Part 228 Subpart F—Substantive Hours of Service Requirements for Train Employees Engaged in Commuter or Intercity Rail Passenger Transportation

Part 228 HOS Subpart F applies to tourist railroads according to this:
228.401 Applicability.
(a) Except as provided in paragraph (b) of this section, the requirements of this subpart apply to railroads and their officers and agents, with respect to their train employees who are engaged in commuter or intercity rail passenger transportation, including train employees who are engaged in tourist, scenic, historic, or excursion rail passenger transportation.

How does your operation comply, specifically if you operate after 8 PM? From the title of the Subpart, I did not review it until recently and was surprised by the Applicability part. It is quite complicated and convoluted as to its application to excursion/tourist operations.
Mike Tillger

The current version of HOS has been effective for t/s/h/e operations since inception.


It's not any more so than for any other operator. Same rule, different RRs.


By the book. Each crew has a max of 12 hrs to work, other than the designated emergency exceptions. If your crew needs to work until 10 PM, don't put the crew on duty until 10AM. If your operation goes longer than 12 hrs per, you need another crew. Other than the number of days off required for the 14 day period clause, it's not any more complicated than that. If you need a crew to turn quickly between full shifts, they need at least 8 hrs off if they worked up to 11hrs59min or at least 10 hrs off if it was 12hrs or more. If any crews work more than 6 days in a row on your operation you have to comply with the 14 day rest-days criteria. Record keeping is important.

Remember that one thing that can easily trip up a tourist/museum type operation is the 'other service' in .413(b)(3). You cannot have a crew member show up in the morning and do some other function before working covered service (T&E, for example) and go over 12 hrs in total (other than deadheading to final off-duty point). In that case their effective on duty time would be the time they first showed up in the morning, not the time they switched to T&E service. Example - Bright-eyed and bushy-tailed Joe shows up at 6AM Friday and works on some project for two hours until he has to put his uniform on and work as the train's brakeman. Joe can only work as brakeman until 6 PM, and then can't perform covered service until 4 AM. If he marked off at 5:59 PM, he could go into covered service at 1:59 AM. But if, for instance then, he volunteered to come back at 2 AM Saturday to light off the engine and get it ready for the day and then wanted to operate, he'd only be good until 2 PM. If Joe had outlawed at 6 PM Friday at the other end of the run and it took 3 hours to deadhead back to his off-duty point, he'd have been effectively off-duty at 9PM and wouldn't be able to come back for a covered service period until 7 AM Saturday. And if he did and then had to deadhead back to the train (3 hours deadhead) to bring it home, he would outlaw at 7 PM Saturday.

Indeed, 228 Subpart F is a regulation written in typical governmentese-leaglespeak, making it a little difficult to decipher. The basic idea, once you drill down to the intended meaning, is to allow a passenger operation that runs trains on a regular schedule flexibility in scheduling crews. As long as all the on duty time falls within that 0400 to 2000 window you can set up a two week schedule with crew members having 2 days off any time during that 14 day period and be in compliance. The 2 days can be together or not. Otherwise you have to observe the maximum of 6 days on/1 off schedule. There is a little more to the actual rule than that if your crews tie up away from home, but that is the bottom line.

For simplicity sake some operators just require their crews to follow the 6 days on/one day off schedule. If you do this you will be in compliance.

The standard 12 hours maximum on duty time with 8 or 10 hours rest, depending on if you work that last minute to make it an even 12 hours or something less, still applies. The big change with this latest version is that tourist railroads are now required to keep records of hours of service.

I realize that these are serious rules and are not to be taken lightly.
However as a retired truck driver, we referred to our logbooks as "comic books" and even with conputer logs that just ended the gross violations. We could and would still do paperwork, sweep the trailer and other things off the clock. So food for thought. If a volunteer comes in early and
" bullshits" with visitors, is he or she on their own time or working as a docent?

There are two compliance guides on the FRA website

Passenger
https://railroads.dot.gov/elibrary/hour ... operations

Freight
https://railroads.dot.gov/elibrary/hour ... operations

They give explanations and examples of the rules.

Old news. This was all addressed by ATRRM (now HRA) years ago.

Under FRA enforcement policy, tourist railroads have been subject to statutory hours of service (HOS) requirements for decades (since around 1988). What changed more recently (I think it was 2008, but don't hold me to that) was Congressional legislation imposing new hours of service requirements, which differed for freight railroads, on the one hand, and intercity/commuter passenger railroads, on the other. At the time, there was a real concern in the tourist railroad industry that, since tourist railroads aren't normally considered intercity or commuter railroads, the freight HOS system would apply to them, which would have been a huge burden. FRA actually did tourist roads a big favor by deciding that they would be subject to the intercity/commuter HOS regime. Otherwise, they would have been subject to the considerably more burdensome freight regime.

Subsequently, ATRRM personnel negotiated tourist railroad compliance measures (including reporting forms) with FRA personnel. The results were (and probably still are) published on the HRA website. Also, there was an extensive presentation made on this matter at the 2013 ATRRM annual conference in Montreal, and the relevant conference materials should still be available on the HRA website.

My railroad museum uses the forms negotiated by ATRRM and FRA. They're a little busy, but really aren't that burdensome.

Robert - That has to be less clunky than the FRA form. I don’t see it on the HRA website. Can you email a copy? If so, PM me and I’ll give you my direct email. Thanks.

I sent you my E-Mail. However I'm not a computer person (a considerable understatement)
and the PM feature was incomprehensible (at least to me). There was an E-Mail feature and I used that. Hopefully, it worked.

The ATRRM form is definitely less clunky than the "FRA form", and is designed to be used manually (the "FRA form" seems to presume use of computerized HOS recordkeeping.
It actually isn't mandatory, but it is used by most commercial passenger RRs).

I can also sent you the ATRRM Montreal presentation slides, which may be helpful

Bob Opal

I want to comment on one portion of TrainDetainer's post of March 7/9, since it raises questions about a fact pattern which is probably pretty common at tourist/museum railroads. Unfortunately, since nothing about railroad hours of service is simple, this will be a little long. So get yourself a cup of coffee (or, better yet, a really big glass of an adult beverage) before you start reading this. Here goes.

TrainDetainer gives an example of a tourist railroad worker ("Bright-Eyed and bushy tailed Joe") who shows up at 6 AM Friday and works on some project for two hours until Joe puts on his uniform and goes into train & engine service (“covered service”). He concludes that, in this scenario, "Joe" can only work until 6 PM (12 hours after he started to work on his "project") and then can't go back on duty until 4 AM the next day (10 hours after marking off). That’s because Joe’s 2 hours of “project time” is supposedly treated as if it were part of Joe’s “covered service” time.

Actually, it’s not at all clear from the rule that this is the case. The Hours of Service (HOS) issue is whether Joe's 2 hours of work on the morning project is “commingled service”, that is, does his project time "commingle" with his “covered service” time. The FRA Part 228 rule (Sec 228.5) defines "commingled service", in relevant part, as follows:

"Commingled service means...any non covered service at the behest of the railroad and performed for the railroad that is not separated from covered service by a qualifying statutory off-duty period of 8 or 10 hours or more..."

As you can see from the above, time spent on non covered service (i.e., Joes “project”) will NOT “commingle” unless the non covered service is “at the behest of the railroad”. So, what is meant by this term? Fortunately, we don’t have to guess. The FRA rule (again, in Section 228.5) specifically defines “at the behest of the railroad”, and also “at the behest of the employee”. Here’s what the rule says:

“’At the behest of the railroad’ refers to time spent by an employee in a railroad required activity that compels an employee to perform services for the railroad as a condition of employment”

“’At the behest of the employee’ refers to time spent by an employee in a railroad-related activity that is not required by the railroad as a condition of employment, in which the employee voluntarily participates.”

So, is Joe’s project “at the behest of the railroad” (in which case it IS commingled service)? Or, is it ”at the behest of the employee” (in which case it is NOT commingled service)? It depends on the facts. Assume that “Joe” is a paid employee, and the “project” is something he is expected to do as part of his duties (even if he can choose when to do it). That’s pretty clearly “at the behest of the railroad”, and the time spent on the “project” would be commingled service. But let’s change the facts. Now assume that “Joe” is an unpaid volunteer, his work on the “project” is entirely voluntary and he is free to walk away from it. That’s work “at the behest of the employee” and would not constitute commingled service.

Finally, this view is confirmed by a 2004 FRA “technical bulletin” (OP-4-04), which addressed whether specified employee activities constituted “commingled service”. Unsurprisingly , the bulletin concludes that things like attendance at required rules classes, investigation hearings and other required activities “commingled” with covered service . But voluntary “participation in railroad safety committees” did not commingle. Here’s what FRA had to say about this:

“ As long as participation in railroad safety committee activities is a voluntary act by the employee , and not a condition of continued employment, such service is not normally considered ‘covered service’ under the commingled provisions of the Act. Time occupied in such endeavors, if truly voluntary, is usually done during the employee’s discretionary time. As such, since the employee is presumably free to come and go, this activity may be included in ‘rest time’”

Isn’t regulatory law fun?

Bob,

I fear to tread into areas I know little about, but I am surprised that no one has mentioned something that has come up in previous discussions on this subject; the fact that covered service is covered service no matter where preformed, or for whom. This comes into play when an organization has working railroaders who volunteer to run the trains; specifically that the volunteer has to ensure he has had proper rest between the time he finished his job and goes on duty as a volunteer trainman, and also that he will have proper rest before he returns to his job. Care to comment?

It's a good question. And the answer to it is seemingly illogical. But it is FRA's own answer, contained in its "Statement of Agency Policy and Interpretations on the Hours of Service Laws as Amended", 77 Fed Reg 12408, pp 12422-12425 (2/29/2012)

Basically, FRA's position is that, where a train & engine (T&E) employee performs service for multiple railroads (let's call them RR A and RR B):

(1) Except as discussed in 2 below, maximum service time on RR A doesn't count against maximum service time on RR B and vice versa. In other words, a T&E worker on mandatory rest after service on RR A can work on RR B during his/her RR A rest period.

(2) The 2008 hours of service statutory revisions (enacted by Congress, not FRA) added mandatory "consecutive service" rest periods (48 or 72 hours depending on the length of the consecutive service) for freight service T&E employees. Under the statute, a T&E employee on one of these rest periods can't work for any other railroad (including, presumably, tourist roads whether general or non-general system). In other words, a freight engineer on a mandatory 48 or 72 hours rest can't work on a tourist road.

(3) Passenger railroads (including tourist railroads ) are subject to a different HOS regulatory regime where the operative requirements are established primarily by FRA rule rather than by legislation enacted by Congress. Based on a quick review of the passenger rules, I didn't see anything in them that address the "multiple RR" issue, although it's possible I overlooked something (I'm kinda maxed out on HOS stuff this evening). However, since the "second" RR worked by a tourist railroad person will likely be a freight road, #2 will apply in any case.

Your immediate reaction to this will probably be "this makes no sense". And you're right - it doesn't. The reason FRA came out this way wasn't because it seemed sensible. Rather, it was because of the way the statutes enacted by Congress were written, something FRA can't ignore.

By the way, the commercial freight RR engineers who also run at the museum we both know and love are aware that they can't work on the museum road during their freight road 48 or 72 hour consecutive duty rest periods.

I've always seen that bulletin ruling - in operation - as a specific and limited application toward safety committees and like circumstances since they are typically off-duty-employee run programs, usually in conjunction with or directly as a union-oriented activity, not a company program. Therefore they are not direct company service. Rules classes, investigation hearings and other required activities are most definitely direct company service.

The other thing to consider in arguing the point is FRA's A/I Reporting guidelines, which state that for reporting purposes on tourist type operations, volunteer employees are still employees, which also ties in with this -

from page 2-5 of FRA's HOS Compliance Manual - Passenger Operations (link in a prior post).

So I'd still consider 'Joe's' working on a sanctioned museum activity as activity performed by a volunteer employee for the company, so co-mingled service in the example, but if 'Joe' simply showed up and talked on his own to a group of visitors for a few minutes it would fall under employee behest. Of course if 'Joe' put on a name tag or other prescribed uniform item, he'd be acting as a docent and once again subject to the bounds of company behest (following the presumed standards of company employment/dress/conduct/etc.) and co-mingled service.

For anyone who has a question about a particular circumstance, the best thing to do is contact your local FRA OP person and get a ruling from their FRA region.

The key issue in commingling isn’t whether the non-covered work is “for the railroad”. The question of “commingling” doesn’t even arise unless we are talking about non-covered work “for the railroad” (or, to use FRA’s term, “railroad related work”). No one (I hope) would argue, for example, that an employee’s volunteer work for a church at a social gathering commingles with covered railroad work.

As I mentioned in my earlier note, under FRA’s own rules, non-covered “railroad related” work must be “at the behest of the railroad” to commingle with covered service. That’s not my interpretation – that’s what the FRA rule expressly says. And FRA’s definition of “at the behest of the railroad” is pretty clear. The work must be “railroad-required activity that compels an employee to perform service for a railroad as a condition of employment”. A volunteer worker who chooses to work as a uniformed docent strictly as a volunteer and who can walk away from it whenever he/she chooses is not engaged in a “railroad required activity” that’s compelled by the railroad as a “condition of employment ”. There’s nothing in the FRA rule or FRA's preamble to the rule that suggests the mere wearing of a name tag or a uniform while doing the work has any relevance to that inquiry. It’s no different than a requirement that a volunteer doing restoration work wear prescribed safety gear. The issue is whether the work itself is required by the railroad, not the clothes being worn.

With respect to seeking advice from FRA regional offices, that’s good advice. But be aware that regional offices will sometimes take knee jerk, result oriented positions when presented with issues they don't normally deal with or where they don't have clear instructions from on high on what to do (Nancy Reagan's admonition to "just say no" comes to mind). My experience is that FRA's headquarters HOS staff and general counsel’s office are more likely to take a broader view of issues like this.

Finally, with respect to the issue of "employee" vs "volunteer", I’m well aware that FRA has long taken the position that a “volunteer” is considered an “employee” for purposes of HOS. That’s not really relevant to the issue on the table, which is the reason I didn’t mention it. If a volunteer worker wasn’t considered an “employee”, none of the HOS stuff (including the various duty time limitations and rest requirements on “covered service”) would even apply to a volunteer worker, so the commingling issue would be moot.

There are some excellent points being made here and it sounds like at least a few people have real experience with this beyond conjecture and opinion.

For those who do not know: There is an App. for that. The FRA HOS Manual/ App is available to the general public for both iPhone and Android.

Mr. Opal, while I agree with your statements about dealing with FRA regional offices, the Hours of Service specialist position in DC has not had a permanent tenant for more than about 6 months over the course of the past 5 years. Unfortunately, this is only a symptom of the problem with the FRA and its inequitable application of its own regulations throughout the country. HOS in particular is a hotly contested matter throughout the organization. Even obtaining a written interpretation from DC in many cases is only good as long as the person who wrote it holds that position. The sad fact is that any railroad is generally subject to the whim of whatever inspector is breathing down their neck at any given moment.

Speaking from experience, the best way to deal with this or any other FRA related issue is to maintain a relationship with the regional office and at least one local, state or federal inspector. That way, as a "railroad" you inspire confidence and don't have to worry about a sudden ambush when an unwitting inspector stumbles across your organization.

To Train Detainer's point about volunteers being "employees": In many instances the entire operating crew may be comprised of non-paid volunteers. Their service running an engine is at no time a condition of employment and they are free to leave at any time but, it is covered service.

If Joe comes in to work on his project at 6am and works on it until 6pm, do you really want him to run one of your trains for the next 6 hours? ...If you answer "no that's not safe," then work backwards with that scenario. What if it was only 4 hours on the train? Would that be safer? What if Joe only worked 8 or 10 hours on his own project before the six on the train? What if Joe, for whatever reason, had to spend 12 hours running the engine? If Joe hurts himself or others while performing covered service after working (in some capacity) on the property in excess of 12 hours on a given day, how do you explain away the fact that you knew he was doing work on the property all day but you allowed him to operate the train anyway? If any of these scenarios made you say "well I wouldn't let Joe work THAT long," then how would you keep it from happening? My point is if you would draw that line and cut Joe off at ANY point from "volunteering" at the museum in order to make sure Joe is rested and ready for duty/ train operations, then that volunteer time IS co-mingled service. If you would let Joe run the train for max allowed 12 hours after he "volunteered" for 12 hours, then I don't want to be near your trains.

A few points:

1. The "at the behest of the railroad" criteria is only relevant to the question of whether non-covered service “commingles” with “covered service”. It isn't relevant to the question of “what is covered service”. If you accept FRA’s position that a volunteer engineer running a train at a tourist RR or RR museum is an “employee” for purposes of HOS (I don’t want to touch this one), then a volunteer engineer is engaged in “covered service”, regardless of whether it's "at the behest of the railroad" or not. The "behest" issue only arises if, for example, the engineer spends two hours (or so) before or after performing “covered service” doing something else, like office work, cleaning windows or whatever that wouldn't by itself be "covered service".

2. An easy way to understand the "behest of the railroad" issue is with an example. Assume that the XYZ railroad sponsors a company band at a particular location, gives the band some financial support and lets them rehearse in a RR lunchroom at no cost to the band. Some of the band members are T&E (train & engine) employees on their "rest". Participation in the band is entirely voluntary - there's no company compulsion to join. I think even the most diehard OP inspector would agree that the work in the band is not "at the behest of the railroad", and that the time T&E band members spend on this activity is “rest time” that does not "commingle" with their covered service time.

Now, let's add another fact. As part of being in the band, the band members are (unsurprisingly) expected to play the same music as the other band members and follow the conductor's instructions. The 1st trumpet isn't permitted to start playing the "Anvil Chorus" at a concert while the rest of the band is playing "Stars & Stripes Forever". And, if he insists on doing so, he will undoubtedly be dismissed from the band and cast out into the darkness where there is wailing and gnashing of teeth. Is this "compulsion" which turns band work into work that's performed "at the behest of the railroad" and “commingles” with covered service time? Of course not. The trumpeter is completely free to participate or not participate in the band as he sees fit, and walk away from it whenever he chooses. The fact that he is required to follow the conductor’s instructions while he is voluntarily participating in the band doesn’t change anything. If he decides to participate, he has to play by the rules. If he doesn't want to do that, he is entirely free to leave the band. The same analysis is true of virtually all volunteer endeavors that require coordination of work by multiple people to produce a product or service.

The reason I've raised the "band" example is because of an earlier post asserting that, if a T&E worker on rest chooses to do some volunteer docent work that normally wouldn’t commingle, that work magically transforms itself into work ”at the behest of the railroad” if the worker wears a company uniform or nametag. That’s no different than the band example in the preceding paragraph (and, by the way, band and chorus members are often required to wear some kind of uniform for performances). If the docent work itself is completely voluntary, and the worker can do or not do it as he or she sees fit, the fact that a company uniform is worn (or must be worn) while doing this work doesn’t change the fact that the WORK itself is voluntary

3. With respect to your comments about the “safety” of a volunteer engineer who does 2 hours of non-covered service and then goes into covered service, I would simply point out that, with the exception of consecutive service rest, HOS doesn’t regulate what “covered” employees DO on their rest – Rather, it regulates what railroads can REQUIRE OR ALLOW them to do. In the “Joe’s project” example, the 2-hour “project” before covered service could easily be a heavy home project (like breaking up a concrete driveway), which is not restricted by HOS, rather than a project at the tourist railroad.

Also, I’d much rather ride behind the engineer in your example who did a 2 hour tourist road project before train service than behind an engineer who was awake all night playing cards with his buddies, something else that’s not prohibited or regulated by HOS. This isn’t a hypothetical example. I was involved in a case some years ago where an engineer who was probably up all night fell asleep while running a fully loaded commuter train the next morning and almost flipped the whole train on its side going around a speed restricted curve. Whatever else he may have done, he didn't violate HOS.

4. I strongly agree with you that it is best for a tourist railroad to maintain some kind of working relationship with their local FRA people, and not just deal with them when something goes wrong. FRA people don’t like surprises.

Finally, I rather suspect that everyone reading this thread is pretty much maxed out on HOS stuff. Sorry.

I'm marking off now.