U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

For sale by the Superintendent of Documents, U.S. Government Printing Office

Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800

Fax: (202) 512–2104 Mail: Stop IDCC, Washington, DC 20402–0001

43–799 PDF 2008

THE FEDERAL MOTOR CARRIER 

SAFETY ADMINISTRATION’S 

PROGRESS IN IMPROVING MEDICAL 

OVERSIGHT OF COMMERCIAL 

DRIVERS 

(110–157) 

HEARING 

BEFORE THE

COMMITTEE ON 

TRANSPORTATION AND 

INFRASTRUCTURE 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TENTH CONGRESS 

SECOND SESSION 

JULY 24, 2008 

Printed for the use of the 

Committee on Transportation and Infrastructure 

( 

COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE 

JAMES L. OBERSTAR, Minnesota, Chairman 

NICK J. RAHALL, II, West Virginia, Vice 

Chair 

PETER A. DEFAZIO, Oregon 

JERRY F. COSTELLO, Illinois 

ELEANOR HOLMES NORTON, District of 

Columbia 

JERROLD NADLER, New York 

CORRINE BROWN, Florida 

BOB FILNER, California 

EDDIE BERNICE JOHNSON, Texas 

GENE TAYLOR, Mississippi 

ELIJAH E. CUMMINGS, Maryland 

ELLEN O. TAUSCHER, California 

LEONARD L. BOSWELL, Iowa 

TIM HOLDEN, Pennsylvania 

BRIAN BAIRD, Washington 

RICK LARSEN, Washington 

MICHAEL E. CAPUANO, Massachusetts 

TIMOTHY H. BISHOP, New York 

MICHAEL H. MICHAUD, Maine 

BRIAN HIGGINS, New York 

RUSS CARNAHAN, Missouri 

JOHN T. SALAZAR, Colorado 

GRACE F. NAPOLITANO, California 

DANIEL LIPINSKI, Illinois 

NICK LAMPSON, Texas 

ZACHARY T. SPACE, Ohio 

MAZIE K. HIRONO, Hawaii 

BRUCE L. BRALEY, Iowa 

JASON ALTMIRE, Pennsylvania 

TIMOTHY J. WALZ, Minnesota 

HEATH SHULER, North Carolina 

MICHAEL A. ARCURI, New York 

HARRY E. MITCHELL, Arizona 

CHRISTOPHER P. CARNEY, Pennsylvania 

JOHN J. HALL, New York 

STEVE KAGEN, Wisconsin 

STEVE COHEN, Tennessee 

JERRY MCNERNEY, California 

LAURA A. RICHARDSON, California 

ALBIO SIRES, New Jersey 

DONNA F. EDWARDS, Maryland 

JOHN L. MICA, Florida 

DON YOUNG, Alaska 

THOMAS E. PETRI, Wisconsin 

HOWARD COBLE, North Carolina 

JOHN J. DUNCAN, JR., Tennessee 

WAYNE T. GILCHREST, Maryland 

VERNON J. EHLERS, Michigan 

STEVEN C. LATOURETTE, Ohio 

FRANK A. LOBIONDO, New Jersey 

JERRY MORAN, Kansas 

GARY G. MILLER, California 

ROBIN HAYES, North Carolina 

HENRY E. BROWN, JR., South Carolina 

TIMOTHY V. JOHNSON, Illinois 

TODD RUSSELL PLATTS, Pennsylvania 

SAM GRAVES, Missouri 

BILL SHUSTER, Pennsylvania 

JOHN BOOZMAN, Arkansas 

SHELLEY MOORE CAPITO, West Virginia 

JIM GERLACH, Pennsylvania 

MARIO DIAZ-BALART, Florida 

CHARLES W. DENT, Pennsylvania 

TED POE, Texas 

DAVID G. REICHERT, Washington 

CONNIE MACK, Florida 

JOHN R. ‘RANDY’ KUHL, JR., New York 

LYNN A WESTMORELAND, Georgia 

CHARLES W. BOUSTANY, JR., Louisiana 

JEAN SCHMIDT, Ohio 

CANDICE S. MILLER, Michigan 

THELMA D. DRAKE, Virginia 

MARY FALLIN, Oklahoma 

VERN BUCHANAN, Florida 

ROBERT E. LATTA, Ohio 

(II) 

(III) 

CONTENTS Page 

Summary of Subject Matter .................................................................................... iv 

TESTIMONY 

Garber, M.D., M.P.H., M.S.M.E., Mitchell A., Medical Officer, National Transportation Safety Board ........................................................................................ 6 

Kutz, Gregory D., Managing Director, Forensic Audits and Special Investigations, Government Accountability Office ............................................................ 6 

Mcmurray, Rose A., Chief Safety Officer and Assistant Administrator, Federal 

Motor Carrier Safety Administration ................................................................. 6 

PREPARED STATEMENTS SUBMITTED BY MEMBERS OF CONGRESS 

Carnahan, Hon. Russ, of Missouri ......................................................................... 35 

Costello, Hon. Jerry F., of Illinois .......................................................................... 36 

Mitchell, Hon. Harry E., of Arizona ....................................................................... 37 

Oberstar, Hon. James L., of Minnesota ................................................................. 38 

PREPARED STATEMENTS SUBMITTED BY WITNESSES 

Garber, Mitchell A. .................................................................................................. 60 

Kutz, Gregory D. ...................................................................................................... 74 

McMurray, Rose A. .................................................................................................. 95 

SUBMISSIONS FOR THE RECORD 

Committee on Transportation and Infrastructure, Oversight and Investigations Majority Staff, ‘‘Challenges in Verifying the Authenticity of Commercial Drivers’ Medical Certificates’’ ...................................................................... 43 

Garber, M.D., M.P.H., M.S.M.E., Mitchell A., Medical Officer, National Transportation Safety Board, responses to questions from the Committee .............. 64 

Kutz, Gregory D., Managing Director, Forensic Audits and Special Investigations, Government Accountability Office: 

Responses to questions from the Committee ..................................................... 85 

‘‘Certification Process for Drivers with Serious Medical Conditions,’’ highlights of GAO-08-826, a report to congressional requesters ......................... 94 

Mcmurray, Rose A., Chief Safety Officer and Assistant Administrator, Federal 

Motor Carrier Safety Administration, responses to questions from the Committee .................................................................................................................... 102 

iv 


43799.001
v 


43799.002
vi 


43799.003
vii 


43799.004
viii 


43799.005
ix 


43799.006
(1) 

HEARING ON FMCSA’S PROGRESS IN IMPROVING MEDICAL OVERSIGHT OF COMMERCIAL 

DRIVERS 

Thursday, July 24, 2008 

HOUSE OF REPRESENTATIVES

COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE, 

Washington, DC. 

The Committee met, pursuant to call, at 4:08 p.m., in Room 

2167, Rayburn House Office Building, the James L. Oberstar 

[Chairman of the Committee] presiding. 

Mr. OBERSTAR. The Committee on Transportation and Infrastructure will come to order. Apologies to our witnesses and to all who 

intended to be in attendance two hours ago, but business on the 

Floor involving the Committee, both legislative business of other 

Committees and our bridge bill carried over from last night, required the Committee and myself, as Chair, especially, to be there. 

We apologize for these delays. We will pursue the hearing with, at 

the outset, deep appreciation to all the witnesses who are here to 

testify and to answer questions on the very serious issue of medical 

oversight of commercial drivers. 

I am disappointed that Administrator Hill is unavailable to testify on this serious issue. It is curious that the Administrator of 

FMCSA, Federal Motor Carrier Safety Administration, was available and prepared to answer questions from a reporter earlier this 

week, but not from the Committee. It has happened occasionally, 

but rarely over the 34 years I have served in the Congress and on 

this Committee, and I can only speculate as to why, and I won’t 

do that publicly. 

Medical oversight of commercial drivers and the impact of the 

consequences of the problems we are going to explore today on safety on our roads is an issue that has troubled us for years. In 1999, 

at the insistence of the then Clinton administration, the Department of Transportation established the Federal Motor Carrier Safety Administration. Their goal was to take the Office of Motor Carrier out of the Federal Highway Administration and establish it at 

the same level of standing and authority and influence as the other 

modal administrations: the FAA, the Federal Maritime Administration, Federal Transit Administration, Federal Highway Administration, among others. 

The legislation to do so was discussed with the Republican majority of the Committee and the Ranking Member, which I was at 

the time, on the appropriate way to establish this new administration and how it should be constituted, and we spent quite some 

2 

time, in advance of introducing legislation, to craft the proposal. I 

want to read the opening sentence of the Act. I thought I had misplaced it, but it is right here. ‘‘The administrator shall consider the 

assignment and maintenance of safety as the highest priority.’’ 

Not an afterthought, not in passing, but the highest priority. 

Those are not new words in Federal law; they are taken from the 

opening paragraph of the legislation establishing the Federal Aviation Administration in 1958 under the Eisenhower administration, 

from the old Civil Aeronautics Authority. 

Safety in aviation shall be maintained at the highest possible 

level. What that has come to mean over the years is not only the 

level of safety that the airlines choose to provide, not the level they 

can afford, but the highest possible level. If we are going to establish an agency of the Department of Transportation whose role is 

to maintain safety in commercial driving, then it ought to be a very 

high standard. 

Unfortunately, we have not made much progress. The deaths 

from crashes involving large trucks from the founding of the 

FMCSA has stayed roughly the same. A year and a half ago that 

was 4,995 individuals killed in car-truck crashes. That was about 

the same four years before we established this new modal administration. 

The safety effects of failure to act are tangible and measurable. 

In 2007, the National Highway Traffic Safety Administration reported that heart attack or other physical impairment—in their 

words—was a critical factor in some 4,000 serious truck crashes. In 

July 2000, a Tennessee State trooper was killed after a truck driver with a long history of severe obstructive sleep apnea, a condition 

in which people continue to wake during their sleep or sleep very 

lightly, collided with the officer’s patrol car and exploded on impact. And it wasn’t the first incident for which that truck driver 

was responsible. Three years earlier he blacked out at the wheel, 

striking and seriously injuring two Utah State troopers. By failing 

to report his history of sleep apnea to his doctor, the driver was 

able to obtain four consecutive medical certificates in that threeyear period. 

The National Transportation Safety Board has made eight specific recommendations to improve medical oversight of commercial 

drivers and Congress has given the Administration very specific 

mandates, but progress has been just about negligible. As the 

NTSB will testify today, the FMCSA’s commercial driver medical 

oversight system is no more robust or effective than it was nearly 

10 years ago. 

One of the Safety Board’s recommendations in 2001 was to establish a system in which critical medical information—such as this 

particular truck driver’s sleep apnea condition—would be available 

to examiners who are performing DOT medical exams, yet no 

progress has been made on that recommendation. 

Another area of failure to make progress is helping in the detection of fraudulent medical certificates. Our Nation’s highest safety 

authority, the NTSB, has criticized the medical certificate form because it is not a controlled document; it has no standard format; 

it can, and often is, freely reproduced. A dishonest driver can easily 

download the form from FMCSA’s Web site and fill it out himself. 

3 

That is not the way it is supposed to be done. There is no mechanism in existence today for inspectors to verify the authenticity of 

a driver’s card. 

We are releasing a report today prepared by Committee staff, in 

very great detail, reviewing the issue of invalid medical cards. Last 

year, by way of background, the Committee staff collected some 600 

medical cards from drivers at truck weigh stations and they attempted to verify with medical examiners who issued the cards, or 

allegedly issued the cards in some cases. The report documents 30 

cases, 5 percent of the sample, where either the medical examiner 

didn’t exist or the medical examiner indicated that the signature 

of that person had been forged or changed, adulterated. And I enter 

that report into the Committee hearing record. 

The FMCSA efforts to address NTSB’s recommendation have 

been grudging and painstakingly slow. The legislation mandated 

that FMCSA merge drivers’ medical information with the commercial driver license data system. Not too hard to do. Should have 

been done within a year 10 years ago. No final rule. 

Last year, Administrator Hill appeared before the Committee in 

July, told the Committee that they were in the process of ‘‘finalizing the final rule.’’ Well, I hope Ms. McMurray can provide a 

more realistic time line for that final rule. It is over a year. Why 

should it take so long? And one in which we will hold the Administration accountable. 

Interest in creating a registry of certified medical examiners 

dates back to at least my third term in Congress, when NHTSA 

commissioned a feasibility study on this issue. In 2005, the current 

transportation law, SAFETEA-LU, established a mandate for the 

Motor Carrier Safety Administration to create a national registry 

of certified medical examiners. They are still studying and researching the issue. They have had 40 years to study and research 

this issue, going back to its predecessor organization. We need action. Because there is no such registry, there are untrained and untested examiners conducting these medical exams. 

The GAO released a report revealing results of the work that 

Chairman DeFazio and I requested on the medical certification 

process for drivers with serious medical conditions. It provides 

some very sobering—I would say even shocking—examples of what 

can happen when examiners aren’t up to speed on the medical requirements of the Motor Carrier Safety Administration, and we 

will hear more about that from Mr. Kutz. 

I want to say a good word for the trucking industry. They have 

opened their doors. They have employed persons with illnesses and 

disabilities. They have been welcoming. They have worked with 

people in all stages of physical conditions. If we allowed only those 

people with good health to drive, maybe we would solve most of our 

highway problems on congestion and safety, but we must make 

those allowances in a way that doesn’t compromise public safety. 

There are too many shortcomings, defects, omissions, failures in 

the FMCSA medical certification program to protect the traveling 

public adequately, and I look forward to hearing the testimony 

today on those issues. 

I am happy to yield to the distinguished gentleman from Tennessee, Mr. Duncan. 

4 

Mr. DUNCAN. Well, thank you very much, Mr. Chairman. I too 

want to welcome the witnesses to the hearing today, but first I 

want to congratulate you on a big week, the passage of two very 

important bills, the Aviation Safety Bill and, of course, just a few 

minutes ago the Bridge Bill, two very fine bills. 

I have always been very proud to serve on this Committee, and 

I think just about every week something really significant goes on 

in this hearing room, frequently on the Floor of the House. In fact, 

in 1990 and again in 1994, I was given an opportunity to move to 

two other very important Committees, and I think some people 

were surprised that I didn’t, but I have always enjoyed service on 

this Committee, and one of the reasons that I respect this Committee so much is because of my great respect for you. 

But this hearing today, I apologize to the witnesses also because 

it has been delayed so long, but as the Chairman has always emphasized, safety is the highest priority of this Committee in all of 

the fields with which we deal. Of course, common sense tells you 

that a commercial driver’s health and physical condition is very, 

very important and may significantly impact not only his or her 

ability to drive safely, but other people, of course, other men, 

women, and children on the highways. 

There are 715,619 commercial motor carriers registered by the 

Federal Motor Carrier Safety Administration. Unfortunately, a couple months ago we heard from the American Trucking Association 

that 935 trucking companies had gone out of business in just the 

first quarter of this year. And that survey only counted trucking 

companies with five trucks or more. But, at any rate, this translates to more than 4 million individuals who hold commercial driver’s licenses. 

While States issue these CDLs, FMCSA is charged with regulating the safety of all commercial motor vehicles engaging in interstate commerce. Under this charge, FMCSA is responsible for 

issuing the medical qualification standards for commercial vehicle 

drivers. 

In 2001, following a very tragic motorcoach accident in Louisiana, the National Transportation Safety Board made eight recommendations to prevent medically unqualified drivers from operating these commercial vehicles. FMCSA has a number of initiatives underway to address these recommendations and improve 

medical oversight of commercial drivers, and I think we will hear 

a little bit about the progress that has been made on those recommendations. 

Additionally, the GAO has recently released a report on an investigation in which the GAO investigators targeted 15 extreme cases 

where CDL holders were not receiving appropriate medical oversight. This report could possibly be seen by some to imply a broader problem in the CDL population, but, in fact, the report makes 

it clear that these 15 cases are not representative of the commercial driver population or individuals receiving medical disability 

benefits. 

In fact, like Chairman Oberstar, I will say a good word for our 

trucking industry. It is the best in the world overall and there is 

tremendous pressure and incentive on trucking companies to hire 

good, safe, healthy drivers because, of course, they can have major 

5 

lawsuits if they didn’t. But even though we have the best trucking 

industry and the best transportation system in the entire world, 

you always, every individual and every company should always be 

trying to improve and make things better. 

So I think that is part of what this hearing is about and I look 

forward to hearing the testimony of the witnesses. Thank you. 

Mr. OBERSTAR. I greatly appreciate the gentleman’s thoughtful 

comments and I return the compliment. The gentleman from Tennessee served as a judge before election to Congress and has conducted himself with judicial demeanor in all the undertakings of 

the Committee, and I have no greater respect than for the time he 

served as the Chair of the Aviation Subcommittee at the turning 

point of majority from Democrats to Republicans, and the gentleman from Tennessee conducted the work of the Committee in a 

most distinguished and productive and effective manner, and we 

are grateful to him for his service. 

Mr. Coble. 

Mr. COBLE. Thank you, Mr. Chairman. I won’t take the entire 

five minutes. I want to reiterate what you and the gentleman from 

Tennessee said, indicating that safety is the utmost importance on 

our Nation’s roadways, and many of us have said repeatedly it is 

and should remain our top priority. 

And not unlike the Chairman and the Ranking Member, I want 

to commend our witnesses for your durable patience while you 

have been waiting for us to come back. 

At the same time, however, I do have some thoughts I would like 

to share regarding the topics before us today, Mr. Chairman. 

This GAO report focuses on persons who fraudulently obtained a 

commercial driver’s license, CDL, while also receiving various 

forms of disability benefits. That said, I think it is equally important that we acknowledge those with medical conditions who have 

obtained a CDL by following the letter of the law. 

Generally speaking, Mr. Chairman, it is my belief that the determination of a person’s medical fitness and ability to obtain a CDL 

should be made on a case by case basis. In addition to maintaining 

equality for those who do have medical impairments, this also ensures safety, because those who have knowledge and expertise to 

determine if a person can safely operate a CDL vehicle are consulted. 

Further, I would like to simply state that I disagree with the notion that a blanket ban should be enacted on various medical conditions. I do so because I believe these decisions should be based 

upon an individual’s medical condition as determined by qualified 

medical providers. 

I would like the record to note that I don’t condone the actions 

of those who have abused or committed fraudulent acts to circumvent the medical review process. Clearly, there are loopholes 

that should be closed to prevent these types of occurrences the 

GAO report identifies. At the same time, Mr. Chairman, I believe 

we should also focus on ensuring that the medical review process 

is thorough, diligent, and stringent so that it will provide clear and 

concise parameters to ensure safety on our Nation’s highways. 

6 

I thank you, Mr. Chairman and the gentleman from Tennessee, 

for having called this hearing. I think it is of the utmost importance, and I yield back. 

Mr. OBERSTAR. I thank the gentleman from North Carolina. He 

knows whereof he speaks about safety, having served in the U.S. 

Coast Guard, our preeminent maritime safety agency. 

Before we proceed with witnesses, I want to welcome to the hearing our newest Member, making Ms. Richardson feel better. She 

was our newest Member until just now, when Congresswoman 

Donna Edwards of Fort Washington, Maryland, was elected in 

June and assigned to our Committee. 

She is one of six children born to a military family, received an 

undergraduate degree from Wake Forest University. She was one 

of six African-American women in her graduating class. Received 

a law degree from Franklin Pierce Law Center in New Hampshire, 

where she also became a mother. Before election to office, she was 

the Co-founder and Executive Director of the National Network to 

End Domestic Violence, where she earned national recognition for 

efforts leading the fight to help pass the Violence Against Women 

Act of 1994. 

My middle daughter, Annie, would very particularly appreciate 

and I am going to send her your bio. She worked in a program on 

violence against women and defended women from domestic violence. She worked on the Campaign Finance Reforms for Public 

Citizen and Center for New Democracy. 

Welcome to the Committee. The gentlewoman is recognized. 

Ms. EDWARDS. Thank you, Mr. Chairman. Thank you. I appreciate being here and I am looking forward to serving with you. 

Mr. OBERSTAR. Since this is an oversight hearing, we will ask 

witnesses to rise. Raise your right hand. Do you solemnly swear 

the testimony you will give before this Committee in matters now 

under consideration will be the truth, the whole truth, and nothing 

but the truth, so help you God? 

[Witnesses answer in the affirmative.] 

Mr. OBERSTAR. You are sworn in. 

We will begin with Mr. Garber, Medical Officer for the National 

Transportation Safety Board. Dr. Garber, excuse me. 

TESTIMONY OF MITCHELL A. GARBER, M.D., M.P.H., M.S.M.E., 

MEDICAL OFFICER, NATIONAL TRANSPORTATION SAFETY 

BOARD; GREG KUTZ, MANAGING DIRECTOR, FORENSIC AUDITS AND SPECIAL INVESTIGATIONS, GOVERNMENT ACCOUNTABILITY OFFICE; ROSE MCMURRAY, CHIEF SAFETY 

OFFICER AND ASSISTANT ADMINISTRATOR, FEDERAL 

MOTOR CARRIER SAFETY ADMINISTRATION 

Dr. GARBER. Good afternoon, Chairman Oberstar, Ranking Member Duncan, and Members of the Committee. Thank you for allowing me the opportunity to present testimony on behalf of the National Transportation Safety Board regarding improving medical 

oversight of commercial drivers. It is a privilege to represent an 

agency that is dedicated to the safety of the traveling public. 

In May 1999, on Mother’s Day, in New Orleans, a commercial 

driver lost consciousness while driving a motorcoach on an interstate highway, left the roadway, and crashed into an embankment, 

7 

killing 22 passengers and seriously injuring the driver and 15 additional passengers. The driver was found to have multiple known serious medical conditions, including kidney failure and congestive 

heart failure, and was receiving intravenous therapy for three to 

four hours a day, six days a week. 

The Board has investigated many other accidents involving commercial drivers with very serious preexisting medical conditions 

that had not been adequately evaluated. Just a few examples of 

these include a nearly blind school bus driver in Montana who apparently did not see an oncoming train that struck the bus and 

killed two students; a New York City transit bus driver with a seizure history who had a seizure while driving the bus, seriously injuring a cyclist and killing a pedestrian; a tractor trailer driver 

with unevaluated sleep apnea and untreated thyroid disease who 

ran over and killed a Tennessee State trooper driving in his highway patrol vehicle with lights flashing; and an alcohol-dependent 

tractor trailer driver whose excessive speed resulted in a load 

breaking free and striking a school activity bus in North Carolina, 

killing the school bus driver and a child. 

The Safety Board is not surprised by the findings of the General 

Accountability Office study. Their findings mirror our own. It is important to note that the Board does not maintain statistics that 

would allow us to estimate the overall prevalence of such conditions in accident-involved populations or in the general driver population, butI can tell you that it is actually unusual in our accident 

investigations to find a commercial driver for whom there are not 

at least some questions regarding medical certification. This is not 

to say that the drivers’ conditions always cause the accident, but 

finding these undocumented and unevaluated conditions in commercial drivers is concerning and often alarming. In many cases 

these conditions, if they had been appropriately evaluated, treated, 

and monitored, would not prevent the safe operation of a commercial vehicle. Unfortunately, for a variety of reasons, no such evaluation, treatment, or monitoring occurred in many of the cases we investigated. 

As a result of observing serious deficiencies in the oversight of 

commercial driver medical certification in several of our investigations, the Safety Board issued recommendations to the FMCSA in 

2001 to develop a comprehensive medical oversight program for 

interstate commercial drivers. The Board suggested that such a 

program include qualified and properly educated examiners, updated and available regulatory and non-regulatory guidance, review and tracking of medical exams, improved enforcement of certification requirements, and appropriate mechanisms for reporting 

unfit drivers. 

The Board’s recommendations specify a comprehensive oversight 

program because we feel that only by addressing this issue in a 

systematic fashion can a truly effective program of oversight be developed. A piecemeal approach to the problem may result in gaping 

deficiencies that will continue to permit unqualified drivers to operate on our Nation’s highways. 

In 2003, because of the critical importance of this issue and the 

lack of substantive progress on the recommendations, this issue 

was placed on the Board’s Most Wanted List of Transportation 

8 

Safety Improvements, and it has remained there ever since. Although the FMCSA has put in place a Medical Review Board and 

taken certain other preliminary actions in response to congressional mandates, there are still areas in which absolutely no measurable progress has been made. The system is no more robust now 

than when the New Orleans accident occurred nearly 10 years ago. 

The majority of recommendations in this area are currently classified as ‘‘open—unacceptable response,’’ and the current classification of the entire issue area is considered to represent overall unacceptable progress. To paraphrase a previous Safety Board Chairman, it is not that the current system is broken so much as that 

no viable system of medical oversight of commercial drivers currently exists. That is as true now as it was when the recommendations were issued. The FMCSA does seem to be making limited 

progress towards the type of comprehensive oversight system envisioned by the Safety Board, but it remains to be seen whether such 

a system will in fact be completely developed. 

This concludes my prepared statement, and I will be happy to 

answer any questions. 

Mr. OBERSTAR. Thank you very much, Dr. Garber, for your statement and for the very thorough work that NTSB has done, as 

usual, on this entity. I hold the NTSB in the highest regard and 

always have for its superb contribution to safety. 

For GAO, Mr. Kutz. 

Mr. KUTZ. Mr. Chairman and Members of the Committee, thank 

you for the opportunity to discuss commercial drivers. 

In May of 2005, a truck collided with an SUV in Kansas, killing 

a mother and her 10-month-old baby. The driver had not disclosed 

his severe sleep apnea condition to the physician that issued the 

medical certificate. Today’s testimony highlights our investigation 

of commercial drivers with serious medical conditions. My testimony has two parts: first, I will discuss our macro analysis of driver data and, second, I will discuss several cases that we investigated. 

First, we performed data mining of drivers receiving full Federal 

disability benefits. We fully support individuals with serious medical conditions, including our wounded warriors, receiving the 

training and certifications necessary to safely operate commercial 

vehicles. 

However, some medical conditions can and should disqualify an 

individual from driving. As shown on the monitor, we found that 

563,000 individuals with licenses were receiving full Federal disability benefits. Recognizing that some of these licenses were inactive, we performed additional analysis for 12 States. For these 

States, we found that 85,000 individuals had their licenses issued 

after their 100 percent Federal disability determination. Because a 

determination of medical fitness is subjective, it is impossible to 

conclude how many of these drivers should not be on the road. 

However, because they are receiving full disability benefits, it is 

likely that their medical conditions are severe. 

Second, to put a face on this issue, we investigated 15 cases from 

our overall data mining results. For these cases we found that careful medical examinations did not occur. The following three themes 

help explain why medically unfit drivers are on the road. 

9 

First, self-certification. Twenty-five States allow drivers to selfcertify their medical status. Unfortunately, as our case studies 

clearly show, people lie. The monitor shows an example of an application for Michigan. As you can see, the only evidence necessary to 

support medical fitness is a check mark in the yes box. 

Second, we found inadequate medical examinations. For example, 

one driver was certified even though his deafness should have disqualified him. And, third, we found fraudulent documentation. We 

found cases where drivers had forged the medical examiner’s signatures. 

The following cases highlight these themes. First, a Virginia bus 

driver with multiple sclerosis was driving without a medical certification. This driver was cited as being responsible for a three vehicle accident that injured 16 individuals. A Florida driver with multiple sclerosis and fatigue had no medical certification. She told us 

that she drives a truck hauling circus equipment to shows. 

A Florida bus driver with breathing problems told us that he occasionally blacks out and forgets things. He also was driving with 

no medical certification. A Minnesota driver prescribed anti-seizure 

medication which, according to DOT guidance, disqualifies him, 

was incorrectly certified. The driver told us that he had agreed 

with the medical examiner that he would not operate a commercial 

vehicle if he felt loopy. And, finally, a Maryland bus driver with serious heart disease forged the medical certification that you see on 

the monitor. The medical examiner whose name was forged told us 

that this individual was not medically fit to drive. 

In conclusion, nobody knows the extent of medically unfit commercial drivers. However, our investigation provides an inside look 

at how individuals that should not be on the road can beat the current system. These drivers pose a risk not only to themselves, but 

to the traveling public. 

Mr. Chairman, this ends my statement. I look forward to your 

questions. 

Mr. OBERSTAR. Thank you very much for your statement and for 

the complete documentation from GAO, which is, to me, shocking, 

revealing, compelling. 

Ms. McMurray for FMCSA. Welcome. 

Ms. MCMURRAY. Thank you. Chairman Oberstar and Members of 

the Committee, thank you for the opportunity to discuss the Federal Motor Carrier Safety Administration’s medical program and to 

highlight the agency’s progress toward improving oversight of the 

medical certification process for commercial motor vehicle drivers. 

FMCSA is pursuing initiatives to strengthen this program which 

will enable us to further engage the diverse community that examines drivers for medical fitness for duty. 

FMCSA recognizes the challenges of ensuring that the more than 

6 million commercial truck and bus drivers are qualified medically 

to operate safely in interstate commerce. The sheer size of this 

driver population will require thousands of certified medical examiners to evaluate drivers for their fitness for duty. 

Many of you have seen the news this week and may be troubled 

by reports of medically unfit drivers, images of crashes resulting 

from drivers with health problems, and a system too overwhelmed 

and outmoded to keep up with the volume. I would like to assure 

10 

you and this Committee that FMCSA’s medical program is focused 

on identifying and promoting effective program measures that will 

make America’s roadways safer. 

We acknowledge that improvements can and must be made to 

our program. The agency actively engages with the medical community, drivers, States, and trucking and bus companies to create 

a sound medical certification process. As we move forward with our 

proposed rules and with our other program changes, we will continue to work with our stakeholders to develop a fair, science-based 

medical oversight program. 

In the past several years, FMCSA has worked closely with the 

National Transportation Safety Board to address its medical recommendations. Four of the NTSB’s eight most wanted recommendations directed to us will be addressed when the agency 

implements the medical certification and the national registry 

rules. These two rules, currently under review within the department, are expected to be released in the next several months and 

will form the cornerstone of FMCSA’s improved medical program. 

The remaining four recommendations will be addressed in part not 

only by these proposed rules, but as well by other medical program 

initiatives underway or in the planning stages. 

In addition, Mr. Chairman, in its report released this week, the 

Government Accountability Office pointed to case studies where 

drivers were able to receive commercial driver’s licenses while 

avoiding or subverting the medical certification process. While not 

wanting to address certain limitations of the report in this statement, FMCSA is concerned about the implication that the cases 

GAO cites are indicative of the problems encountered among the 

whole of the regulated driver population. 

As with all of our programs, we have evaluated the medical program and where we found deficiencies are addressing them. For instance, in the past, FMCSA had a limited communication strategy 

with the medical examiner community. Also, we had insufficient 

clinical expertise to help direct our medical program. 

In the last several years, the agency has partnered aggressively 

with the medical community, engaging it in the first national study 

of commercial driver medical examiners. This effort will support 

the development of a national education and training program. Additionally, we have hired prominent doctors and nurses with occupational medicine specialties to advise the agency and we have improved our capability to provide information to the public by using 

web-based and other forms of communication to interact with hundreds of drivers and health care professionals. 

FMCSA’s enforcement program, conducted with our State and 

local partners, is supported by conducting compliance reviews and 

roadside inspections of drivers and vehicles. These inspections and 

compliance reviews provide important information on driver and 

carrier adherence to the Federal Motor Carrier Safety regulations 

and our medical program. The agency uses these inspections and 

reviews to better focus our enforcement assets and our medical certification oversight. 

SAFETEA-LU provided the agency with expanded authorities for 

our medical program. We established the Department of Transportation’s first statutorily mandated medical review board, which adVerDate Aug 31 2005 11:40 Jun 15, 2009 Jkt 000000 PO 00000 Frm 00020 Fmt 6633 Sfmt 6633 P:\DOCS\43799 JASON
11 

vises the agency on the medical adequacy of our existing standards. 

From a nationwide pool of applicants, the agency selected five highly qualified physicians representing different medical specialties to 

perform this work. Over the past several months, these physicians 

have made significant science-based recommendations on how to 

improve our current body of medical standards. FMCSA values the 

work of the Board in helping us strengthen our commercial driver 

medical standards. 

Mr. Chairman, we expect the driver medical certification process 

to increase in complexity in the coming years. We are committed 

to establishing and maintaining effective medical standards based 

on the best available scientific evidence. The agency works hard to 

ensure that drivers operating trucks and buses in interstate commerce do so safely. As priorities change and our Nation’s transportation needs evolve, FMCSA seeks to balance the desire for commercial drivers to work without compromising their safety and that 

of the traveling public. 

Thank you for the opportunity to testify today about this important issue. I would be happy to respond to any questions you might 

have. 

Mr. OBERSTAR. Thank you for your testimony. 

Dr. Garber, what is the level of compliance by FMCSA, Federal 

Motor Carrier Safety Administration, with recommendations from 

the Board? The Board rates various agencies, has done for many 

years on a percentage of compliance. What is their percent of compliance? 

Dr. GARBER. With regard to the recommendations on medical certification and oversight, the majority of those recommendations 

have been in an unacceptable status since we initially received a 

response from FMCSA. The entire issue area is in an unacceptable 

status as per our most wanted list review on an annual basis. 

Mr. OBERSTAR. And how does that compare with the other modal 

administrations? You may not be able to answer that question 

right off the top of your head. 

Dr. GARBER. It would be difficult to make that comparison because it would depend on the issue areas that we were discussing. 

We can certainly provide you that information in written form. 

Mr. OBERSTAR. I have followed this matter for 30-plus years, in 

fact, longer than that, 1967, when the Department of Transportation was created and the Board was created, and in 1970 when 

we moved it out of the Department of Transportation, established 

as an independent Safety Board, and I think this would rank 

among the lowest, if not the lowest, in compliance with Board recommendations. 

Dr. GARBER. Mr. Chairman, our overall compliance rate runs between 80 and 90 percent. So as a comparison with our overall compliance rate, yes, this would be one of the lower rankings in comparison to that. 

Mr. OBERSTAR. And you have listed eight issues, and I think they 

are reasonable ones, they are reasonable targets to achieve. They 

all come into a general category of comprehensive medical oversight. What has been the reaction from FMCSA to Board recommendations on those eight issues? 

12 

Dr. GARBER. In general, the reaction has been positive in that 

they have agreed that action is necessary. What the Board has 

been challenged by is the failure to observe any actual changes in 

the system as it exists and by the repeated dates and targets that 

have passed for the completion of certain aspects of their responses 

to these recommendations. 

Mr. OBERSTAR. I know when the Board deals with the FAA you 

constantly remind the agency of their need to comply. Have you 

done the same with FMCSA? 

Dr. GARBER. Certainly on an annual basis. This is reviewed every 

November at our Most Wanted annual meeting on Federal issues 

that have reached that list. In each case prior to that meeting we 

have requested updates from the agency as to their progress, and 

in each case the Board has been unsatisfied with the progress that 

we have seen. 

Mr. OBERSTAR. And that has been done at the Board level, Board 

members and with the participation of the chairman. 

Dr. GARBER. That is correct, in public meetings. 

Mr. OBERSTAR. Are you dismayed by the response? 

Dr. GARBER. I think it would be correct to say that the Board 

Members have consistently expressed their dissatisfaction with the 

responses that have been received. 

Mr. OBERSTAR. How many of the tragedies listed—Buffalo; Central Bridge, New York; Jackson, Tennessee; Bay St. Louis, Mississippi; home of one of the Members of our Committee, Mr. Taylor; 

North Hudson, New York; Franklin, North Carolina; New York 

City—how many of those have actually been a subject of a Board 

investigation? 

Dr. GARBER. In each of those cases the Board has done an investigation of the accident. 

Mr. OBERSTAR. In all of them. So you have verified all of the 

facts listed in the chart on page 1 and 2 of your testimony, correct? 

Dr. GARBER. That is correct, sir. 

Mr. OBERSTAR. And all those involved fatalities. One did not involve a fatality, but serious critical injuries. Where there are fatalities, isn’t that a matter of highest interest of the Board, highest urgency for action? 

Dr. GARBER. Certainly, when we see accidents involving multiple 

fatalities, we do complete investigations, and those are the ones 

that often stimulate some of our most critical recommendations. 

Mr. OBERSTAR. Thank you. 

Mr. Kutz, your work resulted in some charts for examinations by 

category of medical profession, medical examiner types by collection 

State. Excuse me, you have it in your possession; our staff developed those charts. Is it appropriate for a doctor of chiropractic 

without pharmacology training to be certifying as a medical examiner? 

Mr. KUTZ. I can’t answer that question. I would defer to Mr. 

Garber on that. 

Mr. OBERSTAR. Dr. Garber? 

Dr. GARBER. Yes, the Board has actually, in its reports, identified 

this as a potential deficiency of the current program. Doctors of 

chiropractic, while they may be quite well trained and versed in 

those issues where they normally practice, do not practice the disVerDate Aug 31 2005 11:40 Jun 15, 2009 Jkt 000000 PO 00000 Frm 00022 Fmt 6633 Sfmt 6633 P:\DOCS\43799 JASON
13 

pensing of medications. As a result, the evaluation of an individual 

who is on medications may be inappropriate for an individual who 

has no training in evaluating such medications. 

Mr. OBERSTAR. And advanced practice nurses, that is a matter 

for each State to certify, isn’t it? A State can certify an APN to do 

medical exams within a certain category, is that correct? 

Dr. GARBER. That is correct. In each case the States are the ones 

that will make certifications as to the scope of practice for each of 

these particular subspecialties or subgroups of medical practitioners. 

Mr. OBERSTAR. Is an APN likely to detect the conditions that 

were cited, say, in NTSB investigations or in the GAO—Social Security disability benefits, aneurism of aorta, valvular heart disease, 

chronic obstructive pulmonary disorders? Is that something that an 

APN is likely to uncover? 

Dr. GARBER. In many cases, the use of physician extenders, 

APNs or PAs, is limited to clinical observation and evaluation. 

They may, in certain circumstances, have prescriptive authority, 

they may have ability to do some limited diagnosis. Certainly, their 

training is not the same as those received by physicians, MDs or 

DOs. 

Mr. OBERSTAR. Ms. McMurray, is it within the competence of 

FMCSA to raise the standards to specify which category of provider 

is appropriate to conduct a medical examination and certify? 

Ms. MCMURRAY. Chairman Oberstar, we rely on the State licensing boards, individual State licensing boards to determine the scope 

of practice—— 

Mr. OBERSTAR. That is not my question. The question is is it 

within the competence of FMCSA to set standards? 

Ms. MCMURRAY. To set the standards for the medical examiners, 

sir? 

Mr. OBERSTAR. Yes. 

Ms. MCMURRAY. It is within our competence to establish the 

medical standards and to provide the protocol—— 

Mr. OBERSTAR. And what you have established is to accept State 

licensing organizations, is that right? 

Ms. MCMURRAY. Yes, if a State licensing agency certifies that 

health practitioners can conduct physical examinations and can 

apply our medical protocols, we accept the certification of the 

States of that capability. 

Mr. OBERSTAR. Well, it seems to me you should be in the basis 

of raising, not complying or being complicit with States. 

Mr. Kutz, you said 25 States allow drivers to self-certify? 

Mr. KUTZ. That is correct. Pretty much checking a yes box on the 

application of their medical status. 

Mr. OBERSTAR. Do you remember the hearing we had last year 

in this Committee, in this Committee room, on the Coast Guard’s 

Deepwater program for extension of surface cutters from 110 to 123 

feet and the self-certification that was permitted by the Coast 

Guard for Lockheed Martin and Grumman Boat Division and the 

Shipyard? 

Mr. KUTZ. I am not familiar with that, no. 

Mr. OBERSTAR. You might ask your colleagues about that. It was 

a disaster. It shouldn’t be allowed. 

14 

I withhold further questions and yield to the gentlemen from 

Tennessee, our Ranking Member. 

Mr. DUNCAN. Thank you very much, Mr. Chairman. 

Dr. Garber, I know that everything looks easy from a distance, 

but the accident that led or helped lead to these eight recommendations I understand took place in 1999 and that you or the NTSB 

came out with your recommendations in 2001. Now, I have been 

told that there has been some progress made, but why do you think 

there has been apparently what you consider unacceptable or very 

little progress? Have you been told that any of those recommendations are impossible or extremely difficult, or they disagree with 

portions of them? What is the situation there, in your opinion? 

Dr. GARBER. The Board recognizes that we are asking for a lot. 

This is the establishment of a comprehensive system where none 

really previously has existed. The concern that the Board Members 

have previously expressed on this issue is that the progress has not 

been measurable, that only a single NPRM has been issued over 

that period of time and that another has been promised. The Board 

is concerned that that seems to be a long time simply to issue notifications of proposed rulemaking, rather than to get to actual rules 

or to at least issue more than one notice of proposed rulemaking 

on an issue that the Administration itself has established a high 

priority for. 

Mr. DUNCAN. All right, thank you. On the first page of your testimony, you say the Safety Board has investigated many other accidents involving commercial drivers with very serious preexisting 

medical conditions. Then on the next page you say the Safety 

Board, of course, investigates only a limited number of highway accidents. Then you say, but I can tell you that it is actually unusual 

in our accident investigations to find a commercial driver for whom 

there are not at least some questions regarding medical certification. 

How many highway accidents have you investigated, let’s say, in 

the last 10 years or 5 years, or how many do you typically investigate in a year’s time? I mean, I am trying to figure out is it many 

or is it few? It seems a little bit of discrepancy there. 

Dr. GARBER. We investigate about 40 accidents a year, and about 

5 of those are investigated in substantial detail. The point of that 

phrase in the testimony is just to note that in many cases we have 

to do a fair amount of investigation to determine that in fact a 

medical condition was contributory or was present in a driver. In 

many cases, that information is not available to someone who does 

a less thorough investigation, such as may happen on the State 

level. It is thus very difficult to get data on exactly how many accidents may be caused by or contributed to medical conditions. 

Mr. DUNCAN. But I assume that you feel like you have at least 

investigated enough accidents thoroughly to feel comfortable with 

your recommendations and feel comfortable with your testimony 

here today. 

Dr. GARBER. That is correct, sir. And, really, as stated, the issue 

is that even when we investigate accidents for reasons other than 

driver error or when we are looking at accidents to determine the 

crashworthiness of buses, for example, we find in many of those 

cases very concerning conditions in the drivers—conditions that 

15 

really under no circumstances should have been allowed to persist 

without additional evaluation and/or treatment. 

Mr. DUNCAN. One of your recommendations is for FMCSA to create a mechanism for reporting medical conditions in between examinations. Do you think this would be difficult to implement or 

put into effect? 

Dr. GARBER. Actually, this is one of the concerns that the Board 

has previously expressed, and is one of the simpler recommendations to put into effect—to simply identify a reporting mechanism 

by which individuals who had been identified could be reported to 

appropriate authorities. That is one of the ones where we have 

seen no action at all from the FMCSA. 

Mr. DUNCAN. Why, if it is so simple and easy to do, do you think 

there has not been any progress made on it? 

Dr. GARBER. I think that would be a question for the FMCSA, 

sir. 

Mr. DUNCAN. Okay. 

All right, Mr. Kutz, this sounds like a shocking number, 563,000 

individuals issued CDLs who were receiving full medical disability 

benefits. I am not sure I really understood the slide that was put 

up about your statistics. Could we flash that back up there? Especially the 63 percent figure. It says you have got 563,000, then you 

have got the 85,000, and that is not 63 percent of the 563,000. 

Mr. KUTZ. Right, it is 63 percent of the State information. Because we weren’t sure whether all the licenses were active—many 

licenses were inactive—we got from the States the active licenses. 

So for the 12 States we got active licenses for, there were 135,000 

hits, if you will. Of those, 63 percent of the individuals received 

their CDL after the Federal Government had made a 100 percent 

disability determination for that person. Because you could have a 

situation where someone was—the opposite happened, where you 

actually had the disability afterwards. So, actually, the disability 

determination was before in this case. 

Mr. DUNCAN. So you are not really sure exactly how many of the 

563,000 are active at this point? 

Mr. KUTZ. That is correct, because we got data from about 42 

percent of the licenses there. 

Mr. DUNCAN. How many people did you interview altogether? 

Mr. KUTZ. Thirty or 40 cases. So there were other cases that 

were very suspicious. The ones we reported on were the ones we 

could make a clear determination. As many of you have said, there 

is a lot of subjectivity involved. We did not have medical doctors 

in the field doing the investigations, we had criminal investigators 

doing them. 

So the cases we reported were the ones who were clear-cut, 

where the physician, for example, said, yes, I made a mistake in 

the certification, the person was deaf, I should not have certified, 

or the person had a limb that they had lost and they did not do 

a skills performance evaluation with DOT. Those were the clear-cut 

cases where the proper certification wasn’t done. 

Mr. DUNCAN. Were you limited pretty much to people that you 

suspected might be problem type cases? 

Mr. KUTZ. No, not necessarily. We had data mining for certain 

condition codes, certainly, that were more likely to be, but we 

16 

weren’t sure when we went out there. There were certainly some 

of the people—even of our 15 cases, some of those people may very 

well be properly certified if they had gone through a legitimate examination by a physician. 

Mr. DUNCAN. And do you think that your findings may be more 

indicative of fraud in securing Federal disability benefits, as opposed to a massive abuse of the medical qualification process? 

Mr. KUTZ. There were some of both. There were certainly indications of beneficiary fraud, individuals who were receiving SSI, for 

example, that actually appeared to be working full-time, had their 

own businesses, etc. So certainly there is a large portion of beneficiary fraud in here. And one other thing we saw, Congressman, 

is also tax fraud. Many of these drivers were being paid cash, 

which, of course, then they don’t disclose for purposes of Federal 

benefits for their SSI, for example; and, of course, the companies 

probably aren’t paying payroll taxes, then, either. So you had other 

fraud issues that you saw with these cases. 

Mr. DUNCAN. Well, Ms. McMurray, I guess because I have spent 

so many years involved with minor league baseball and am still 

sort of a fan, I am sort of interested in statistics, and you heard 

me say, and I was told by the staff, that there are 4 million, roughly, commercial driver’s licenses, but you said in your testimony 

there are 6 million. That is a pretty big discrepancy to me and I 

just wonder why the difference there, or what the confusion is, or 

is there confusion? 

Ms. MCMURRAY. Well, in many cases, sir, there are CDL holders 

who do not operate in interstate commerce, and if you take the 

whole range of the number of drivers who do drive commercial vehicles, it approximates 6 to 7 million drivers. 

Mr. KUTZ. Congressman Duncan, if I could mention, in the appendix to our report we had gotten the active databases from 12 

of the States. For just those 12 States there were 4 million active 

licenses. So we know there are at least 4 million just based on 

those 12 States. 

Mr. DUNCAN. Good gosh. You mean 4 million in the 12 States? 

It seems like there is a lot of confusion about how many of these 

licenses there are. 

Ms. MCMURRAY. And if I might clarify, within that 6 million population of drivers, it includes non-CDL commercial motor vehicles 

between 10,000 and 26,000 pounds. So it is a little confusing, but 

we can certainly provide for the record a description of that to satisfy your interest in what the breakdowns are. 

Mr. DUNCAN. Could you describe for me or give me an example 

of a disabled driver who could be qualified to operate a large truck 

or bus? 

Ms. MCMURRAY. Yes, sir. When you look at the GAO report, you 

see examples of drivers who were identified in four different Federal databases as receiving disability benefits. But being disabled 

and being identified in those databases as fully disabled does not 

necessarily mean that these individuals cannot hold a valid commercial driver’s license. 

Now, I can give you an example of an individual who may be considered 100 percent disabled, but who nonetheless can safely operate a commercial motor vehicle. Multiple sclerosis, for example, is 

17 

a progressive disease where, in the early stages of a disease, the 

individual may be considered disabled in some definitions but can 

still operate safely a commercial vehicle. And as long as that individual is under our requirements to have medical review and come 

back and receive additional medical oversight by physicians and/or 

the medical examiner, we believe that this disabled individual 

should be able to hold a CDL ad to operate safely in interstate commerce. 

Mr. DUNCAN. Would it be fair to say that you do not believe that 

the GAO investigation presents an accurate picture of medically 

unfit drivers on the roads today? 

Ms. MCMURRAY. I do believe that the GAO has a very difficult 

job, and it is very important that Congress have this arm to be able 

to evaluate the efficacy of Federal programs. We do believe that 

this particular report, though, paints a picture that is not representative of the state of medical fitness for commercial drivers 

throughout the United States. I think we have talked to the GAO 

about questions we have with respect to the methodology they employed. 

We do believe it is very difficult to conclude, based on these 15 

case studies, the general condition of medical fitness for commercial drivers. So we have issues with respect to the findings in the 

report. We note that GAO did not, and very specifically went out 

of its way to conclude that they could not, offer conclusions and recommendations. We believe that there is more work to be done and 

that additional review and analysis of this problem might be more 

informative about the true state of commercial vehicle medical 

oversight in this Country. 

Mr. DUNCAN. Well, with all the millions of commercial drivers 

that there are out there, it is a pretty big project, I guess. At any 

rate, the staff has asked that I request for the record if the GAO 

would please submit the medical examination report forms or certificates; the medical records, including specialists’ evaluations, if 

available; and, thirdly, the list of diagnoses selected for the analysis and any detailed explanation of methodology not presented in 

the report. So we will give you a list of those, if you need it, Mr. 

Kutz. 

Thank you very much. 

Thank you, Mr. Chairman. 

Mr. OBERSTAR. Thank you for your very penetrating questions 

and comments. 

The distinguished Chair of the Surface Subcommittee, Mr. 

DeFazio. 

Mr. DEFAZIO. Thank you, Mr. Chairman. 

Ms. McMurray, I am having trouble. There are eight points that 

were made by the NTSB and you have a number of bullets, and 

they don’t exactly match up. As I understand it, according to 

NTSB, your proposed rule changes address four of their points. 

Which four don’t you address? Can you tell me that fairly quickly, 

or maybe NTSB can tell me which ones aren’t on the list? 

Ms. MCMURRAY. Yes, sir, I can. H-01-20—— 

Mr. DEFAZIO. Okay, let’s go slowly here. H-01-20, individuals 

performing examinations have specific guidance and a readily identifiable source of information? We are not addressing that one? 

18 

Ms. MCMURRAY. No, sir, not in the rules. 

Mr. DEFAZIO. Well, wait a minute. That seems awfully basic. 

How are the individuals doing the examinations going to know 

what qualifies or disqualifies someone from driving if they don’t 

have specific guidance and source of information? 

Ms. MCMURRAY. Well, we are talking about providing assistance 

and support to our medical examiners once they become part of our 

national registry effort, and we will be providing them the tools 

and the applicable protocols for interpreting the medical standards 

correctly, and to apply these guidelines in evaluating drivers who 

come before them for physical exams. 

Mr. DEFAZIO. Okay, having worked in rehab counseling and also, 

many years ago, in draft counseling, I am very familiar with how 

other agencies of government qualify and disqualify people; there 

is basically a book that has got qualifying and disqualifying conditions and parameters in it. You go through the military standards, 

and if you don’t meet all these standards, then you have got to 

have a waiver. 

If you look at Social Security disability, on which I did quite a 

bit of work, you have to be basically permanently and totally incapable of performing any substantial gainful employment; and 

that would seem to point kind of to truck driving as gainful with 

a commercial driver’s license. So then I wonder what standards you 

would be developing here that would hone in on that. 

But let’s move on. What others don’t you meet? Which others? 

Ms. MCMURRAY. Number eight, H-01-24, which we alluded to 

earlier with respect to reporting medical conditions to the medical 

certification and reviewing authority, and for evaluating conditions 

between medical exams. 

Mr. DEFAZIO. Well, since we have self-certification in a bunch of 

States, couldn’t we at least require self-reporting by drivers who 

feel they have developed a problem that may disqualify them? 

Ms. MCMURRAY. Well, this particular recommendation, Mr. 

DeFazio, as we look at this and as we look at building this infrastructure and these building blocks to establish this medical oversight system, we see this as an important additional enhancement 

down the road. Right now we have to establish the system, as Dr. 

Garber pointed out, which is currently not robust, and we are 

building all the pieces for a more effective medical oversight program. We would hope that eventually we can satisfy the intent of 

this recommendation, but we feel strongly that we need to establish the baseline national registry medical examiners that are certified to do these exams and then to add to this infrastructure by 

adding this particular attribute. 

Mr. DEFAZIO. You know, even if you did define my expectations 

and develop a system that would deal with many of the other problems we have heard from so far today, that would leave kind of a 

big gap between rigorous exams and reporting requirements on 

non-counterfeitable medical certificates linked to the commercial 

driver’s licenses but we would ignore any intervening conditions 

that cropped up. 

I don’t know why we wouldn’t kind of go for the whole thing all 

at once here. I am just struggling with this. We have a totally 

failed system now, and if we are going to build a new system, why 

19 

wouldn’t it be the system we want to have for the future dealing 

with all of the problems the existing system has and put it in 

place? Granted, that is a big job, but—have you looked at the FAA, 

the system for certifying pilots? 

Ms. MCMURRAY. Yes, sir, we did, in fact. We are always looking 

for opportunities to emulate the best practices of our sister agencies, and we have looked very specifically at the way the FAA has 

established its oversight program. Frankly, there are quite a number of differences, and primarily scope of oversight that we have to 

exercise and that of the FAA. 

Our program is roughly tenfold the size of the regulated population that the FAA has to cover. We have over 40,000 examiners; 

they have about 4800 airmen physicians able to conduct physical 

exams. There are a number of things that the FAA system would 

be very helpful for us to emulate. We are looking very closely at 

the way they monitor physical exams and we are looking at other 

aspects of their program that we think can be adapted to our program. But, by and large, because of the difference in size and the 

difference in need that we have for ensuring that commercial vehicles receive properly administered physical exams, that the FAA 

model, while illustrative, is not easily adaptable to our interests. 

Mr. DEFAZIO. Well, you have one critical and overwhelming similarity: both people are operating machinery that can kill, can either 

kill passengers, kill people on the ground, kill the operators. And 

we want to be certain that people aren’t flying planes and blacking 

out, as we have seen here from various conditions. I am not certain 

that—I realize the scope is bigger, but I don’t know that anything 

else should be different about it. Are you trying to get something 

here that is much less expensive for people to get certified, is that 

part of your objective here? Because I think an exam for a pilot is 

fairly expensive. 

Ms. MCMURRAY. Yes, I believe it is between $250 and $500, and 

we do have a different population. But having said that, we are 

committed to not compromising safety in the pursuit of that expense, and the standards that we have established currently for 

commercial vehicles are different than the standards that the FAA 

has established for pilots. 

Mr. DEFAZIO. Right. But you aren’t even meeting your own different standards at this point, with all the loopholes we have here. 

Ms. MCMURRAY. Well, again, as our medical review board examines the adequacy of our existing standards, we expect that we will 

be seriously looking at the recommendations that they offer. They 

are also looking at evidence reports that include the pilots and 

other transportation workers and the occupational demands of 

those occupations. 

Mr. DEFAZIO. When do you expect we will have a new system in 

place that will deal with at least these most egregious problems we 

have seen here—people driving without certification, expired certification, counterfeit certification, certification done by individuals 

who have no idea what they are certifying people for or how they 

should certify them? How about those four problems? When will we 

have a system in place that can deal with those four major problems? 

20 

Ms. MCMURRAY. Well, I am happy to report we are making 

progress. I know there has been some frustration offered by the 

Chairman about the delay in these two cornerstone rules of the 

merger of the medical certificate with the CDL drivers license, and 

we are very close to releasing our final rule on that. There have 

been delays. We have been as frustrated with some of the lack of 

progress in the completion of these rules in light of our other 

rulemakings that have taken priority and are very difficult rules 

to develop. Our national registry—— 

Mr. DEFAZIO. Do you need more resources in your agency to get 

this done on a more timely and expedited manner? 

Ms. MCMURRAY. Sir, we do have a significant regulatory workload and we do have a priority setting scheme that allows us to address these rules. They are very complex rules. 

Mr. DEFAZIO. Could they be done more quickly if you had greater 

resources? 

Ms. MCMURRAY. It is not a matter of resources as much as it is 

the expertise to apply to the problem-solving and the time necessary—— 

Mr. DEFAZIO. Well, maybe you need to hire some people with expertise. Again, if we could, I understand you are addressing the 

Chairman’s specific concern, but I raised a little more, I thought a 

simpler, sort of global concern, only listing what I saw as four of 

the biggest problems with the system today, and I was trying to 

ask for a general time line when you thought we would have in 

place a system to deal with those four problems. One year, two 

years, three years, five years, ten years? 

Ms. MCMURRAY. Again, I would say that we are further along 

than we have ever been and I would say that within the next three 

years we should see some tangible implementation of these programs, starting with phasing in of some of these requirements. 

Mr. DEFAZIO. Okay, thank you. 

Thank you, Mr. Chairman. 

Mr. OBERSTAR. The gentleman from North Carolina, Mr. Coble. 

Mr. COBLE. Thank you, Mr. Chairman. 

Good to have you all with us, folks. 

Dr. Garber, in my opening statement I touched on my belief that 

the decisions regarding CDL eligibility should be determined on a 

case-by-case basis after consultation with a qualified medical provider. What do you say to that? 

Dr. GARBER. I don’t think that we would have any disagreements 

so long as the individual that is making the determination is in 

fact qualified to do so. One of the concerns we have, and we have 

repeatedly expressed, is that many of the people who are doing 

them—even many of the physicians—apparently are not educated 

and qualified to do so. 

Mr. COBLE. And I used the word qualified, you remember. 

Dr. GARBER. Right. And we think that is a concern. It is certainly 

possible to do it with appropriate guidance. We don’t feel that it is 

appropriate for even a qualified individual to hang out a shingle 

and say, without any guidance whatsoever, I will make an independent estimate. 

Mr. COBLE. I concur with that. 

Mr. Kutz, what do you say to that? 

21 

Mr. KUTZ. I would agree with you, qualified, yes, case-by-case, 

because there are very many subjective factors. One condition can 

be a yes or a no depending on where they are. 

Mr. COBLE. Ms. McMurray? 

Ms. MCMURRAY. Yes, I agree, sir. 

Mr. COBLE. Let me put this question to each of you. 

Mr. Kutz, your testimony seems to imply that the diagnosis of a 

serious medical condition or the determination that someone is eligible for disability benefits are disqualifying events. Is diagnosis 

alone sufficient to disqualify a driver? 

Mr. KUTZ. No. 

Mr. COBLE. Ms. McMurray? 

Ms. MCMURRAY. No, sir. We need to look at the medical background. 

Mr. COBLE. I didn’t hear you, Ms. McMurray. 

Ms. MCMURRAY. I said no, it is not a necessarily disqualifying offense. We need to look at the individual’s medical history and current condition and current diagnosis. 

Mr. COBLE. Dr. Garber? 

Dr. GARBER. Sir, I think there are conditions for which it would 

be reasonable to assume that there would not be an appropriate 

qualification standard. An individual with an uncontrolled seizure 

disorder probably ought not be allowed to drive on the roads. That 

having been said, many of the conditions that we are discussing, 

as I stated, if appropriately evaluated, monitored and treated probably are consistent, or at least could be considered consistent with 

the safe operation of a commercial motor vehicle. 

Mr. COBLE. Thank you, sir. 

Ms. McMurray, does FMCSA have the resources necessary to ensure the viability of the medical review process so that those who 

do indeed follow the letter of the law have the opportunity to obtain a CDL license? 

Ms. MCMURRAY. Yes, sir. We have examined our program needs 

and we have projected what our needs will be to support these programs, and we believe we have adequate resources to carry out 

that mission. 

Mr. COBLE. I thank you all for your testimony. 

Mr. Chairman, I would like to submit additional questions for 

the record, if I may. 

Mr. OBERSTAR. Without objection, the questions will be referred 

to the witnesses and the responses to the Committee and distributed to the Members. 

Mr. COBLE. And I yield back, Mr. Chairman. 

Mr. OBERSTAR. I thank the gentleman for his questions. 

Mrs. Napolitano. 

Mrs. NAPOLITANO. Thank you, Mr. Chairman. I listened with 

great interest to the testimony, since my area has major truck traffic. The Alameda corridor goes through my whole district, so we 

have 25,000 trucks a day use the freeway, one of my freeways, I5, and another 22, the 60 and 40,000 605. So I have trucks all over. 

I have great concerns about the ability of forcing the implementation of the recommendations that have not been met, and I agree 

with my colleagues. You go around very nicely about the question 

of enough funding to be able to get qualified personnel to do the 

22 

job. If you were able to get that amount of money necessary to put 

qualified people on the job, could you do that job in, say, a year? 

Ms. MCMURRAY. We believe that—I am not sure I fully understand your question. 

Mrs. NAPOLITANO. Well, you stated you have other priorities that 

have been forced upon you by this Congress by law, by different entities. 

Ms. MCMURRAY. Yes, ma’am. 

Mrs. NAPOLITANO. My question is, in order to implement some of 

the recommendations, which are going to be critical to the safety 

of the people in this whole Country of ours, would it be possible to 

expedite the application of the recommendations and the enforcement, the medical doctors and ensuring those medical doctors are 

appropriately trained, that they are certified, whatever it takes, 

listed to be able to then also do the communication area so that if 

a California law enforcement officer stops a truck driver, that he 

can immediately tell. I would also suggest that we add mental 

health capability to some of that list. 

Ms. MCMURRAY. Yes, ma’am. In the development of these two 

major rules that I mentioned, the medical certification merger with 

the licensing function, and the national registry of certified medical 

examiners, we have calculated what the costs of implementation 

are. We have grant programs that are available to the States in 

order for them to implement these requirements because in many 

cases these are burdens on the States and we have offered them 

financial assistance to be able to make those changes. 

With respect to the training and curriculum development and the 

certification of the medical examiners, we have ample resources to 

carry out those initiatives and we are convinced that we have 

thought through very clearly what that training requirement is and 

what the requirements will be to implement those two rules. 

Mrs. NAPOLITANO. I still find it a little hard to be able to put it 

all together in my mind to be able to complete—how would I say?— 

compliance with those recommendations. Have you also taken into 

consideration truck traffic coming in both from Canada and Mexico, 

in terms of safety issues and applying the same standards? Because I don’t know that NAFTA allows us to do that anymore, since 

there have been the court findings that we must comply. Is this one 

of those other necessary steps that need to be taken with those 

drivers? 

Ms. MCMURRAY. Is your question, do Mexican and Canadian 

drivers have to meet medical standards that U.S. drivers have to 

meet? 

Mrs. NAPOLITANO. That is correct. 

Ms. MCMURRAY. Yes, they do. And they do this in concert with 

the licensing function in both those countries. 

Mrs. NAPOLITANO. But if it is not reviewed promptly, if there is 

no list that an enforcement officer can be able to check against, 

how is that going to be applicable? 

Ms. MCMURRAY. We have reciprocity agreements with these two 

countries, where we compare the comparability of the medical 

standards in Canada, the United States, and Mexico. So when a 

Canadian driver or a Mexican driver travels in the United States, 

the production of the CDL, the comparable commercial driver’s liVerDate Aug 31 2005 11:40 Jun 15, 2009 Jkt 000000 PO 00000 Frm 00032 Fmt 6633 Sfmt 6633 P:\DOCS\43799 JASON
23 

cense for the Canadian and the Mexican driver, that licensing function and that medical certification occurred at the licensing function. So when we do our CDL checks of those drivers, the driver’s 

license is equivalent to an affirmation that the medical examination was performed and that the driver has a valid medical certificate. 

Mrs. NAPOLITANO. My mind is racing and I am running out of 

time already. Is that indicated on the license itself, that they have 

an approved medical review and the date of expiration of that review? Would that be one of the things that you could think of 

doing? 

Ms. MCMURRAY. Yes. Again, when Canada and Mexico officials 

issue the comparable commercial driver’s license for their drivers, 

the medical certification process occurs at that licensing point, just 

as our medical CDL rule would propose that the U.S. CDL is equal 

to a medical certification. 

Mrs. NAPOLITANO. But there is a difference in the expiration of 

the driver’s license and the expiration date of the medical. 

Ms. MCMURRAY. Yes, ma’am. The foreign CDL license does have 

an expiration date, but the presentation of the license to the enforcement officer reveals or confirms that the medical exam on that 

driver was conducted. So the CDL is equivalent as is the affirmation that the driver has a valid medical certificate with the licensing originating office. 

Mrs. NAPOLITANO. I am sorry, Mr. Chairman, one more question, 

then I will be out of your hair. 

Do you check, as both Dr. Garber indicated, that the driver is 

currently licensed against Federal medical disability listing? 

Ms. MCMURRAY. No, we do not do that at this time. 

Mrs. NAPOLITANO. And the reason? 

Ms. MCMURRAY. Again, the person who is disabled, we have tests 

of whether the individual who presents himself to a medical examiner for a physical exam is able to safely operate a commercial 

motor vehicle. We do not check, at this time, whether this person 

is receiving disability benefits, because they have to pass the series 

of medical standards that we have set down for being issued a 

medical certificate. 

Mrs. NAPOLITANO. Well, wouldn’t it stand to reason that you 

should do some audits at one time or another to see if there is some 

fraud? And then, again, what do you do with those that you find 

have committed fraud? Who do you refer them to? Are they prosecuted, to send a message? 

Ms. MCMURRAY. Yes, we have a very aggressive enforcement program. We have, last year, performed over 3.5 million roadside inspections. That detection can occur at the roadside as well as when 

we conduct compliance reviews of high-risk carriers. So we do have 

a safety net to identify when there is fraud and when there is obvious problems with the medical certificate. 

Mrs. NAPOLITANO. I still think you need the funding. 

Mr. Chair, thank you. I have asked the California Highway Patrol for information to see if they have anything that they might 

add, and I would request that they be introduced into the record 

once I receive them and submit them within the time frame. Thank 

you. 

24 

Mr. OBERSTAR. Without objection, so ordered. 

Dr. Garber, Mr. Kutz, your reaction to Ms. McMurray’s response 

to Mrs. Napolitano’s question? 

Mr. KUTZ. With respect to the medical database, it is interesting, 

we received an e-mail from the State of Indiana, which is one of 

the most progressive States in overseeing this area, and they have 

actually asked for our database of matches of people that have 

these conditions because they want to audit some of those cases; 

and that is one of the only States we are aware of that does at 

least random, possibly full, audits over time of these licenses. So 

someone is thinking along the lines of exactly what you have said 

there. 

With respect to fraud, I am not so certain there are significant 

consequences. In our interviews, it seemed there aren’t a lot of serious consequences. You might get a citation, but you get back in the 

truck and drive away. So I am not sure that that is—yes, I think 

it is more of that. I think that is reality. 

Mr. OBERSTAR. So the issue is that even where an inspector, investigator pulls a person over, finds an invalid license, they can’t 

stop that person from driving? 

Mr. KUTZ. I believe they drive away. That is my understanding. 

Mr. OBERSTAR. Dr. Garber? 

Dr. GARBER. We have certainly found circumstances. In the New 

Orleans bus accident investigation, we made that query to the Louisiana State authorities and asked what would happen if one of 

these individuals was found to have a non-current medical license 

when stopped by police. At that time, at least, it was a $75 fine. 

Mr. OBERSTAR. Well, that is not a very good enforcement. That 

does not qualify for being a safety agency, in my opinion. 

Ms. Edwards. 

Ms. EDWARDS. Thank you, Mr. Chairman. 

I am curious for each of you to look at the question of mild to 

severe sleep apnea, because in looking at the study that FMCSA 

did in 2002, finding that 28 percent of commercial drivers have 

mild to severe sleep apnea, to me that seemed pretty extraordinary, and I am curious as to, one, how that compares to the general population and whether there is a relationship between sleep 

apnea and driving ability. 

And then to a larger question, so many of these accidents then 

later are attributed to fatigue or sleep deprivation, and I know that 

the universe that you studied at the GAO was not necessarily that, 

but it raises the question as to whether the 3 percent estimate is 

greatly underestimated in terms of medical conditions, given that 

fatigue can often be a sign of underlying significant medical conditions. 

Dr. GARBER. It seems reasonable that the 3 percent figure is 

probably a minimum in that the investigations done are typically 

not to the level the NTSB would do and, therefore, probably are not 

identifying in every case those medical conditions which may have 

been contributory. 

With regard to sleep apnea, the studies certainly indicate that, 

in the trucking population, the prevalence is much higher than in 

the general population. The trucking population tends to be more 

obese than the general population, which is a risk factor, and has 

25 

other conditions that may be associated with obstructive sleep 

apnea which are risk factors. The FMCSA’s medical review board 

has reviewed that issue and has made suggestions and recommendations to the FMCSA. I don’t believe the FMCSA has 

taken any action on those recommendations at this point in time. 

And in response to your question as to whether it is a risk for 

vehicular accidents, there have been a number of studies showing 

that. In fact, the risk is that an individual with untreated sleep 

apnea probably has somewhere between a six- and tenfold risk of 

being involved in a traffic accident as a certain individual without 

the diagnosis. 

Ms. MCMURRAY. And I would point out that, currently, if drivers 

have severe sleep apnea that interferes with their safe driving, 

they are not qualified to drive. And as Dr. Garber pointed out, our 

medical review board, who has met eight times in the last year in 

looking over our current list of medical standards, has made recommendations with respect to potential changes to sleep disorder 

screening, including sleep apnea. 

Mr. KUTZ. I would only just add that many of the cases we 

looked at, which is several dozen, individuals had sleep apnea 

along with other conditions. But we didn’t look at specifically what 

you are talking about. 

Ms. EDWARDS. I am curious also as to the question around doctor 

shopping. I mean, I am a lawyer, so I understand forum shopping, 

but in terms of searching for a medical examiner, are there consequences both for the driver and for the medical examiner? 

Ms. MCMURRAY. If your question is if the driver is detected to 

have failed a physical exam with one examiner and gone to another 

and received the medical certificate, we can often identify that during compliance reviews, during information that comes to our attention with respect to this issue. We are committed to ferreting 

out this fraud. 

We are hopeful that the building blocks that we are putting in 

place with respect to medical certification is going to help us deter 

doctor shopping, it is going to help us compare medical examiner 

performance so we can see, for example, trends that might develop 

with respect to medical examiners who always have 100 percent 

pass rate. That would be an indicator to us that we need to look 

more extensively at the performance of that medical examiner to 

ensure that they are applying the standards properly. 

Ms. EDWARDS. And then it raises the question, doesn’t it, about 

the consequences not just for the driver, say losing a license or facing a fine, but consequences also for that examiner. 

Ms. MCMURRAY. Absolutely. Again, in developing this medical 

examiner registry, our intent is to require training of the medical 

examiners on our medical standards so that they can be applied 

universally and they can be applied properly with proper guidance 

and assistance, and if we discover that medical examiners are not 

applying those standards according to the training and according 

to the requirements of the medical examiner position, that medical 

examiner will be proposed for removal from the registry. 

Ms. EDWARDS. Thank you. 

Mr. OBERSTAR. I thank the gentlewoman for her questions and 

the responses. 

26 

Now, Dr. Garber and Mr. Kutz, what is the penalty for not having a valid medical card? 

Mr. KUTZ. I don’t know for sure. I expect it would vary by State. 

But, again, we didn’t see a lot of severe consequences. And I think 

one of the issues here, from an enforcement standpoint, is, first of 

all, people thinking there is a chance they will get caught and, if 

they actually do get caught, that there is a consequence; and I am 

not sure the people we talked to believed there was a whole lot of 

consequence to getting caught. 

Mr. OBERSTAR. Dr. Garber, is that your experience, that there is 

no out-of-service offense with penalty? 

Dr. GARBER. I would like to point out that there are some States, 

notably California, where the CDL and medical have been merged 

and where not having a medical certificate would prevent the individual from having a valid CDL and would be cause for them to 

be taken out of service. So obviously in those circumstances the 

consequences would be much more significant. 

For those States that do not have it, the offenses vary across the 

board; each State sets its own offense. And as I have said, when 

we did our New Orleans investigation, it was only a $75 fine. 

Mr. OBERSTAR. How many States do not merge the two? 

Dr. GARBER. The vast majority of them do not have a combined—— 

Mr. OBERSTAR. The vast majority do not. 

Dr. GARBER. That is correct. 

Mr. OBERSTAR. Extremely difficult for a State, then, to track 

these bad actors, isn’t it? 

Mr. KUTZ. Well, half of the States are self-certification States, 

and they don’t keep copies of the actual certificates, so, yes, it is 

very difficult in those cases, which I think the proposed standards 

would certainly change that by the merging. 

Mr. OBERSTAR. Ms. McMurray, why are you allowing self-certification States? Why haven’t you issued a rule to correct that? 

Ms. MCMURRAY. Self-certification, Mr. Chairman, has to do with 

the CDL process and not the medical process. And I would add that 

our enforcement activity does in fact—— 

Mr. OBERSTAR. That is not what I heard earlier. 

Ms. MCMURRAY.—include, last year, over 145,000 citations at the 

roadside for a driver not having the medical card, as well as 42,000 

for expired certifications. So our inspectors who man these inspection stations across the Country are checking the medical certificate, they are citing the violation on the roadside inspection reports. The results of those violations feed into our high-risk 

prioritization scheme and in the conduct of a compliance review we 

take enforcement action against the carriers whose drivers have a 

pattern of not having either a valid medical certificate with them 

or an expired medical certificate. So there is a consequence to it. 

Mr. OBERSTAR. Is that accurate, Mr. Kutz? 

Mr. KUTZ. Well, if you could put up the application again for the 

State of Michigan, the issue of merging of the two, I showed that 

in my opening statement. There is a check box. This is the Michigan application, and you see there all they have to do to validate 

their medical certification is check that yes box. There is no other 

requirement. 

27 

Mr. OBERSTAR. That is not adequate. 

Mr. KUTZ. And the other thing, Mr. Chairman, I would just add 

to that is it is interesting to think about this, but these people, 

when they apply for these licenses, they pay a fee. How many people would actually check no? 

Mr. OBERSTAR. Of course not. Of course not. 

Ms. MCMURRAY. If I might add, Mr. Chairman, there is a requirement that the carrier verify that this box was checked correctly and that the driver produced the medical certificate before 

this driver can work for this company and can be qualified to operate. 

Mr. OBERSTAR. But you also have the issue of medical examiner 

shopping. And there is nothing to catch the driver who goes to one 

examiner and is rejected, goes to another and is accepted; and 

there is no tracking. 

Ms. MCMURRAY. Yes, sir, that is a correct statement today. But, 

again, these two rules that are very close to being issued are going 

to help us with identifying this problem—— 

Mr. OBERSTAR. Why has it taken eight years to get to this point? 

Ms. MCMURRAY. Well, sir, we have been—— 

Mr. OBERSTAR. I am the author of that language in the law. 

Ms. MCMURRAY. Yes, sir. 

Mr. OBERSTAR. And we expected better of you. 

Ms. MCMURRAY. These rules are very complicated. We are identifying areas that have immense burden on the State. We have had 

to confer with the States with respect to implementation costs. We 

also have had to ensure that we apply critical thinking to these 

problems. For example, who is going to pay for these changes to 

State IT systems and staffing that they may need to add to carry 

out these requirements? Is training required in order to prepare 

law enforcement to properly enforce these changes? The medical 

examiner community has to be trained and certified. These issues 

have costs. We have to think about unintended consequences, and 

in the midst of our regulatory burdens—— 

Mr. OBERSTAR. I think if your agency—excuse me. I think if your 

agency had a safety mindset and a safety mission, you would have 

done this in less than eight years. I am telling you that; I am not 

asking you any more. Your budget has gone from $181 million in 

2000 to $490 million. You shouldn’t have any lack of personnel resources. What is lacking is will, will to tackle the issue and realize 

that every time there is an accident out there, there is a fatality, 

that has to be on your conscience. And I want you to carry that 

spirit of compliance and of safety concern back to your agency and 

get people moving. 

Ms. MCMURRAY. Mr. Chairman, I can assure you that safety is 

our most important priority. 

Mr. OBERSTAR. Well, but you haven’t demonstrated it to my satisfaction, and I expect better out of this agency. 

Now, the medical card and form are available on the FMCSA 

Web site. Anybody can download it. What is wrong with that? Dr. 

Garber, Mr. Kutz? 

Dr. GARBER. Well, again, the NTSB has pointed out that it is a 

potential failure point of the system in that there is nothing to prevent an individual from filling it out themselves, fraudulently, or 

28 

any mechanism to track those forms because, obviously, they can 

be freely reproduced. 

Mr. OBERSTAR. Mr. Kutz? 

Mr. KUTZ. Yes, these are things that would be easily counterfeited. Certainly, some sort of integrated database—and, again, 

back to like the audits that the State of Indiana does—could potentially catch those types of things. But you want to prevent people 

from getting in the system with false medical certifications. 

Mr. OBERSTAR. What has the agency done to address that issue? 

Ms. MCMURRAY. Mr. Chairman, we do spot-check when our investigators conduct compliance reviews. 

Mr. OBERSTAR. Why do you have that on the Web site, to begin 

with? 

Ms. MCMURRAY. For information and for use by medical examiners and the public, to understand what our requirements are, including the applicable guidelines. 

Mr. OBERSTAR. Shouldn’t you have a secure system, not have 

that available to the public, when it can be downloaded and fraudulently used? 

Ms. MCMURRAY. Well, we do have mechanisms to spot fraud and 

the use of these medical certificates in an inappropriate way. We 

do have this through our audits, our roadside inspections. There 

are obvious times when we can identify when a medical certificate 

has been altered, and we believe we have the oversight ability to 

ferret out not all of these. 

We need to do a better job in this arena, definitely, but we are 

setting with our medical certification rule in particular the ability 

to ensure that we cut down on fraud. It is a very big first step, 

since the driver will have to produce the medical certificate to the 

licensing agency. It will become an electronic record so that roadside inspectors can in fact verify that the medical certification is 

valid and is not expired. This is a very big step in cutting down 

on fraud. 

Mr. OBERSTAR. Mr. Kutz, Dr. Garber, what are the tools available to inspectors to determine whether a medical card is valid? 

Mr. KUTZ. At this point, I don’t really know. I am not aware of 

any. I know that the proposed notice, again, of rulemaking here 

has envisioned a system of integration where there is a law enforcement officer who pulls someone over can check online, but that 

appears to be many, many years away. So I am not sure what is 

available right now. 

Mr. OBERSTAR. Dr. Garber? 

Dr. GARBER. The certificate does have a space for the examiner’s 

phone number. In our investigations, we have been told previously 

that that can be used to call the physician and determine whether 

the individual was in fact examined. Of course, it requires that the 

physician be in their office and available and that the records be 

immediately available. We are not entirely convinced that that may 

be the best way of securing confirmation of the validity of a certificate. 

Mr. OBERSTAR. There are substantial differences in training in 

the professions permitted to conduct medical exams. Should there 

be standards set and enforced and established? Dr. Garber? 

29 

Dr. GARBER. Again, one of the concerns that we have expressed 

on a number of occasions and in testimony here is that any individual permitted by the State to perform examinations is permitted 

to conduct these examinations for commercial driver’s licenses. The 

difference is that an individual who is certified to conduct an exam 

has the ability to examine an individual. What the CDL requires 

in addition to the medical portion, is the determination as to 

whether that individual should in fact be operating a vehicle in 

commercial operations. 

While an individual that the State says can perform a physical 

exam may be able to gather data effectively on that individual’s 

physical state, the making of that determination really does require 

another level of ability in order to evaluate it, and that level of 

ability is what is missing in many of the exams that we have evaluated. 

Mr. OBERSTAR. Mr. Kutz, do you concur? 

Mr. KUTZ. Yes, we certainly would support the training and certification of the medical examiners, because if you think about the 

enforcement thing we just talked about, it is too late at that point, 

the people are already on the road medically unfit; the damage 

could have already been done. So preventing people from getting in 

the system in the first place, in our view, would be the most important way, and one of the ways to do that is make sure that these 

medical certifications are done by qualified, properly trained people 

that understand the DOT regulations, because if that part fails, I 

think the rest of it is going to fail. 

Mr. OBERSTAR. Well, it is clear it has failed. And then the appeal 

process from denial seems to me rather perfunctory, that persons 

with various disabilities make appeal and then they are allowed to 

drive. I don’t understand this. There doesn’t seem to be a high 

enough standard. Sleep apnea is a terrible thing to allow on the 

road. 

Ms. MCMURRAY. Mr. Chairman, if a driver fails a physical examination and wishes to have an appeal of that decision, they can 

place that before our agency, and our medical experts do collect the 

medical background of the driver, the information that is available 

on the driver, providing information to us to make that determination. 

Mr. OBERSTAR. I yield to the gentlewoman from California who 

apparently had a question about something that I raised. 

Mrs. NAPOLITANO. Certainly. Thank you, Mr. Chair. I appreciate 

your indulgence. 

In looking at one of the things that was provided to us, Ms. 

McMurray, is that the 2009 budget proposal request was $1.3 million less for the regulatory development than enacted in 2008. 

Why? 

Ms. MCMURRAY. Within that line item, Congresswoman, is a 

number of activities in that line item. Regulatory development includes support to our regulations activity, contractor support to do 

evidence-based collection of information. As well within that line 

item is the agency’s assets for conducting program evaluation and, 

as well, the medical program. So there are three discrete functions 

within that line item. So a reduction of that amount is not necVerDate Aug 31 2005 11:40 Jun 15, 2009 Jkt 000000 PO 00000 Frm 00039 Fmt 6633 Sfmt 6633 P:\DOCS\43799 JASON
30 

essarily a reduction in the medical program level of effort for fiscal 

year 2009. 

Mrs. NAPOLITANO. But it is regulatory. I mean, I would imagine 

regulatory would be part of your medical regulatory, as has been 

discussed here. 

Ms. MCMURRAY. That is right. There is a portion of that, that 

funding line—— 

Mrs. NAPOLITANO. Can you tell us how much of that portion is 

for the regulatory development of the medical part of it? 

Ms. MCMURRAY. I would have to provide that for the record, I 

don’t know it exactly. 

Mrs. NAPOLITANO. If you wouldn’t mind. And then could you 

break that down to make sure that we understand why the lesser 

amount? 

Ms. MCMURRAY. Yes, ma’am. 

Mrs. NAPOLITANO. Then the other question is the SAFETEA-LU 

required the Secretary to convene the CDL Advisory Committee 

last year and report its findings to Congress last August. It is almost a year and nothing has been submitted or reported. The delay 

and when can we expect to see it? 

Ms. MCMURRAY. Yes. Well, I am pleased to say that the CDL Advisory Committee and Task Force has done a very excellent job in 

looking at—— 

Mrs. NAPOLITANO. That is not what I asked, ma’am. 

Ms. MCMURRAY. Yes, ma’am. The CDL report is in final clearance, we have reviewed the report and it is very close to being finalized. 

Mrs. NAPOLITANO. Close as in a week, a day? 

Ms. MCMURRAY. I would say within the next several months, 

yes. 

Mrs. NAPOLITANO. Several months? 

Mr. Chair, can we make sure that we submit a copy of that to 

our Members so we can understand what we are talking about, for 

the advisory committee on the commercial driver’s license? 

Mr. OBERSTAR. Well, it better not be several months. 

Mrs. NAPOLITANO. The other question that I would have, and I 

don’t know if it is in order, Mr. Chairman, but we keep hearing 

about all these different things from Ms. McMurray that encompass the delay in being able to comply with the Congressional mandate, if you will, to do this, this, this, and this. Is there a way, Mr. 

Chair, that we can have a follow-up hearing to determine how that 

breakdown has caused the delay and being able to find out at least 

when we can expect this to happen within the next few months— 

not few months, maybe six months, but less than three years? 

Mr. OBERSTAR. We will continue to monitor the work of this 

agency and Committee staff will follow, and if there is need for an 

additional hearing, we will certainly do that. 

Mrs. NAPOLITANO. Thank you, sir. That would satisfy some of my 

concerns. 

The self-certification is very bothersome. Is there a way you can 

tie the grants to these States to be able to have them certify? We 

have done that to other States for them to be able to get Federal 

grants; you have to do this, this, and this in order to qualify and 

get the funding. And I realize some of those States may be smaller, 

31 

cannot afford to be able to do all the things that most of the big 

States can do, but certainly there has got to be a way to hold them 

accountable so that they too can reduce their record of tragic accidents by holding their drivers, as well as our drivers, accountable. 

Ms. MCMURRAY. Yes. We do provide grants to States for their 

commercial enforcement operations, as well as specific grants devoted to their licensing function and their requirements to modernize their commercial driver license information system so that 

we can have exchange across the Country and be sure that we are 

removing unsafe drivers from the road. 

Mrs. NAPOLITANO. But you didn’t answer the question. Do you tie 

in grant funding to the ability for them to be able to get certain 

type of funding? 

Ms. MCMURRAY. I am not sure I understand fully your question. 

Are you asking is there a penalty if—— 

Mrs. NAPOLITANO. No, not a penalty, but, rather, if you do not 

meet these requirements, you may not be able to apply for these 

grants because you don’t meet the requirements set forth by Congress in meeting compliance. 

Ms. MCMURRAY. It is something to look at. I believe we need to 

understand better what you are asking. I am not sure that I am 

fully understanding your question. 

Mrs. NAPOLITANO. Well, I know that in California, I have been 

told by some of my electives that they do not qualify for State funding unless they do this. And I am specifically thinking right now 

of congestion pricing. If you do not convert the diamond lane to toll, 

you will not get this money. That is what I am talking about. 

Ms. MCMURRAY. I am not familiar with this particular requirement. There are certain requirements that the States have to satisfy with respect to compliance with CDL requirements, that if they 

fail to meet certain requirements, there may be a withholding of 

funds. 

Mrs. NAPOLITANO. Okay, so you are not requiring them to meet 

certain standards so they would be able to identify whether they 

have been medically examined, whether their medical examination 

card is up to date, whether they have any medical disabilities? Isn’t 

that something that you should be looking at and tie that in so 

that they too should require their drivers to ensure their safety? 

Ms. MCMURRAY. I do think you raise an interesting point that 

I would agree, that as we look at the reauthorization of the highway surface transportation agencies, this is an area that we should 

explore. 

Mrs. NAPOLITANO. Thank you, Mr. Chair. 

Mr. OBERSTAR. Reclaiming my time. The gentlewoman has pursued a very vigorous course of inquiry. The answer is yes, they 

should be doing it. 

What is your view, Dr. Garber, Mr. Kutz, on self-certification? In 

what circumstances is it appropriate? 

Dr. GARBER. The problem, of course, with self-certification in 

commercial driver operations is that an individual is obviously motivated by their ability to earn a living, to function within their 

chosen occupation to self-certify in a positive manner, and we have 

noted in several of our reports that any system that amounts to 

self-certification puts the driver in an awkward position of having 

32 

to perhaps remove themselves from their chosen occupation, and 

we think probably is ineffective. 

Mr. KUTZ. I would say self-certification in this case is not adequate. 

Ms. MCMURRAY. And I would add—— 

Mr. OBERSTAR. There is no standard by which to measure selfcertification. Now, there are several Federal Government programs 

which we allow States to undertake actions in pursuance of Federal 

law, but that is only after the State has met Federal standards and 

qualify. We don’t allow individuals to say they are doing a good job. 

I mentioned earlier the Coast Guard allowed contractors on its 

Deepwater program to say they are doing a good job, and then the 

first article of their production cracked, failed in the exact three 

places that a whistleblower said it would crack, and a $100 million 

program was scrapped. Self-certification as done here is a threat 

and a demonstrated danger to safety. It shouldn’t be allowed. And 

rules from FMCSA should not allow it. There is no public benefit 

to be gained. 

AFTER 6:00 P.M. 

Ms. MCMURRAY. Mr. Chairman, if I could—— 

Mr. OBERSTAR. I will invite you to answer questions when I ask 

you a question. 

Have you viewed the NPRM, Dr. Garber, Mr. Kutz, to require 

State licensing agencies to collect medical cards? Have you reviewed the NPRM? 

Mr. KUTZ. Yes, I have. 

Mr. OBERSTAR. What is your opinion? Will it achieve the objective? 

Mr. KUTZ. I think it gets you part way. Certainly, it is better 

than what we have today, and it would provide for the integration 

of the medical certification and the CDL process, and it would provide information, as we mentioned, for law enforcement officials to 

check instantaneously whether someone has a valid certificate. So, 

yes, it does address many issues, not necessarily all issues. 

Dr. GARBER. Yes, the NTSB formally commented on that NPRM. 

Obviously, we have not seen the final rule yet; we are anxiously 

awaiting it. It is certainly possible it will address some of the concerns that we have brought up, particularly those with regard to 

enforcement. We have noted some significant deficiencies in it 

which we hope will be corrected in the final rule. 

Mr. OBERSTAR. That is eight years since we enacted the legislation, directed the establishment of a national registry of certified 

medical examiners, one of the top priorities for NTSB. What factors 

can you cite that are persuasive in not having been able to issue 

this registry? 

Dr. GARBER. Sir, if that is a question for me, the Board has 

asked that question on numerous occasions. 

Mr. OBERSTAR. And you haven’t found any? 

Dr. GARBER. Unfortunately, nothing that has been compelling to 

the Board. 

Mr. OBERSTAR. Mr. Kutz? 

Mr. KUTZ. I don’t have enough of a history to explain. 

Mr. OBERSTAR. Ms. McMurray, when in the next two months can 

we expect to have a national registry? 

33 

Ms. MCMURRAY. We have developed the NPRM on the national 

registry; it is currently within the department circulating for review, and there are mandatory review obligations both for a department and OMB, and we would hope, sir, before the end of 

2008. 

Mr. OBERSTAR. Are they time limited? 

Ms. MCMURRAY. Yes, sir. 

Mr. OBERSTAR. Those reviews? 

Ms. MCMURRAY. Yes, sir, there is—OMB has 90 days. 

Mr. OBERSTAR. Which next agency has to make a review of this? 

Ms. MCMURRAY. Well, the department has to coordinate and 

clear the rule, which—— 

Mr. OBERSTAR. You mean through the office of the Secretary? 

Ms. MCMURRAY. Throughout the department. Everyone in the 

department has an opportunity to review the rule in the event that 

the rule has an impact on their operations. 

Mr. OBERSTAR. What do you mean, everyone in the department? 

Federal Railroad Administration, FAA? 

Ms. MCMURRAY. Any modal administration that might have an 

interest in commenting on our rule has an opportunity to do so. 

Mr. OBERSTAR. Why didn’t you do that before? Why didn’t you go 

around those agencies and say what do you think about this, to expedite this process? 

Ms. MCMURRAY. I believe we have done that, sir, but when we 

come to this final—— 

Mr. OBERSTAR. How long have you been on the staff of FMCSA? 

Ms. MCMURRAY. I have been on staff since 2003, sir. 

Mr. OBERSTAR. And why haven’t you done this sooner? 

Ms. MCMURRAY. This rule? Well, this national registry rule, 

SAFETEA-LU gave us the mandate to do this in 2005. I believe 

that we have looked very carefully at the implementation issues relating to this. This is a very big rule that affects a lot of people, 

over 40,000 examiners. The States are involved in this issue. 

There are a number of very, very complicated aspects of this. We 

have to develop accreditation requirements, certification requirements; we have to look at the ability of third parties to train these 

medical examiners. We have to make sure we do this right and it 

takes some time for us to ensure that there are not unintended 

consequences to what we are developing. But I will assure you that 

this NPRM is very close to a release. 

Mr. OBERSTAR. Well, I will just remind you that in 1978 the first 

feasibility study was completed on the very subject you are dealing 

with, and it has taken all this time. That is why we created a 

Motor Carrier Safety Administration, and I am impatient with failure to make safety the highest priority. 

I grew up in a family of miners. My father was the chairman of 

the safety committee at the Godfrey Underground Mine for 26 

years. I listened to stories of failures of safety, failure of the mining 

company to act when men said our batteries are either inadequate 

or not in supply, when there was bad air in one portion of the 

mine, and I will never forget my father’s comment that the most 

unforgettable sound in the underground was the screams of the 

men in the cage when the cable broke and there was no safety protection to save their lives. 

34 

I worked in the mine myself in summers going through college, 

saw a man crushed by a 15-ton truck backing up when the man 

was not trained in how to back up a truck, and I couldn’t stop it. 

I screamed. I was 50 yards away. Those and many other stories 

haunt me every time I confront the issue of safety, whether it is 

in aviation, maritime, trucking, railroading. 

This Committee took action to update hours of service in the railroad sector, the first update in 100 years. It shouldn’t take that 

long. It shouldn’t take you eight years. It shouldn’t take you five 

years or three years. Peoples lives are at stake depending upon you 

and your colleagues. We have given you a half a billion dollar 

budget, practically, to do this. There is no excuse for the foot dragging and the lives lost, and the lives disrupted and the families 

that grieve. I want you to keep that on your mind and on your conscience. You go back to that agency and tell them get going. 

Ms. MCMURRAY. Yes, sir. 

Mr. OBERSTAR. Many other issues that I could cover. I think we 

have covered them all. What we need is will, willpower at the highest level, and it is apparent there isn’t that will at the level of the 

Secretary of Transportation, and that permeates all the way down 

through this Federal Motor Carrier Safety Administration. I expect 

better and we will watch you carefully. 

I thank the panel for their comments, my colleagues for their interest. The Committee is adjourned. 

[Whereupon, at 6:10 p.m., the Committee was adjourned.] 

35 


43799.007
36 


43799.008
37 


43799.009
38 


43799.010
39 


43799.011
40 


43799.012
41 


43799.013
42 


43799.014
43 


43799.015
44 


43799.016
45 


43799.017
46 


43799.018
47 


43799.019
48 


43799.020
49 


43799.021
50 


43799.022
51 


43799.023
52 


43799.024
53 


43799.025
54 


43799.026
55 


43799.027
56 


43799.028
57 


43799.029
58 


43799.030
59 


43799.031
60 


43799.032
61 


43799.033
62 


43799.034
63 


43799.035
64 


43799.036
65 


43799.037
66 


43799.038
67 


43799.039
68 


43799.040
69 


43799.041
70 


43799.042
71 


43799.043
72 


43799.044
73 


43799.045
74 


43799.046
75 


43799.047
76 


43799.048
77 


43799.049
78 


43799.050
79 


43799.051
80 


43799.052
81 


43799.053
82 


43799.054
83 


43799.055
84 


43799.056
85 


43799.057
86 


43799.058
87 


43799.059
88 


43799.060
89 


43799.061
90 


43799.062
91 


43799.063
92 


43799.064
93 


43799.065
94 


43799.066
95 


43799.067
96 


43799.068
97 


43799.069
98 


43799.070
99 


43799.071
100 


43799.072
101 


43799.073
102 


43799.074
103 


43799.075
104 


43799.076
105 


43799.077
106 


43799.078
107 


43799.079
108 


43799.080
109 


43799.081
110 


43799.082
111 


43799.083
112 


43799.084
113 


43799.085
114 


43799.086
115 


43799.087
116 

Æ 


43799.088