Welcome to Transportation Law Today

Managed by Paul J. Loftus, a partner at Dinsmore & Shohl LLP, Transportation Law Today provides professionals in the rail, transit, inland maritime, and trucking industries with current news and analysis of laws, rulings, and regulatory policies.

Thursday, October 27, 2011

Retired Railroad Workers, Doctors, and former RRB Manager Charged with Fraud

The U.S. Attorney for the Southern District of New York charged 11 individuals with participating in a "massive fraud scheme" from 1998 to present where employees of the Long Island Railroad claimed to be disabled to gain early retirement benefits.

The U.S. Attorney's announcement of the charges are attached in this press release issued today.

Among those charged are two orthopedic physicians, who are accused of preparing fraudulent medical narratives of claimed disabilities to meet occupational restrictions for the employees. One of the physicians was recorded as stating that he had recommended disability "one hundred percent" of the time.

The alleged scheme involved the interplay between the LIRR retirement system and the Railroad Retirement Board (RRB) system, a federal agency which administers the retirement and disability pensions for most rail workers. The accused are alleged to have pre-planned their claim of RRB disability to coincide with their LIRR retirement date. This allowed some LIRR employees to retire as early as age 50 with a LIRR pension in addition to an RRB occupational disability. The U.S. Attorney pointed out that 61% of LIRR employees between age 50 and 55 claimed RRB disability between 2003 and 2004, whereas on 7% of Metro-North employees who where between 50 and 55 received disability awards.

A former RRB branch office employee was also charged as a facilitator to the fraud, as well as several RRB applicants. In one case, a supposedly disabled railroad employee who claimed severe pain in gripping tools, and knee and back pain when bending and crouching, now plays tennis several times a week and signed up to play golf 140 days in a 9-month period in his retirement. Another retired employee claiming severe and disabling back pain also managed a 400 mile bike tour as a disabled retiree.

The RRB system is not well-known outside of the rail industry. It replaces Social Security for rail employees and requires employer contributions that greatly exceed the employee's contribution to fund disability and retirement funds. Employees can also retire at age 60 without loss of benefits if they have 30 years service. Also, the RRB provides a substantial spousal benefit where an employee's pension increases by nearly 50% when a qualifying spouse reaches retirement age.

The pensions at issue here are known as Occupational Disability annuities, which a completely disabled employee can obtain after 10 years service, and an "occupationally" disabled employee after 20 years service. Occupational disability is granted when an employee cannot perform their normal railroad occupation.

The accused of course are innocent until proven guilty. However, the U.S. Attorney's investigation and charges indicate that benefit fraud is being taken seriously.

Finally, an acknowledgement to my partner Luke Lafferre, who was the alert reader in advising TLT of this story.

Friday, October 21, 2011

U.S-Mexico Cross Border Trucking Pilot Program Begins

About 20 years after the passage of the North American Free Trade Agreement (NAFTA), a statutorily mandated pilot program for long-haul trucks between Mexico and the U.S. has commenced.

Mexican carriers whom have received USDOT approval for their equipment and drivers under the Federal Motor Carrier Safety Administration (FMCSA) program will be permitted to operate throughout the U.S. for up to three years. Likewise, U.S. domiciled motor carriers can be granted reciprocal rights to operate in Mexico.

To address safety concerns about Mexican trucks operating in the U.S., the FMCSA pilot program requires the approval of specific drivers whom have been evaluated for English language proficiency and for their past driving records. Also, specific vehicles originating in Mexico must be approved and inspected by FMSCA, and the vehicles must have GPS tracking devices installed.

As part of the implementation of the pilot program, FMCSA has issued advisory documents to local law and state commercial vehicle enforcement, attached here. A "Visor Card" summary has also been issued for enforcement personnel.

Friday, October 14, 2011

FRA Sets Public Hearing on Positive Train Control

As an update to our earlier post of August 24, 2011 here at TLT, the Federal Railroad Administration (FRA) has scheduled a public hearing on the proposed removal of certain regulatory requirements for Positive Train Control.

The hearing is set for November 10, 2011 in Washington, DC, as noted in today's Federal Register Notice. The comment period for the proposed changes to the PTC rule was also extended until November 25, 2011.

Tuesday, October 11, 2011

FRA Safety Advisory Issued following Switching Fatalities

The Federal Railroad Administration (FRA) has issued Safety Advisory 2011-02 "to remind railroads and their employees of the importance of following procedures when going between rolling equipment." The Advisory from the Federal Register publication is attached here.Despite the overall improvement of railroad safety in recent years, the FRA pointed to 5 fatal incidents from May 2009 to September 2011 as the reason for issuing the Advisory to remind railroads and employees of "the critical importance of maintaining and abiding by railroad rules and procedures designed to ensure safety when going between rolling equipment."

Among the recommondations to railroads the FRA makes are:

1) review current rules and operating practices that require employees to go between rolling equipment to determine if adequate protection is provided to employees;

2) develop, implement, and monitor communication protocols that require employees of multi-person crews to inform other crew members when the need to enter between rolling equipment arises;

3) convey to employees that their personal safety is their responsibility and that railroad management supports and encourages those employees that make safety their number one priority.

The Safety Advisory is not directed to any particular railroad, but to the industry in general.

Tuesday, October 4, 2011

NTSB Cites Fatigue in Three-Vessel Texas Canal Collision

The National Transportation Safety Board cited vessel pilot fatigue, among other causes, in its probable cause findings concerning the January 2010 collision of the 810 ft oil tanker Eagle Otome with a cargo tanker berthed at the Port of Port Arthur, TX. The tanker was then subsequently hit by a barge, causing the release of approximately 462,000 gallons of oil into Sabine-Neches Canal. A synopsis of the Board's findings are attached here pending issuance of the final report.

Although the tanker had two pilots on board, as required by local protocol, the Board found that the pilot controlling the vessel was making a radio call "at a critical point in the waterway, and the radio call interfered with his ability to fully focus on conning the vessel." Also, the Board found that pilot to be fatigued and that his fatigue adversely affected the pilot's ability to stop the sheering motion of the tanker. Contributing factors to the pilot's fatigue were untreated sleep apnea, and extended periods of wakefulness as a result of the pilot's work schedule, according to the Board's findings.

Among the various recommendations issued by the NTSB, were recommendations to the local Board of Pilot Commissioners to develop a fatigue mitigation and prevention program. The Board also reiterated a prior recommendation to the Coast Guard to to require mariners to report substantive changes in their medical status or medication use that occur between required medical evaluations.