Bus Lag, Part 2: On-Duty, Driving and Sound Asleep – The Limits of HOS Requirements

This is the second installment in a series about sleep inversion, the principal cause of most motorcoach accidents.

In this particular incident – which killed only four passengers but mutilated most of the others – the driver did not violate any hours-of-service regulations. In fact, the incident occurred only several hours into the start of his trip, around mid-morning. In fact, the degree of sleep inversion was hard to determine in this incident because there was no record of the driver operating a vehicle at all the previous day – just as there was no evidence he even slept a wink the night before his early-morning trip began. Witness:

Two one-vehicle owner operators arranged for a charter trip to begin at 5:30 AM. When one of the subcontractor’s drivers did not show up, and neither operator had a “spare driver,” one of the operators called up someone he knew to be a driver, and summoned him to work – without going through any remote hiring process. This driver arrives at roughly 7 AM, and both vehicles began their trip. At roughly 9:30 AM, the replacement driver fell asleep at the wheel, and his coach crashed into a bridge abutment, killing four passengers and maiming all or most of the others to some degree (including transforming  a few into quadriplegics).

When the accident was initially examined, the investigators found that while the replacement driver had  been called to duty at 5:30 AM, there was no evidence about when he had gone to sleep the night before, much less any evidence he even had driven the day or night before. His post-incident drug screen found significant levels of both cocaine and marijuana in his bloodstream, and superficial evidence suggested he had either just retired before he was summoned to work, or had not even gone to sleep at all before  the morning he was called to duty.

During the frantic evening after the accident, the prime contractor and subcontractor hastily “created” the replacement driver’s entire “Driver’s File,” forging his completed employment application, DMV and reference checks, and  even a negative pre-employment drug-alcohol screening test result – although there were some  documents they could obviously not produce (such as his DMV print-out). At trial, not wishing to do jail time for perjury, these individuals “recanted” their story, and admitted preparing all the driver’s hiring documents “after-the-fact.” In summary, not only did these unscrupulous operators not even hire the driver-in-question, and never bothered to ask him what shift he may have driven the day or night before, but they never even bothered to determine whether or not he had obtained any sleep at all that night, much less how much.

Did the driver-in-question violate any Hours-of-Service requirements? Of course not:

  • His original trip took fewer than three hours before it ended when he crashed into the bridge abutment.
  • He very likely had more than eight hours off between the end of the last shift he drove – and in fact may have not driven for several days.
  • The driver certainly did not cheat on his logs, and did not violate any of the other HOS provisions (e.g., driving more than 60 hours a week, failing to take a full 24-hour day off at least once the week before the trip-in-question).

Meaning and Malarkey

Sound OK to you? Well it is certainly OK with the FMCSA and USDOT. This is because the HOS regulations deal only with the duration of one’s driving and require the driver to have eight hours’ off-duty between shifts. In fact, during these eight hours between the end of one shift and the start of another, the HOS  requirements do not require the driver to sleep at all.  They certainly do not require that a driver provide documentation of his previous day’s shift (if there was one). Frankly, other than the two minor aberrations that the current HOS do measure (for U.S. motorcoach drivers) — (1) how long the driver is operating the vehicle and “on-duty,” and (2) how long before this shift began the driver finished the one before it — the HOS regulations obtain no remote data whatsoever to determine whether or not the driver is physically able, realistically, to remain awake during the new shift or trip.  So, again, according to at least the Hour-of-Service requirements, our replacement driver’s trip was perfectly legal. In fact, had he not had cocaine and marijuana in his bloodstream, and had his quasi-employer bothered to actually have him fill out his paperwork in advance (and perform their due diligence with respect to a few minimum hiring procedures), his assignment to this trip would have been perfectly legal in every respect.

The key point here is that the Hours-of-Service requirements measure so few things that they are of almost trivial value in preventing accidents. After all, what value does an eight-hour break between shifts have if the driver does not sleep during all or most of it?  And if you have no documentation of the driver’s previous shift (other than it ending at least eight hours before the start of the new one), how can you determine whether his or her new assignment will involve “sleep inversion?” In simple terms, far more important than the two almost trivial things the Hours-of-Service regulations actually measure, they largely serve no purpose at all. Not only do they not require one to examine the possibility of a driver committing sleep inversion, they do not even require one to examine whether the driver slept at all!

To be frank, because the number of hours a driver voluntarily spends behind the wheel is obviously related to his or her alertness, this part of the equation appears to be the least important aspect of a driver’s alertness to even bother measuring. The natural dynamics of the situation usually take care of themselves. (If they did not, we would subject common motorists to some form of time- or distance-based driving limits.)   Even completely un-monitored and un-regulated drivers of personal automobiles rarely try to drive for more than 10 hours straight (taxi drivers assigned to 12-hours shifts with no breaks excepted), or if they do, they rarely do so for many more hours than this. The combination of common sense and a driver’s own natural sense of fatigue tend to deter such behavior.  And with no commercial agenda, most drivers of such vehicles tend to get a decent night’s sleep between “shifts.”  Plus the vast majority of such drivers operate during more conventional hours – rather than those hours when their passengers can sleep on-board, while the driver’s body would normally be sound asleep.

The most startling thing about what you just read is the fact that, particularly in terms of shift inversion, unregulated common motorists operate in far safer duty cycles than do a substantial number of their mildly-regulated commercial counterparts.

Consequences and High Costs

As it turned out, the “estate” of one of the passengers killed in the accident cited above went to trial independently, and was awarded $75,000,000. Because settlements are confidential, I cannot know how much money the army of other plaintiffs whose attorneys I assisted managed to settle for – keeping in mind, of course, that both operators involved in this incident carried only $5,000,000 worth of insurance. I have no idea where the rest of the settlement money came from  — although the 13-installment series of articles I authored for NBT in 2013 and 2014, subtitled “Enough is Enough,” should provide the reader with a pretty good idea. Since it is not my money at stake — I neither operate a fleet nor manufacture a vehicle or component — I will not bother commenting on the UMA and ABA’s arguments against raising minimum operator insurance limits to $25M. I especially do not care since the majority of safe and responsible operators themselves seem to not care how much their premiums subsidize those of the most unsafe operators (see the article titled “The Party Bus” in the August, 2014 issue of NBT), just as the manufacturers, converters and suppliers seem to not care how much of a reckless operator’s responsibilities they end up paying for when they are sucked into the vortex of a lawsuit in which they do not belong because the operator was grossly underinsured. So if those of you who do are unwilling to take enlightened positions on these issues, far be it from me to do it for you. Instead, I only provide insight, reasoning and clues. After all, the demand for motorcoach service will not likely change much if fares increase slightly or profits diminish slightly as the result of higher insurance premiums. So if the majority of safe operators and their lobbying organizations wish to fight with Congress over a quadrupling of their premiums so that a few bad apples can force the others to donate their inflated premiums to the victims of the perpetrators’ indifference to safety, rather than do responsible things to get them off the roadways altogether, please do not let me stand in your way.  I do not make your decisions, nor should I. I just suggest stuff.

Endorsing the Curse or Effecting the Cure

The cure to this nearly 80 years of naïve impotence of marginal value is simple. We need to monitor four things about commercial vehicle driver performance:

  1. How long they have been driving or on duty (which the current Hours-of-Service requirements do).
  2. How long have they been off duty before they began their current shift (which the Hours-of-service requirements do).
  3. Whether they slept during the time between these two shifts (which we have the technology to easily do).
  4. How much earlier or later the current shift begins compared to the start of the shift the day before – i.e. the potential for “sleep inversion”).

Not only would these four elements determine a driver’s ability to remain awake during his or her current shift, but I would argue that without measuring these last two factors, measuring only the first two come pretty close to being worthless.

Of course, it should not need mentioning that if this part of the equation were taken care of, there would be no burning need to quadruple insurance rates.

Publications: National Bus Trader.