[Federal Register Volume 88, Number 70 (Wednesday, April 12, 2023)]
[Notices]
[Pages 22086-22088]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-07650]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[FMCSA Docket No. FMCSA-2023-0029]


Qualification of Drivers; Exemption Applications; Epilepsy and 
Seizure Disorders

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

ACTION: Notice of final disposition.

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SUMMARY: FMCSA announces its decision to exempt six individuals from 
the requirement in the Federal Motor Carrier Safety Regulations 
(FMCSRs) that interstate commercial motor vehicle (CMV) drivers have 
``no established medical history or clinical diagnosis of epilepsy or 
any other condition which is likely to cause loss of consciousness or 
any loss of ability to control a CMV.'' The exemptions enable these 
individuals who have had one or more seizures and are taking anti-
seizure medication to operate CMVs in interstate commerce.

DATES: The exemptions are applicable on March 31, 2023. The exemptions 
expire on March 31, 2025.

FOR FURTHER INFORMATION CONTACT: Ms. Christine A. Hydock, Chief, 
Medical Programs Division, FMCSA, DOT, 1200 New Jersey Avenue SE, Room 
W64-224, Washington, DC 20590-0001, (202) 366-4001, 
[email protected]. Office hours are from 8:30 a.m. to 5 p.m. ET 
Monday through Friday, except Federal holidays. If you have questions 
regarding viewing or submitting material to the docket, contact Dockets 
Operations, (202) 366-9826.

[[Page 22087]]


SUPPLEMENTARY INFORMATION:

I. Public Participation

A. Viewing Comments

    To view comments go to www.regulations.gov. Insert the docket 
number, (FMCSA-2023-0029) in the keyword box and click ``Search.'' 
Next, sort the results by ``Posted (Newer-Older),'' choose the first 
notice listed, and click ``Browse Comments.'' If you do not have access 
to the internet, you may view the docket online by visiting Dockets 
Operations in Room W12-140 on the ground floor of the DOT West 
Building, 1200 New Jersey Avenue SE, Washington, DC 20590-0001, between 
9 a.m. and 5 p.m. ET Monday through Friday, except Federal holidays. To 
be sure someone is there to help you, please call (202) 366-9317 or 
(202) 366-9826 before visiting Dockets Operations.

B. Privacy Act

    In accordance with 49 U.S.C. 31315(b)(6), DOT solicits comments 
from the public on the exemption requests. 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 (Federal Docket Management System), which can be 
reviewed at https://www.transportation.gov/individuals/privacy/privacy-act-system-records-notices, the comments are searchable by the name of 
the submitter.

II. Background

    On February 13, 2023, FMCSA published a notice announcing receipt 
of applications from six individuals requesting an exemption from the 
epilepsy and seizure disorders prohibition in 49 CFR 391.41(b)(8) and 
requested comments from the public (88 FR 9316). The public comment 
period ended on March 15, 2023, and two comments were received.
    FMCSA has evaluated the eligibility of these applicants and 
determined that granting exemptions to these individuals would likely 
achieve a level of safety that is equivalent to, or greater than, the 
level that would be achieved by complying with Sec.  391.41(b)(8).
    The physical qualification standard for drivers regarding epilepsy 
found in Sec.  391.41(b)(8) states that a person is physically 
qualified to drive a CMV if that person has no established medical 
history or clinical diagnosis of epilepsy or any other condition which 
is likely to cause the loss of consciousness or any loss of ability to 
control a CMV.
    In addition to the regulations, FMCSA has published advisory 
criteria \1\ to assist medical examiners (MEs) in determining whether 
drivers with certain medical conditions are qualified to operate a CMV 
in interstate commerce.
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    \1\ These criteria may be found in APPENDIX A TO PART 391--
MEDICAL ADVISORY CRITERIA, section H. Epilepsy: Sec.  391.41(b)(8), 
paragraphs 3, 4, and 5, which is available on the internet at 
https://www.gpo.gov/fdsys/pkg/CFR-2015-title49-vol5/pdf/CFR-2015-title49-vol5-part391-appA.pdf.
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III. Discussion of Comments

    FMCSA received two comments in this proceeding. One commenter 
supported granting exemptions if the decision was determined by a 
physician on a case-by-case basis. The remainder of the comment was 
outside the scope of this notice. The second commenter had concerns 
about granting exemptions to CMV operators that have had seizures 
indicating that medication is not always effective to prevent a seizure 
from occurring.
    The Agency has evaluated each driver's application and determined 
that they are unlikely to have a seizure and their medical condition 
does not pose a risk to public safety. Therefore, exempting these 
applicants from the epilepsy and seizure disorder prohibition in Sec.  
391.41(b)(8) is likely to achieve a level of safety equal to that 
existing without the exemption.

IV. Basis for Exemption Determination

    Under 49 U.S.C. 31136(e) and 31315(b), FMCSA may grant an exemption 
from the FMCSRs for no longer than a 5-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 statutes allow the Agency to renew exemptions at the end 
of the 5-year period. However, FMCSA grants medical exemptions from the 
FMCSRs for a 2-year period to align with the maximum duration of a 
driver's medical certification.
    The Agency's decision regarding these exemption applications is 
based on the 2007 recommendations of the Agency's Medical Expert Panel. 
The Agency conducted an individualized assessment of each applicant's 
medical information, including the root cause of the respective 
seizure(s) and medical information about the applicant's seizure 
history, the length of time that has elapsed since the individual's 
last seizure, the stability of each individual's treatment regimen and 
the duration of time on or off of anti-seizure medication. In addition, 
the Agency reviewed the treating clinician's medical opinion related to 
the ability of the driver to safely operate a CMV with a history of 
seizure and each applicant's driving record found in the commercial 
driver's license Information System for commercial driver's license 
(CDL) holders, and interstate and intrastate inspections recorded in 
the Motor Carrier Management Information System. For non-CDL holders, 
the Agency reviewed the driving records from the State Driver's 
Licensing Agency. A summary of each applicant's seizure history was 
discussed in the February 13, 2023, Federal Register notice (88 FR 
9316) and will not be repeated in this notice.
    These six applicants have been seizure-free over a range of 31 
years while taking anti-seizure medication and maintained a stable 
medication treatment regimen for the last 2 years. In each case, the 
applicant's treating physician verified his or her seizure history and 
supports the ability to drive commercially.
    The Agency acknowledges the potential consequences of a driver 
experiencing a seizure while operating a CMV. However, the Agency 
believes the drivers granted this exemption have demonstrated that they 
are unlikely to have a seizure and their medical condition does not 
pose a risk to public safety.
    Consequently, FMCSA finds that in each case exempting these 
applicants from the epilepsy and seizure disorder prohibition in Sec.  
391.41(b)(8) would likely achieve a level of safety equal to that 
existing without the exemption, consistent with the applicable standard 
in 49 U.S.C. 31315(b)(1).

V. Conditions and Requirements

    The terms and conditions of the exemption are provided to the 
applicants in the exemption document and include the following: (1) 
each driver must remain seizure-free and maintain a stable treatment 
during the 2-year exemption period; (2) each driver must submit annual 
reports from their treating physicians attesting to the stability of 
treatment and that the driver has remained seizure-free; (3) each 
driver must undergo an annual medical examination by a certified ME, as 
defined by Sec.  390.5T; and (4) each driver must provide a copy of the 
annual medical certification to the employer for retention in the 
driver's qualification file, or keep a copy of his/her driver's 
qualification file if he/she is self-employed. The driver must also 
have a copy of the exemption when driving, for presentation to a duly 
authorized

[[Page 22088]]

Federal, State, or local enforcement official.

VI. Preemption

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

VII. Conclusion

    Based upon its evaluation of the six exemption applications, FMCSA 
exempts the following drivers from the epilepsy and seizure disorder 
prohibition in Sec.  391.41(b)(8), subject to the requirements cited 
above:

Joseph Harbaugh (IL)
Erik Hernandez (AK)
Robert Hilburn (TX)
Herman Lee (VA)
Joel Vasquez (NY)
Spencer William (OH)

    In accordance with 49 U.S.C. 31315(b), each exemption will be valid 
for 2 years from the effective date 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, 49 
U.S.C. chapter 313, or the FMCSRs.

Larry W. Minor,
Associate Administrator for Policy.
[FR Doc. 2023-07650 Filed 4-11-23; 8:45 am]
BILLING CODE 4910-EX-P


