Qualification of Drivers; Exemption Applications; Epilepsy and Seizure Disorders, 3069-3077 [2013-00709]

Agencies

• Federal Motor Carrier Safety Administration
• DEPARTMENT OF TRANSPORTATION

[Federal Register Volume 78, Number 10 (Tuesday, January 15, 2013)]
[Notices]
[Pages 3069-3077]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-00709]


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

DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2006-24278, FMCSA-2006-25854, FMCSA-2008-0355, FMCSA 
2010-0203, FMCSA-2011-0089]


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 grant requests from 22 
individuals for exemptions 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 regulation and the associated advisory 
criteria published in the Code of Federal Regulations as the 
``Instructions for Performing and Recording Physical Examinations'' 
have resulted in numerous drivers being prohibited from operating CMVs 
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. The Agency concluded that granting exemptions for these CMV 
drivers will provide a level of safety that is equivalent to or greater 
than the level of safety maintained without the exemptions. FMCSA 
grants exemptions that will allow these 22 individuals to operate CMVs 
in interstate commerce for a 2-year period. The exemptions preempt 
State laws and regulations and may be renewed.

DATES: The exemptions are effective January 15, 2013. The exemptions 
expire on January 15, 2015.

FOR FURTHER INFORMATION CONTACT: Elaine M. Papp, Division Chief, 
Physical Qualifications, Office of Medical Programs, (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 8:30 a.m. to 5 p.m., e.t., Monday through Friday, except 
Federal holidays.

SUPPLEMENTARY INFORMATION:

A. Electronic Access

    You may see all the comments online through the Federal Document 
Management System (FDMS) at: https://www.regulations.gov.
    Docket: For access to the docket to read background documents or 
comments, go to https://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., e.t., Monday through Friday, 
except Federal holidays.
    Privacy Act: Anyone may search the electronic form of all comments 
received into any of DOT's dockets by the name of the individual 
submitting the comment (or of the person signing the comment, if 
submitted on behalf of an association, business, labor union, or other 
entity). You may review DOT's complete Privacy Act Statement in the 
Federal Register (73 FR 3316, January 17, 2008). This statement is also 
available at https://Docketinfo.dot.gov.

B. Background

    Under 49 U.S.C. 31136(e) and 31315, FMCSA may grant an exemption 
from the safety regulations for a 2-year period if it finds ``such 
exemption would likely achieve a level of safety that is equivalent to, 
or greater than, the level that would be achieved absent such 
exemption''. The statute also allows the Agency to renew exemptions at 
the end of the 2-year period.
    FMCSA grants 22 individuals an exemption from the regulatory 
requirement in Sec.  391.41(b)(8) allowing individuals who take anti-
seizure medication to operate CMVs in interstate commerce for a 2-year 
period. The Agency's decision on these exemption applications is based 
on an individualized assessment of each applicant's medical 
information, including the root cause of the respective seizure(s); the 
length of time elapsed since the individual's last seizure; and each 
individual's treatment regimen. In addition, the Agency reviewed the 
applicant's driving record found in the CDLIS,\1\ for CDL holders, and 
interstate and intrastate inspections recorderd in MCMIS.\2\ The Agency 
acknowledges the potential consequences of a driver experiencing a 
seizure while operating a CMV. However, the Agency believes the drivers 
covered by the exemptions have demonstrated that they are unlikely to 
have a seizure and their medical condition does not pose a risk to 
public safety.
---------------------------------------------------------------------------

    \1\ Commercial Driver License Information System (CDLIS) is an 
information system that allows the exchange of commercial driver 
licensing information among all the States. CDLIS includes the 
databases of fifty-one licensing jurisdictions and the CDLIS Central 
Site, all connected by a telecommunications network.
    \2\ Motor Carrier Management Information System (MCMIS) is an 
information system that captures data from field offices through 
SAFETYNET, CAPRI, and other sources. It is a source for FMCSA 
inspection, crash, compliance review, safety audit, and registration 
data.
---------------------------------------------------------------------------

    In reaching the decision to grant these exemption requests, the 
Agency considered both current medical literature and information and 
the 2007 recommendations of the Agency's Medical Expert Panel (MEP). 
The Agency previously gathered evidence for potential changes to the 
regulation by conducting a comprehensive review of scientific 
literature that was compiled into the ``Evidence Report on Seizure 
Disorders and Commercial Vehicle Driving'' (Evidence Report) [CD-ROM HD 
TL230.3 .E95 2007]. The Agency then convened a panel of medical experts 
in the field of neurology (MEP) on May 14-15, 2007, to review 49 CFR 
391.41(b)(8) and the advisory criteria regarding individuals who have 
experienced a seizure, and the 2007 Evidence Report. The Evidence 
Report and the MEP recommendations are published on-line at https://www.fmcsa.dot.gov/rules-regulations/topics/mep/mep-reports.htm, under 
Seizure Disorders, and are in the docket for this notice.

[[Page 3070]]

MEP Criteria for Evaluation

    On October 15, 2007, the MEP issued the following recommended 
criteria for evaluating whether an individual with epilepsy or a 
seizure disorder should be allowed to operate a CMV.\3\ The MEP 
recommendations are included in an appendix at the end of this notice 
and in each of the previously published dockets.
---------------------------------------------------------------------------

    \3\ Engel, J., Fisher, R.S., Krauss, G.L., Krumholz, A., and 
Quigg, M.S., ``Expert Panel Recommendations: Seizure Disorders and 
Commercial Motor Vehicle Driver Safety,'' FMCSA, October 15, 2007.
---------------------------------------------------------------------------

    Epilepsy diagnosis. If there is an epilepsy diagnosis, the 
applicant should be seizure-free for 8 years, on or off medication. If 
the individual is taking anti-seizure medication(s), the plan for 
medication should be stable for 2 years. Stable means no changes in 
medication, dosage, or frequency of medication administration. 
Recertification for drivers with an epilepsy diagnosis should be 
performed every year.
    Single unprovoked seizure. If there is a single unprovoked seizure 
(i.e., there is no known trigger for the seizure), the individual 
should be seizure-free for 4 years, on or off medication. If the 
individual is taking anti-seizure medication(s), the plan for 
medication should be stable for 2 years. Recertification for drivers 
with a single unprovoked seizure should be performed every 2 years.
    Single provoked seizure. If there is a single provoked seizure 
(i.e., there is a known reason for the seizure), the Agency should 
consider specific criteria that fall into the following two categories: 
low-risk factors for recurrence and moderate-to-high risk factors for 
recurrence.
     Examples of low-risk factors for recurrence include 
seizures that were caused by a medication; by non-penetrating head 
injury with loss of consciousness less than or equal to 30 minutes; by 
a brief loss of consciousness not likely to recur while driving; by 
metabolic derangement not likely to recur; and by alcohol or illicit 
drug withdrawal.
     Examples of moderate-to-high-risk factors for recurrence 
include seizures caused by non-penetrating head injury with loss of 
consciousness or amnesia greater than 30 minutes, or penetrating head 
injury; intracerebral hemorrhage associated with a stroke or trama; 
infections; intracranial hemorrhage; post-operative complications from 
brain surgery with significant brain hemorrhage; brain tumor; or 
stroke.
    The MEP report indicates individuals with moderate to high-risk 
conditions should not be certified. Drivers with a history of a single 
provoked seizure with low risk factors for recurrence should be 
recertified every year.

Medical Review Board Recommendations and Agency Decision

    FMCSA presented the MEP's findings and the Evidence Report to the 
Medical Review Board (MRB) for consideration. The MRB reviewed and 
considered the 2007 ``Seizure Disorders and Commercial Driver Safety'' 
evidence report and the 2007 MEP recommendations. The MRB recommended 
maintaining the current advisory criteria, which provide that ``drivers 
with a history of epilepsy/seizures off anti-seizure medication and 
seizure-free for 10 years may be qualified to drive a CMV in interstate 
commerce. Interstate drivers with a history of a single unprovoked 
seizure may be qualified to drive a CMV in interstate commerce if 
seizure-free and off antiseizure medication for a 5 year period or 
more'' [Advisory criteria to 49 CFR 391.43(f)].
    The Agency acknowledges the MRB's position on the issue but 
believes relevant current medical evidence supports a less conservative 
approach. The medical advisory criteria for epilepsy and other seizure 
or loss of consciousness episodes was based on the 1988 ``Conference on 
Neurological Disorders and Commercial Drivers'' (NITS Accession No. 
PB89-158950/AS). A copy of the report can be found in the docket 
referenced in this notice.
    The MRB's recommendation treats all drivers who have experienced a 
seizure the same, regardless of individual medical conditions and 
circumstances. In addition, the recommendation to continue prohibiting 
drivers who are taking anti-seizure medication from operating a CMV in 
interstate commerce does not consider a driver's actual seizure history 
and time since the last seizure. The Agency has decided to use the 2007 
MEP recommendations as the basis for evaluating applications for an 
exemption from the seizure regulation on an individual, case-by-case 
basis.

C. Exemptions

    Following individualized assessments of the exemption applications, 
including a review of detailed follow-up information requested from 
each applicant, FMCSA is granting exemptions from 49 CFR 391.41(b)(8) 
to 22 individuals. Under current FMCSA regulations, all of the 22 
drivers receiving exemptions from 49 CFR 391.41(b)(8) would have been 
considered physically qualified to drive a CMV in interstate commerce 
except that they presently take or have recently stopped taking anti-
seizure medication. Twenty of the twenty-two drivers receiving an 
exemption currently take anti-seizure medication. For these 22 drivers, 
the primary obstacle to medical qualification was the FMCSA Advisory 
Criteria for Medical Examiners, based on the 1988 ``Conference on 
Neurological Disorders and Commercial Drivers,'' stating that a driver 
should be off anti-seizure medication in order to drive in interstate 
commerce. In fact, the Advisory Criterion has little if anything to do 
with the actual risk of a seizure and more to do with assumptions about 
individuals who are taking anti-seizure medication.
    Of the 22 drivers being granted an exemption, only two individuals 
have an actual diagnosis of epilepsy. In each of these cases, the 
treating physician's rationale in diagnosing epilepsy is unclear, as 
the individual experienced only a single seizure. The two drivers 
diagnosed with epilepsy both have been seizure-free for more than 21 
years. Of the other twenty drivers, 5 have been seizure-free for more 
than 20 years and 15 for more than 4 years. Seven of the total 20 
drivers have had one provoked or unprovoked seizure from a head injury, 
a medical procedure, or other known cause.
    In addition to evaluating the medical status of each applicant, 
FMCSA evaluated the crash and violation data for the 22 drivers, some 
of whom currently drive a CMV in intrastate commerce. The Commercial 
Drivers License Information System (CDLIS) and the FMCSA Motor Carrier 
Management Information System (MCMIS) were searched for crash and 
violation data on the 22 applicants. The CDLIS and MCMIS systems had 
records on 13 of the applicants. The crash and violation history on 
each individual driver is listed in his or her biographical profile.
    These exemptions are contingent on the driver maintaining a stable 
treatment regimen and remaining seizure-free during the 2-year 
exemption period. The exempted drivers must submit annual reports from 
their treating physicians attesting to the stability of treatment and 
that the driver has remained seizure-free. The driver must undergo an 
annual medical examination by a medical examiner, as defined by 49 CFR 
390.5, following the FCMSA's regulations for the physical 
qualifications for commercial motor vehicle drivers.
    FMCSA published a notice of receipt of application and requested 
public comment during a 30 day public comment period in a Federal 
Register

[[Page 3071]]

notice for each of the applicants. A short summary of the applicants' 
qualifications follows. A discussion of the comments received follows 
in section D. Comments. For those applicants who were denied an 
exemption, a notice will be published at a later date.

Docket  FMCSA-2006-24278

    On October 13, 2006, FMCSA published a notice of receipt of 
exemption applications and requested public comment on four individuals 
(71 FR 60606; Docket number FMCSA-2006-24278). The comment period ended 
on November 13, 2006. Eight commenters responded to the Federal 
Register notice. A discussion of the comments is presented later in 
this document. FMCSA has determined that Wayne C. Sorenson, one of the 
applicants, should be granted an exemption. The Agency will issue a 
decision on the other drivers at a later date.
    Wayne C. Sorenson. Mr. Sorenson is an intrastate CMV driver in 
Minnesota. Mr. Sorenson should be granted an exemption because he meets 
the MEP criteria of having no diagnosis of epilepsy, no seizures for 
the last 4 years, and being on a stable medication regimen for longer 
than 2 years. He first experienced seizures 17 years ago while 
sleeping, which were the result of an adverse reaction to medication. 
He has remained on a stable anti-seizure medication plan and has not 
had a seizure in 16 years. Mr. Sorenson states that he has no other 
diagnosed conditions, physical or psychological impairment, and no 
history of strength, sensory, or coordination impairment that would 
interfere with safe driving. Mr. Sorenson believes that he would 
achieve a level of safety that is equivalent to the level of safety 
obtained by complying with the regulation because he has remained 
seizure-free for 16 years. Mr. Sorenson's driving record indicates an 
administrative loss of privileges for a period of 45 days in the state 
of Minnesota during 1994. He has no entries in MCMIS.

Docket  FMCSA-2006-25854

    On August 9, 2007, FMCSA published a notice of receipt of exemption 
applications and requested public comments on nine individuals (72 FR 
44916; Docket number FMCSA-2006-24854). The comment period ended on 
September 10, 2007. Five comments were received. A discussion of the 
comments is presented later in this document. Of the nine applicants, 
FMCSA determined that the following four individuals should be granted 
an exemption. The Agency will issue a decision on the other drivers at 
a later date.
    David L. Basso. Mr. Basso is an intrastate CMV driver in Ohio who 
delivers to local grocery and convenience stores. Mr. Basso should be 
granted an exemption because he meets the MEP criteria of having a 
diagnosis of epilepsy, no seizures for the last 8 years, and being on a 
stable medication regimen for longer than 2 years. He states that he 
has a clinical diagnosis of epilepsy. His doctor certified that he has 
been seizure-free since 1990 on his current dose of medication. Mr. 
Basso believes that he would achieve a level of safety that is 
equivalent to the level of safety obtained by complying with the 
regulation because he has remained seizure-free since 1990. He has no 
entries in CDLIS or MCMIS.
    Dorothy Pokornowski. Ms. Pokornowski is an intrastate CMV driver in 
Minnesota. Ms. Pokornowski should be granted an exemption because she 
meets the MEP criteria of having a diagnosis of epilepsy, no seizures 
for the last 8 years, and being on a stable medication regimen for 
longer than 2 years. She was diagnosed with epilepsy at age 22. Her 
doctor certified that she has been stable, with no seizure activity on 
medication, since 1985. Her doctor stated that her anti-seizure 
medication was changed in 2006 due to concerns about certain adverse 
side effects. Ms. Pokornowski has seizure-free driving experience for 
the past 26 years. FMCSA believes that she would reach a level of 
safety that is equivalent to the level of safety obtained by complying 
with the regulation because she continues to take her medication as 
directed by her doctor and gets her blood levels checked every year. 
She has one listing in CDLIS for a seat belt infraction not involving a 
CMV in 1997 and one possible injury crash, non-CMV in 2010. She has no 
entries in MCMIS.
    Brian J. Porter. Mr. Porter is an intrastate CMV driver in 
Pennsylvania. Mr. Porter should be granted an exemption because he 
meets the MEP criteria of having no diagnosis of epilepsy, no seizures 
for the last 4 years, and being on a stable medication regimen for 
longer than 2 years. Mr. Porter states that he has been driving on the 
east coast for approximately 14 years. His neurologist states that he 
had a history of seizures but has not had any in the past 25 years. He 
is currently taking anti-seizure medication. Mr. Porter believes that 
he would achieve a level of safety that is equivalent to the level of 
safety obtained by complying with the regulation because he has 
remained seizure-free for 25 years. Mr. Porter's CDLIS record indicates 
that he has 3 speeding violations (1999, all non-CMV) and 2 erratic 
(unsafe) lane changes (1982, 2005), both non-CMV. He has an illegal 
possession of alcohol, non-CMV, in 1989. He has no entries in MCMIS.
    Michael W. Thomas. Mr. Thomas is an intrastate CMV driver in 
Kansas. Mr. Thomas should be granted an exemption because he meets the 
MEP criteria of having no diagnosis of epilepsy, no seizures for the 
last 4 years, and being on a stable medication regimen for longer than 
2 years. He was diagnosed with a seizure disorder in 1987. His doctor 
certified he has been seizure-free for over 20 years. He is currently 
taking an anti-seizure medication. His doctor certified that he is 
compliant with his treatment and can safely operate any CMV he is 
qualified to drive. Mr. Thomas has a state waiver from Kansas, and has 
been crash-free throughout his 12 year commercial driving career. Mr. 
Thomas believes that he would achieve a level of safety that is 
equivalent to the level of safety obtained by complying with the 
regulation because he has remained seizure-free for over 20 years 
through stringent medical compliance using the same medication and 
dosage. He has no entries in CDLIS or MCMIS.

Docket  FMCSA-2008-0355

    On December 10, 2008, FMCSA published a notice of receipt of 
exemption applications and requested public comment on 15 individuals 
(73 FR 75165; Docket number FMCSA-2008-0355). The comment period ended 
on January 9, 2009. FMCSA received five comments. A discussion of the 
comments is presented later in this document. Of the 15 applicants, 
FMCSA determined that the following six individuals should be granted 
an exemption. The Agency will issue a decision on the other drivers at 
a later date.
    Daniel Forth. Mr. Forth is an intrastate CMV driver in New York. 
Mr. Forth should be granted an exemption because he meets the MEP 
criteria of having no diagnosis of epilepsy, no seizures for the last 4 
years, and being on a stable medication regimen for longer than 2 
years. He was diagnosed with a seizure disorder in 1979, and is 
currently taking an anti-seizure medication. His doctor certified that 
he has been seizure-free for 31 years on his current dose of 
medication. Mr. Forth believes that he would achieve a level of safety 
that is equivalent to the level of safety obtained by complying with 
the regulation because he has maintained medication control and has

[[Page 3072]]

remained seizure-free for 31 years. His CDLIS record indicates a 
signaling violation in 1992 (vehicle unknown) and a possible injury 
crash (vehicle unknown) in 1991. He has no entries in MCMIS. The Agency 
would like to publish a correction to the 2008 notice. Mr. Forth was 
published as having been seizure-free for 27 years with his current 
dose of medications; however, he has maintained good medication control 
and been seizure-free for 31 years.
    Garry A. Gantle. Mr. Gantle is an intrastate CMV driver in Florida. 
Mr. Gantle should be granted an exemption because he meets the MEP 
criteria of having no diagnosis of epilepsy, no seizures for the last 4 
years, and being on a stable medication regimen for longer than 2 
years. He was diagnosed with a seizure disorder due to a head injury, 
not epilepsy, in 1980. He had two seizures in 2000, related to another 
medical condition, not epilepsy. In 2006, his anti-seizure medication 
was changed. His neurologist certified that his seizure disorder is 
well controlled. Mr. Gantle believes that he would achieve a level of 
safety that is equivalent to the level of safety obtained by complying 
with the regulation because he has remained seizure-free on anti-
seizure medication for 11 years. He has no entries in CDLIS or MCMIS.
    Steve L. Hunsaker. Mr. Hunsaker is an intrastate CMV driver in 
Idaho. Mr. Hunsaker should be granted an exemption because he meets the 
MEP criteria of having a diagnosis of nocturnal seizures, no seizures 
for the last 4 years, and being on a stable medication regimen for 
longer than 2 years. He has a history of nocturnal seizures and is 
currently taking an anti-seizure medication. His doctor certified that 
he has been seizure-free for 22 years on his current dose of 
medication. Mr. Hunsaker believes that he would achieve a level of 
safety that is equivalent to the level of safety obtained by complying 
with the regulation because he has maintained good medication control 
and has remained seizure-free for 22 years. He has no entries in CDLIS 
or MCMIS.
    Shane Klementis. Mr. Klementis is an intrastate CMV driver in New 
York. Mr. Klementis should be granted an exemption because he meets the 
MEP criteria of having no diagnosis of epilepsy, no seizures for the 
last 4 years, and being on stable medication for longer than 2 years. 
He was diagnosed with a seizure in 1982 and is currently taking an 
anti-seizure medication. His neurologist certified that his seizure 
disorder is well controlled. Mr. Klementis believes that he would 
achieve a level of safety that is equivalent to the level of safety 
obtained by complying with the regulation because he has remained 
seizure-free on anti-seizure medication for 21 years. His MCMIS record 
lists one inspection infraction in 2009. He has no entries in CDLIS.
    Scott M. Rohlinger. Mr. Rohlinger is an intrastate driver in 
Wisconsin. Mr. Rohlinger should be granted an exemption because he 
meets the MEP criteria of having no diagnosis of epilepsy, no seizures 
for the last 4 years, and has been off medication for 4 years. He was 
diagnosed with seizure disorder in 1987 and took anti-seizure 
medication for 20 years. He discontinued his medication in 2007. Mr. 
Rohlinger was involved in a motor vehicle crash that was linked to a 
possible seizure episode 24 years ago. His doctor certified that there 
were no seizure experiences prior to or following the event. Mr. 
Rohlinger believes that he would achieve a level of safety that is 
equivalent to the level of safety obtained by complying with the 
regulation because he has remained seizure-free for 24 years. His 
doctor certified that he may never have experienced a seizure. His 
CDLIS record lists one property damage crash in 2007 (non-CMV). He has 
no entries in MCMIS.
    John B. Yates. Mr. Yates is an intrastate CMV driver in West 
Virginia. Mr. Yates should be granted an exemption because he meets the 
MEP criteria of having no diagnosis of epilepsy, no seizures for the 
last 4 years, and being on stable medication for longer than 2 years. 
He has a history of seizures, diagnosed in 1976, and is currently 
taking an anti-seizure medication. According to his neurologist, his 
last seizure was in 1982. Mr. Yates believes that he would achieve a 
level of safety that is equivalent to the level of safety obtained by 
complying with the regulation because he has not had a seizure in 29 
years while on medication. His CDLIS record indicates 2 charges of 
negligent driving not involving a CMV (1990, 1985) and one speeding 
violation in 1988 (non-CMV). He has no entries in MCMIS.

Docket  FMCSA-2010-0203

    On July 2, 2010, FMCSA published a notice of receipt of exemption 
applications and requested comments from the public on 17 individuals 
(75 FR 38599; Docket number FMCSA-2010-0203). The comment period ended 
on August 2, 2010. FMCSA received 6 comments. A discussion of the 
comments is presented later in this document. Of the 17 applicants, 
FMCSA determined that the following eight individuals should be granted 
an exemption. The Agency will issue a decision on the other drivers at 
a later date.
    Bruce B. Baum. Mr. Baum is an intrastate CMV driver in New Mexico. 
Mr. Baum should be granted an exemption because he meets the MEP 
criteria of having no diagnosis of epilepsy, no seizures for the last 4 
years, and being on a stable medication regimen for longer than 2 
years. He experienced a single episode of a seizure in 1999 and is 
currently taking an anti-seizure medication. His neurologist states 
that he has been seizure-free since 2002. Mr. Baum believes that he 
would achieve a level of safety that is equivalent to the level of 
safety obtained by complying with the regulation because he has 
remained seizure-free and compliant on medication for 7 years. He has 
no entries in CDLIS or MCMIS.
    Todd A. Davis. Mr. Davis is an intrastate CMV driver in Wisconsin. 
Mr. Davis should be granted an exemption because he meets the MEP 
criteria of having no diagnosis of epilepsy, no seizures for the last 4 
years, and being on a stable medication regimen for longer than 2 
years. He experienced a complex partial seizure in 2007 and is 
currently taking an anti-seizure medication. His neurologist certified 
that Mr. Davis has been seizure free for 4 years. Mr. Davis believes 
that he would achieve a level of safety that is equivalent to the level 
of safety obtained by complying with the regulation because he has 
remained seizure-free and compliant with medication since 2007. He has 
one 2010 CDLIS violation involving a non-injury crash with non-CMV 
operation indicated. He has no entries in MCMIS.
    James Dyer. Mr. Dyer is an intrastate CMV driver in Texas. Mr. Dyer 
should be granted an exemption because he meets the MEP criteria of 
having no diagnosis of epilepsy, no seizures for the last 4 years, and 
being on no anti-seizure medication regimen for longer than 2 years. He 
experienced a single seizure-like event in 2008. He has been off 
medication for 3 years. His neurologist certified that Mr. Dyer has 
been seizure-free for 4 years. Mr. Dyer believes that he would achieve 
a level of safety that is equivalent to the level of safety obtained by 
complying with the regulation because he has remained seizure-free 
since 2008. He has no entries in CDLIS or MCMIS.
    Christian E. Henry. Mr. Henry is an intrastate CMV driver in 
Pennsylvania. Mr. Henry should be granted an exemption because he meets 
the MEP criteria of having no diagnosis of

[[Page 3073]]

epilepsy, no seizures for the last 4 years, and being on a stable 
medication regimen for longer than 2 years. He has a history of 
seizures during medical procedures when he was a juvenile. His doctor 
states that he has been seizure-free for 13-plus years on his current 
dose of medication and is stable to drive. Mr. Henry believes that he 
would achieve a level of safety that is equivalent to the level of 
safety obtained by complying with the regulation because he has 
remained seizure-free since 1998, has a safe driving record, and he is 
compliant with his medication. He has no entries in CDLIS or MCMIS.
    Henrietta M. Ketcham. Ms. Ketcham is an intrastate CMV driver in 
New York. Ms. Ketcham should be granted an exemption because she meets 
the MEP criteria of not having a diagnosis of epilepsy, no seizures for 
the last 4 years, and being on a stable medication regimen for longer 
than 2 years. She has a history of seizure disorder dating to 1992. She 
experienced her last seizure in 2001 and is currently taking an anti-
seizure medication. Her doctor states that she has been seizure-free 
for 10 years on her current dose of medication and remains stable. Ms. 
Ketcham believes that she would achieve a level of safety that is 
equivalent to the level of safety obtained by complying with the 
regulation because she has maintained good medication control and has 
remained seizure-free for 10 years. During 1990, she had one violation 
listed in CDLIS for failing to obey a traffic control device (non-CMV) 
and two possible injury crashes (vehicle unknown). She has no entries 
in MCMIS.
    Joseph A. Suhy. Mr. Suhy is an intrastate CMV driver in 
Pennsylvania. Mr. Suhy should be granted an exemption because he meets 
the MEP criteria of not having a diagnosis of epilepsy, no seizures for 
the last 4 years, and being on a stable medication regimen for longer 
than 2 years. He was diagnosed with a seizure disorder after a head 
injury in 1986. His last seizure was in 1991 and at the time he was on 
an anti-seizure medication. His anti-seizure medication was changed in 
1991. He remains on this medication to date. His doctor states that he 
has been seizure-free for 20 years. Mr. Suhy believes that he would 
achieve a level of safety that is equivalent to the level of safety 
obtained by complying with the regulation because he has remained 
seizure-free and is compliant with treatment. He has no entries in 
CDLIS or MCMIS.
    Paul C. Warren. Mr. Warren is an intrastate CMV driver in Maine. 
Mr. Warren should be granted an exemption because he meets the MEP 
criteria of not having a diagnosis of epilepsy, no seizures for the 
last 4 years, and being on a stable medication regimen for longer than 
2 years. He was originally diagnosed with epilepsy in 2000. He 
experienced his last seizure in 2002 and is currently taking an anti-
seizure medication. His neurologist states that he has been seizure-
free for 9 years and is compliant with treatment. Mr. Warren believes 
that he would achieve a level of safety that is equivalent to the level 
of safety obtained by complying with the regulation because he has a 
history of safe driving in CMVs and has remained seizure-free for 9 
years.
    The Agency would like to publish a correction to the July 2, 2010, 
notice. Mr. Warren was described as having been diagnosed with 
epilepsy. His actual diagnosis is one of partial complex seizures and 
he qualifies for an exemption based on having the seizure-free period 
of 4 years recommended by the MEP. He has no entries in CDLIS or MCMIS.
    Brian H. Wetzel. Mr. Wetzel is an intrastate CMV driver in 
Missouri. Mr. Wetzel should be granted an exemption because he meets 
the MEP criteria of not having a diagnosis of epilepsy, no seizures for 
the last 4 years, and being on a stable medication regimen for longer 
than 2 years. He was diagnosed with a seizure disorder after brain 
surgery in 1976. He experienced his last seizure in 1995 and is 
currently taking an anti-seizure medication. His neurologist's medical 
opinion is that he has been seizure-free for 16 years and is safe to 
drive. Mr. Wetzel believes that he would achieve a level of safety that 
is equivalent to the level of safety obtained by complying with the 
regulation because he has been seizure free for 16 years and is 
compliant with treatment. He has no entries in CDLIS or MCMIS.

Docket  FMCSA-2011-0089

    On April 5, 2011, FMCSA published a notice of receipt of exemption 
applications from 8 individuals, and requested comments from the public 
(76 FR18822). The comment period ended on May 5, 2011. FMCSA received 
two comments. A discussion of the comments is presented later in this 
document. Of the 8 applicants published, the following 3 individuals 
are being granted an exemption. The Agency will issue a decision on the 
other drivers at a later date.
    Donald Schutz. Mr. Schutz is an intrastate CMV driver in Ohio. Mr. 
Schutz should be granted an exemption since he meets the MEP criteria 
and would achieve a level of safety that is equivalent to the level of 
safety obtained by complying with the regulation. He has remained 
seizure-free for 9 years and has been on anti-seizure medication since 
2002. He states that he was diagnosed with a brain tumor in 2002 and 
that he suffered a seizure due to a tumor in July of that year. He had 
brain surgery in November 2002 and the tumor was successfully removed. 
Mr. Schutz has been taking anti-seizure medication since that time and 
has had no further seizures. He has his medication levels checked often 
by blood tests and remains compliant with his regimen. Mr. Schultz's 
CDLIS report shows a non-CMV inability-to-control violation in 2002. He 
has no entries in MCMIS.
    Robin L. Sherwood. Mr. Sherwood is an intrastate CMV driver in 
Idaho. Mr. Sherwood should be granted an exemption. He would achieve a 
level of safety that is equivalent to the level of safety obtained by 
complying with the regulation. He has remained seizure-free since 1997 
and is compliant with his medication regimen for seizures. He states 
that he had a seizure caused by a brain tumor in 1997 and that the 
tumor was successfully removed during the same year. Mr. Sherwood has 
taken anti-seizure medication since 1997 with no further seizure 
activity. His doctor supports Mr. Sherwood's application for exemption 
because of his successful surgery and medication compliance. His CDLIS 
report states that he has a non-CMV speeding violation in 1991. He has 
no entries in MCMIS.
    Frank Eveland. Mr. Eveland is an intrastate CMV driver in 
Wisconsin. Mr. Eveland should be granted an exemption. He meets the MEP 
criteria and has remained seizure-free for 8 years. He has been on 
anti-seizure medication since 2003. He was diagnosed with one 
unprovoked seizure in 2003 and placed on anti-seizure medication at 
that time. His physician states that Mr. Eveland has had no further 
seizures and that his medication level is checked regularly by blood 
tests. The doctor states that Mr. Eveland is safe to operate a motor 
vehicle and that he is compliant with his medication. Mr. Eveland 
believes he would achieve a level of safety that is equivalent to the 
level of safety obtained by complying with the regulation because he 
has maintained good medication control and has remained seizure-free 
for 8 years. Mr. Eveland's CDLIS report states that he has a property 
damage/non-injury crash in 2011, a non-CMV violation. He has no entries 
in MCMIS.

[[Page 3074]]

D. Comments

    In response to the five notices, FMCSA received 26 different 
comments. Comments that relate specifically to applicants other than 
the ones covered in this notice will be addressed in a subsequent 
notice of denial of application.

Individual Assessment of Applicants for Exemption

    On behalf of the Epilepsy Foundation, Brien J. Smith, MD, urged the 
establishment of a thorough science-based process in reviewing 
exemption requests, including consideration of each individual's level 
of risk to public safety (FMCSA-2004-24278-0012). The Epilepsy 
Foundation expressed concern that the current standard creates a 
``blanket exclusion for persons with a history of recurrent seizures, 
without distinction as to the type of seizure.'' The Epilepsy 
Foundation asserted that the Americans with Disabilities Act of 1990, 
42 U.S.C. 12101 et seq. (ADA), and Section 504 of the Rehabilitation 
Act of 1973, 29 U.S.C. 701, et seq. (Rehabilitation Act), prohibit 
blanket exclusions and require individualized assessments of fitness 
and risk. Based on more recent medical knowledge and strides in 
treatment of epilepsy, it called on FMCSA to eliminate its blanket 
disqualification of persons with epilepsy seeking licenses to operate a 
CMV. The Foundation recommended that FMCSA establish new guidelines for 
licensing commercial drivers and give greater weight to the exemption, 
including documentation on an individual's medication compliance 
posture and the absence of other precipitating conditions.
    FMCSA Response: FMCSA notes that the ADA permits the establishment 
of regulations concerning minimum levels of physical qualifications for 
CMV drivers, which may be tantamount to blanket exclusions.\4\ 
Notwithstanding the minimum qualification requirements, FMCSA agrees 
with the Epilepsy Foundation that the general exemption process for CMV 
drivers with disabilities allows FMCSA to consider new developments in 
medicines or adaptations that reduce significantly the safety risk 
created by certain medical conditions. While FMCSA is not initiating a 
new exemption program, similar to the Agency's vision and diabetes 
exemption programs, we are acknowledging advances in treatment of 
individuals who have experienced a seizure.
---------------------------------------------------------------------------

    \4\ The Conference Report specifically emphasized that the ADA 
is not meant to ``override any legitimate medical standards 
established by Federal, State or local law, or by employers for 
applicants for safety or security positions, if the medical 
standards are consistent with [the ADA].'' See Conference Report on 
S.933, Americans with Disabilities Act: Joint Explanatory Statement 
of the Committee of Conference, H.R. Rep. No. 596, 101st Cong., 2d 
Sess. at 59 (1990), reprinted in 136 Cong. Rec. H 4582, 4597 (Daily 
ed. July 12, 1990). In Albertson's Inc. v. Kirkingburg, 527 U.S. 
555, (1999), the Supreme Court recognized that federal safety rules 
may limit application of the ADA as a matter of law, citing the 
Senate Labor and Human Resources Committee report on the ADA, which 
stated that a ``person with a disability applying for or currently 
holding a job subject to [Department of Transportation standards for 
drivers] must be able to satisfy these physical qualifications 
standards in order to be considered a qualified individual with a 
disability under [the ADA].'' 527 U.S. at 573.
---------------------------------------------------------------------------

    The Agency conducted a comprehensive literature review and convened 
a panel of medical experts in epilepsy and neurology to address key 
questions and make recommendations concerning new guidelines for CMV 
drivers. FMCSA is conducting individualized case assessments of persons 
seeking an exemption from Sec.  391.41(b)(8). The Agency seeks to 
assess safety risks, medical history, and compliance to determine 
whether there is a likelihood the individual will experience a seizure 
while operating a CMV in interstate commerce on or off medication. The 
goal is to ensure a minimal safety risk to the driver or the travelling 
public.

No Exemptions for Epilepsy

    Dr. Merris T. Young, MD, stated, ``I personally and professionally 
feel that any allowance of individuals diagnosed with epilepsy to 
operate such potentially dangerous equipment before such updated 
medical information is available is unacceptable, because it would 
place the public health and safety and significantly increased risk'' 
(FMCSA-2006-24278-0007).
    FMCSA Response: The Agency believes that evaluating each 
individual's medical history on a case-by-case basis and investigating 
the past driving/violation record ensures an acceptable level of safety 
for a driver who has not experienced a seizure for an extended period 
of time. Drivers, who have been seizure-free, on or off medication for 
at least four years, pose a minimal risk to public safety. The Agency 
considered the 2007 Evidence Report and the 2007 MEP Recommendations to 
determine the driver's level of risk for recurrence of seizure. The 
Agency believes this data and information addresses Dr. Young's 
concerns.

Concerns About Medical Examiners

    Daniel M. Janiga, MD, a medical director for multiple companies 
that hire drivers who require medical examiners' certificates, 
indicated his concern that drivers may go ``doctor shopping'' to find a 
medical examiner who will support their requests for exemptions (FMCSA-
2006-24278-0003). Because of the difficulty of managing seizure 
disorders (for example, medications may lower seizure thresholds) and 
monitoring drivers, he favored ``staying with our current rules/
guidelines'' until there are evidence-based studies on the effects of 
``fatigue, medications such as Zyban, physical conditions such as sleep 
apnea* * *'' on lowering seizure thresholds and how they relate to 
driving accidents.
    FMCSA Response: The Agency acknowledges Dr. Janiga's concern about 
drivers who have experienced a seizure, take medication and fail to 
share that information with their Medical Examiners. Allowing drivers 
an option for an exemption, especially those who have not experienced a 
seizure in several years, may decrease the number of drivers who fail 
to disclose their medical history to the Medical Examiner. The MEP 
recommendations provide a practical solution to protect both public 
safety and the drivers, need for employment.

Inadequate Basis for the Exemption

    Advocates for Highway and Auto Safety (Advocates) wrote that the 
Agency's position that some drivers who are seizure free should be 
granted exemptions is unsupported by ``medical research, statistical 
data, legal decisions, or any published determination by the Secretary 
of Transportation'' (FMCSA-2006-24278-0011). They stated that the 
underlying rationale for exemptions from the current rule was not based 
on recent scientific or medical studies and that the Agency had 
presented no medical or other information on which it can make a 
determination. In 2006, Advocates recommended waiting until 
``convincing evidence [was] presented that medical authorities can 
determine a shorter period is appropriate for some or all persons with 
seizure histories.'' In a later comment, Advocates recommended that the 
Agency update the driver physical and medical qualifications based on 
current medical norms and science (FMCSA-2006-25854-0005). The FMCSA 
notes that in requesting public comments for an exemption application, 
the Agency did not offer opinions or views whether the exemption should 
be granted or denied.
    FMCSA Response: The Agency believes the Advocates' concerns were 
appropriate based on information available to the Agency and the public 
in 2006. However, the findings of the 2007 comprehensive literature 
review

[[Page 3075]]

and the MEP recommendations provide current information that the Agency 
considered in making the determination that an exemption would likely 
achieve a level of safety that is equivalent to or greater than the 
level achieved without the exemption. The Agency's advisory criteria 
recommending the 10-year seizure-free/off medication period for driving 
a CMV was established by a panel of neurologists in 1988. In 2007, the 
MEP updated the information regarding treatment of seizure disorders 
and the likelihood of seizure recurrence for a variety of seizure 
disorders and situations. FMCSA believes that the current research and 
information supersede the information presented by the panel of 
neurologists in the 1988, ``Conference on Neurological Disorders and 
Commercial Drivers.'' Also, the drivers covered by the exemptions have 
been free of seizures for a period of four years to more than 20 years.

Inadequate Information About Individual Applicants

    Advocates stated that ``unless the Agency can document that 
individual applicants do not pose an increased safety risk when 
operating a CMV, as compared with persons who have not had a seizure or 
seizure history, then the Agency cannot grant exemptions'' (FMCSA-2006-
24278-0011). FMCSA is required by 49 U.S.C. 31315(b)(4) to publish a 
notice and provide an opportunity for the public to comment on every 
applicant for an exemption, irrespective of whether the Agency believes 
the arguments offered by the applicant warrant the granting of an 
exemption. In fact, the Agency reserves judgement until after the 
notice and comment period. Advocates commented that ``the brief 
statements presented in the notice for each applicant do not provide 
the medical evidence based in individualized testing necessary to meet 
the legal burden for granting exemptions.'' Advocates wrote that 
``FMCSA has not developed any means for performing individualized 
testing.''
    Advocates stated that two of the applicants were diagnosed with 
epilepsy and therefore should not be granted an exemption. Advocates 
also noted difficulties with applicants in two notices including 
``recent seizure events'' and the fact that some drivers continue to 
take anti-seizure medication: ``Thus, they do not meet the current 
requirements.''
    Mr. Steven A. Tudor (FMCSA 2006-25854-0003) commented that three 
drivers did not have their home States listed and that this would 
preclude their States from knowing about the Federal Register listing.
    FMCSA Response: In response to the Advocates comment regarding 
medical evidence, FMCSA reviews each individual applicant, assesses the 
driving record and the individual's medical condition, and determines 
on a case-by-case basis the driver's risk to public safety. FMCSA is 
not granting drivers with recent seizure events an exemption based on 
the MEP recommendations. The Agency has made the decision to use the 
more current 2007 MEP recommendations to grant exemptions on a case-by-
case basis rather than to judge all drivers by the criteria established 
in the 1988 ``Conference on Neurological Disorders and Commercial 
Drivers'' report. The Agency evaluated each individual's medical 
condition, comparing it to the 2007 MEP. In addition, to ensure the 
safest roads possible, the Agency researched each individual's driving 
record. Further, we believe that each driver has shown evidence of 
compliance with his or her treatment regimen. Thus, we believe that the 
individuals listed above have a level of safety equivalent to those 
drivers who do not suffer from a seizure disorder.
    The Agency believes, however, that a driver who has not experienced 
a seizure in years, should not be precluded from driving a CMV in 
interstate commerce merely because he remains on anti-seizure 
medication. Generally, the Agency does not preclude drivers with 
medical conditions, other than seizure disorders, from operating a CMV 
in interstate commerce merely because they are taking medication. In 
addition, all drivers must be stable on the medication for 2 years, 
which is a long enough period of time for the driver and his treating 
physician to note any adverse reactions to the medication such as 
excessive drowsiness. As mentioned in the background section, only 
those drivers meeting the MEP criteria are being granted an exemption.
    In response to Advocates' concern about the brevity of FMCSA's 
statement on each seizure exemption applicant, the Agency does not post 
all the medical information provided by the drivers. The Agency 
provides information about the specific medical condition for which the 
exemption is being sought. FMCSA summarizes the information for the 
public's view, as we do for the Federal Register notices announcing 
application requests for vision and diabetes exemptions from the rules. 
FMCSA is consistent in the way that all medical exemptions are handled. 
We have extensive documentation used to verify that the medical 
condition for which the exemption is being sought is the only condition 
to prevent the drivers from operating a CMV in interstate commerce. The 
Agency provides a minimal amount of information to announce the 
exemption request to protect the driver from unnecessary disclosure of 
personal and medically confidential information.
    In response to Mr. Tudor's comment, FMCSA added the home States to 
the each driver's biographical statement in this Federal Register 
notice.

MRB Criteria

    Advocates expressed concerns that a coherent policy is needed which 
addresses medical and physical qualifications of CMV drivers, and urged 
a review of the current standards by the MRB (FMCSA-2006-25854-0005). 
Advocates stated that the MRB should be the body that makes the 
determination.
    FMCSA Response: FMCSA's MRB is a Federal Advisory Committee whose 
role is to provide scientific and medical advice to FMCSA on ongoing 
medical issues, including the identification of appropriate physical 
qualifications of CMV drivers, medical standards, and educational 
curriculum for training medical examiners who certify that drivers meet 
the physical qualification standards and functional tests for drivers 
with disabilities. The MRB reviews all current FMCSA medical standards 
and makes recommendations to FMCSA for new science-based standards and 
guidelines to ensure that drivers operating CMVs in interstate 
commerce, as defined in 49 CFR 390.5, are physically capable. Thus, the 
MRB makes recommendations but the Agency is the deciding body, 
determining which of the MRB's advice and recommendations to adopt, 49 
U.S.C. 31149(a)(1) and (c)(1). The Agency does not believe it was 
Congress's intent that the MRB serve as a medical certification review 
board for each individual seeking an exemption.

Support for Applicants and the Exemptions

    Lori A. Strom wrote in support of drivers who have been seizure-
free for a long time; she cited the 20-year safety record of her 
husband, a CMV operator with a seizure disorder on seizure medication, 
as a positive example (FMCSA-2006-25854-0006). Mr. Strom operates under 
an intrastate exemption granted by the State of California. An 
anonymous writer (FMCSA-2006-25854-0004) and Mr. V. Ross (FMCSA-2006-
25854-0002) both agreed that drivers exhibiting long-term control of 
their seizure disorders (more than 5 years) should be granted 
exemptions. Mr. Ross warned against giving

[[Page 3076]]

exemptions to drivers who had shown only short-term control. Pamela 
Stern (FMCSA-2008-0355-0002), Eugene Dobrowolski (FMCSA-2008-0355-
0005), and Kelly Dobrowolski (FMCSA-2008-0355-0005) submitted letters 
in support of driver John M. Dobrowolski's exemption application.
    Mr. Michael W. Thomas, a CMV driver, wrote to support fair 
treatment for drivers with controlled seizure disorders (FMCSA-2010-
0203-0002). He also stated that his application for exemption had not 
been acted on by FMCSA. Mr. Todd Davis wrote in favor of his own 
application and indicated that he has successfully complied with his 
current medication regimen since 2007 (FMCSA-2010-0203-0004 and 0006). 
Frankie Linn Eveland stated, ``I believe it is perfectly safe for these 
individuals to operate a Commercial Vehicle with the current conditions 
under complete control. It seems to be discrimination if this medical 
condition needs special conditions'' (FMCSA-2010-0203-0007). An 
anonymous commenter wrote in support of his own application (FMCSA-
2010-0203-0003), identifying only that he was an exemption applicant. 
James Dyer commented about himself that ``according to my Neurologist, 
I experienced a single seizure like event in 2008. I have been seizure-
free since and have been off anti-seizure medication since April 2009'' 
(FMCSA-2010-0203-0005).
    Two commenters wrote in support of Mr. Robin Sherwood. Joe Helsley 
commented that he has known Mr. Sherwood for 6 years and was his 
employer (FMCSA-2011-0089-0002). He stated that Mr. Sherwood is a 
reliable and responsible truck driver and confirmed that he has never 
had any seizures while working for him. Mr. Dick Rankins commented that 
Mr. Sherwood is an exemplary driver, was safe in carrying out his 
duties, and that he would hire Mr. Sherwood at anytime due to his work 
and reputation (FMCSA-2011-0089-0003).
    FMCSA Response: FMCSA acknowledges support for these exemptions. 
The Agency carefully reviewed all the comments about every individual. 
Mr. Thomas' application was reviewed and published (72 FR 44916, Aug. 
9, 2007); he is granted an exemption in this notice. Mr. Dyer has been 
seizure free for 4 years and is granted an exemption in this notice. 
Comments that relate specifically to applicants other than those 
covered in this notice will be addressed in a subsequent notice.

Concerns About Discrimination and the ADA

    Bonnie (no last name given) wrote that her husband had been 
discriminated against and terminated by his employer because he has a 
controlled seizure disorder (FMCSA-2008-0355-0007). She stated the need 
to rewrite the rule on seizure disorders to eliminate ``loopholes'' 
allowing this practice. Doug Foster stated that the current standards 
for exemption from the seizure rule are too high and that there is no 
collected data about epilepsy-related crashes (FMCSA-2008-0355-0003). 
Mr. Foster expressed concern that current rules may violate ADA 
provisions regarding people with epilepsy or seizure disorders.
    FMCSA Response: FMCSA believes that the individualized assessment 
of exemption applicants established by this Federal Register notice, 
using the 2007 MEP Recommendations, addresses the commenters' concerns 
about discrimination while maintaining an equivalent level of public 
safety. Regarding comments related to the ADA, we note that in passing 
the ADA, Congress explicitly recognized that individuals must meet 
minimum physical qualifications for operating CMVs in interstate 
commerce. The Agency's current approach, articulated in this Federal 
Register notice, nevertheless meets the spirit of the ADA by conducting 
an individualized assessment of each exemption applicants' medical 
history and the concomitant level of safety risk. The Agency's case-by-
case review of exemption applicants and its accompanying advisory 
criteria provides the best assurance of drivers being treated fairly 
while at the same time addressing public safety concerns. The Agency 
used the best available data to support the recommendations.

E. Basis for Exemption

    Under 49 U.S.C. 31136(e) and 31315, 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. Without the exemption, 
applicants will continue to be restricted to intrastate driving. With 
the exemption, applicants can drive in interstate commerce. Thus, the 
Agency's analysis focuses on whether an equal or greater level of 
safety is likely to be achieved by permitting each of these drivers to 
drive in interstate commerce as opposed to restricting him or her to 
driving in intrastate commerce.

Conclusion

    The Agency is granting exemptions from the epilepsy standard, 49 
CFR 391.41(b)(8), to 22 individuals based on a thorough evaluation of 
each driver's qualifications, safety experience, and medical condition. 
Safety analysis of information relating to these 22 applicants meets 
the burden of showing that granting the exemptions would achieve a 
level of safety that is equivalent to or greater than the level that 
would be achieved without the exemption. By granting the exemptions, 
the CMV industry will gain 22 highly trained and experienced drivers. 
In accordance with 49 U.S.C. 31315, each exemption will be valid for 2 
years with annual recertification required unless revoked earlier by 
FMCSA. The exemption will be revoked if the following occurs: (1) The 
person 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.
    FMCSA exempts the following 22 drivers for a period of 2 years with 
annual medical certification required: Wayne C. Sorenson (MN); David L. 
Basso (OH); Michael W. Thomas (KS); Garry W. Gantle (FL); Steve L. 
Hunsaker (ID); John B. Yates (WV); Henrietta M. Ketcham (NY); Joseph A. 
Suhy (PA); Dorothy Pokornowski (MN); Brian J. Porter (PA); Daniel Forth 
(NY); Shane Klementis (NY); Scott M. Rohlinger (WI); Bruce B. Baum 
(NM); Todd A. Davis (WI); James Dyer (TX); Christian E. Henry (PA); 
Paul C. Warren (ME); Brian H. Wetzel (MO); Donald Schutz (OH); Robin L. 
Sherwood (ID), and Frank Eveland (WI) from the prohibition of CMV 
operations by persons with a clinical diagnosis of epilepsy or 
seizures. If the exemption is still in effect at the end of the 2-year 
period, the person may apply to FMCSA for a renewal under procedures in 
effect at that time.

Appendix--MEP Opinion

    The following is an exerpt from the ``Expert Panel 
Recommendations: Seizure Disorders and Commercial Motor Vehicle 
Driver Safety,'' presented to FMCSA on October 15, 2007.

Recommended Changes to Original Guidelines

    The MEP recommended that FMCSA make substantial changes to the 
current seizure disorder guidelines. These recommendations were 
based on a combination of evidence provided by the Evidence Report 
titled, ``Seizure Disorders and Commercial Motor

[[Page 3077]]

Vehicle Driver Safety'' and other sources. Below we present the 
recommendations of the MEP and provide justification for these 
recommendations.

Guideline 1: Fitness-to-drive certification of individuals with a 
history of epilepsy

    The MEP recommended that the current guidelines pertaining to 
individuals who have a diagnosis of epilepsy (Appendix A) be 
replaced with the following:
     A history of epilepsy precludes an individual from 
obtaining unconditional certification to drive a CMV for the 
purposes of interstate commerce.
     A history of epilepsy, however, should not 
unconditionally exclude all individuals from driving a CMV; 
conditional certification may be possible in some instances.
     An individual with a history of epilepsy may obtain 
conditional certification (or maintaining certification under 
conditional status) to drive a CMV if that individual meets the 
following criteria:
--Individual must have been seizure free for a minimum of 8 years on 
or off anti-seizure medication; AND
--If all anti-seizure medications have been stopped, the individual 
must have been seizure free for a minimum of 8 years from the time 
of medication cessation; OR
--If still using anti-seizure medication, the individual must have 
been on a stable medication regimen for a minimum of 2 years.
     An individual with a history of epilepsy who has been 
granted conditional certification to drive a CMV must be recertified 
on an annual basis.

Guideline 2: Fitness-to-drive certification of individuals with a 
history of a single unprovoked seizure

    The MEP recommended that the current guideline pertaining to 
individuals who have experienced a single, unprovoked seizure 
(Appendix A) be replaced with the following guideline:
     A history of experiencing a single unprovoked seizure 
precludes an individual from obtaining unconditional certification 
to drive a CMV for the purposes of interstate commerce.
     A history of experiencing a single unprovoked seizure, 
however, should not unconditionally exclude all individuals from 
driving a CMV; conditional certification may be possible in some 
instances.
     An individual with a history of a single, unprovoked 
seizure may obtain conditional certification (or maintaining 
certification under conditional status) to drive a CMV if that 
individual meets the following criteria:
--Individual must have been seizure free for a minimum of 4 years on 
or off anti-seizure medication; AND
     If all anti-seizure medications have been stopped, the 
individual must have been seizure free for a minimum of 4 years from 
the time of medication cessation; OR
     If still using anti-seizure medication, the individual 
must have been on a stable medication regimen for a minimum of 2 
years.
     An individual with a history of a single, unprovoked 
seizure who has been granted conditional certification to drive a 
CMV must be recertified on a biennial basis.

Guideline 3: Fitness-to-drive certification of individuals with a 
history of a provoked seizure or seizures;

    This category of seizure pertains to a provoked seizure. 
Certification may be allowed if the individual is at low risk for 
again encountering the factor that precipitated the seizure or of 
having further seizures. Patients whose seizures are provoked by 
sleep deprivation, photic or visual pattern stimulation will not be 
considered for certification under this guideline, since these 
patients may have underlying epilepsy. Conditional certification of 
such individuals will be considered according to Guideline 1. The 
MEP recommended that the current guideline pertaining to individuals 
who have experienced a symptomatic seizure or seizures (Appendix A) 
be replaced with the following guideline:
     A history of experiencing a single provoked seizure 
should not automatically preclude an individual from obtaining 
unconditional certification to drive a CMV for the purposes of 
interstate commerce.
     Whether an individual with such a history can be 
unconditionally certified requires an individual evaluation to 
ascertain that the individual is at a sufficiently low recurrence 
risk for again encountering the factor that precipitated the seizure 
or of having further seizures.
     Examples of low risk for recurrence include:
--A lidocaine-induced seizure during a dental appointment.
--A concussive seizure, loss of consciousness <=30 minutes, no 
penetrating injury.
--A seizure due to syncope not likely to recur while driving.
--A seizure from an acute metabolic derangement not likely to recur.
--Drug withdrawal.
     Conditional certification may be considered for 
individuals with moderate-to-high risk factors for recurrence 
provided that the following conditions are met:
--Individual must have been seizure free for a minimum of 8 years on 
or off anti-seizure medication; AND
--If all anti-seizure medications have been stopped, the individual 
must have been seizure free for a minimum of 8 years from the time 
of medication cessation; OR
--If still using anti-seizure medication, the individual must have 
been on a stable medication regimen for a minimum of 2 years.
     An individual with a history of epilepsy who has been 
granted conditional certification to drive a CMV must be recertified 
on an annual basis.
     Examples of seizure-provoking conditions that are at 
moderate-to-high risk for further seizures, and therefore would 
weigh against certification, include the following:
--Head injury with loss of consciousness or amnesia >= 30 minutes or 
penetrating head injury.
--Intracerebral hemorrhage of any etiology, including stroke and 
trauma.
--Brain infection: encephalitis, meningitis, abscess, cysticercosis.
--Stroke.
--Intracranial hemorrhage.
--Post-operative brain surgery with significant brain hemorrhage.
--Brain tumor.

    Issued on: January 10, 2013.
William ``Bill'' Bronrott,
Deputy Administrator, for Federal Motor Carrier Safety Administration.
[FR Doc. 2013-00709 Filed 1-11-13; 4:15 pm]
BILLING CODE 4910-EX-P