[Federal Register Volume 81, Number 113 (Monday, June 13, 2016)]
[Notices]
[Pages 38262-38264]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-13867]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[FMCSA Docket No. FMCSA-2015-0117]


Qualification of Drivers; Exemption Applications; Epilepsy and 
Seizure Disorders

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION: Notice of final disposition.

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SUMMARY: FMCSA announces its decision to exempt five individuals from 
the regulatory requirement that interstate commercial motor vehicle 
(CMV) drivers have ``no established medical history or clinical 
diagnosis of epilepsy or any other condition which is likely to cause 
loss of consciousness or any loss of ability to control a CMV.'' The 
exemptions enable these individuals to operate CMVs in interstate 
commerce.

DATES: The exemptions were effective on September 12, 2015. The 
exemptions expire on September 12, 2017.

FOR FURTHER INFORMATION CONTACT: Christine A. Hydock, Chief, Medical 
Programs Division, (202) 366-4001, [email protected], FMCSA, 
Department of Transportation, 1200 New Jersey Avenue SE., Room W64-113, 
Washington, DC 20590-0001. Office hours are from 8:30 a.m. to 5 p.m. 
e.t., Monday through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION: 

I. Electronic Access

    You may see all the comments online through the Federal Document 
Management System (FDMS) at: http://www.regulations.gov.
    Docket: For access to the docket to read background documents or 
comments, go to http://www.regulations.gov and/or Room W12-140 on the 
ground level of the West Building, 1200 New Jersey Avenue SE., 
Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, 
except Federal holidays.
    Privacy Act: In accordance with 5 U.S.C. 553(c), DOT solicits 
comments from the public to better inform its rulemaking process. DOT 
posts these comments, without edit, including any personal information 
the commenter provides, to www.regulations.gov, as described in the 
system of records notice (DOT/ALL-14 FDMS), which can be reviewed at 
www.dot.gov/privacy.

II. Background

    On August 12, 2015, FMCSA published a notice announcing receipt of 
applications from 12 individuals requesting an exemption from the 
prohibition against persons with a clinical diagnosis of epilepsy or 
any other condition that is likely to cause a loss of consciousness or 
any loss of ability to operate a CMV in interstate commerce and 
requested comments from the public (80 FR 48406). The public comment 
period closed on September 11, 2015, and one comment was received.
    FMCSA has evaluated the eligibility of these applicants and 
determined that granting the exemptions to five individuals would 
achieve a level of safety equivalent to or greater than the

[[Page 38263]]

level that would be achieved by complying with the current regulation 
49 CFR 391.41(b)(8).
    The physical qualification standard for drivers regarding epilepsy 
found in 49 CFR 391.41(b)(8) states that a person is physically 
qualified to drive a CMV if that person:

    Has no established medical history or clinical diagnosis of 
epilepsy or any other condition which is likely to cause the loss of 
consciousness or any loss of ability to control a CMV.

    In addition to the regulations, FMCSA has published advisory 
criteria \1\ to assist medical examiners in determining whether drivers 
with certain medical conditions are qualified to operate a CMV in 
interstate commerce. [49 CFR part 391, APPENDIX A TO PART 391--MEDICAL 
ADVISORY CRITERIA, section H. Epilepsy: Sec.  391.41(b)(8), paragraphs 
3, 4, and 5.]
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    \1\ See http://www.ecfr.gov/cgi-bin/text-idx?SID=e47b48a9ea42dd67d999246e23d97970&mc=true&node=pt49.5.391&rgn=div5#ap49.5.391_171.a and https://www.gpo.gov/fdsys/pkg/CFR-2015-title49-vol5/pdf/CFR-2015-title49-vol5-part391-appA.pdf.
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    The advisory criteria states that if an individual has had a sudden 
episode of a non-epileptic seizure or loss of consciousness of unknown 
cause that did not require anti-seizure medication, the decision 
whether that person's condition is likely to cause the loss of 
consciousness or loss of ability to control a CMV should be made on an 
individual basis by the medical examiner in consultation with the 
treating physician. Before certification is considered, it is suggested 
that a 6-month waiting period elapse from the time of the episode. 
Following the waiting period, it is suggested that the individual have 
a complete neurological examination. If the results of the examination 
are negative and anti-seizure medication is not required, then the 
driver may be qualified.
    In those individual cases where a driver had a seizure or an 
episode of loss of consciousness that resulted from a known medical 
condition (e.g., drug reaction, high temperature, acute infectious 
disease, dehydration, or acute metabolic disturbance), certification 
should be deferred until the driver has recovered fully from that 
condition, has no existing residual complications, and is not taking 
anti-seizure medication.
    As a result of medical examiners misinterpreting advisory criteria 
as regulation, numerous drivers have been prohibited from operating a 
CMV in interstate commerce based on the fact that they have had one or 
more seizures and are taking anti-seizure medication, rather than an 
individual analysis of their circumstances by a qualified medical 
examiner based on the physical qualification standards and medical best 
practices.
    In reaching the decision to grant these exemption requests, the 
Agency considered the 2007 recommendations of the Agency's Medical 
Expert Panel (MEP). The January 15, 2013 (78 FR 3069) Federal Register 
notice provides the current MEP recommendations which is the criteria 
the Agency uses to grant seizure exemptions.
    Five of the twelve applicants have been seizure-free over a range 
of 11 to 26 years while taking anti-seizure medication and maintained a 
stable medication treatment regimen for the last two years. In each of 
these cases, the applicant's treating physician verified his or her 
seizure history and supports the ability to drive commercially. A 
summary of each applicant's seizure history was discussed in the August 
12, 2015 Federal Register notice and will not be repeated in this 
notice.

III. Discussion of Comments

    One anonymous commenter opposes granting exemptions to 49 CFR 
391.41(b)(8) because of the unpredictability of seizure disorders and 
the risk this presents to commercial driving. The commenter believes 
that the physical qualification standards are in place to provide the 
minimum physical standard to drive commercially and granting these 
exemptions would ``increase the likelihood of a terrible accident due 
to an unexpected seizure''.
    The Agency acknowledges this commenter's concerns regarding the 
safety of individuals with a history of seizure driving commercially. 
The Agency's decision to grant seizure exemptions is based on the 2007 
Evidence Report, the 2007 MEP Recommendations, and an individual 
evaluation of the driver's medical history and driving record to ensure 
an acceptable level of safety for drivers who have been seizure-free 
for an extended period of time.

IV. Basis for Exemption Determination

    The Agency has determined that five applicants should be granted an 
exemption. Under 49 U.S.C. 31136(e) and 31315(b), FMCSA may grant an 
exemption from the epilepsy/seizure standard in 49 CFR 391.41(b)(8) if 
the exemption is likely to achieve an equivalent or greater level of 
safety than would be achieved without the exemption. The exemption 
allows the applicants to operate CMVs in interstate commerce.
    The Agency's decision regarding these exemption applications is 
based on an individualized assessment of each applicant's medical 
information, including the root cause of the respective seizure(s) and 
medical information about the applicant's seizure history, the length 
of time that has elapsed since the individual's last seizure, the 
stability of each individual's treatment regimen and the duration of 
time on or off of anti-seizure medication. In addition, the Agency 
reviewed the treating clinician's medical opinion related to the 
ability of the driver to safely operate a CMV with a history of seizure 
and each applicant's driving record found in the Commercial Driver's 
License Information System (CDLIS) for commercial driver's license 
(CDL) holders, and interstate and intrastate inspections recorded in 
the Motor Carrier Management Information System (MCMIS). For non-CDL 
holders, the Agency reviewed the driving records from the State 
Driver's Licensing Agency (SDLA). The Agency acknowledges the potential 
consequences of a driver experiencing a seizure while operating a CMV. 
However, the Agency believes the drivers granted this exemption have 
demonstrated that they are unlikely to have a seizure and their medical 
condition does not pose a risk to public safety.
    Consequently, FMCSA finds that in each case exempting these five 
applicants from the epilepsy/seizure standard in 49 CFR 391.41(b)(8) is 
likely to achieve a level of safety equal to that existing without the 
exemption. A decision will be made on the other seven applicants on a 
later date.

V. Conditions and Requirements

    The terms and conditions of the exemption will be provided to the 
applicants in the exemption document and includes the following: (1) 
Each individual must remain seizure-free and maintain a stable 
treatment during the 2-year exemption period; (2) each individual must 
submit annual reports from their treating physicians attesting to the 
stability of treatment and that the driver has remained seizure-free; 
(3) each individual must undergo an annual medical examination by a 
certified Medical Examiner, as defined by 49 CFR 390.5; and (4) each 
individual must provide a copy of the annual medical certification to 
the employer for retention in the driver's qualification file, or keep 
a copy of his/her driver's qualification file if he/she is self-
employed. The driver must also have a copy of the exemption when 
driving, for presentation to a duly authorized Federal, State, or local 
enforcement official.

[[Page 38264]]

VI. Conclusion

    Based upon its evaluation of the five exemption applications, FMCSA 
exempts the following drivers from the epilepsy/seizure standard in 49 
CFR 391.41(b)(8), subject to the requirements cited above: Eric Joseph 
Barnwell (MI); Jason S. Coleman (NJ); Charles A. McCarthy III (MA); 
Randy P. Schuelke (WI); and Cory R. Wagner (IL).
    In accordance with 49 U.S.C. 31315(b)(1), each exemption is valid 
for 2 years, unless revoked earlier by FMCSA. The exemption will be 
revoked if the following occurs: (1) The individual fails to comply 
with the terms and conditions of the exemption; (2) the exemption has 
resulted in a lower level of safety than was maintained prior to being 
granted; or (3) continuation of the exemption would not be consistent 
with the goals and objectives of 49 U.S.C. 31136 and 31315. If the 
exemption is still effective at the end of the 2-year period, the 
individual may apply to FMCSA for a renewal under procedures in effect 
at that time.

    Issued on: June 3, 2016.
Larry W. Minor,
Associate Administrator for Policyal.
[FR Doc. 2016-13867 Filed 6-10-16; 8:45 am]
 BILLING CODE 4910-EX-P