Nine states are urging the Senate minority leader to stop work on updating legislation to correct constitutional flaws in the Horseracing Integrity and Safety Act during a lame-duck session.

Citing the “enormous upheaval” caused by HISA, state attorneys general from Louisiana, Arkansas, South Carolina, Indiana, Ohio, Texas, Mississippi, Iowa and Oklahoma are appealing Sen. Mitch McConnell to let the law sunset after the United States Fifth Circuit Court of Appeals ruled that it was unconstitutional.

“A lame-duck session is not the time to slip new language into legislation amending HISA,” according to a letter signed by the nine state attorneys general. “Indeed, language that attempts anything other than repealing this ill-advised legislation will only make a bad situation worse.”

Reuters reported Dec. 5 that McConnell, a Kentucky Republican, wants to bolster the Federal Trade Commission’s (FTC) oversight of HISA as part of the Defense Spending Authorization Act or other year-end legislation. The law was ruled unconstitutional in mid-November because it delegates legislative authority to a private organization and individuals.

The Horseracing Integrity and Safety Authority, a private agency, is responsible for implementing anti-doping and racetrack safety protocols, regulations and penalties. The U.S. Anti-Doping Agency (USADA), a private organization, is enforcing the drug control program.

If the HISA changes are included in the spending bill and it passed into law, supporters of HISA believe the implementation of the rules will continue with no interruption.

“‘[E]very schoolchild learns’ that ‘our Constitution establishes a system of dual sovereignty between the states and the federal government,’” the letter quotes Gregory v. Ashcroft. “As enacted, HISA disrespects that system of dual sovereignty. HISA’s very purpose is to take away a regulatory power individual states have exercised since the founding — to oversee and regulate horse racing within their borders — and give that power exclusively to a private agency (the Horseracing Integrity and Safety Authority or ‘Authority’).

“This private agency, exercising federal regulatory powers without any meaningful restraint, oversight, or adequate time for notice and comment, rushed rules that displaced existing state laws governing horse racing and exposed jockeys and horses to unsafe conditions. Adding insult to injury, the Authority required all participants in the horse racing industry to pay assessments to cover the cost of enforcing HISA’s dangerous and poorly thought out private rules. As a final blow, the Authority attempted to cannibalize existing state personnel to implement and enforce the rules it enacted.”

The law, which was passed as part of the Dec. 21, 2020, COVID-19 stimulus bill, was a response from federal lawmakers after a series of doping scandals and equine racetrack fatalities. The attorneys general maintain that Congress and the Authority provided little notice to racing states, failed to listen to industry experts and made decisions that “hurt horses and riders.” They urge McConnell to avoid repeating mistakes.

“Enacting HISA in 2020 in vital national legislation that had nothing to do with horse racing is part of why it failed so miserably,” according to the letter. “Amending HISA in the Defense Spending Authorization Act with no notice to industry participants or states will merely repeat the same flawed approach.”

Rather, the attorneys general advised McConnell to take a more deliberate approach to regulating racing.

“Any further legislation regarding HISA should proceed through the ordinary course of deliberate consideration by the Senate Commerce Committee and the House Energy and Commerce Committee,” according to the letter. “On the impossible timeline of the Defense Spending Authorization Act, due care cannot be given to ensuring any amendments to HISA respect the founders’ design and allow states to retain control over an industry they successfully developed and regulated for centuries.”

In June 2022, a bipartisan quartet of United States senators questioned the “chaotic implementation and poor communication” of the Authority, as well as whether the FTC has the “ability to effectively provide oversight of the Authority and ensure it complies with HISA.”

The mandated implementation of HISA was July 1, 2022; however, the Authority did not meet the deadline for the Anti-Doping and Medication Control Program, horseshoes and riding crop regulations. The horseshoeing rules were set to take effect Aug. 1.

“This deadline is statutorily required and neither the FTC nor the Authority have the authority to extend this deadline,” according to a letter addressed to Lina Khan, chair of the FTC and Lisa Lazarus, president and CEO of the Authority. The letter is signed by Sen. Chuck Grassley, R-Iowa; Sen. Joe Manchin, D-W.Va.; Sen. Joni Ernst, R-Iowa; and Sen. John Kennedy, R-La.

American Farriers Journal was the first to report May 12 that the Authority would delay the implementation of the shoeing rules until Aug. 1.

“This is also concerning because we understand the initial rules were functionally impossible for industry participants to implement due to limited supply chain availability of horseshoes and riding crops,” according to the senators’ letter. “This raises questions about what industry representatives were consulted in the drafting of the rule.”

American Farriers Journal contacted the four main manufacturers and suppliers of Thoroughbred racing plates to determine whether they had been consulted during the initial drafting of the shoeing rules. Victory Racing Plate Co., Thoro’Bred Inc., Mustad Hoofcare and Farrier Product Distribution, which supplies Kerckhaert racing plates, said they were not consulted.

Although Dr. Susan Stover, chair of HISA’s Racetrack Safety Committee, confirmed the delay with American Farriers Journal on May 12, it officially was confirmed June 28 on the Authority’s website. HISA published a downloadable fact sheet on shoeing requirements before June 17 that stated the rules would be delayed until Aug. 1. Citing American Farrier Journal’s May 12 report, the senators chastised the Authority for how it has implemented HISA and its effect on the farrier industry.

“And now, only one week before the rule was set to take effect, the Authority published a notice announcing a one-month delay in enforcement of these rules,” according to the letter. “This chaotic implementation process and poor communication by the Authority makes it difficult for industry participants to comply with the new rules and regulations. Additionally, continuously changing implementation dates for new rules and regulations, and last-minute delays, cause more confusion and difficulty with implementation.”

In response to the senator’s letter, HISA announced in late July that it would not enforce traction rules for dirt racetracks. Horses may be shod on the hinds with either a full outer rim shoe up to 4 mm in height or a toe grab up to 4 mm in height. The full ban on toe grabs remains in place on front shoes.

HISA has said it will review the shoeing rules for 2023.