A federal judge in Texas has issued a 30-day waiting period before the rules of the HISA’s Anti-Doping Medication and Controls can take effect. Those rules went into effect Monday, and it remains unclear what guidance will be forthcoming for racing participants.
The ruling, issued Friday, was the latest in a long back-and-forth bitter struggle between pro-HISA and anti-HISA forces, and is again sure to leave industry members unsure of what rules to follow.
The ruling, issued Friday by the United States District Court, Northern District of Texas, Lubbock Division, was issued in response to a motion filed by the National HBPA arguing that the rule violated a provision of the Administrative Procedures Act, which governs the process by which federal agencies develop and issue regulations. It includes requirements for publishing notices of proposed and final rulemaking in the Federal Register, and provides opportunities for the public to comment on notices of proposed rulemaking. The APA requires most rules to have a 30-day delayed effective date. The judge in the case only partially agreed.
After HISA was found unconstitutional by the Fifth Circuit Court, the group went back to the Federal Trade Commission to amend language that addressed that court’s concerns.
“When Congress changes a statute in response to a court’s opinion, the result is usually a second wave of litigation: Was the attempted remedy sufficient? What new arguments arise?” wrote the court. “But those larger questions are not yet before the Court. Currently, the plaintiffs make a narrow procedural claim that a new anti-doping rule violates the Administrative Procedure Act because not enough time passed between when the rule was published as final and when the rule took effect. When an agency issues a substantive rule—the type of rule that controls our behavior—it must ordinarily wait 30 days between when the final rule is issued and when it takes effect. This ensures that regulated parties have the time to challenge the rule’s validity or bring themselves into compliance. But the anti-doping rule took effect the same day that it was published as final. As a result, the rule issued in violation of the APA, so the plaintiffs—and everyone else—will get their 30 days. The Court enjoins implementation or enforcement of the anti-doping rule until May 1, 2023.”
But the court only addressed that 30 day rule required by the APA, and not the HBPA’s larger claims that HISA remains unconstitutional despite the added language.
“Plaintiffs’ only new argument is that section 553(d), absent good cause, requires an agency rule to take effect 30 days after the final rule is published. In the interest of judicial economy—and because the plaintiffs only seek emergency relief as to the anti-doping rule—the Court will limit its analysis to the sole issue at hand: whether the FTC failed to comply with section 553’s required 30-day waiting period and, if so, whether the plaintiffs are entitled to equitable relief,” the ruling reads.
Eric Hamelback, the CEO of the National HBPA, told the TDN by text that the HBPA’s interpretation of the ruling was that the 30-day injunction of the ADMC would apply nationwide.
As of the filing of this story, a HISA spokesman had not responded to a request for comment.
The news was first Tweeted by Horse Racing Nation.
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