Act's insistence on uniformity, because they believe the delay is good for the Horsemen and the industry,” the NHBPA filing stated. “But they must point out the absolute lack of respect for the Act and their own professed priority shown by Defendants.”
The ADMC program had originally been expected to go into effect July 1, 2022, according to its enabling law. That start date then got pushed back to Jan. 1, 2023. In mid-December 2002, that date got scrapped when the Federal Trade Commission (FTC) declined to approve the rules that would make the program operational by the start of 2023, citing legal issues.
The HISA Authority then ramped up for an expected Mar. 27 start date after receiving FTC clearance. The ADMC went briefly into effect for four days, but on Mar. 31, the federal judge handling this lawsuit issued a 30-day injunction that suspended the program, pushing the ADMC start date out to May 1.
TDN first reported on Apr. 25 that the ADMC's May 1 start date was in jeopardy after hearing testimony about it during Tuesday's Pennsylvania Horse Racing Commission meeting, when an official with that agency stated he had been contacted by HISA Authority officials on Apr. 21, informing him that the new start date was May 22.
The HISA Authority did not initially respond to an Apr. 25 request for confirmation from TDN on the date switch, but the FTC court filing and a subsequent press release on Thursday verified the change, citing a vote taken by FTC commissioners.
The NHBPA also took umbrage with the way that FTC order came about.
“One scratches one's head how it is that the FTC announced this order to the public [on] Apr. 27, but Authority staff was calling state commissions on Apr. 21 telling them that it was being delayed to May 22,” the NHBPA filing stated. “At best, the FTC gave the Authority a heads-up that it was making this delay decision. Much more likely, this was the Authority's decision all along, and the FTC ratified it because the FTC ratifies everything asked of it by the Authority…”