PHMSA Cell Phone NPRM

Last week the Pipeline and Hazardous Materials Safety Administration PHMSA published a notice of proposed rule making (NPRM) in the Federal Register that would prohibit the use of hand-held mobile telephones by Hazmat drivers. I did an article on this proposed rule for the Journal of Hazmat Transportation (subscription required) [Corrected link to JOHT to that of the home page; 20:35 EDT 05-02-11] that describes the background and justification for this rule (Full Disclosure: I get paid for those aricles so I won't duplicate the information here). Today I would like to look at some of the potential security implications of this proposed rule.

The actual change in the hazardous materials regulations is fairly simple; the NPRM would add §177.804(c) that reads:

“Prohibition against hand-held mobile telephones. In accordance with Sec. 392.82 of the FMCSRs a person transporting a quantity of hazardous materials requiring placarding under Part 172 of the 49 CFR or any quantity of a material listed as a select agent or toxin in 42 CFR Part 73 may not engage in, allow, or require use of a hand-held mobile telephone while driving.”

The preamble to the rule makes it clear that the word ‘allow’ specifically applies to motor carriers, stating that “motor carriers are prohibited from requiring or allowing drivers of covered motor vehicles to engage in the use of hand-held mobile telephones while driving” (76 FR 23923).

Reporting Security Incidents

Over the road truck drivers were one of the first groups that the Department of Homeland Security targeted their ‘See something, say something’ campaign. DHS recognized that truck drivers would be seeing many things in their operation of their commercial vehicles that might be indicators of potential terrorist activities, including attempts at hijacking hazardous materials.

This rule would not stop those reports from being made, but would require the delay of those reports until the vehicle was parked off the roadway. Inevitably, this will mean that some of the reports will not be made as their importance to the driver declines over time. Even when made, since one would hope that the drivers do not take notes while they are moving, the usefulness of the reports that are made will be degraded as the driver forgets some of the details that would be included if the report was made promptly.

Hands-Free Phones

The operation of hands-free mobile phones is allowed by this proposed rule, but the wording of definition of using a hand-held telephone from the FMCSA proposed rule that this PHMSA rules is based upon is very broad and would include many phones that people might consider to be hands-free. That definition would be found in §390.5 and it states that:

“Using a hand-held mobile telephone means using at least one hand to hold a mobile telephone to conduct a voice communication or to reach for [emphasis added] or dial a mobile telephone.” (76 FR 23924)

Since a large part of the enforcement effort of this will be focused on making sure that motor carriers are taking steps to ensure that their drivers do not use cell phones, one would expect that many, if not most, carriers will prohibit the use of cell phones in their trucks or independent trucks operating on their behalf. Some will certainly install complying hands-free phones, but some undetermined but significant number will not opt to expend the necessary funds to do so.

Security Alerts

The other side of security warnings is the transmission of security warnings to potential targets. We have yet to hear of any specific targeting of hazmat trucks, but it is almost inevitable that such terrorist attacks will occur at some point. If the intelligence and law enforcement folks continue to detect these attacks in advance it seems entirely likely that at some point a planned attack will be discovered while the potential target truck is on the road. The inability to communicate with that target because of a cell phone prohibition based upon this rule might result in a successful attack.

Alternatives?

I understand Secretary LaHood’s concern with distracted driving. Anyone that drives on American roads has their own particular horror stories about idiotic drivers with cell phones stuck to their ears. But I have also received important telephone calls while I was on the road and I have made 911 calls from my cell phone while driving down the road. We must make sure that, in an effort to increase our safety, we do not throw out the baby with the bath water.

Unfortunately, I don’t see an easy way to accomplish both the safety and security objective. We could require that truck operators have some sort of enroute access to telephonic communications, but prohibit them from using them, except in the case of emergencies. Of course that will not stop the issue of incoming calls from families with ‘family emergencies’ (real enough to those involved, but hardly worth the increase in risk to the general public).

More and more trucking companies are using electronic dispatching devices and drivers could use them to receive threat information and, in many cases at least, transmit security observations. The problem is that, according to research quoted in the preamble to the rule (Table 1; 76 FR 23925), research used to justify the cell phone ban, indicates that the use of these dispatch devices is more problematic by a significant factor than the use of cell phones for conversations. Which begs the question; why ban cell phones and not dispatch devices?

No, I think that the most effective way of dealing with this is to specifically exempt cell phone calls, both incoming and outgoing, that deal with security or safety information. That wording would also have to include specific wording prohibiting motor carriers from taking action that would interfere with such communications.

BTW: A copy of this blog is being submitted as a comment on this NPRM. Such comments may be submitted via the Federal eRulemaking Portal (www.Regulations.gov, Docket # PHMSA–2010–0227). Comments need to be submitted by June 28, 2011.