Original Notice.

Preproposal statement of inquiry was filed as WSR 99-22-016.

Title of Rule: WAC 260-34-030, 260-34-080, 260-34-090, 260-34-100, 260-34-140, and 260-34-150, drug and alcohol testing of licensees and employees.

Purpose: Amend existing rules to add clarifying language.

Statutory Authority for Adoption: RCW 67.16.040.

Summary: Adding language to existing rules to clarify and update to conform with model rules.

Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Bruce Batson, Olympia, Washington, (360) 459-6462.

Name of Proponent: Washington Horse Racing Commission, governmental.

Rule is not necessitated by federal law, federal or state court decision.

Explanation of Rule, its Purpose, and Anticipated Effects: Amend existing rules to further clarify and add language to conform to accepted model rules.

Proposal Changes the Following Existing Rules: Amends existing rules to clarify and conform to model set of rules that have become nationally accepted.

No small business economic impact statement has been prepared under chapter 19.85 RCW. The changes will not affect more than 20% or less than 10% of the population. A small business economic impact statement was not prepared.

RCW 34.05.328 does not apply to this rule adoption.

Hearing Location: Doubletree Hotel at SeaTac, 18740 Pacific Highway South, Seattle, WA, on February 26, 2000, at 10:00 a.m.

Submit Written Comments to: Bruce Batson, Executive Secretary, Washington Horse Racing Commission, 7912 Martin Way, Suite D, Olympia, 98516, fax (360) 459-6462, by February 25, 2000.

Date of Intended Adoption: February 26, 2000.

January 19, 2000

Bruce Batson

Executive Secretary

by Patty Sorby

The board of stewards of the horse racing commission or the commission, acting through the executive secretary, may require any licensee, employee of any racing association, or employee of the horse racing commission, or applicant, who is, or may be, responsible for the conduct of, or officiating of, a race, or whose duties include the training, exercising, riding, driving, or caring for a horse while the horse is on any association premises to participate in a horse racing meet, or on grounds licensed by the horse racing commission, to provide blood and/or urine samples for the purpose of drug or alcohol analysis under any of the following circumstances:

(((1) As part of a physical examination described in WAC 260-32-160, as close as practicable prior to the testee's participation in his/her first race meeting of a calendar year.))

(((2))) 1 When the board of stewards finds that there is reasonable suspicion to believe that the proposed testee has used any controlled substance unless such controlled substance was obtained directly and used pursuant to a valid medical prescription from a duly licensed physician or dentist acting in the course of his or her professional practice or, alcohol in excess of the limits prescribed in this chapter.

(((3))) 2 At the discretion of the stewards when the proposed testee has a documented history of an unexplained positive test which indicates illegal drug usage or when the proposed testee has a documented history of violating chapter 69.41, 69.45 or 69.50 RCW, WAC 260-34-020 or similar drug-related violation.

[Statutory Authority: RCW 67.16.020 and 67.16.040.      89-13-006 (Order 89-02), § 260-34-030, filed 6/9/89; 88-09-033 (Order 88-02), § 260-34-030, filed 4/15/88.]

(1) When the drug testing is required as described in WAC 260-34-030(1), the following procedure will be used:

(a) The licensee, employee, or applicant will report as instructed by the board of stewards to a drug testing facility approved by the commission. When on site drug testing is available the board of stewards may direct the licensee, employee or applicant to submit to such on site drug testing. Such testing will be conducted by a commission security inspector in accordance with procedures approved by the commission. ((to the specified physician where a member of the medical staff designated by the physician will supervise the sample being given.))      A qualified member of the drug testing facility will supervise the sample being given. When on site drug testing is available the commission security inspector or their designee will supervise the sample being given. The supervision need not include actual observance of the delivery of the sample but the sample shall be taken under such circumstances that the integrity of the sample is maintained without unnecessarily interfering with the individual rights of the person tested, including the right to be free from unnecessary embarrassment.      Intentional contamination of the sample by any person tested which is likely to prevent appropriate analysis of the sample shall be grounds for the suspension or revocation of the person tested.

(b) The urine sample will be at least 75 ml in volume.      The urine sample will be divided into two parts of at least 25 ml and 50 ml in the presence of the person tested.      If the licensee, employee, or applicant is unable to provide 75 ml of urine, the licensee, employee, or applicant may waive in writing the division of the sample and preservation of an untested portion of the sample as provided in (c) of this subsection and subsection (4) of this section.      If the person tested is unable to provide a sufficiently large sample, either 75 ml or 50 ml with a waiver, the person shall not be suspended, but shall not participate in racing until such time as he or she is able to provide sufficient urine and completes the test.      All portions of the sample shall be placed in containers and sealed with double identification tags in the presence of the person being tested.

(c) The 25 ml (or more) container will be preserved pursuant to subsection (3) of this section by the medical facility obtaining the sample.      Both licensee, employee, or applicant and member of the medical staff, chief of security, or designated representative of the horse racing commission will sign the tag to attest to the sealing and labeling of the sample.

(d) The 50 ml (or more) container will be prepared for transportation as follows: One portion of the container's tag bearing a printed identification number shall remain with the sealed container.      The other portion of such tag bearing the same printed identification number, shall be detached in the presence of the person tested and a member of the medical staff, the chief of security or designated representative of the horse racing commission.      The licensee, employee, or applicant will initial or sign the designated portion of the tag to attest witnessing such action.      The member of the medical staff, the chief of security or designated representative of the horse racing commission will also sign the detached portion of the tag to attest witnessing such action.      The sample will then be handled in a manner consistent with an evidentiary chain of custody throughout the transportation and laboratory testing process.      The sample and the tag identifying the sample which is to be provided to the laboratory for analysis shall not identify the person by name, but only by number assigned and recorded by the members of the medical staff, chief of security, or designated representative of the horse racing commission.

(2) When the testing is to be done as a result of reasonable suspicion or the result of mandatory testing being conducted after a positive test, the same procedure for handling the specimens shall be utilized as in subsection (1) of this section, but the sample may be taken at the track and witnessed by the chief of security or designated representative of the horse racing commission.      The witness must be of the same sex as the person being tested.      After the sample is taken, divided and sealed, the chief of security or designated representative of the horse racing commission will be responsible for the evidentiary chain of custody and transportation of one portion of the sample to the laboratory and storage of the other portion pursuant to subsection (3) of this section.      The chief of security of the horse racing commission will maintain a checklist of procedures to implement these steps; the checklist will be marked as the steps are carried out and it will be maintained as part of security records.

(3) Each portion of the sample supplied by the person tested will be preserved by the ((member of the medical staff,)) approved laboratory, chief of security, representative of the horse racing commission, or laboratory for ((thirty)) three days unless there is a positive test result.      If there is a positive test result, the samples will be preserved for a period of two years or until released by the executive secretary of the horse racing commission after all hearings and appeals have been terminated.      The samples will be preserved in a secured location by refrigeration or freezing for the first ((thirty)) three days and thereafter by freezing.

(4) Either or both portions of the sample may be retested at the request of the licensee, employee, or applicant at either the laboratory used by the horse racing commission or a ((separate equally or better)) qualified ((and reputable)) laboratory designated by the licensee, employee, or applicant and approved by the commission.      If the untested sample is transported for testing, transportation will be performed at the direction of the board of stewards, the chief of security or designated representative of the horse racing commission using an evidentiary chain of custody.      None of the originally untested 25 ml portion is required to be saved after testing for retesting.      The licensee, employee, or applicant is responsible for all costs of transporting and testing or retesting a sample at his or her request.

[Statutory Authority: RCW 67.16.020 and 67.16.040.      89-13-006 (Order 89-02), § 260-34-080, filed 6/9/89; 88-09-033 (Order 88-02), § 260-34-080, filed 4/15/88.]

Reviser's note: The typographical errors in the above section occurred in the copy filed by the agency and appear in the Register pursuant to the requirements of RCW 34.08.040.

Reviser's note: RCW 34.05.395 requires the use of underlining and deletion marks to indicate amendments to existing rules. The rule published above varies from its predecessor in certain respects not indicated by the use of these markings.
AMENDATORY SECTION(Amending Order 89-02, filed 6/9/89)

WAC 260-34-090
A positive test.

A drug test shall be positive when the presence of a controlled substance is confirmed by two independent tests performed on the same sample supplied by a licensee, employee, or applicant.      The tests used will be the E.M.I.T. screen test, followed by a gas chromatography/mass spectrometry confirmatory test, or other tests which the scientific community recognizes are equally or more accurate and reliable.      ((If marijuana or its derivatives, salts, isomers, or salts of isomers are detected in a drug test, such a result will not be reported positive unless found at levels of at least one hundred nanograms per milliliter.))

A positive drug test shall be reported by the laboratory to the presiding steward at the track.      On receiving written notice from the laboratory that a specimen has been found positive for a controlled substance, the presiding steward shall initiate the following procedure:

(1) Written notice shall be given to the licensee, employee or applicant, setting a hearing by the board of stewards in accordance with WAC 260-24-440 within the next two racing days or seven calendar days, whichever is less, after service of the notice.      The hearing may be held within a shorter or longer period of time if the licensee, employee, or applicant named and the board of stewards agree.      Service shall be to the licensee, employee, or applicant personally, by leaving the notice at the person's residence with someone of reasonable age and discretion residing therein, or by mail to the person's last known address.      If by mail, service shall be deemed completed on the third day after mailing.

(2) The hearing shall be conducted before the board of stewards pursuant to WAC 260-24-440.      At the hearing, the licensee, employee, or applicant shall be provided an opportunity to explain the positive test.

(3) The board of stewards' hearing shall be closed and the facts therein will be kept confidential unless for use with respect to any subsequent contested hearing or order by the horse racing commission or judicial hearing with regard to such facts.      Closure of the hearing and confidentiality of the proceedings may be waived by the licensee, employee, or applicant.      The board may issue a public ruling which complies with the confidentiality requirements of this section and WAC 260-34-100.

(4) Lacking a satisfactory explanation and documentation or upon the licensee, employee, or applicant agreeing with the test results, the board of stewards shall suspend the licensee, employee, or applicant until:

(a) A negative test can be submitted by that licensee, employee, or applicant and the results reviewed by the board of stewards; and

(b) The licensee, employee, or applicant is referred to an approved agency for a drug evaluation interview and completes the evaluation.

(i) If the evaluation concludes that the licensee, employee, or applicant is not addicted or habituated, and if the board of stewards determines that the licensee's, employee's, or applicant's condition is not detrimental to the best interests of racing, the licensee, employee, or applicant shall be allowed to participate in racing provided he or she agrees that further testing may be done as described in WAC 260-34-030(3).

(ii) If such drug evaluation concludes that the licensee, employee, or applicant is addicted or habituated, or the board of stewards determines that the licensee's, employee's, or applicant's condition is detrimental to the best interests of racing, the licensee, employee, or applicant shall not be allowed to participate in racing until such time as he or she can produce a negative test result and show official documentation that he or she has successfully completed a certified drug rehabilitation program approved by the board of stewards, in consultation with the executive secretary of the horse racing commission.      The licensee, employee, or applicant must agree to further testing as described in WAC 260-34-030(3).

(5) For a second positive drug test in the calendar year, the licensee, employee, or applicant shall be suspended for the balance of the calendar year or one hundred twenty days, whichever is greater, and the person is required to complete a certified drug rehabilitation program approved by the board of stewards in consultation with the executive secretary of the horse racing commission before applying for a reinstatement of license.      The licensee, employee, or applicant must agree to further testing as described in WAC 260-34-030(3).

(6) When any licensee, employee, or applicant has a history of more than two violations of WAC 260-34-020 or positive drug tests, the horse racing commission may, pursuant to a hearing conducted under chapter 260-08 WAC, declare such person detrimental to the best interests of racing and revoke that person's license or application.      Reapplication shall not be permitted for such period of months or years as the commission determines is necessary to ensure the person's freedom from use of controlled substances and not until meeting the requirements of subsection (5) of this section.

[Statutory Authority: RCW 67.16.020 and 67.16.040.      89-13-006 (Order 89-02), § 260-34-090, filed 6/9/89; 88-09-033 (Order 88-02), § 260-34-090, filed 4/15/88.]

The executive secretary of the horse racing commission shall maintain all test results and records, both negative and positive, confidential.      He or she shall document the process which will ensure the confidentiality of the handling of such results.      Information contained in the test results shall remain confidential at all times except for use with respect to any contested hearing or order by the horse racing commission, stewards ruling or judicial hearing with regard to such an order.      Access to the reports of any test results shall be limited to the executive secretary, the board of stewards, the chief of security of the commission at the track, the physician or member of the medical staff obtaining and preserving samples, the laboratory and the person being tested, except in the instance of a contested commission hearing.      The information obtained as a result of a test being required under the rules of the horse racing commission shall be considered privileged and shall be used for administrative purposes only and, further, shall be exempt from use as evidence in any criminal prosecution involving the violation of offenses listed in chapter 69.50 RCW.

[Statutory Authority: RCW 67.16.020 and 67.16.040.      89-13-006 (Order 89-02), § 260-34-100, filed 6/9/89; 88-09-033 (Order 88-02), § 260-34-100, filed 4/15/88.]

For the purpose of this chapter, licensees and employees shall be considered to have consumed alcohol in violation of WAC 260-34-030 or 260-34-110 when a test reveals the testee has .08 micrograms or more of alcohol per 210 liters of breath as shown by analysis of his breath, blood or other body substance. No jockey, assistant starter, outrider, trainer, assistant trainer, pony person, exercise rider, groom, valet or racing official, acting in any of those capacities, shall have a blood alcohol content of .04 micrograms or more of alcohol per 210 liters.

[Statutory Authority: RCW 67.16.020 and 67.16.040.      88-17-075 (Order 88-05), § 260-34-140, filed 8/19/88.]

The testing of any licensee or employee to determine blood level of alcohol shall be ((by the method and procedure approved by the Washington state patrol)) approved by the horse racing commission according to industry standards, or by a blood alcohol test if requested by the licensee or employee, such blood alcohol test must be supervised in a manner prescribed by the horse racing commission.      If a blood test is requested, the expense ((of same)) shall be borne by the requesting licensee or employee.

[Statutory Authority: RCW 67.16.020 and 67.16.040.      88-17-075 (Order 88-05), § 260-34-150, filed 8/19/88.]

Reviser's note: RCW 34.05.395 requires the use of underlining and deletion marks to indicate amendments to existing rules. The rule published above varies from its predecessor in certain respects not indicated by the use of these markings.

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