Qualification of Drivers; Exemption Applications; Epilepsy and Seizure Disorders, 60744-60747 [2015-25504]

Download as PDF 60744 Federal Register / Vol. 80, No. 194 / Wednesday, October 7, 2015 / Notices the diabetes requirement in 49 CFR 391.41(b)(3) if the exemption is likely to achieve an equivalent or greater level of safety than would be achieved without the exemption. The exemption allows the applicants to operate CMVs in interstate commerce. To evaluate the effect of these exemptions on safety, FMCSA considered medical reports about the applicants’ ITDM and vision, and reviewed the treating endocrinologists’ medical opinion related to the ability of the driver to safely operate a CMV while using insulin. Consequently, FMCSA finds that in each case exempting these applicants from the diabetes requirement in 49 CFR 391.41(b)(3) is likely to achieve a level of safety equal to that existing without the exemption. asabaliauskas on DSK5VPTVN1PROD with NOTICES V. Conditions and Requirements The terms and conditions of the exemption will be provided to the applicants in the exemption document and they include the following: (1) That each individual submit a quarterly monitoring checklist completed by the treating endocrinologist as well as an annual checklist with a comprehensive medical evaluation; (2) that each individual reports within 2 business days of occurrence, all episodes of severe hypoglycemia, significant complications, or inability to manage diabetes; also, any involvement in an accident or any other adverse event in a CMV or personal vehicle, whether or not it is related to an episode of hypoglycemia; (3) that each individual provide a copy of the ophthalmologist’s or optometrist’s report to the medical examiner at the time of the annual medical examination; and (4) that each individual provide a copy of the annual medical certification to the employer for retention in the driver’s qualification file, or keep a copy in his/her driver’s qualification file if he/she is selfemployed. The driver must also have a copy of the certification when driving, for presentation to a duly authorized Federal, State, or local enforcement official. VI. Conclusion Based upon its evaluation of the 42 exemption applications, FMCSA exempts the following drivers from the diabetes requirement in 49 CFR 391.41(b)(10), subject to the requirements cited above 949 CFR 391.64(b)): Robert L. Adams (GA) Steven D. Beale (WA) Kevin N. Bigham (PA) Eric B. Bratanich (WI) Jeffry L. Bromby (CA) VerDate Sep<11>2014 18:12 Oct 06, 2015 Jkt 238001 Nicole E. Brown (VA) Joel R. Currie (MN) Vladimir Desyatnik (MA) George C. Druzak (PA) William L. Duncan (FL) Colin K. Featherston (IN) Leland R. Frazier, Jr. (GA) Robert C. George (TX) Louis E. Graves (MS) Jeremiah D. Herbst (MD) Loren G. Howard (AK) John A. Irwin (IL) Gregory M. Johnson (TX) Calvin Jones (NC) Marvin T. Kruse (SD) Richard L. Langdon (NY) William L. Marshall (FL) William Martin (NY) Phillip K. Miles (PA) Mark R. Miller (IA) Miguel A. Morales (NY) David S. Navarro (MD) Kevin L. Novotny (MN) Michael D. Parsons (IN) Amanda K. Perez-Littleton (NM) Jerry L. Perry (OH) Michael J. Peterson (MN) John S. Pitfield (NC) Manuel H. Plascencia (IL) Thomas E. Ringstaff, Jr. (OH) Edwin Rivera (NY) Milton E. Sullivan (VA) Patrick A. Tucker (CA) John E. Vee (IA) Russell A. Wilkins (VA) William D. Willis (GA) David A. Wolff (NY) In accordance with 49 U.S.C. 31136(e) and 31315 each exemption is valid for two years 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 before it was granted; or (3) continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31136(e) and 31315. If the exemption is still effective at the end of the 2-year period, the person may apply to FMCSA for a renewal under procedures in effect at that time. DEPARTMENT OF TRANSPORTATION Dated: September 29, 2015. Larry W. Minor, Associate Administrator for Policy. A. Electronic Access [FR Doc. 2015–25503 Filed 10–6–15; 8:45 am] BILLING CODE 4910–EX–P PO 00000 Frm 00134 Fmt 4703 Sfmt 4703 Federal Motor Carrier Safety Administration [Docket No. FMCSA–2015–0115] 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 10 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 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 10 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 October 7, 2015. The exemptions expire on October 10, 2017. FOR FURTHER INFORMATION CONTACT: Charles A. Horan, III, Director, Office of Carrier, Driver and Vehicle Safety, (202) 366–4001, or via email at fmcsamedical@dot.gov, or by letter to 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., Monday through Friday, except Federal holidays. SUPPLEMENTARY INFORMATION: SUMMARY: You may see all the comments online through the Federal Document Management System (FDMS) at: http:// www.regulations.gov. E:\FR\FM\07OCN1.SGM 07OCN1 Federal Register / Vol. 80, No. 194 / Wednesday, October 7, 2015 / Notices Docket: For access to the docket to read background documents or comments, go to http:// www.regulations.gov and/or Room W12–140 on the ground level of the West Building, 1200 New Jersey Avenue SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. Privacy Act: In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its rulemaking process. DOT posts these comments, without edit, including any personal information the commenter provides, to www.regulations.gov, as described in the system of records notice (DOT/ALL–14 FDMS), which can be reviewed at www.dot.gov/privacy. asabaliauskas on DSK5VPTVN1PROD 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 10 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 Commercial Driver’s License Information System (CDLIS) 1 for commercial driver’s license (CDL) holders, and interstate and intrastate inspections recorded in Motor Carrier Management Information System (MCMIS) 2. For non-CDL holders, the Agency reviewed the driving records from the State licensing agency. 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 Sep<11>2014 18:12 Oct 06, 2015 Jkt 238001 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 ‘‘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/regulations/ medical/reports-how-medicalconditions-impact-driving, 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 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 00135 Fmt 4703 Sfmt 4703 60745 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 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 E:\FR\FM\07OCN1.SGM 07OCN1 60746 Federal Register / Vol. 80, No. 194 / Wednesday, October 7, 2015 / Notices asabaliauskas on DSK5VPTVN1PROD with NOTICES 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 10 individuals. Under current FMCSA regulations, all of the 10 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 10 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 10 drivers, some of whom drive a CMV currently in intrastate commerce. The CDLIS and MCMIS were searched for crash and violation data on the 10 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 VerDate Sep<11>2014 18:12 Oct 06, 2015 Jkt 238001 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 follows this section. For applicants who were denied an exemption, a notice was previously published. D. Comments Docket #FMCSA–2015–0115 On May 8, 2015, FMCSA published a notice of receipt of exemption applications and requested public comment on 18 individuals (80 FR 26612; Docket number FMCSA–2015– 11123). The comment period ended on June 8, 2015. No commenters responded to this Federal Register notice. Of the 18 applicants, eight were denied. The Agency has determined that the following 10 applicants should be granted an exemption. Ian Correll-Zerbe Mr. Correll-Zerbe is a 26 year-old driver in Pennsylvania. He has a history of epilepsy and has remained seizure free since 2004. He takes anti-seizure medication with the dosage and frequency remaining the same since January 2013. If granted the exemption, he would like to drive a CMV. His physician states that he is supportive of Mr. Correll-Zerbe receiving an exemption. Alan Feuerhelm Mr. Feurerhelm is a 68 year-old class A CDL holder in Iowa. He has a history of epilepsy and has remained seizure free since 1985. He takes anti-seizure medication with the dosage and frequency remaining the same since that time. If granted the exemption, he would like to drive a CMV. His physician states that he is supportive of Mr. Feuerhelm receiving an exemption. Robert J. Forney Mr. Forney is a 37 year-old class A CDL holder in Wisconsin. He has a history of a seizure disorder and has remained seizure free since 2005. He takes anti-seizure medication with the dosage and frequency remaining the same since 2011. If granted the PO 00000 Frm 00136 Fmt 4703 Sfmt 4703 exemption, he would like to drive a CMV. His physician states that he is supportive of Mr. Forney receiving an exemption. Bryan R. Jones Mr. Jones is a 31 year-old class B CDL holder in Pennsylvania. He has a history of epilepsy and has remained seizure free since 2002. He takes anti-seizure medication with the dosage and frequency remaining the same since that time. If granted the exemption, he would like to drive a CMV. His physician states that he is supportive of Mr. Jones receiving an exemption. Terri Kathleen Kahle Ms. Kahle is a 49 year-old class A CDL holder in Pennsylvania. She has a history of a seizure disorder and has remained seizure free since 2004. She takes anti-seizure medication with the dosage and frequency remaining the same since that time. If granted the exemption, she would like to drive a CMV. Her physician states that he is supportive of Ms. Kahle receiving an exemption. Ivan M. Martin Mr. Martin is a 56 year-old driver in Pennsylvania. He has a history of a seizure disorder and has remained seizure since 1985. He takes anti-seizure medication with the dosage and frequency remaining the same since 2004. If granted the exemption, he would like to drive a CMV. His physician states that he is supportive of Mr. Martin receiving an exemption. James Joseph Marvel Mr. Marvel is a 64 year-old driver in Virginia. He has a history of epilepsy and has remained seizure free since 1967. He takes anti-seizure medication with the dosage and frequency remaining the same since that time. If granted the exemption, he would like to drive a CMV. His physician states that he is supportive of Mr. Marvel receiving an exemption. Andy L. McNeal Mr. McNeal is a 52 year-old class B CDL holder in Indiana. He has a history of a single seizure and resected brain tumor in 2007. He takes anti-seizure medication with the dosage and frequency remaining the same since that time. If granted the exemption, he would like to drive a CMV. His physician states that he is supportive of Mr. McNeal receiving an exemption. Richard S. Nelson Mr. Nelson is a 79 year-old class A CDL holder in Minnesota. He has a E:\FR\FM\07OCN1.SGM 07OCN1 Federal Register / Vol. 80, No. 194 / Wednesday, October 7, 2015 / Notices history of a seizure disorder and has remains seizure free since 1962. He takes anti-seizure medication with the dosage and frequency remaining the same since that time. If granted the exemption, he would like to drive a CMV. His physician states that he is supportive of Nelson receiving an exemption. Michael D. Williams Mr. Williams is a 48 year-old class A CDL holder in Nevada. He has a history of a seizure disorder and has remained seizure free since 1987. He takes antiseizure medication with the dosage and frequency remaining the same since 2002. If granted the exemption, he would like to drive a CMV. His physician states that he is supportive of Mr. Williams receiving an exemption. asabaliauskas on DSK5VPTVN1PROD with NOTICES 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, 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 10 individuals based on a thorough evaluation of each driver’s safety experience and medical condition. Safety analysis of information relating to these 10 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 10 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) VerDate Sep<11>2014 18:12 Oct 06, 2015 Jkt 238001 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 10 drivers for a period of 2 years with annual medical certification required: Ian Correll-Zerbe (PA); Alan Feuerhelm (IA); Robert J. Forney (WI); Bryan R. Jones (PA); Terri Kathleen Kahle (PA); Ivan M. Martin (PA); James Joseph Marvel (VA); Andy L. McNeal (IN); Richard S. Nelson (MN); and Michael D. Williams (NV) 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: September 29, 2015. Larry W. Minor, Associate Administrator for Policy. [FR Doc. 2015–25504 Filed 10–6–15; 8:45 am] BILLING CODE 4910–EX–P DEPARTMENT OF TRANSPORTATION Federal Motor Carrier Safety Administration [Docket No. FMCSA–2014–0104] Qualification of Drivers; Application for Exemptions; Hearing Federal Motor Carrier Safety Administration (FMCSA), DOT. ACTION: Notice of final disposition. AGENCY: FMCSA announces its decision to grant requests from 17 individuals for exemptions from the Agency’s physical qualifications standard concerning hearing for interstate drivers. The current regulation prohibits hearing impaired individuals from operating CMVs in interstate commerce. After notice and opportunity for public comment, the Agency concluded that granting exemptions for these drivers to operate propertycarrying CMVs will provide a level of safety that is equivalent to or greater than the level of safety maintained without the exemptions. The exemptions are valid for a 2-year period and may be renewed. The exemptions preempt State laws and regulations. DATES: The exemptions are effective October 7, 2015. The exemptions expire on October 10, 2017. FOR FURTHER INFORMATION CONTACT: Charles A. Horan, III, Director, Office of Carrier, Driver and Vehicle Safety, (202) 366–4001, fmcsamedical@dot.gov, FMCSA, Department of Transportation, 1200 New Jersey Avenue SE., Room SUMMARY: PO 00000 Frm 00137 Fmt 4703 Sfmt 4703 60747 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: www.regulations.gov. Docket: For access to the docket to read background documents or comments, go to 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: In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its rulemaking process. DOT posts these comments, without edit, including any personal information the commenter provides, to www.regulations.gov, as described in the system of records notice (DOT/ALL–14 FDMS), which can be reviewed at www.dot.gov/privacy. 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. The current provisions of the FMCSRs concerning hearing state that a person is physically qualified to drive a CMV if that person: First perceives a forced whispered voice in the better ear at not less than 5 feet with or without the use of a hearing aid or, if tested by use of an audiometric device, does not have an average hearing loss in the better ear greater than 40 decibels at 500 Hz, 1,000 Hz, and 2,000 Hz with or without a hearing aid when the audiometric device is calibrated to American National Standard (formerly ASA Standard) Z24.5–1951. 49 CFR 391.41(b)(11). This standard was adopted in 1970, with a revision in 1971 to allow drivers to be qualified under this standard while wearing a hearing aid, 35 FR 6458, 6463 (April 22, 1970) and 36 FR 12857 (July 3, 1971). FMCSA grants 17 individuals an exemption from § 391.41(b)(11) concerning hearing to enable them to operate property-carrying CMVs in interstate commerce for a 2-year period. The Agency’s decision on these exemption applications is based on the current medical literature and information and the ‘‘Executive E:\FR\FM\07OCN1.SGM 07OCN1

Agencies

[Federal Register Volume 80, Number 194 (Wednesday, October 7, 2015)]
[Notices]
[Pages 60744-60747]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-25504]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2015-0115]


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 10 
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 10 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 October 7, 2015. The exemptions 
expire on October 10, 2017.

FOR FURTHER INFORMATION CONTACT: Charles A. Horan, III, Director, 
Office of Carrier, Driver and Vehicle Safety, (202) 366-4001, or via 
email at fmcsamedical@dot.gov, or by letter to 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., 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.

[[Page 60745]]

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

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 10 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 Commercial Driver's License 
Information System (CDLIS) \1\ for commercial driver's license (CDL) 
holders, and interstate and intrastate inspections recorded in Motor 
Carrier Management Information System (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.
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    \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 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/regulations/medical/reports-how-medical-conditions-impact-driving, 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

[[Page 60746]]

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 10 individuals. Under current FMCSA regulations, all of the 10 
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 10 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 10 drivers, some 
of whom drive a CMV currently in intrastate commerce. The CDLIS and 
MCMIS were searched for crash and violation data on the 10 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 follows this section. For applicants who 
were denied an exemption, a notice was previously published.

D. Comments

Docket #FMCSA-2015-0115

    On May 8, 2015, FMCSA published a notice of receipt of exemption 
applications and requested public comment on 18 individuals (80 FR 
26612; Docket number FMCSA-2015-11123). The comment period ended on 
June 8, 2015. No commenters responded to this Federal Register notice. 
Of the 18 applicants, eight were denied. The Agency has determined that 
the following 10 applicants should be granted an exemption.
Ian Correll-Zerbe
    Mr. Correll-Zerbe is a 26 year-old driver in Pennsylvania. He has a 
history of epilepsy and has remained seizure free since 2004. He takes 
anti-seizure medication with the dosage and frequency remaining the 
same since January 2013. If granted the exemption, he would like to 
drive a CMV. His physician states that he is supportive of Mr. Correll-
Zerbe receiving an exemption.
Alan Feuerhelm
    Mr. Feurerhelm is a 68 year-old class A CDL holder in Iowa. He has 
a history of epilepsy and has remained seizure free since 1985. He 
takes anti-seizure medication with the dosage and frequency remaining 
the same since that time. If granted the exemption, he would like to 
drive a CMV. His physician states that he is supportive of Mr. 
Feuerhelm receiving an exemption.
Robert J. Forney
    Mr. Forney is a 37 year-old class A CDL holder in Wisconsin. He has 
a history of a seizure disorder and has remained seizure free since 
2005. He takes anti-seizure medication with the dosage and frequency 
remaining the same since 2011. If granted the exemption, he would like 
to drive a CMV. His physician states that he is supportive of Mr. 
Forney receiving an exemption.
Bryan R. Jones
    Mr. Jones is a 31 year-old class B CDL holder in Pennsylvania. He 
has a history of epilepsy and has remained seizure free since 2002. He 
takes anti-seizure medication with the dosage and frequency remaining 
the same since that time. If granted the exemption, he would like to 
drive a CMV. His physician states that he is supportive of Mr. Jones 
receiving an exemption.
Terri Kathleen Kahle
    Ms. Kahle is a 49 year-old class A CDL holder in Pennsylvania. She 
has a history of a seizure disorder and has remained seizure free since 
2004. She takes anti-seizure medication with the dosage and frequency 
remaining the same since that time. If granted the exemption, she would 
like to drive a CMV. Her physician states that he is supportive of Ms. 
Kahle receiving an exemption.
Ivan M. Martin
    Mr. Martin is a 56 year-old driver in Pennsylvania. He has a 
history of a seizure disorder and has remained seizure since 1985. He 
takes anti-seizure medication with the dosage and frequency remaining 
the same since 2004. If granted the exemption, he would like to drive a 
CMV. His physician states that he is supportive of Mr. Martin receiving 
an exemption.
James Joseph Marvel
    Mr. Marvel is a 64 year-old driver in Virginia. He has a history of 
epilepsy and has remained seizure free since 1967. He takes anti-
seizure medication with the dosage and frequency remaining the same 
since that time. If granted the exemption, he would like to drive a 
CMV. His physician states that he is supportive of Mr. Marvel receiving 
an exemption.
Andy L. McNeal
    Mr. McNeal is a 52 year-old class B CDL holder in Indiana. He has a 
history of a single seizure and resected brain tumor in 2007. He takes 
anti-seizure medication with the dosage and frequency remaining the 
same since that time. If granted the exemption, he would like to drive 
a CMV. His physician states that he is supportive of Mr. McNeal 
receiving an exemption.
Richard S. Nelson
    Mr. Nelson is a 79 year-old class A CDL holder in Minnesota. He has 
a

[[Page 60747]]

history of a seizure disorder and has remains seizure free since 1962. 
He takes anti-seizure medication with the dosage and frequency 
remaining the same since that time. If granted the exemption, he would 
like to drive a CMV. His physician states that he is supportive of 
Nelson receiving an exemption.
Michael D. Williams
    Mr. Williams is a 48 year-old class A CDL holder in Nevada. He has 
a history of a seizure disorder and has remained seizure free since 
1987. He takes anti-seizure medication with the dosage and frequency 
remaining the same since 2002. If granted the exemption, he would like 
to drive a CMV. His physician states that he is supportive of Mr. 
Williams 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, 
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 10 individuals based on a thorough evaluation of 
each driver's safety experience and medical condition. Safety analysis 
of information relating to these 10 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 10 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 10 drivers for a period of 2 years with 
annual medical certification required: Ian Correll-Zerbe (PA); Alan 
Feuerhelm (IA); Robert J. Forney (WI); Bryan R. Jones (PA); Terri 
Kathleen Kahle (PA); Ivan M. Martin (PA); James Joseph Marvel (VA); 
Andy L. McNeal (IN); Richard S. Nelson (MN); and Michael D. Williams 
(NV) 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: September 29, 2015.
Larry W. Minor,
 Associate Administrator for Policy.
[FR Doc. 2015-25504 Filed 10-6-15; 8:45 am]
 BILLING CODE 4910-EX-P