HISA fix included in omnibus bill; no tax or immigration provisions

By: Tom LaMarra

Posted: Dec. 26, 2022

Language designed to bolster the Federal Trade Commission’s oversight of the Horseracing Integrity and Safety Authority was included in a federal $1.7 trillion omnibus bill passed by the Senate and House of Representatives just before Christmas. As of Dec. 26, the legislation was awaiting the expected signature of President Joe Biden.

Addition of the short amendment that permits the FTC to “abrogate, add to, and modify the rules of (HISA) promulgated in accordance with this Act as the commission finds necessary or appropriate.”

The language was added to the omnibus bill in direct response to a Fifth Circuit Court of Appeals ruling that delayed implementation of the HISA Anti-Doping and Medication Control Program scheduled to go into effect Jan. 1, 2023. The ruling called HISA unconstitutional because the HISA law—also part of an omnibus spending bill in late 2020—because the FTC doesn’t have enough power over the authority, which is a private entity.

The 2022 omnibus bill passed the Senate 68-29 and the House by a vote of 225-201.

The Fifth Circuit Court of Appeals ruling is scheduled to take effect Jan. 10, 2023; as of Dec. 26 there had been no response from the court on the status of its ruling or whether the language in the omnibus bill is sufficient in making the legislation constitutional. Multiple lawsuits challenging various aspects of the HISA legislation remain in play.

The FTC earlier rejected HISA’s entire set of Anti-Doping and Medication Control Program rules, which means the rules will have to be resubmitted by HISA at some point pending legal developments. The organization’s Racetrack Safety Program was launched July 1, 2022, and remains in place in most jurisdictions.

Meanwhile, the National Thoroughbred Racing Association reported that the omnibus bill did not include “popular pro-business tax extenders including some that are valuable to the Thoroughbred industry.” They include the three-year depreciation schedule for racehorses under age 2, which expired at the end of 2021, and 100% bonus depreciation, which will phase down in 2023 to 80%.

“Those provisions remain a top priority for the NTRA, and we are hopeful to work with the new Congress in the first quarter of next year to address these issues,” the NTRA said in a release.

Regarding immigration, the Affordable and Secure Food Act being wasn’t included in the omnibus bill. The NTRA said of the legislation would have placed the entire equine industry into the H-2A via program so the racing industry would not be subject to the yearly caps on the H-2B visa program.

“By transitioning into the H-2A program, which does not have an annual cap, those concerns would be addressed and make it easier to fill many vital roles in the industry,” the NTRA said. “We will continue to advocate before Congress for passage of permanent solutions to temporary worker issues in the industry.”