80 FR 57038 - Qualification of Drivers; Exemption Applications; Epilepsy and Seizure Disorders

DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration

Federal Register Volume 80, Issue 182 (September 21, 2015)

Page Range		57038-57041
FR Document		2015-23593

FMCSA announces its decision to grant requests from 6 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 6 individuals to operate CMVs in interstate commerce for a 2-year period. The exemptions preempt State laws and regulations and may be renewed.

Federal Register, Volume 80 Issue 182 (Monday, September 21, 2015)

[Federal Register Volume 80, Number 182 (Monday, September 21, 2015)]
[Notices]
[Pages 57038-57041]
From the Federal Register Online [www.thefederalregister.org]
[FR Doc No: 2015-23593]

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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2014-0380]

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 6
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 6 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 September 21, 2015. The exemptions
expire on September 21, 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.
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., 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

[[Page 57039]]

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 6 individuals an exemption from the regulatory
requirement inSec. 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.
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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/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 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

[[Page 57040]]

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 6 individuals. Under current FMCSA regulations, all of the 6 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 6 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 6 drivers, some of
whom currently drive a CMV in intrastate commerce. The CDLIS and MCMIS
were searched for crash and violation data on the 6 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 was previously published.

Docket #FMCSA-2014-0380

On January 22, 2015, FMCSA published a notice of receipt of
exemption applications and requested public comment on 15 individuals
(80 FR 3309; Docket number FMCSA-2015-01012). The comment period ended
on February 23, 2015. Of the 15 applicants, nine were denied. Five
commenters responded to this notice. A discussion of the comments is
presented later in this document. The Agency has determined that the
following six applicants should be granted an exemption.

Dennis Lee Brown

Mr. Brown is a 69 year-old class C CDL holder in Arizona. He has a
history of epilepsy and has remained seizure free since 1999. 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. Brown
receiving an exemption.

Grover M. Curtis

Mr. Curtis is a 52 year-old class A CDL holder in Oregon. He has a
history of a seizure disorder and has remained seizure free since 2004.
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.
Curtis receiving an exemption.

Harold James Durkee

Mr. Durkee is a 64 year-old driver in Wisconsin. He has a history
of a seizure disorder and has remained seizure free since 1977. 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. Durkee
receiving an exemption.

Timothy W. Eyerly

Mr. Eyerly is a 59 year-old driver in Pennsylvania. He has a
history of a seizure disorder and has remained seizure free since 1981.
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.

Denton L. Hineline

Mr. Hineline is a 55 year-old class A CDL holder in Washington. He
has a history of a seizure disorder and has remained seizure free since
1979. He takes anti-seizure medication with the dosage and frequency
remaining the same since 1988. If granted an exemption, he would like
to drive a CMV. His physician states that he is supportive of Mr.
Hineline receiving an exemption.

Benjamin A. Reineke

Mr. Reineke is a 44 year-old class A CDL holder in Ohio. He has a
history of seizures and has remained seizure free since 2005. 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. Reineke
receiving an exemption.

D. Comments

In response to this notice, FMCSA received 5 comments. The American
Trucking Associations, Inc. (ATA) submitted a comment stating, ``ATA
believes that the increased volume of applications for exemption from
parts of 49 CFR 391.41 is cause for concern. The granting of such a
large number of exemptions dilutes the physical qualification standards
and constitutes regulation through exemption. FMCSA must begin a
dialogue on the need and effectiveness of these standards. If it is
determined that these standards need to be altered, it must be done
through the formal rulemaking process.'' FMCSA acknowledges ATA's
concerns and may consider in the future, the initial steps to a formal
rulemaking process to revise physical qualification standards. An
anonymous commenter submitted a comment in support of an individual
with a history of seizure to drive commercially. Rebecca Shuman
believes the federal epilepsy regulation should be similar to
California's regulation in an attempt to balance safety and the right
of the driver to earn a living. Asad Aftab and Rudy Bieteler support
having a federal epilepsy standard to ensure the safe operation of
CMVs.

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

[[Page 57041]]

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 6 individuals based on a thorough evaluation of
each driver's safety experience and medical condition. Safety analysis
of information relating to these 6 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 6 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 6 drivers for a period of 2 years with
annual medical certification required: Dennis Brown (AZ); Grover Curtis
(OR); Harold Durkee (WI); Timothy Eyerly (PA); Denton Hineline (WA);
and Benjamin Reineke (OH) 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 8, 2015.
Larry W. Minor,
Associate Administrator for Policy.
[FR Doc. 2015-23593 Filed 9-18-15; 8:45 am]
BILLING CODE 4910-EX-P

Federal Register / Vol. 80, No. 182 / Monday, September 21, 2015 / Notices 57039

for a 2-year period if it finds ‘‘such convened a panel of medical experts in recur; and by alcohol or illicit drug
exemption would likely achieve a level the field of neurology (the MEP) on May withdrawal.
of safety that is equivalent to or greater 14–15, 2007, to review 49 CFR • Examples of moderate-to-high-risk
than the level that would be achieved 391.41(b)(8) and the advisory criteria factors for recurrence include seizures
absent such exemption.’’ The statute regarding individuals who have caused by non-penetrating head injury
also allows the Agency to renew experienced a seizure, and the 2007 with loss of consciousness or amnesia
exemptions at the end of the 2-year Evidence Report. The Evidence Report greater than 30 minutes, or penetrating
period. and the MEP recommendations are head injury; intracerebral hemorrhage
FMCSA grants 6 individuals an published on-line at http:// associated with a stroke or trauma;
exemption from the regulatory www.fmcsa.dot.gov/regulations/ infections; intracranial hemorrhage;
requirement in§ 391.41(b)(8), to allow medical/reports-how-medical- post-operative complications from brain
these individuals who take anti-seizure conditions-impact-driving, under surgery with significant brain
medication to operate CMVs in Seizure Disorders, and are in the docket hemorrhage; brain tumor; or stroke.
interstate commerce for a 2-year period. for this notice. The MEP report indicates individuals
The Agency’s decision on these with moderate to high-risk conditions
exemption applications is based on an MEP Criteria for Evaluation
On October 15, 2007, the MEP issued should not be certified. Drivers with a
individualized assessment of each
the following recommended criteria for history of a single provoked seizure
applicant’s medical information,
evaluating whether an individual with with low risk factors for recurrence
including the root cause of the
epilepsy or a seizure disorder should be should be recertified every year.
respective seizure(s), the length of time
elapsed since the individual’s last allowed to operate a CMV.3 The MEP Medical Review Board
seizure, and each individual’s treatment recommendations are included in Recommendations and Agency Decision
regimen. In addition, the Agency previously published dockets.
Epilepsy diagnosis. If there is an FMCSA presented the MEP’s findings
reviewed each applicant’s driving
epilepsy diagnosis, the applicant should and the Evidence Report to the Medical
record found in the Commercial Driver’s
be seizure-free for 8 years, on or off Review Board (MRB) for consideration.
License Information System (CDLIS) 1
medication. If the individual is taking The MRB reviewed and considered the
for commercial driver’s license (CDL)
anti-seizure medication(s), the plan for 2007 ‘‘Seizure Disorders and
holders, and interstate and intrastate
medication should be stable for 2 years. Commercial Driver Safety’’ evidence
inspections recorded in Motor Carrier
Stable means no changes in medication, report and the 2007 MEP
Management Information System
dosage, or frequency of medication recommendations. The MRB
(MCMIS).2 For non-CDL holders, the
administration. Recertification for recommended maintaining the current
Agency reviewed the driving records
drivers with an epilepsy diagnosis advisory criteria, which provide that
from the State licensing agency. The
should be performed every year. ‘‘drivers with a history of epilepsy/
Agency acknowledges the potential
Single unprovoked seizure. If there is seizures off anti-seizure medication and
consequences of a driver experiencing a
a single unprovoked seizure (i.e., there seizure-free for 10 years may be
seizure while operating a CMV.
is no known trigger for the seizure), the qualified to drive a CMV in interstate
However, the Agency believes the
individual should be seizure-free for 4 commerce. Interstate drivers with a
drivers covered by the exemptions
years, on or off medication. If the history of a single unprovoked seizure
granted here have demonstrated that
individual is taking anti-seizure may be qualified to drive a CMV in
they are unlikely to have a seizure and
medication(s), the plan for medication interstate commerce if seizure-free and
their medical condition does not pose a
should be stable for 2 years. Stable off anti-seizure medication for a 5 year
risk to public safety.
In reaching the decision to grant these means no changes in medication, period or more’’ [Advisory criteria to 49
exemption requests, the Agency dosage, or frequency of medication CFR 391.43(f)].
considered both current medical administration. Recertification for The Agency acknowledges the MRB’s
literature and information and the 2007 drivers with a single unprovoked position on the issue but believes
recommendations of the Agency’s seizure should be performed every 2 relevant current medical evidence
Medical Expert Panel (MEP). The years. supports a less conservative approach.
Agency previously gathered evidence Single provoked seizure. If there is a The medical advisory criteria for
for potential changes to the regulation at single provoked seizure (i.e., there is a epilepsy and other seizure or loss of
49 CFR 391.41(b)(8) by conducting a known reason for the seizure), the consciousness episodes was based on
comprehensive review of scientific Agency should consider specific criteria the 1988 ‘‘Conference on Neurological
literature that was compiled into the that fall into the following two Disorders and Commercial Drivers’’
‘‘Evidence Report on Seizure Disorders categories: Low-risk factors for (NITS Accession No. PB89–158950/AS).
and Commercial Vehicle Driving’’ recurrence and moderate-to-high risk A copy of the report can be found in the
(Evidence Report) [CD–ROM HD factors for recurrence. docket referenced in this notice.
• Examples of low-risk factors for The MRB’s recommendation treats all
TL230.3 .E95 2007]. The Agency then
recurrence include seizures that were drivers who have experienced a seizure
1 Commercial Driver License Information System
caused by a medication; by non- the same, regardless of individual
(CDLIS) is an information system that allows the penetrating head injury with loss of medical conditions and circumstances.
exchange of commercial driver licensing consciousness less than or equal to 30 In addition, the recommendation to
information among all the States. CDLIS includes minutes; by a brief loss of consciousness continue prohibiting drivers who are
rmajette on DSK7SPTVN1PROD with NOTICES

the databases of fifty-one licensing jurisdictions and
the CDLIS Central Site, all connected by a
not likely to recur while driving; by taking anti-seizure medication from
telecommunications network. metabolic derangement not likely to operating a CMV in interstate commerce
2 Motor Carrier Management Information System does not consider a driver’s actual
(MCMIS) is an information system that captures 3 Engel, J., Fisher, R.S., Krauss, G.L., Krumholz,
seizure history and time since the last
data from field offices through SAFETYNET, A., and Quigg, M.S., ‘‘Expert Panel
CAPRI, and other sources. It is a source for FMCSA Recommendations: Seizure Disorders and
seizure. The Agency has decided to use
inspection, crash, compliance review, safety audit, Commercial Motor Vehicle Driver Safety,’’ FMCSA, the 2007 MEP recommendations as the
and registration data. October 15, 2007. basis for evaluating applications for an

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57040 Federal Register / Vol. 80, No. 182 / Monday, September 21, 2015 / Notices

exemption from the seizure regulation Docket #FMCSA–2014–0380 dosage and frequency remaining the
on an individual, case-by-case basis. On January 22, 2015, FMCSA same since 1988. If granted an
published a notice of receipt of exemption, he would like to drive a
C. Exemptions CMV. His physician states that he is
exemption applications and requested
Following individualized assessments public comment on 15 individuals (80 supportive of Mr. Hineline receiving an
of the exemption applications, FR 3309; Docket number FMCSA–2015– exemption.
including a review of detailed follow-up 01012). The comment period ended on Benjamin A. Reineke
information requested from each February 23, 2015. Of the 15 applicants,
Mr. Reineke is a 44 year-old class A
applicant, FMCSA is granting nine were denied. Five commenters
CDL holder in Ohio. He has a history of
exemptions from 49 CFR 391.41(b)(8) to responded to this notice. A discussion
seizures and has remained seizure free
6 individuals. Under current FMCSA of the comments is presented later in
since 2005. He takes anti-seizure
regulations, all of the 6 drivers receiving this document. The Agency has
medication with the dosage and
exemptions from 49 CFR 391.41(b)(8) determined that the following six
frequency remaining the same since that
would have been considered physically applicants should be granted an
time. If granted the exemption, he
qualified to drive a CMV in interstate exemption.
would like to drive a CMV. His
commerce except that they presently Dennis Lee Brown physician states that he is supportive of
take or have recently stopped taking Mr. Brown is a 69 year-old class C Mr. Reineke receiving an exemption.
anti-seizure medication. For these 6 CDL holder in Arizona. He has a history D. Comments
drivers, the primary obstacle to medical of epilepsy and has remained seizure
qualification was the FMCSA Advisory In response to this notice, FMCSA
free since 1999. He takes anti-seizure received 5 comments. The American
Criteria for Medical Examiners, based medication with the dosage and
on the 1988 ‘‘Conference on Trucking Associations, Inc. (ATA)
frequency remaining the same since that submitted a comment stating, ‘‘ATA
Neurological Disorders and Commercial time. If granted the exemption, he
Drivers,’’ stating that a driver should be believes that the increased volume of
would like to drive a CMV. His applications for exemption from parts of
off anti-seizure medication in order to physician states that he is supportive of
drive in interstate commerce. In fact, the 49 CFR 391.41 is cause for concern. The
Mr. Brown receiving an exemption. granting of such a large number of
Advisory Criteria have little if anything
to do with the actual risk of a seizure Grover M. Curtis exemptions dilutes the physical
and more to do with assumptions about Mr. Curtis is a 52 year-old class A qualification standards and constitutes
individuals who are taking anti-seizure CDL holder in Oregon. He has a history regulation through exemption. FMCSA
of a seizure disorder and has remained must begin a dialogue on the need and
medication.
seizure free since 2004. He takes anti- effectiveness of these standards. If it is
In addition to evaluating the medical determined that these standards need to
status of each applicant, FMCSA seizure medication with the dosage and
frequency remaining the same since that be altered, it must be done through the
evaluated the crash and violation data formal rulemaking process.’’ FMCSA
for the 6 drivers, some of whom time. If granted the exemption, he
would like to drive a CMV. His acknowledges ATA’s concerns and may
currently drive a CMV in intrastate consider in the future, the initial steps
physician states that he is supportive of
commerce. The CDLIS and MCMIS were to a formal rulemaking process to revise
Mr. Curtis receiving an exemption.
searched for crash and violation data on physical qualification standards. An
the 6 applicants. For non-CDL holders, Harold James Durkee anonymous commenter submitted a
the Agency reviewed the driving records Mr. Durkee is a 64 year-old driver in comment in support of an individual
from the State licensing agency. Wisconsin. He has a history of a seizure with a history of seizure to drive
These exemptions are contingent on disorder and has remained seizure free commercially. Rebecca Shuman believes
the driver maintaining a stable since 1977. He takes anti-seizure the federal epilepsy regulation should
treatment regimen and remaining medication with the dosage and be similar to California’s regulation in
seizure-free during the 2-year exemption frequency remaining the same since that an attempt to balance safety and the
period. The exempted drivers must time. If granted the exemption, he right of the driver to earn a living. Asad
submit annual reports from their would like to drive a CMV. His Aftab and Rudy Bieteler support having
treating physicians attesting to the physician states that he is supportive of a federal epilepsy standard to ensure the
stability of treatment and that the driver Mr. Durkee receiving an exemption. safe operation of CMVs.
has remained seizure-free. The driver Timothy W. Eyerly E. Basis for Exemption
must undergo an annual medical
Mr. Eyerly is a 59 year-old driver in Under 49 U.S.C. 31136(e) and
examination by a medical examiner, as 31315(b), FMCSA may grant an
defined by 49 CFR 390.5, following the Pennsylvania. He has a history of a
seizure disorder and has remained exemption from the epilepsy/seizure
FCMSA’s regulations for the physical standard in 49 CFR 391.41(b)(8) if the
qualifications for CMV drivers. seizure free since 1981. He takes anti-
seizure medication with the dosage and exemption is likely to achieve an
FMCSA published a notice of receipt frequency remaining the same since equivalent or greater level of safety than
of application and requested public 2002. If granted the exemption, he would be achieved without the
comment during a 30-day public would like to drive a CMV. His exemption. Without the exemption,
comment period in a Federal Register physician. applicants will continue to be restricted
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notice for each of the applicants. A short to intrastate driving. With the
summary of the applicants’ Denton L. Hineline exemption, applicants can drive in
qualifications and a discussion of the Mr. Hineline is a 55 year-old class A interstate commerce. Thus, the Agency’s
comments received follows this section. CDL holder in Washington. He has a analysis focuses on whether an equal or
For applicants who were denied an history of a seizure disorder and has greater level of safety is likely to be
exemption, a notice was previously remained seizure free since 1979. He achieved by permitting each of these
published. takes anti-seizure medication with the drivers to drive in interstate commerce

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Federal Register / Vol. 80, No. 182 / Monday, September 21, 2015 / Notices 57041

as opposed to restricting the driver to individuals for exemptions from the provisions of the FMCSRs concerning
driving in intrastate commerce. Agency’s physical qualifications hearing state that a person is physically
standard concerning hearing for qualified to drive a CMV if that person:
Conclusion
interstate drivers. The current regulation First perceives a forced whispered voice in
The Agency is granting exemptions prohibits hearing impaired individuals the better ear at not less than 5 feet with or
from the epilepsy standard, 49 CFR from operating CMVs in interstate without the use of a hearing aid or, if tested
391.41(b)(8), to 6 individuals based on commerce. After notice and opportunity by use of an audiometric device, does not
a thorough evaluation of each driver’s for public comment, the Agency have an average hearing loss in the better ear
safety experience and medical concluded that granting exemptions for greater than 40 decibels at 500 Hz, 1,000 Hz,
condition. Safety analysis of and 2,000 Hz with or without a hearing aid
these drivers to operate property- when the audiometric device is calibrated to
information relating to these 6 carrying CMVs will provide a level of American National Standard (formerly ASA
applicants meets the burden of showing safety that is equivalent to or greater Standard) Z24.5—1951.
that granting the exemptions would than the level of safety maintained
achieve a level of safety that is 49 CFR 391.41(b)(11). This standard was
without the exemptions. The
equivalent to or greater than the level adopted in 1970, with a revision in 1971
exemptions are valid for a 2-year period
that would be achieved without the to allow drivers to be qualified under
and may be renewed, and the
exemption. By granting the exemptions, this standard while wearing a hearing
exemptions preempt State laws and
the interstate CMV industry will gain 6 aid, 35 FR 6458, 6463 (April 22, 1970)
regulations.
highly trained and experienced drivers. and 36 FR 12857 (July 3, 1971).
In accordance with 49 U.S.C. DATES: The exemptions are effective FMCSA grants 30 individuals an
31315(b)(1), each exemption will be September 21, 2015. The exemptions exemption from § 391.41(b)(11)
valid for 2 years, with annual expire on September 21, 2017. concerning hearing to enable them to
recertification required unless revoked FOR FURTHER INFORMATION CONTACT: operate property-carrying CMVs in
earlier by FMCSA. The exemption will Charles A. Horan, III, Director, Office of interstate commerce for a 2-year period.
be revoked if the following occurs: (1) Carrier, Driver and Vehicle Safety, (202) The Agency’s decision on these
The person fails to comply with the 366–4001, fmcsamedical@dot.gov, exemption applications is based on the
terms and conditions of the exemption; FMCSA, Department of Transportation, current medical literature and
(2) the exemption has resulted in a 1200 New Jersey Avenue SE., Room information and the ‘‘Executive
lower level of safety than was W64–224, Washington, DC 20590–0001. Summary on Hearing, Vestibular
maintained prior to being granted; or (3) Office hours are 8:30 a.m. to 5 p.m., e.t., Function and Commercial Motor
continuation of the exemption would Monday through Friday, except Federal Driving Safety’’ (the 2008 Evidence
not be consistent with the goals and holidays. Report) presented to FMCSA on August
objectives of 49 U.S.C. 31136 and 31315. SUPPLEMENTARY INFORMATION:
26, 2008. The evidence report reached
FMCSA exempts the following 6 two conclusions regarding the matter of
drivers for a period of 2 years with A. Electronic Access hearing loss and CMV driver safety: (1)
annual medical certification required: You may see all the comments online No studies that examined the
Dennis Brown (AZ); Grover Curtis (OR); through the Federal Document relationship between hearing loss and
Harold Durkee (WI); Timothy Eyerly Management System (FDMS) at: crash risk exclusively among CMV
(PA); Denton Hineline (WA); and www.regulations.gov. drivers were identified; and (2) evidence
Benjamin Reineke (OH) from the Docket: For access to the docket to from studies of the private driver license
prohibition of CMV operations by read background documents or holder population does not support the
persons with a clinical diagnosis of comments, go to www.regulations.gov contention that individuals with hearing
epilepsy or seizures. If the exemption is and/or Room W12–140 on the ground impairment are at an increased risk for
still in effect at the end of the 2-year level of the West Building, 1200 New a crash. In addition, the Agency
period, the person may apply to FMCSA Jersey Avenue SE., Washington, DC, reviewed each applicant’s driving
for a renewal under procedures in effect between 9 a.m. and 5 p.m., e.t., Monday record found in the CDLIS,1 for CDL
at that time. through Friday, except Federal holidays. holders, and inspections recorded in
Privacy Act: In accordance with 5 MCMIS.2 For non-CDL holders, the
Issued on: September 8, 2015. Agency reviewed the driving records
U.S.C. 553(c), DOT solicits comments
Larry W. Minor, from the State licensing agency. Each
from the public to better inform its
Associate Administrator for Policy. applicant’s record demonstrated a safe
rulemaking process. DOT posts these
[FR Doc. 2015–23593 Filed 9–18–15; 8:45 am] comments, without edit, including any driving history. The Agency believes the
BILLING CODE 4910–EX–P personal information the commenter drivers covered by the exemptions do
provides, to www.regulations.gov, as not pose a risk to public safety.
described in the system of records C. Comments
DEPARTMENT OF TRANSPORTATION notice (DOT/ALL–14 FDMS), which can
On April 7, 2015, FMCSA published
Federal Motor Carrier Safety be reviewed at www.dot.gov/privacy.
a notice of receipt of exemption
Administration B. Background
1 Commercial Driver License Information System
[Docket No. FMCSA–2014–0383] Under 49 U.S.C. 31136(e) and 31315, (CDLIS) is an information system that allows the
FMCSA may grant an exemption from exchange of commercial driver licensing
Qualification of Drivers; Application for the safety regulations for a 2-year period information among all the States. CDLIS includes
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Exemptions; Hearing if it finds ‘‘such exemption would likely the databases of 51 licensing jurisdictions and the
CDLIS Central Site, all connected by a
AGENCY: Federal Motor Carrier Safety achieve a level of safety that is telecommunications network.
Administration (FMCSA), DOT. equivalent to or greater than the level 2 Motor Carrier Management Information System

ACTION: Notice of final disposition. that would be achieved absent such (MCMIS) is an information system that captures
exemption.’’ The statute also allows the data from field offices through SAFETYNET,
CAPRI, and other sources. It is a source for FMCSA
SUMMARY: FMCSA announces its Agency to renew exemptions at the end inspection, crash, compliance review, safety audit,
decision to grant requests from 30 of the 2-year period. The current and registration data.

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Document Created: 2015-12-15 09:38:50
Document Modified: 2015-12-15 09:38:50

Category		Regulatory Information
Collection		Federal Register
sudoc Class		AE 2.7: GS 4.107: AE 2.106:
Publisher		Office of the Federal Register, National Archives and Records Administration
Section		Notices
Action		Notice of final disposition.
Dates		The exemptions are effective September 21, 2015. The exemptions expire on September 21, 2017.
Contact		Charles A. Horan, III, Director, Office of Carrier, Driver and Vehicle Safety, (202) 366-4001, or via email at [email protected], 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.
FR Citation		80 FR 57038

80 FR 57038 - Qualification of Drivers; Exemption Applications; Epilepsy and Seizure Disorders

DEPARTMENT OF TRANSPORTATIONFederal Motor Carrier Safety Administration

Federal Register Volume 80, Issue 182 (September 21, 2015)

DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration