Kunz_dh.doc

HAND DELIVERED

January 24, 2001

The Honorable Kent S. Kunz
Idaho House of Representatives
Statehouse Mail
Boise, ID 83720

Re: The FRA’s Proposed Locomotive Sanitation Rules

Dear Representative Kunz:

During our conversation this morning after State Affairs’ review of the PUC Administrative Rules, you asked about the Federal Railroad Administration’s recent Notice of Proposed Rulemaking on its proposed “locomotive cab sanitation standards.” 66 Fed. Reg. 135 (January 2, 2001). In particular, you asked whether the State may adopt and enforce the FRA’s sanitation rules.

The FRA proposes to add sanitation standards addressing toilet and washing facilities for railroad employees who work in locomotive cabs. In the rulemaking, the FRA states that if adopted, its “sanitation standards would preempt all state efforts to regulate the nature and type of . . . sanitation facilities generally required for cab employees.” Id. at p. 156. The agency also noted that its sanitation standards would preempt any state locomotive sanitation standard because the FRA safety standards are intended to “occupy the field of locomotive safety,” including toilets and potable water requirements. Id. As you are aware, Idaho Code § 61-515A requires that each railroad locomotive contain sanitary drinking water and requires that the locomotive be maintained in a “sanitary condition at all times.” Idaho Code § 61-515A; IDAPA 31.71.03.102.

Although the Federal Register contemplates that state laws and regulations governing locomotive sanitation would be preempted, it is unclear from the Notice whether the states would be allowed to adopt the federal sanitation requirements. As you know, approximately 25 states (including Idaho) have entered into federal-state rail safety programs. Based upon our preliminary review of the Notice, we are unsure whether the FRA would be amenable to allowing states to enforce federal sanitation standards aboard locomotives.

The Commission has asked its Executive Director, Ron Law, to pursue this issue with the FRA. Currently he is out of the office but is expected to return on Monday, January 29, 2001. Mr. Law will contact you after he has discussed this matter with the FRA.

If you have any questions, you may contact the Commission at 334-0338 or you may reach me at 334-0312.

Sincerely yours,

Donald L. Howell, II
Deputy Attorney General

Enclosures

cc: Commissioners
Ron Law

Vld/L:Kunz_dh
Representative Kunz
January 24, 2001
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