[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]




                       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





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             COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE

                 JAMES L. OBERSTAR, Minnesota, Chairman

NICK J. RAHALL, II, West Virginia,   JOHN L. MICA, Florida
Vice Chair                           DON YOUNG, Alaska
PETER A. DeFAZIO, Oregon             THOMAS E. PETRI, Wisconsin
JERRY F. COSTELLO, Illinois          HOWARD COBLE, North Carolina
ELEANOR HOLMES NORTON, District of   JOHN J. DUNCAN, Jr., Tennessee
Columbia                             WAYNE T. GILCHREST, Maryland
JERROLD NADLER, New York             VERNON J. EHLERS, Michigan
CORRINE BROWN, Florida               STEVEN C. LaTOURETTE, Ohio
BOB FILNER, California               FRANK A. LoBIONDO, New Jersey
EDDIE BERNICE JOHNSON, Texas         JERRY MORAN, Kansas
GENE TAYLOR, Mississippi             GARY G. MILLER, California
ELIJAH E. CUMMINGS, Maryland         ROBIN HAYES, North Carolina
ELLEN O. TAUSCHER, California        HENRY E. BROWN, Jr., South 
LEONARD L. BOSWELL, Iowa             Carolina
TIM HOLDEN, Pennsylvania             TIMOTHY V. JOHNSON, Illinois
BRIAN BAIRD, Washington              TODD RUSSELL PLATTS, Pennsylvania
RICK LARSEN, Washington              SAM GRAVES, Missouri
MICHAEL E. CAPUANO, Massachusetts    BILL SHUSTER, Pennsylvania
TIMOTHY H. BISHOP, New York          JOHN BOOZMAN, Arkansas
MICHAEL H. MICHAUD, Maine            SHELLEY MOORE CAPITO, West 
BRIAN HIGGINS, New York              Virginia
RUSS CARNAHAN, Missouri              JIM GERLACH, Pennsylvania
JOHN T. SALAZAR, Colorado            MARIO DIAZ-BALART, Florida
GRACE F. NAPOLITANO, California      CHARLES W. DENT, Pennsylvania
DANIEL LIPINSKI, Illinois            TED POE, Texas
NICK LAMPSON, Texas                  DAVID G. REICHERT, Washington
ZACHARY T. SPACE, Ohio               CONNIE MACK, Florida
MAZIE K. HIRONO, Hawaii              JOHN R. `RANDY' KUHL, Jr., New 
BRUCE L. BRALEY, Iowa                York
JASON ALTMIRE, Pennsylvania          LYNN A WESTMORELAND, Georgia
TIMOTHY J. WALZ, Minnesota           CHARLES W. BOUSTANY, Jr., 
HEATH SHULER, North Carolina         Louisiana
MICHAEL A. ARCURI, New York          JEAN SCHMIDT, Ohio
HARRY E. MITCHELL, Arizona           CANDICE S. MILLER, Michigan
CHRISTOPHER P. CARNEY, Pennsylvania  THELMA D. DRAKE, Virginia
JOHN J. HALL, New York               MARY FALLIN, Oklahoma
STEVE KAGEN, Wisconsin               VERN BUCHANAN, Florida
STEVE COHEN, Tennessee               ROBERT E. LATTA, Ohio
JERRY McNERNEY, California
LAURA A. RICHARDSON, California
ALBIO SIRES, New Jersey
DONNA F. EDWARDS, Maryland

                                  (ii)











                                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



[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
 
     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 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 
three-year 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. 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.
    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 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.
    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, 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 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.
    First, self-certification. Twenty-five States allow drivers 
to self-certify 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 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 advises 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?
    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 dispensing 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.
    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 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 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 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?
    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 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?
    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?
    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, I-5, 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 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 license 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.
    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 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.
    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.
    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 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?
    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 necessarily 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, 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 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 
self-certification. 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?
    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.
    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.]


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