Billing Code: 6750-01-P

FEDERAL TRADE COMMISSION

16 CFR Part 1

Horseracing Integrity and Safety Act: Anti-Doping and Medication Control Rule

AGENCY: Federal Trade Commission.

ACTION: Final rule; delay of effectiveness.

SUMMARY: The Federal Trade Commission modifies the Horseracing Integrity and Safety 

Authority’s Anti-Doping and Medication Control Rule by extending its effective date until May 

22, 2023.

DATES: This rule is effective on [INSERT DATE OF PUBLICATION IN THE FEDERAL 

REGISTER].

FOR FURTHER INFORMATION CONTACT: John H. Seesel (202-326-2702), Attorney, 

Office of the General Counsel, Federal Trade Commission, 600 Pennsylvania Avenue NW, 

Washington, DC 20580.

SUPPLEMENTARY INFORMATION:

I. Final Rule 

The Horseracing Integrity and Safety Act of 2020, 15 U.S.C. 3051–3060 (“Act”), tasks a 

self-regulatory nonprofit organization, the Horseracing Integrity and Safety Authority

(“Authority”), with developing proposed rules on a variety of subjects. See 15 U.S.C. 3053(a).

Those proposed rules take effect only if approved by the Federal Trade Commission, see 15 

U.S.C. 3053(b)(2), which must approve the proposed rules if it finds that they are consistent with 

the Act and with applicable rules approved by the Commission, see 15 U.S.C. 3053(c)(2). The 

Commission, however, may by rule abrogate, add to, or modify the Authority’s rules “as the 
2 

Commission finds necessary or appropriate to ensure the fair administration of the Authority, to 

conform the rules of the Authority” to the Act’s requirements or applicable rules approved by the 

Commission, “or otherwise in furtherance of the purposes of this Act.” Id. sec. 3053(e). 

On March 27, 2023, the Commission issued an Order (“Order”) approving the 

Authority’s proposed Anti-Doping and Medication Control (“ADMC”) Rule. Pursuant to that 

Order, the ADMC Rule took effect immediately upon the Commission’s approval, i.e., on March 

27, 2023.0F

1

On March 31, 2023, however, the United States District Court for the Northern District of 

Texas determined that the Commission had violated the Administrative Procedure Act by 

declaring the ADMC Rule effective immediately upon the issuance of the Commission’s Order 

approving the Rule. Viewing the Commission’s March 27 Order as tantamount to an agency’s 

issuance of a substantive rule, the court found that the Commission should have delayed the 

effective date of the ADMC Rule for 30 days following approval. The court accordingly 

enjoined implementation or enforcement of the ADMC Rule until May 1, 2023.1F

2

 

The district court’s March 31 order has given rise to substantial uncertainty regarding the 

criteria and procedures under which anti-doping and medication control protocols will be 

implemented as the Thoroughbred horseracing industry nears the Triple Crown events of May 6 

(Kentucky Derby), May 20 (Preakness Stakes), and June 10 (Belmont Stakes). With the effective 

date of the Authority’s nationally applicable ADMC Rule suspended by the district court until 

May 1, the conduct of anti-doping and medication control will remain under the jurisdiction of 

1 See Fed. Trade Comm’n, Order Approving the Anti-Doping and Medication Control Rule Proposed by the

Horseracing Integrity & Safety Auth. (Mar. 27, 2023),

https://www.ftc.gov/system/files/ftc_gov/pdf/P222100CommissionOrderAntiDopingMedication.pdf. 2 Nat’l Horsemen’s Benevolent & Protective Ass’n et al. v. Jerry Black et al., No. 5:21-CV-071-H, 2023 WL 

2753978 (N.D. Tex. Mar. 31, 2023). 
3 

the various state racing authorities until that date, with the Authority’s jurisdiction resuming only 

five days before the Kentucky Derby and nineteen days before the Preakness. 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 6.2F

3

 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. 

In light of these policy concerns, the Commission finds it necessary to modify HISA’s 

ADMC Rule, pursuant to the recently revised 15 U.S.C. 3053(e), to ensure the “fair 

administration of the Authority” and otherwise in furtherance of the Act’s purposes. 

Accordingly, pursuant to the authority granted to the Commission by 15 U.S.C. 3053(e), the 

Commission issues this final rule delaying the effective date of the Horseracing Integrity and 

Safety Authority’s Anti-Doping and Medication Control Rule until May 22, 2023. 

II. Administrative Procedure Act

As noted above, the Act authorizes the Commission to abrogate, add to, or modify the 

Authority’s rules for specified reasons, including “to ensure the fair administration of the 

Authority.” 15 U.S.C. 3053(e). This provision authorizes Commission rulemaking pursuant to 

section 553 of Title 5, the Administrative Procedure Act (APA). The APA typically provides for 

3 Compare, e.g., ADMC Rule 4222 (prohibiting all intra-articular injections within fourteen days of post time) with

Kentucky Horse Racing Commission Withdrawal Guidelines: 

Thoroughbred; Standardbred; Quarter Horse, Appaloosa, and Arabian, KHRC 8-020-2 (04/2020) (prohibiting intraarticular injection of specified substances within fourteen days of post time), available at

https://khrc.ky.gov/Documents/8-020-2-Withdrawal%20Guidelines%20%20Copy.pdf. 
4

notice-and-comment rulemaking, but under section 553(b)(3)(B) of the APA, general notice and 

the opportunity for public comment are not required with respect to a rulemaking when an 

“agency for good cause finds (and incorporates the finding and a brief statement of reasons 

therefor in the rules issued) that notice and public procedure thereon are impracticable, 

unnecessary, or contrary to the public interest.”3F

4

Here, the Commission 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.

For these reasons, the Commission finds that there is good cause consistent with the 

public interest to issue the rule without notice and comment.4F

5 The Commission therefore issues 

the final rule without prior notice and comment.

The APA also requires a 30-day delayed effective date, except for “(1) substantive rules 

which grant or recognize an exemption or relieve a restriction; (2) interpretative rules and 

statements of policy; or (3) as otherwise provided by the agency for good cause.”5F

6 For the same 

reasons noted with regard to notice and comment, and because extending the effective date of the 

ADMC Rule relieves a restriction, the Commission finds there is good cause for its rule to take 

effect immediately.

4 5 U.S.C. 553(b)(3)(B). 5 Id. 6 Id. at 553(d).
5

III. Paperwork Reduction Act

In accordance with the requirements of the Paperwork Reduction Act (PRA), an agency 

may not conduct or sponsor, and a respondent is not required to respond to, an information 

collection unless it displays a currently valid Office of Management and Budget control number.

The final rule that the Commission issues today – which addresses solely the effective date of the 

Authority’s ADMC Rule – does not involve any collection of information pursuant to the PRA.

IV. Regulatory Flexibility Act and Congressional Review Act

The Regulatory Flexibility Act (RFA), 5 U.S.C. 601–612, requires that the Commission 

provide an Initial Regulatory Flexibility Analysis (IRFA) with a proposed rule and a Final

Regulatory Flexibility Analysis (FRFA), if any, with a final rule. However, this obligation does 

not apply when an agency for good cause determines that a rulemaking is not subject to notice

and comment. See, e.g., Or. Trollers Ass’n v. Gutierrez, 452 F.3d 1104, 1123-24 (9th Cir. 2006).

The Commission finds that good cause exists for adopting this final rule without advance public 

notice or an opportunity for public comment. Because notice and comment are not statutorily 

required, the requirement to publish an analysis under the RFA does not apply to this final rule.

Pursuant to the Congressional Review Act (5 U.S.C. 801 through 808), the Office of 

Information and Regulatory Affairs has said that it would presumptively treat the type of rule 

that the Commission announces today as not a “major rule” (as defined in 5 U.S.C. 804(2)). The 

Commission occasionally extends a compliance date for a new rule or rule amendment to give 

entities additional time to prepare for compliance. For example, in 2010, the FTC extended the 

compliance date for its Energy Labeling Rule (16 CFR part 305) (formerly, Appliance Labeling 

Rule) to give regulated entities additional time to incorporate new labeling requirements for light 

bulbs into product packaging. See 75 FR 81943 (Dec. 29, 2010); 76 FR 20233 (Apr. 12, 2011).
6

The Office of Management and Budget has previously designated such extensions as “not 

major.” Because such amendments merely defer the expected economic effects of a previously 

adopted rule, any costs and benefits associated with the compliance date extension should be 

incremental to those already considered in connection with the promulgation of the underlying 

rule. For similar reasons, the relief should not result in major cost increases or significant adverse 

effects on competition, investment, or innovation. In addition, for purposes of this category, 

presumptively “not major” rules would be those in which the compliance date extension is 

limited to not more than one year, which will further serve to limit the economic impact of such 

extensions. The three-week extension of the ADMC Rule’s effective date satisfies this criterion.

For the reasons stated above, the Federal Trade Commission extends the effective date of 

the Horseracing Integrity and Safety Authority’s Anti-Doping and Medication Control Rule to 

May 22, 2023.

By direction of the Commission.

April J. Tabor,

Secretary.