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Federal Register / Vol. 86, No. 190 / Tuesday, October 5, 2021 / Rules and Regulations
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approved as a final rule. A proposed modification is distinguished from HISA Guidance in that a modification would have the force of law if approved and must therefore be approved by the Commission pursuant to Section 4b2
of the Act, 15 U.S.C. 3053b2. HISA
Guidance need not be approved by the Commission but takes effect upon submission to the Commission pursuant to Section 5g3 of the Act, 15 U.S.C.
3054g3.
II. Section 1.141Required Submissions The Act requires the Authority to submit proposed rules or proposed rule modifications on certain subjects to the Commission for approval. These subjects are set forth in Section 4a of the Act, 15 U.S.C. 3053a, which states the Authority must submit to the Commission, in accordance with such rules as the Commission may prescribe under Section 553 of Title 5, any proposed rule, or proposed modification to a rule, of the Authority relating to: 1
The bylaws of the Authority; 2 a list of permitted and prohibited medications, substances, and methods, including allowable limits of permitted medications, substances, and methods;
3 laboratory standards for accreditation and protocols; 4
standards for racing surface quality maintenance; 5 racetrack safety standards and protocols; 6 a program for injury and fatality data analysis; 7
a program of research and education on safety, performance, and anti-doping and medication control; 8 a description of safety, performance, and anti-doping and medication control rule violations applicable to covered horses and covered persons; 9 a schedule of civil sanctions for violations; 10 a process or procedures for disciplinary hearings; and 11 a formula or methodology for determining assessments described in 15 U.S.C.
3052f. The Commission is adopting this language in its regulations.
The Commission is also adding a provision that the Authority must submit any other proposed rule or modification the Act requires the Authority to submit to the Commission for approval. For instance, the Act requires the Authority to submit rules regarding modifications to baseline antidoping standards 15 U.S.C.
3055g3b and modifications to racetrack safety rules 15 U.S.C.
3056c2Bii. Section 5c2 of the Act, 15 U.S.C. 3054c2, requires the Authority to submit to the Commission for approval any rules and procedures under Section 5c1A of the Act, 15
U.S.C. 3054c1A, authorizing access
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to offices, racetrack facilities, other places of business, books, records, and personal property of covered persons used in the care, treatment, training, and racing of covered horses; authorizing the issuance and enforcement of subpoenas and subpoenas duces tecum; and authorizing other investigatory powers of the nature and scope exercised by State racing commissions before the program effective date. Such proposed rules and modifications must also be submitted to the Commission for approval.
III. Section 1.142Submission of Proposed Rule or Modification The Act requires the Commission to evaluate the Authoritys proposed rules and modifications to determine whether they are consistent with the Act and the applicable rules approved by the Commission. See 15 U.S.C. 3053c2.
To avoid delays in the rule review process, the Commission is requiring the Authority to submit the information necessary for it to evaluate the proposed rule or modification promptly and efficiently. Section 1.142 is designed to elicit the information the Commission needs to determine whether the proposed rule or modification is consistent with the Act and the rules and regulations issued thereunder.
A. Contents of Submission For a submission to qualify as a proposed rule or proposed modification to a rule under Section 4a of the Act, 15 U.S.C. 3053a, the Authority must submit a complete draft of the Federal Register document for its proposed or modified rule, which includes the text of the rule and a statement of the purpose of, and statutory basis for, the proposed rule or modification. The Commissions intention is to require the Authority to provide an explanation of its rules that will allow both the Commission and the public to understand the nature and purpose of its proposed rules or modificationsthe reasons for adopting the proposed rule or modification; any problems the proposed rule or modification is intended to address and how the proposed rule or modification will resolve those problems; and how the proposed rule or modification will affect covered persons, covered horses, and covered horseraces.
The Commission is also requiring the Authority to explain the statutory basis for its proposed rules or modifications.
To evaluate a proposed rule or modification, the Commission must be able to understand why the Authority believes its proposed rule or modification is consistent with the Act
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and the applicable rules approved by the Commission. Evaluation of a proposed rule or modification will also be aided by the Authoritys description of any reasonable alternatives it considered and the reasons it selected the proposed rule or modification over the alternatives.
The Act does not give the Authority broad discretion in developing rules. It sets forth guardrails, in the form of baseline standards for anti-doping and medication control 15 U.S.C.
3055g2A, racetrack safety standards which the Authority must consider 15 U.S.C. 3056a2, guidelines for determining funding and calculating costs 15 U.S.C.
3052f1Cii, a specific formula for the assessment and collection of fees 15
U.S.C. 3052f3C, who must register with the Authority and the conditions of registration 15 U.S.C. 3054d, guidelines for establishing rule violations 15 U.S.C. 3057a2, requisite elements of the Authoritys results management and disciplinary program 15 U.S.C. 3057c2, guidelines for establishing civil sanctions 15 U.S.C. 3057d2, and more. Accordingly, the Authority must explain why its proposed rule or modification is consistent with any standards in the Act and the rules approved by the Commission. Because the requisite considerations for antidoping and racetrack safety are the most prescriptive, this section specifically addresses those standards and factors.
The less prescriptive standards and factors must also be addressed, and the Commission provides for this in a less prescriptive rule, as discussed below.
1. Anti-Doping and Medication Control Program Considerations When proposing a rule or modification to the horseracing antidoping and medication control program, the Authority must explain how it considered the factors in Section 6 of the Act, 15 U.S.C. 3055, including the unique characteristics of a breed of horse made subject to the Act by election of a State racing commission or breed governing organization for such horse pursuant to Section 5l of the Act, 15 U.S.C. 3054l, as required by Section 6a2 of the Act, 15 U.S.C. 3055a2.
The Authority must explain how it considered the factors in Section 6b of the Act, 15 U.S.C. 3055b, namely that:
1 Covered horses should compete only when they are free from the influence of medications, other foreign substances, and methods that affect their performance; 2 covered horses that are injured or unsound should not train or participate in covered races, and the use
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