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§397.5 — Attendance and surveillance of motor vehicles (a) Except as provided in paragraph (b) of this section, a motor vehicle which contains a Division 1.1, 1.2, or 1.3 (explosive) material must be attended at all times by its driver or a qualified representative of the motor carrier that operates it. |
(b) The rules in paragraph (a) of this section do not apply to a motor vehicle which contains Division 1.1, 1.2, or 1.3 material if all the following conditions exist — (1) The vehicle is located on the property of a motor carrier, on the property of a shipper or consignee of the explosives, in a safe haven, or, in the case of a vehicle containing 50 pounds or less of a Division 1.1, 1.2, or 1.3 material, on a construction or survey site; and |
(2) The lawful bailee of the explosives is aware of the nature of the explosives the vehicle contains and has been instructed in the procedures which must be followed in emergencies; and |
(3) The vehicle is within the bailee's unobstructed field of view or is located in a safe haven. |
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(c) A motor vehicle which contains hazardous materials other than Division 1.1, 1.2, or 1.3, materials, and which is located on a public street or highway, or the shoulder of a public highway, must be attended by its driver. However, the vehicle need not be attended while its driver is performing duties which are incident and necessary to the driver's duties as the operator of the vehicle. |
(d) For purposes of this section — (1) A motor vehicle is attended when the person in charge of the vehicle is on the vehicle, awake, and not in a sleeper berth, or is within 100 feet of the vehicle and has it within his/her unobstructed field of view. |
(2) A qualified representative of a motor carrier is a person who — (i) Has been designated by the carrier to attend the vehicle; |
(ii) Is aware of the nature of the hazardous materials contained in the vehicle he/she attends; |
(iii) Has been instructed in the procedures he/she must follow in emergencies; and |
(iv) Is authorized to move the vehicle and has the means and ability to do so. |
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(3) A safe haven is an area specifically approved in writing by local, State, or Federal governmental authorities for the parking of unattended vehicles containing Division 1.1, 1.2, or 1.3 materials. |
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(e) The rules in this section do not relieve the driver from any obligation imposed by law relating to the placing of warning devices when a motor vehicle is stopped on a public street or highway. |
[59 FR 63925, Dec. 12, 1994, as amended at 77 FR 59828, Oct. 1, 2012] §397.5 — DOT Regulatory Guidance Question 1: What defines a "public highway" or "shoulder" of a public highway for the purpose of determining violations under §397.5(c)? Guidance: The applicable engineering/highway design plans.
Question 2: Must a driver of a motor vehicle transporting HM, other than Division 1.1, 1.2, or 1.3 (Class A or B) explosives, always maintain an unobstructed view and be within 100 feet of that vehicle? Guidance: No. If the vehicle is not located on a public street or highway or on the shoulder of a public highway, then the vehicle need not be within 100 feet of the driver's unobstructed view, unless it contains Division 1.1, 1.2,or 1.3 (Class A or B) materials.
Question 3: May a motor carrier consider fuel stop operators as "qualified representative(s)" for purposes of the attendance and surveillance requirements of §397.5? Guidance: Yes. However, the fuel stop operator must be able to perform the required functions.
Question 4: Who determines what is a "safe haven"? Guidance: The selection of safe havens is a decision of the "competent government authorities" having jurisdiction over the area. The definition found in §397.5(d)(3) is purposely void of any specific guidelines or criteria. A truck stop may be considered a safe haven if it is so designated by local or State governmental authorities.
Question 5: Section 397.5(d)(3) describes a safe haven as "* * * an area specifically approved in writing by local, State, or Federal governmental authorities for the parking of unattended vehicles containing Division 1.1, 1.2, or 1.3 materials." Do guidelines exist for establishing approval criteria for safe havens? Is there a national list of approved safe havens available to the public? Guidance: The FHWA believes the safe haven concept is becoming increasingly obsolete due to readily available alternatives for providing "attendance at all times" for vehicles laden with explosives. The FHWA is aware of two documents that may be used as resources for establishing approval criteria for safe havens. The first document, Construction and Maintenance Procedure Recommendations for Proposed Federal Guidelines of Safe Havens for Vehicles Carrying Class A or Class B Explosives (1985), contains design, construction, and maintenance guidelines. The second document, Recommended National Criteria for the Establishment and Operation of Safe Havens (1990), contains recommended national uniform criteria for approval of safe havens and an inventory of all State-approved safe havens in existence at the time of the report. These two documents may be used both as resources for establishing guidelines for safe haven design and construction, and as source documents for finding other materials that may be used toward the same purpose. These two documents are available to the public through the U.S. Department of Commerce, National Technical Information Service (NTIS), Springfield, Virginia 22161 (phone: (703) 487-4650). The NTIS publications database is also accessible on the internet's world wide web at http://www.fedworld.gov/ntis.
Question 6: May video monitors be used to satisfy the attendance requirements in §397.5? Guidance: The purpose of the attendance requirement is to ensure that motor vehicles containing hazardous materials are attended at all times and that, in the event of an emergency involving the motor vehicle, the attendant is able to respond immediately. The use of video monitors could satisfy the attendance requirements in §397.5, provided the monitors are operable and continuously manned, the attendant is within 30.48 meters (100 feet) of the parked vehicle with an unobstructed view, and the attendant is able to go to the vehicle immediately from the monitoring location.
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