Qualification of Drivers; Exemption Applications; Epilepsy and Seizure Disorders, 67449-67452 [2013-26876]

Download as PDF emcdonald on DSK67QTVN1PROD with NOTICES Federal Register / Vol. 78, No. 218 / Tuesday, November 12, 2013 / Notices and municipalities along the southern international border from October 27, 2011, to March 5, 2012. However, the Agency determined that, due to a FMCSA system problem, a ‘‘Notice of Expedited Action’’ was not, in fact, sent to Road Machinery Co SA de CV. Therefore, because the applicant was not notified and was not afforded the opportunity to submit a written response demonstrating immediate corrective action, the safety suspension was not enforced during roadside inspections. Road Machinery Co SA de CV was made aware of this issue on February 28, 2012, and Road Machinery Co SA de CV submitted a written response demonstrating its corrective action on March 2, 2012, that was accepted by the Agency and the suspension was removed. During the PASA, the Agency found that Road Machinery Co SA de CV had one driver subject to controlled substance and alcohol testing while operating in the United States. Road Machinery Co SA de CV had preemployment tested the driver and enrolled the driver in a third party random testing pool prior to the completion of the PASA and was in substantial compliance with the testing requirements of 49 CFR Parts 40 and 382. However, it was determined that, in 2011, Road Machinery Co SA de CV failed to have a controlled substance testing program for its commercial zone operations, as required. Road Machinery Co SA de CV’s failure to test a driver prior to performing a safety sensitive function and failing to implement a random controlled substance and alcohol testing program in the previous year was noted as a deficiency on the PASA, but is not grounds to fail the PASA. Deficiencies in Road Machinery Co. SA de CV’s driver qualification file were identified during the PASA, as the file did not contain the driver’s certification of violations and a complete history with previous employers. In addition, on at least one occasion the motor carrier failed to ensure that drivers are not permitted to drive a vehicle without the cargo properly distributed and adequately secured. However, these issues, while noted as violations on the PASA, are not grounds for the motor carrier to fail the PASA. Subsequent to the PASA, Road Machinery provided evidence of a valid controlled substance testing program and a corrective action plan to ensure that the company had rectified the deficiencies found in its drug and alcohol testing program and driver qualification records. Because the cargo securement violation was only noted VerDate Mar<15>2010 17:41 Nov 08, 2013 Jkt 232001 one time, the Agency did not request corrective action in this area. Based on Road Machinery’s safety record and corrective action plan, FMCSA will proceed in issuing provisional operating authority for participation in the pilot program. Request for Comments In accordance with the Act, FMCSA requests public comment from all interested persons on the PASA information presented in this notice. All comments received before the close of business on the comment closing date indicated at the beginning of this notice will be considered and will be available for examination in the docket at the location listed under the ADDRESSES section of this notice. Comments received after the comment closing date will be filed in the public docket and will be considered to the extent practicable. In addition to late comments, the FMCSA will also continue to file, in the public docket, relevant information that becomes available after the comment closing date. Interested persons should continue to examine the public docket for new material. FMCSA notes that under its regulations, preliminary grants of authority, pending the carrier’s showing of compliance with insurance and process agent requirements and the resolution of any protests, are publically noticed through publication in the FMCSA Register. Any protests of such grants must be filed within 10 days of publication of notice in the FMCSA Register. Issued on: November 1, 2013. Anne S. Ferro, Administrator. [FR Doc. 2013–26939 Filed 11–8–13; 8:45 am] BILLING CODE 4910–EX–P DEPARTMENT OF TRANSPORTATION Federal Motor Carrier Safety Administration [Docket No. FMCSA–2012–0094; FMCSA2013–0107] Qualification of Drivers; Exemption Applications; Epilepsy and Seizure Disorders Federal Motor Carrier Safety Administration (FMCSA), DOT. ACTION: Notice of final disposition. AGENCY: FMCSA announces its decision to grant requests from nine individuals for exemptions from the regulatory requirement that interstate commercial motor vehicle (CMV) SUMMARY: PO 00000 Frm 00119 Fmt 4703 Sfmt 4703 67449 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 antiseizure 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 nine 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 November 12, 2013. The exemptions expire on November 12, 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: 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., 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 E:\FR\FM\12NON1.SGM 12NON1 67450 Federal Register / Vol. 78, No. 218 / Tuesday, November 12, 2013 / Notices 17, 2008). This statement is also available at http://Docketinfo.dot.gov. emcdonald on DSK67QTVN1PROD with NOTICES B. Background Under 49 U.S.C. 31136(e) and 31315(b), 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 nine individuals an exemption from the regulatory requirement in § 391.41(b)(8), to allow these 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 each applicant’s driving record found in the CDLIS,1 for CDL holders, and interstate and intrastate inspections recorded in MCMIS.2 For non-CDL holders, the Agency reviewed the driving records from the State licensing agency. 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 granted here have demonstrated that they are unlikely to have a seizure and their medical condition does not pose a risk to public safety. 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 at 49 CFR 391.41(b)(8) by conducting a comprehensive review of scientific literature that was compiled into the 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. VerDate Mar<15>2010 17:41 Nov 08, 2013 Jkt 232001 ‘‘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 (the 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 http:// www.fmcsa.dot.gov/rules-regulations/ topics/mep/mep-reports.htm, under Seizure Disorders, and are in the docket for this notice. 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 previously published dockets. 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. Stable means no changes in medication, dosage, or frequency of medication administration. 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 nonpenetrating head injury with loss of consciousness less than or equal to 30 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. PO 00000 Frm 00120 Fmt 4703 Sfmt 4703 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 trauma; 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 anti-seizure 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 E:\FR\FM\12NON1.SGM 12NON1 Federal Register / Vol. 78, No. 218 / Tuesday, November 12, 2013 / Notices emcdonald on DSK67QTVN1PROD with NOTICES the 2007 MEP recommendations as the basis for evaluating applications for an exemption from the seizure regulation on an individual, case-by-case basis. comments received follows this section. For applicants who were denied an exemption, a notice will be published at a later date. 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 nine individuals. Under current FMCSA regulations, all of the nine 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. For these nine 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 Criteria have 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. In addition to evaluating the medical status of each applicant, FMCSA evaluated the crash and violation data for the nine drivers, some of whom currently drive a CMV in intrastate commerce. The Commercial Driver’s License Information System (CDLIS) and the FMCSA Motor Carrier Management Information System (MCMIS) were searched for crash and violation data on the nine applicants. For non-CDL holders, the Agency reviewed the driving records from the State licensing agency. 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 CMV drivers. FMCSA published a notice of receipt of application and requested public comment during a 30-day public comment period in a Federal Register notice for each of the applicants. A short summary of the applicants’ qualifications and a discussion of the D. Comments VerDate Mar<15>2010 17:41 Nov 08, 2013 Jkt 232001 Docket # FMCSA–2012–0094 On January 14, 2013, FMCSA published a notice of receipt of exemption applications and requested public comment on 14 individuals. The comment period ended February 13, 2013. Eighteen commenters responded to the Federal Register Notice. A discussion of these comments and a decision was made on seven applicants in (78 FR 3079). FMCSA has determined that one of these applicants should be granted an exemption. The Agency will issue a decision on the other drivers at a later date. Docket # FMCSA–2013–0107 On July 12, 2013, FMCSA published a notice of receipt of exemption applications and requested public comment on nine individuals. The comment period ended on August 12, 2013. Seven commenters responded to the Federal Register notice. All commenters support the idea of granting an exemption. Five commenters specifically support George Webb and two support Christopher Bird. FMCSA has determined that eight of these applicants should be granted an exemption. The Agency will issue a decision on the other driver at a later date. Selene Anderson Ms. Anderson is a 58 year-old driver in Tennessee. She suffered seizures as a child and has been seizure-free since 1968. She takes anti-seizure medication with the dosage and frequency remaining the same for more than two years. Her physician is supportive of Ms. Anderson receiving an exemption. Christopher Bird Mr. Bird is a 30 year-old driver in Ohio. He has a diagnosis of epilepsy and has remained seizure-free for over 15 years. He takes anti-seizure medication with the dosage and frequency remaining the same for over five years. His physician is supportive of Mr. Bird receiving an exemption. Fletcher Dortch Mr. Dortch is a 58 year-old driver in Maryland. He had a single seizure in 2007. He takes anti-seizure medication with the dosage and frequency remaining the same for more than five years. His physician is supportive of Mr. Dortch receiving an exemption. PO 00000 Frm 00121 Fmt 4703 Sfmt 4703 67451 Victor Marquez Mr. Marquez is a 23 year-old driver in the state of Idaho. He has had three seizures in his lifetime with the last one in March 2003. He takes anti-seizure medication with the dosage and frequency remaining the same for more than nine years. His physician is supportive of Mr. Marquez receiving an exemption. Edward Nissenbaum Mr. Nissenbaum is a 61 year-old driver in Pennsylvania. He had a seizure in 1999. He takes anti-seizure medication with the dosage and frequency remaining the same since that time. His physician is supportive of Mr. Nissenbaum receiving an exemption. Stanislav Spielvogel Mr. Spielvogel is a 56 year-old driver in Connecticut. He has a diagnosis of epilepsy and has remained seizure-free for over 20 years. He takes anti-seizure medication with the dosage and frequency remaining the same since 2006. His physician is supportive of Mr. Spielvogel receiving an exemption. Stephen Stawinsky Mr. Stawinsky is a 54 year-old driver in Pennsylvania. He had a seizure in 1995 and has been seizure-free for over 20 years. He takes anti-seizure medication with the dosage and frequency remaining the same since 2005. His physician is supportive of Mr. Stawinsky receiving an exemption. Lyle Trimm Mr. Trimm is a 55 year-old driver in New Jersey. He had a seizure in 2007 and has been seizure-free for six years. He takes anti-seizure medication with the dosage and frequency remaining the same since that time. His physician is supportive of Mr. Trimm receiving an exemption. George Webb Mr. Webb is a 71 year-old driver in Massachusetts. He has a history of seizure disorder and has remained seizure-free for over 24 years. He takes anti-seizure medication with the dosage and frequency remaining the same since that time. His physician is supportive of Mr. Webb receiving an exemption. E. Basis For 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. Without the exemption, E:\FR\FM\12NON1.SGM 12NON1 67452 Federal Register / Vol. 78, No. 218 / Tuesday, November 12, 2013 / Notices 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 the driver to driving in intrastate commerce. Conclusion emcdonald on DSK67QTVN1PROD with NOTICES The Agency is granting exemptions from the epilepsy standard, 49 CFR 391.41(b)(8), to nine individuals based on a thorough evaluation of each driver’s qualifications, safety experience, and medical condition. Safety analysis of information relating to these nine 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 interstate CMV industry will gain nine highly trained and experienced drivers. In accordance with 49 U.S.C. 31315(b)(1), 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 nine drivers for a period of 2 years with annual medical certification required: Selene Anderson (TN); Christopher Bird (OH); Fletcher Dortch (MD); Victor Marquez (ID); Edward Nissenbaum (PA); Stanislav Spielvogel (CT); Stephen Stawinsky (PA); Lyle Trimm (NJ); and George Webb (MA) 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. Issued on: November 1, 2013. Anne S. Ferro, Administrator. [FR Doc. 2013–26876 Filed 11–8–13; 8:45 am] BILLING CODE 4910–EX–P VerDate Mar<15>2010 17:41 Nov 08, 2013 Jkt 232001 DEPARTMENT OF TRANSPORTATION Federal Motor Carrier Safety Administration [Docket No. FMCSA–1999–5578; FMCSA– 2001–10578; FMCSA–2002–11426; FMCSA– 2005–21711; FMCSA–2005–22194; FMCSA– 2007–27897; FMCSA–2009–0154; FMCSA– 2009–0206] Qualification of Drivers; Exemption Applications; Vision Federal Motor Carrier Safety Administration (FMCSA), DOT. ACTION: Notice of renewal of exemptions; request for comments. AGENCY: FMCSA announces its decision to renew the exemptions from the vision requirement in the Federal Motor Carrier Safety Regulations for 23 individuals. FMCSA has statutory authority to exempt individuals from the vision requirement if the exemptions granted will not compromise safety. The Agency has concluded that granting these exemption renewals will provide a level of safety that is equivalent to or greater than the level of safety maintained without the exemptions for these commercial motor vehicle (CMV) drivers. SUMMARY: This decision is effective December 27, 2013. Comments must be received on or before December 12, 2013. DATES: You may submit comments bearing the Federal Docket Management System (FDMS) numbers: Docket No. [Docket No. FMCSA–1999–5578; FMCSA–2001–10578; FMCSA–2002– 11426; FMCSA–2005–21711; FMCSA– 2005–22194; FMCSA–2007–27897; FMCSA–2009–0154; FMCSA–2009– 0206], using any of the following methods: • Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the on-line instructions for submitting comments. • Mail: Docket Management Facility; U.S. Department of Transportation, 1200 New Jersey Avenue SE., West Building Ground Floor, Room W12–140, Washington, DC 20590–0001. • Hand Delivery or Courier: West Building Ground Floor, Room W12–140, 1200 New Jersey Avenue SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal Holidays. • Fax: 1–202–493–2251. Instructions: Each submission must include the Agency name and the docket number for this notice. Note that DOT posts all comments received ADDRESSES: PO 00000 Frm 00122 Fmt 4703 Sfmt 4703 without change to http:// www.regulations.gov, including any personal information included in a comment. Please see the Privacy Act heading below. Docket: For access to the docket to read background documents or comments, go to http:// www.regulations.gov at any time 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. The Federal Docket Management System (FDMS) is available 24 hours each day, 365 days each year. If you want acknowledgment that we received your comments, please include a selfaddressed, stamped envelope or postcard or print the acknowledgement page that appears after submitting comments on-line. Privacy Act: Anyone may search the electronic form of all comments received into any of our 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, etc.). You may review DOT’s Privacy Act Statement for the Federal Docket Management System (FDMS) published in the Federal Register on January 17, 2008 (73 FR 3316). FOR FURTHER INFORMATION CONTACT: Elaine M. Papp, 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. Monday through Friday, except Federal holidays. SUPPLEMENTARY INFORMATION: Background Under 49 U.S.C. 31136(e) and 31315, FMCSA may renew an exemption from the vision requirements in 49 CFR 391.41(b)(10), which applies to drivers of CMVs in interstate commerce, for a two-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 procedures for requesting an exemption (including renewals) are set out in 49 CFR part 381. Exemption Decision This notice addresses 23 individuals who have requested renewal of their exemptions in accordance with FMCSA procedures. FMCSA has evaluated these 23 applications for renewal on their E:\FR\FM\12NON1.SGM 12NON1

Agencies

[Federal Register Volume 78, Number 218 (Tuesday, November 12, 2013)]
[Notices]
[Pages 67449-67452]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-26876]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2012-0094; FMCSA- 2013-0107]


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 grant requests from nine 
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 nine 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 November 12, 2013. The exemptions 
expire on November 12, 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: 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., 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

[[Page 67450]]

17, 2008). This statement is also available at http://Docketinfo.dot.gov.

B. Background

    Under 49 U.S.C. 31136(e) and 31315(b), 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 nine individuals an exemption from the regulatory 
requirement in Sec.  391.41(b)(8), to allow these 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 each 
applicant's driving record found in the CDLIS,\1\ for CDL holders, and 
interstate and intrastate inspections recorded in MCMIS.\2\ For non-CDL 
holders, the Agency reviewed the driving records from the State 
licensing agency. 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 granted here 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.
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    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 at 49 CFR 391.41(b)(8) 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 (the 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 http://www.fmcsa.dot.gov/rules-regulations/topics/mep/mep-reports.htm, under Seizure Disorders, and are in the docket for this 
notice.

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 previously published dockets.
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    \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.
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    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. Stable means no changes in 
medication, dosage, or frequency of medication administration. 
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 trauma; 
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 anti-seizure 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

[[Page 67451]]

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 nine individuals. Under current FMCSA regulations, all of the nine 
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. For these nine 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 Criteria have 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.
    In addition to evaluating the medical status of each applicant, 
FMCSA evaluated the crash and violation data for the nine drivers, some 
of whom currently drive a CMV in intrastate commerce. The Commercial 
Driver's License Information System (CDLIS) and the FMCSA Motor Carrier 
Management Information System (MCMIS) were searched for crash and 
violation data on the nine applicants. For non-CDL holders, the Agency 
reviewed the driving records from the State licensing agency.
    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 CMV drivers.
    FMCSA published a notice of receipt of application and requested 
public comment during a 30-day public comment period in a Federal 
Register notice for each of the applicants. A short summary of the 
applicants' qualifications and a discussion of the comments received 
follows this section. For applicants who were denied an exemption, a 
notice will be published at a later date.

D. Comments

Docket  FMCSA-2012-0094

    On January 14, 2013, FMCSA published a notice of receipt of 
exemption applications and requested public comment on 14 individuals. 
The comment period ended February 13, 2013. Eighteen commenters 
responded to the Federal Register Notice. A discussion of these 
comments and a decision was made on seven applicants in (78 FR 3079). 
FMCSA has determined that one of these applicants should be granted an 
exemption. The Agency will issue a decision on the other drivers at a 
later date.

Docket  FMCSA-2013-0107

    On July 12, 2013, FMCSA published a notice of receipt of exemption 
applications and requested public comment on nine individuals. The 
comment period ended on August 12, 2013. Seven commenters responded to 
the Federal Register notice. All commenters support the idea of 
granting an exemption. Five commenters specifically support George Webb 
and two support Christopher Bird. FMCSA has determined that eight of 
these applicants should be granted an exemption. The Agency will issue 
a decision on the other driver at a later date.

Selene Anderson

    Ms. Anderson is a 58 year-old driver in Tennessee. She suffered 
seizures as a child and has been seizure-free since 1968. She takes 
anti-seizure medication with the dosage and frequency remaining the 
same for more than two years. Her physician is supportive of Ms. 
Anderson receiving an exemption.

Christopher Bird

    Mr. Bird is a 30 year-old driver in Ohio. He has a diagnosis of 
epilepsy and has remained seizure-free for over 15 years. He takes 
anti-seizure medication with the dosage and frequency remaining the 
same for over five years. His physician is supportive of Mr. Bird 
receiving an exemption.

Fletcher Dortch

    Mr. Dortch is a 58 year-old driver in Maryland. He had a single 
seizure in 2007. He takes anti-seizure medication with the dosage and 
frequency remaining the same for more than five years. His physician is 
supportive of Mr. Dortch receiving an exemption.

Victor Marquez

    Mr. Marquez is a 23 year-old driver in the state of Idaho. He has 
had three seizures in his lifetime with the last one in March 2003. He 
takes anti-seizure medication with the dosage and frequency remaining 
the same for more than nine years. His physician is supportive of Mr. 
Marquez receiving an exemption.

Edward Nissenbaum

    Mr. Nissenbaum is a 61 year-old driver in Pennsylvania. He had a 
seizure in 1999. He takes anti-seizure medication with the dosage and 
frequency remaining the same since that time. His physician is 
supportive of Mr. Nissenbaum receiving an exemption.

Stanislav Spielvogel

    Mr. Spielvogel is a 56 year-old driver in Connecticut. He has a 
diagnosis of epilepsy and has remained seizure-free for over 20 years. 
He takes anti-seizure medication with the dosage and frequency 
remaining the same since 2006. His physician is supportive of Mr. 
Spielvogel receiving an exemption.

Stephen Stawinsky

    Mr. Stawinsky is a 54 year-old driver in Pennsylvania. He had a 
seizure in 1995 and has been seizure-free for over 20 years. He takes 
anti-seizure medication with the dosage and frequency remaining the 
same since 2005. His physician is supportive of Mr. Stawinsky receiving 
an exemption.

Lyle Trimm

    Mr. Trimm is a 55 year-old driver in New Jersey. He had a seizure 
in 2007 and has been seizure-free for six years. He takes anti-seizure 
medication with the dosage and frequency remaining the same since that 
time. His physician is supportive of Mr. Trimm receiving an exemption.

George Webb

    Mr. Webb is a 71 year-old driver in Massachusetts. He has a history 
of seizure disorder and has remained seizure-free for over 24 years. He 
takes anti-seizure medication with the dosage and frequency remaining 
the same since that time. His physician is supportive of Mr. Webb 
receiving an exemption.

E. Basis For 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. Without the exemption,

[[Page 67452]]

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 the driver to 
driving in intrastate commerce.

Conclusion

    The Agency is granting exemptions from the epilepsy standard, 49 
CFR 391.41(b)(8), to nine individuals based on a thorough evaluation of 
each driver's qualifications, safety experience, and medical condition. 
Safety analysis of information relating to these nine 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 interstate CMV industry will gain nine highly trained and 
experienced drivers. In accordance with 49 U.S.C. 31315(b)(1), 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 nine drivers for a period of 2 years 
with annual medical certification required: Selene Anderson (TN); 
Christopher Bird (OH); Fletcher Dortch (MD); Victor Marquez (ID); 
Edward Nissenbaum (PA); Stanislav Spielvogel (CT); Stephen Stawinsky 
(PA); Lyle Trimm (NJ); and George Webb (MA) 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.

    Issued on: November 1, 2013.
Anne S. Ferro,
Administrator.
[FR Doc. 2013-26876 Filed 11-8-13; 8:45 am]
BILLING CODE 4910-EX-P