Qualification of Drivers; Exemption Applications; Epilepsy and Seizure Disorders

Larry W. Minor
Federal Motor Carrier Safety Administration
30 September 2016

[Federal Register Volume 81, Number 190 (Friday, September 30, 2016)]
[Notices]
[Pages 67422-67424]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-23653]


-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[FMCSA Docket No. FMCSA-2015-0321]


Qualification of Drivers; Exemption Applications; Epilepsy and 
Seizure Disorders

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

ACTION: Notice of final disposition.

-----------------------------------------------------------------------

SUMMARY: FMCSA announces its decision to exempt 22 individuals from

[[Page 67423]]

the requirement in the Federal Motor Carrier Safety Regulations 
(FMCSRs) 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 who have had one or more seizures and are taking anti-
seizure medication to operate CMVs in interstate commerce.

DATES: The exemptions were effective on April 11, 2016. The exemptions 
expire on April 11, 2018.

FOR FURTHER INFORMATION CONTACT: Christine A. Hydock, Chief, Medical 
Programs Division, (202) 366-4001, fmcsamedical@dot.gov, FMCSA, 
Department of Transportation, 1200 New Jersey Avenue SE., Room W64-224, 
Washington, DC 20590-0001. Office hours are from 8:30 a.m. to 5 p.m. 
e.t., Monday through Friday, except Federal holidays. If you have 
questions regarding viewing or submitting material to the docket, 
contact Docket Services, telephone (202) 366-9826.

SUPPLEMENTARY INFORMATION: 

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 http://www.regulations.gov, as described in 
the system of records notice (DOT/ALL-14 FDMS), which can be reviewed 
at http://www.dot.gov/privacy.

I. Background

    On March 9, 2016, FMCSA published a notice announcing receipt of 
applications from 31 individuals requesting an exemption from the 
epilepsy prohibition in 49 CFR 391.41(b)(8) and requested comments from 
the public (81 FR 12553). The public comment period ended on April 8, 
2016, and three comments were received.
    FMCSA has evaluated the eligibility of these applicants and 
determined that granting exemptions to 22 of 31 individuals would 
achieve a level of safety equivalent to or greater than the level that 
would be achieved by complying with the current regulation 49 CFR 
391.41(b)(8). On April 11, 2016 the remaining nine applicants received 
a letter of final disposition regarding his/her exemption request. 
Those decision letters fully outlined the basis for the denial. A 
notice announcing this decision was published on September 9, 2016 (81 
FR 62556).
    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.]
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

II. Discussion of Comments

    FMCSA received three comments in this proceeding. An anonymous 
commenter and Jake B expressed general support for allowing well 
controlled individuals with a history of seizures to drive 
commercially. Deb Carlson of the Minnesota Department of Public Safety 
expressed support for two applicants included in the notice, Richard 
Wenner and Dennis Zayic.

III. Basis for Exemption Determination

    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.
    In reaching the decision to grant these exemption requests, FMCSA 
considered the 2007 recommendations of the Agency's Medical Expert 
Panel (MEP). The January 15, 2013, Federal Register notice (78 FR 3069) 
provides the current MEP recommendations, which is the criteria the 
Agency uses to grant seizure exemptions.
    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).
    These 22 applicants have been seizure-free over a range of 7 to 35 
years while taking anti-seizure medication and maintained a stable 
medication treatment regimen for the last two years. In each case, 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 March 9, 2016, Federal 
Register notice (81 FR 12553).
    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 
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.

IV. Conditions and Requirements

    The terms and conditions of the exemption are provided to the 
applicants in the exemption document and includes the following: (1) 
Each driver must remain seizure-free and maintain a stable treatment 
during the two-year exemption period; (2) each driver must submit 
annual reports from

[[Page 67424]]

their treating physicians attesting to the stability of treatment and 
that the driver has remained seizure-free; (3) each driver must undergo 
an annual medical examination by a certified Medical Examiner, as 
defined by 49 CFR 390.5; and (4) each driver 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.

V. Preemption

    During the period the exemption is in effect, no State shall 
enforce any law or regulation that conflicts with this exemption with 
respect to a person operating under the exemption.

VI. Conclusion

    Based upon its evaluation of the 22 exemption applications, FMCSA 
exempts the following drivers from the epilepsy/seizure standard, 49 
CFR 391.41(b)(8), subject to the requirements cited above:

Travis Earl Baird (OK)
Robert P. Brackett (ME)
Brian R. Checkley, Jr. (NJ)
James Clark (PA)
Kelly Frederick (LA)
William Gessner (PA)
Jerry L. Henderson (IN)
Clarence D. Jones (VA)
Preston Romayne Kanagy (TN)
James Randall King (CT)
Scott A. Lowe (MA)
Roger Lynn Neal (MO)
Thomas Victor Oconnor (FL)
Scott William Reaves (TX)
Steven Shirley (UT)
Matthew Jack Staley (CO)
Michael A. Sypolt (WV)
Peter M. Thompson (FL)
Mohammad S. Warrad (IA)
Richard James Wenner (MN)
John Charles Wolfe (PA)
Dennis Raymond Zayic (MN)

    In accordance with 49 U.S.C. 31315(b)(1), each exemption is valid 
for two 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.

    Issued on: September 23, 2016.
Larry W. Minor,
Associate Administrator for Policy.
[FR Doc. 2016-23653 Filed 9-29-16; 8:45 am]
 BILLING CODE 4910-EX-P