By Terri Langford, Oct. 25, 2005, 12:54AM

Bus fire charges highlight contrasts
Drivers, pilots have the same legal responsibility but vastly different levels of regulation

By TERRI LANGFORD
Houston Chronicle
Oct. 25, 2005, 12:54AM

When Dallas County authorities charged a 37-year-old illegal Mexican immigrant in the deaths of 23 elderly bus passengers, they said it was because a bus driver has the same safety responsibilities as a commercial airline pilot.

"The legal responsibility is the same," Dallas County Sgt. Don Peritz said last week, explaining why Global Limo driver Juan Robles Gutierrez was charged with negligent homicide in the Sept. 23 bus fire that killed the Brighton Gardens nursing home residents just south of Dallas.

Peritz is correct. Federal regulations dictate that before Robles set foot inside the 1998 MCI luxury bus hired by the Bellaire senior living facility last month, he would have had to have conducted a "walk-around" inspection of the bus to look for any problems. Commercial pilots perform the same task routinely, before they board any plane.

"If he fails to do the inspection, that's a problem. If he does the inspection improperly, that's a problem," Peritz said, elaborating on why detectives filed charges against the Mexican national on Oct. 17. "The pilot of that plane and the driver of that bus have the same responsibility."

A closer look, however, reveals that drivers and pilots and the industries they work for couldn't be more different when it comes to safety. Many charter bus companies are small outfits performing without the benefit of secure, weatherproof depots, a highly skilled union mechanics force or regular inspections and required retraining for their operators.

Commercial airliners, on the other hand, operate as large corporate enterprises under all of these conditions.

"The function is the same," said Paul Turk, spokesman for the Federal Aviation Administration in Washington. "You're providing transportation for hire."

This regulatory disparity outrages lawyers like Mark Werbner, who convinced jurors in 2004 to award $36 million to the family of a teenager permanently injured in a charter bus crash in Terrell.

"It seems to be a very ineffective regulatory system," Werbner said. "Repeated violations and repeated deficiencies are tolerated. If your teenager were to get these repeated violations, she wouldn't be allowed to drive."

During the course of the Terrell bus crash litigation involving Discovery Tours of Texas, testimony revealed that the charter company's insurance was dropped, the bus had no license plate, instead an illegal temporary dealer's tag and the driver, who was killed, was found to have traces of drugs in his system. Cell phone records indicated the driver had been up the night before he was to take a group of Garland teenagers to church camp.

In the case involving the Global Limo bus, federal and local investigators are focusing on the axles, brakes and bearings near the right rear wheel. A right rear tire was changed 26 miles before the fire.

After the fire, it was discovered that Global had one of the worst driver safety histories in the nation, yet the company was given a "satisfactory" rating by Federal Motor Carrier Safety Administration.

And in the case involving Robles, Global Limo and Brighton Gardens, there's the added dimension of an illegal immigrant driving the bus at the time of the accident. Although Mexicans with commercial driving licenses can drive in the United States, Robles did not have the proper documents to live and work in the United States.

Robles' family members in Monterrey, Mexico, have readily admitted he was in this country illegally. Still Robles was hired by Global Limo, the Pharr, Texas, company whose officials have declined to comment on the situation.

"The problems that caused this disaster were poor training, bad maintenance, the possibility of defective equipment," said Robert Luke, one of several lawyers now suing Robles, Global, Brighton Gardens and the charter broker, The Bus Bank, on behalf of those killed and injured. "We can't expect an illegal immigrant to stand up to his employers over whom he has no leverage and report it to the authorities who he will fear will deport him."

Regulating safety

Unfortunately, legal experts say, the differences in how each agency regulates safety emerge only after a serious accident like the Sept. 23 fire that consumed the bus Robles was driving as he was transporting 38 senior citizens from Bellaire out of Hurricane Rita's path.

"Tragically where there is disaster, there's a flurry of firmness, then it goes back to business as usual," Werbner said.

And as the Global Limo bus accident case winds its way through courts in four Texas jurisdictions — Dallas County, where the fire occurred; San Antonio, where Robles is on an immigration hold; Edinburg, where the lawsuits are filed; and in Houston, where federal grand jurors examine the matter in secret — the most glaring difference between buses and planes is this: one is intensely regulated by the federal government, while the other is not.

"The level of training, and the standards for continued training, medical re-certification and periodic re-examination put a substantially greater burden on the pilot of aircraft," Turk said.

U.S. Transportation Department spokesman Brian Turmail insists that both the FAA and the 5-year-old FMCSA have exactly the same mission, keeping their passengers and operators safe.

"Ultimately in both systems the operators have the responsibility to meet safety regulations that are in place," Turmail said.

State-controlled

Part of the reason for this appearance of regulatory disparity is that states, not the federal government, register trucks and buses.

Bus drivers and truck companies "don't come before Motor Carrier (FMCSA) to give them a license to operate," Turmail said.

When it comes to oversight, FMCSA, with a mere 1,000 employees nationwide and $447 million budget, appears outgunned when compared to the FAA.

The motor carrier agency is responsible for the oversight of 6.5 million commercial drivers and 675,000 trucks and buses. Of those, 31,312 motor carriers — including 178 bus companies — are registered with the agency to travel through Texas.

Those companies put 263,868 trucks and 16,132 buses on Texas highways where a total 196 federal inspectors are located.

The FAA, on the other hand, has a budget of $14 billion, 31 times that of the FMCSA. The FAA's staffing is enormous. Even when the 36,328 employees in air traffic control operations are removed from the total, there are 6,570 staffers devoted to regulation and certification. All of this to monitor 7,720 U.S. commercial aircraft flying through the nation's skies.

To compensate for lack of manpower, FMCSA depends heavily on state regulators and police to weed out bad bus operators and substandard vehicles.

Although compliance reviews are conducted by FMCSA — up to 1,000 a month, according to DOT — they are not regularly scheduled ones.

Compliance reviews are triggered by accident data and incident reports , much of it either self-reported or forwarded by state police after they investigate an accident or find an unqualified driver or substandard bus during a traffic stop.

That information, along with the compliance reviews it sometimes generates, is used by federal motor carrier regulators to score truck and bus companies in the SafeStat database.

But the lack of controls on how the information is collected has resulted in a safety picture that is often incomplete and prompted the transportation department's inspector general a year ago to cite SafeStat, a safety information collection system, as a top management challenge for the agency.

That's not the case with the supervision of pilots and the recording of plane accidents. Commercial pilots hold a federal license and must undergo lengthy training before flying passengers. Any time a plane is involved in an incident, whether there are deaths or not, information about the accident is collected by FAA inspectors and forwarded to Washington.

And if the pilot is at fault or the mechanic fails to sign off on the inspection of the plane, both can face the loss of license. The commercial airline can also face penalties if it is at fault.