Violation codeUnsafe Driving

§397.13

Smoking near hazardous materials prohibited

49 CFR §397.13

No person may smoke, or carry a lighted cigarette, cigar, or pipe, on or within 25 feet of a vehicle carrying explosives (Class 1), Class 5 materials, flammable gases (Division 2.1), flammable liquids (Class 3), or Division 4.1 or 4.2 materials. Severity weight 1 in the Unsafe Driving BASIC.

At a glance

Severity
1
OOS eligible
No
BASIC category
Unsafe Driving
Typical fine
Hazmat civil penalty up to $102,348 per knowing violation (49 CFR Part 386, Appendix B, (e)(1))

§397.13 prohibits any person from smoking, or carrying a lighted cigarette, cigar, or pipe, on or within 25 feet of a motor vehicle that contains Class 1 (explosives) or Class 5 (oxidizers and organic peroxides) materials, or flammable materials classified as Division 2.1 (flammable gas), Class 3 (flammable liquid), or Division 4.1 (flammable solid) or 4.2 (spontaneously combustible material) (§397.13(a)). It also covers an empty tank motor vehicle that has been used to transport Class 3 flammable materials or Division 2.1 flammable gases and, when so used, was required to be marked or placarded (§397.13(b)). Class 4 is not covered wholesale: Division 4.3 (dangerous when wet) is not on the list.

Severity weight

Severity weight 1 in the Unsafe Driving BASIC. SMS Appendix A (version 3.21, revised May 2026) lists §397.13 ("Smoking within 25 ft of HM vehicle") and its two detailed codes, 397.13A-HMDP and 397.13B-HMDP, in the "HM Related" group at weight 1.

Separately, §397.13(a), permitting a person to smoke or carry a lighted cigarette, cigar, or pipe within 25 feet, is on the list of critical regulations in Appendix B to Part 385 (Explanation of Safety Rating Process). Subpart A of Part 397, which includes §397.13, is also issued under 49 U.S.C. 5103, part of the federal hazardous materials law (49 U.S.C. chapter 51). For knowing violations of regulations issued under that chapter, FMCSA's penalty schedule allows a civil penalty of up to $102,348 per violation (Part 386, Appendix B, paragraph (e)(1)).

What's commonly cited

  • Driver smoking within 25 feet during a fueling stop on a flammable-liquids load.
  • Smoking in the sleeper berth when the trailer is loaded.
  • Loading-dock smoking near a placarded vehicle.

How to prevent it

  • Issue a written no-smoking-near-hazmat policy, and keep each driver's signed acknowledgment as a company policy record with their file.
  • Coordinate with shippers and consignees to enforce loading-dock no-smoking zones for placarded vehicles.
  • §397.13 governs the 25-foot zone around the vehicle. The loading and unloading operation itself is covered by §177.834(c) ("No smoking while loading or unloading") and §177.834(d) ("Keep fire away, loading and unloading"), which apply to Class 1 (explosive), Class 3 (flammable liquid), Class 4 (flammable solid), Class 5 (oxidizing), and Division 2.1 (flammable gas) materials. Train drivers to both as a unit.
  • Name e-cigarettes and vapes in the same policy. §397.13 itself names a lighted cigarette, cigar, or pipe, and FMCSA's August 2016 safety advisory on battery-powered portable electronic smoking devices says the hazardous materials and motor carrier safety regulations "do not specifically address" them. The same advisory, citing explosions and fires from these devices, tells carriers and drivers to "exercise good judgment and appropriate discretion in their possession, storage, and charging or use on, around, or while operating a CMV" and to adhere to the smoking prohibitions in §177.834(c) and §397.13.

How Roadworthy HQ helps

A §397.13 citation lands on the driver. Roadworthy HQ does not record individual violation codes, pull CSA or SMS scores, or track coaching. What it keeps is the driver file an auditor opens next: the annual MVR and the §391.25 annual review, each with reminders 60, 30, and 7 days out, and the qualification-file documents with their retention periods enforced. If the citation came from a roadside inspection, log that inspection on the vehicle (date, state, level, driver, number of violations, out-of-service or not). Record the hazmat endorsement on the driver's profile. Roadworthy HQ has no separate record type for §172.704 hazmat training, so keep those certificates with your training files.

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Not legal advice · CFR is the authoritative source · SMS Appendix A publishes current severity weights