Mullin Confronts Negligence of Horse Racing Integrity and Safety Authority

WASHINGTON— Congressman Markwayne Mullin (OK-02) recently sent a letter to Federal Trade Commission Chair Lina Khan and President and CEO of the Horseracing Integrity and Safety Authority (Authority) Lisa Lazarus to voice concern with the Authority’s dereliction of duties under the Horse Racing Integrity and Safety Act (HISA). Mullin highlights the undue burden placed on the industry in Oklahoma and urges an increase in clarity and uniformity from the Authority to better support the states.

“The Authority has failed to uphold the duties on which their foundation exists,” Joe Lucas, Chair of the Oklahoma Horse Racing Commission said. “Their negligence is hurting Oklahoma, creating uncertainty for the future of the horseracing industry. I applaud Congressman Mullin for bringing attention to the carelessness of this governing body and join him in calling to return this authority back to the states.”

The popularity of the horse racing industry in Oklahoma has increased substantially over the past decade. The industry contributes over $480 million to the state’s economy when considering racetracks, breeders, trainers, and owners. This is more than double the economic impact of 2013. It also creates more than 6,000 direct and indirect jobs in the state.

Oklahoma boasts three live racetracks for spectators: Fair Meadows racetrack in Tulsa, Will Rogers Downs in Claremore, and Remington Park racetrack in Oklahoma City. The state is home to more than 14,000 racehorses and 800 breeding horses who carry the industry each season.

HISA established the Authority when it was signed into law in 2020. The law tasked the Authority with drafting and enforcing safety and integrity rules in thoroughbred racing throughout the country, a task previously left to the states. From this guidance came two regulatory components. First, the Racetrack Safety Program requires registration of racetracks, horses, and jockeys, imposes new surface safety and testing requirements, and takes veterinary oversight. Second, the Anti-Doping and Medication Control Program creates yet another new agency, the Horseracing Integrity and Welfare Unit, which administers a national testing and results process and applies penalties for violations of HISA.

Mullin has opposed the Horse Racing Integrity and Safety Act through every step of the legislative process. During a House Energy and Commerce Committee markup in 2020, Mullin addressed the unnecessary overreach of the Authority into the states’ ability to regulate their own industries. Mullin also echoed the concerns of his colleagues when noting the lack of veterinary presence on the Anti-Doping and Medication Control Program and the dangers this poses for equine medicine. Mullin subsequently voted against the legislation when it was brought House floor that same year.

The full text of the letter can be found here and below.

Dear Chairwoman Khan and Ms. Lazarus: 

I have long been opposed to the Horseracing Integrity and Safety Act (HISA), continuously expressing my concerns throughout the legislative process. HISA was a clear overreach into state regulation of the horse racing industry. Unfortunately, my fears regarding this legislation were correct and we in Oklahoma have since seen the negative impacts of the Horseracing Integrity and Safety Authority (the Authority), firsthand since passage of HISA. In recent years, racetracks in Oklahoma have offered some of the largest fields of horses in the country. On the day this law went into effect, Fair Meadows in Tulsa was unable to fill its first two cards – for the first time. Obviously, this was related to uncertainty with HISA’s effect on horsemen and women and compounded by registration problems horsemen and women experience with HISA’s website. Changes must be made, and clarity must be given to ensure that horsemen and women in Oklahoma are no longer left floundering due to this negligence.

The Oklahoma Horse Racing Commission has been successfully regulating Commission-licensed horse racing and gambling for decades. There is no need for the Authority to reinvent the wheel. They should be working in lockstep with these local experts to properly implement this law. Unfortunately, from the get-go, the Authority neglected to consult with relevant stakeholders when drafting the rules.

Furthermore, it has long been clear that the Authority would not be able to adequately implement its regulations as required by the statutory deadline. So far, it has been slow, and late, in promulgating rules and adding to drafts (sometimes hundreds of pages at a time) provided for public and industry input. The much-needed extension of the Anti-Doping and Medication Control Program to January 2023, instead of July 2022, will hopefully provide more time for the Authority to apply stakeholder input and a similar deadline extension should have been applied to the July rule.

Instead, the rule’s rushed implementation has led the Authority to abandon any pretense of uniform enforcement. Due, again in part, to a lack of stakeholder input, the website, where racetracks are supposed to register with the Authority, requires egregious amounts of personal proprietary information. The extent of personal information requested through the website led to many race tracks refusing to register with the Authority. Instead of going back to the drawing board and taking stakeholder concerns into account, the Authority sent a late-night response asking that tracks reply by email with their information and stating that the emailed response would qualify as registration. This is certainly no way for a government agency to operate and the Authority must find ways to work with stakeholders so these problems do not persist.

In light of these concerns, I am requesting a response to the below questions by August 1, 2022.

(1)               If the Authority and the FTC had the legal authority to extend the implementation of the Anti-Doping and Medication Control Program, why not also extend the Racetrack Safety Program and registration requirements (with the Authority) to allow for sufficient time for a meaningful comment consideration and response period to the promulgation of the FTC-approved regulations?

(2)               How does the Authority and the FTC decide which parts of HISA are mandatory, like the FTC’s insistence it approves or disapproves a Rule published in the Federal Register within the statutory deadline; or flexible, like the Authority’s extension of the start date of for the Anti-Doping and Medication Control Program to January 2023 from the statutory date of July 1, 2022?

(3)               What records, in any form, were made (and kept) of the Authority’s promulgation of the Rules approved by the FTC? Have you made those records available to the public or Covered Persons under HISA, including the drafting, or any input into the drafting, of any such rules?

(4)               How many, and which, jurisdictions opted to enforce in part their own laws and regulations under a letter with the Authority? Under what legal authority is this authorized under HISA or any FTC-approved rule? Explain how this achieves uniformity throughout the states.

(5)               After having allowed certain Covered Persons to register by email, will the Authority allow all other Covered Persons similarly register by cursory email? Will the Authority eliminate the “Terms and Conditions of Use” and the “Privacy Policy” on its registration website? What it the Authority and FTC’s plan to enforce the Registration Rule uniformly between all Covered Persons?

(6)               What is John Roach’s role as general counsel for the Authority? What statutory authority under HISA (or any other) or under any HISA FTC-approved regulation does he have to direct or create Authority policy for Covered Persons in (or otherwise direct) their compliance with HISA?

(7)               Notwithstanding the pending (and future) legal challenges, if a jurisdiction requests the Authority to cover breeds other than Thoroughbreds under HISA, is the Authority prepared to do so now? If not, why? How is the application of HISA to Thoroughbreds and no other breeds nationally and within jurisdictions consistent with uniformity for horseracing safety and integrity?

(8)               These questions pertain to the HISA Registration Rule.

a.      Please cite and explain the statutory authority for omitting the substance of the “Terms and Conditions of Use” and the “Privacy Policy” on the Authority’s registration website from the proposed and final HISA Registration Rule?

b.      Along those lines, does the Authority and FTC consider the “Terms and Conditions of Use” and the “Privacy Policy” part of the Registration Rule or any Authority rule or regulation?

c.       Is acceptance of the “Terms and Conditions of Use” and the “Privacy Policy” on the Authority’s registration website a condition precedent for the statutorily required registration with the Authority?

d.      Does the Authority, and the FTC, consider the Authority constrained by or subject to compliance with other Federal laws (like the Privacy Act) or the United States Constitution in formulating the Registration Rule or the “Terms and Conditions of Use” or “Privacy Policy” on the Authority’s registration website?

e.       What “Proprietary Rights” does the Authority claim or seek to claim that involves any content by Covered Persons under the Act? Does the Authority intend or developed a rule to compensate Covered Persons under the Act whose likeness or personal information is incorporated into the Authority’s purported “Proprietary” content?

f.        Under what scenario(s) does the Authority envision that a Covered Person required to register on its website (under regulatory compulsion) needs to indemnify or hold harmless the Authority?

I am looking forward to your response to these questions so horsemen and women in Oklahoma can get their industry back on track. The Authority can and must do better.