(a) General provision. Except as provided in paragraph (c) of this section, a railroad car or locomotive with one or more conditions not in compliance with this part may be used or hauled without civil penalty liability under this part only if all of the following conditions are met:

(1) The defective car or locomotive is properly equipped in accordance with the applicable provisions of 49 U.S.C. chapter 203 and the requirements of this part.

(2) The car or locomotive becomes defective while it is being used by the railroad on its line or becomes defective on the line of a connecting railroad and is properly accepted in interchange for repairs in accordance with paragraph (a)(7) of this section.

(3) The railroad first discovers the defective condition of the car or locomotive prior to moving it for repairs.

(4) The movement of the defective car or locomotive for repairs is from the location where the car or locomotive is first discovered defective by the railroad.

(5) The defective car or locomotive cannot be repaired at the location where the railroad first discovers it to be defective.

(6) The movement of the car or locomotive is necessary to make repairs to the defective condition.

(7) The location to which the car or locomotive is being taken for repair is the nearest available location where necessary repairs can be performed on the line of the railroad where the car or locomotive was first found to be defective or is the nearest available location where necessary repairs can be performed on the line of a connecting railroad if:

(i) The connecting railroad elects to accept the defective car or locomotive for such repair; and

(ii) The nearest available location where necessary repairs can be performed on the line of the connecting railroad is no farther than the nearest available location where necessary repairs can be performed on the line of the railroad where the car or locomotive was found defective.

(8) The movement of the defective car or locomotive for repairs is not by a train required to receive a Class I brake test at that location pursuant to §232.205.

(9) The movement of the defective car or locomotive for repairs is not in a train in which less than 85 percent of the cars have operative and effective brakes.

(10) The defective car or locomotive is tagged, or information is recorded, as prescribed in paragraph (b) of this section.

(11) Except for cars or locomotives with brakes cut out en route, the following additional requirements are met:

(i) A qualified person shall determine—

(A) That it is safe to move the car or locomotive; and

(B) The maximum safe speed and other restrictions necessary for safely conducting the movement.

(ii) The person in charge of the train in which the car or locomotive is to be moved shall be notified in writing and inform all other crew members of the presence of the defective car or locomotive and the maximum speed and other restrictions determined under paragraph (a)(11)(i)(B) of this section. A copy of the tag or card described in paragraph (b) of this section may be used to provide the notification required by this paragraph.

(iii) The defective car or locomotive is moved in compliance with the maximum speed and other restrictions determined under paragraph (a)(11)(i)(B) of this section.

(12) The defective car or locomotive is not subject to a Special Notice for Repair under part 216 of this chapter, unless the movement of the defective car is made in accordance with the restrictions contained in the Special Notice.

(b) Tagging of defective equipment.

(1) At the place where the railroad first discovers the defect, a tag or card shall be placed on both sides of the defective equipment, except that defective locomotives may have the tag or card placed in the cab of the locomotive. In lieu of a tag or card, an automated tracking system approved for use by FRA shall be provided. The tag, card, or automated tracking system shall contain the following information about the defective equipment:

(i) The reporting mark and car or locomotive number;

(ii) The name of the inspecting railroad;

(iii) The name and job title of the inspector;

(iv) The inspection location and date;

(v) The nature of each defect;

(vi) A description of any movement restrictions;

(vii) The destination where the equipment will be repaired; and

(viii) The signature, or electronic identification, of the person reporting the defective condition.

(2) The tag or card required by paragraph (b)(1) of this section shall remain affixed to the defective equipment until the necessary repairs have been performed.

(3) An electronic or written record or a copy of each tag or card attached to or removed from a car or locomotive shall be retained for 90 days and, upon request, shall be made available within 15 calendar days for inspection by FRA or State inspectors.

(4) Each tag or card removed from a car or locomotive shall contain the date, location, reason for its removal, and the signature of the person who removed it from the piece of equipment.

(5) Any automated tracking system approved by FRA to meet the tagging requirements contained in paragraph (b)(1) of this section shall be capable of being reviewed and monitored by FRA at any time to ensure the integrity of the system. FRA's Associate Administrator for Safety may prohibit or revoke a railroad's authority to utilize an approved automated tracking system in lieu of tagging if FRA finds that the automated tracking system is not properly secure, is inaccessible to FRA or a railroad's employees, or fails to adequately track and monitor the movement of defective equipment. FRA will record such a determination in writing, include a statement of the basis for such action, and provide a copy of the document to the railroad.

(c) Movement for unloading or purging of defective cars. If a defective car is loaded with a hazardous material or contains residue of a hazardous material, the car may not be placed for unloading or purging unless unloading or purging is consistent with determinations made and restrictions imposed under paragraph (a)(11)(i) of this section and the unloading or purging is necessary for the safe repair of the car.

(d) Computation of percent operative power brakes.

(1) The percentage of operative power brakes in a train shall be based on the number of control valves in the train. The percentage shall be determined by dividing the number of control valves that are cut-in by the total number of control valves in the train. A control valve shall not be considered cut-in if the brakes controlled by that valve are inoperative. Both cars and locomotives shall be considered when making this calculation.

(2) The following brake conditions not in compliance with this part are not considered inoperative power brakes for purposes of this section:

(i) Failure or cutting out of secondary brake systems;

(ii) Inoperative or otherwise defective handbrakes or parking brakes;

(iii) Piston travel that is in excess of the Class I brake test limits required in §232.205 but that does not exceed the outside limits contained on the stencil, sticker, or badge plate required by §232.103(g) for considering the power brakes to be effective; and

(iv) Power brakes overdue for inspection, testing, maintenance, or stenciling under this part.

(e) Placement of equipment with inoperative brakes.

(1) A freight car or locomotive with inoperative brakes shall not be placed as the rear car of the train.

(2) No more than two freight cars with either inoperative brakes or not equipped with power brakes shall be consecutively placed in the same train.

(3) Multi-unit articulated equipment shall not be placed in a train if the equipment has more than two consecutive individual control valves cut-out or if the brakes controlled by the valves are inoperative.

(f) Guidelines for determining locations where necessary repairs can be performed. The following guidelines will be considered by FRA when determining whether a location is a location where repairs to a car's brake system or components can be performed and whether a location is the nearest location where the needed repairs can be effectuated.

(1) The following general factors and guidelines will be considered when making determinations as to whether a location is a location where brake repairs can be performed:

(i) The accessibility of the location to persons responsible for making repairs;

(ii) The presence of hazardous conditions that affect the ability to safely make repairs of the type needed at the location;

(iii) The nature of the repair necessary to bring the car into compliance;

(iv) The need for railroads to have in place an effective means to ensure the safe and timely repair of equipment;

(v) The relevant weather conditions at the location that affect accessibility or create hazardous conditions;

(vi) A location need not have the ability to effectuate every type of brake system repair in order to be considered a location where some brake repairs can be performed;

(vii) A location need not be staffed continuously in order to be considered a location where brake repairs can be performed;

(viii) The ability of a railroad to perform repair track brake tests or single car tests at a location shall not be considered; and

(ix) The congestion of work at a location shall not be considered

(2) The general factors and guidelines outlined in paragraph (f)(1) of this section should be applied to the following locations:

(i) A location where a mobile repair truck is used on a regular basis;

(ii) A location where a mobile repair truck originates or is permanently stationed;

(iii) A location at which a railroad performs mechanical repairs other than brake system repairs; and

(iv) A location that has an operative repair track or repair shop;

(3) In determining whether a location is the nearest location where the necessary brake repairs can be made, the distance to the location is a key factor but should not be considered the determining factor. The distance to a location must be considered in conjunction with the factors and guidance outlined in paragraphs (f)(1) and (f)(2) of this section. In addition, the following safety factors must be considered in order to optimize safety:

(i) The safety of the employees responsible for getting the equipment to or from a particular location; and

(ii) The potential safety hazards involved with moving the equipment in the direction of travel necessary to get the equipment to a particular location.

(g) Designation of repair locations. Based on the guidance detailed in paragraph (f) of this section and consistent with other requirements contained in this part, a railroad may submit a detailed petition, pursuant to the special approval procedures contained in §232.17, containing a plan designating locations where brake system repairs will be performed. Approval of such plans shall be made accordance with the procedures contained in §232.17, and shall be subject to any modifications determined by FRA to be necessary to ensure consistency with the requirements and guidance contained in this part.

[66 FR 4193, Jan. 17, 2001, as amended at 67 FR 17580, Apr. 10, 2002]