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###### Department of Transportation

###### Federal Motor Carrier Safety Administration

          - [Docket No. FMCSA-2011-0089]

# AGENCY:

Federal Motor Carrier Safety Administration (FMCSA), DOT.

# ACTION:

Notice of applications for exemption, request for comments.

# SUMMARY:

FMCSA announces receipt of applications from 8 individuals for an exemption from the prohibition against persons with a clinical diagnosis of epilepsy or any other condition which is likely to cause a loss of consciousness or any loss of ability to operate a commercial motor vehicle (CMV) from operating CMVs in interstate commerce. If granted, the exemptions would enable these individuals with seizure disorders to operate CMVs in interstate commerce.

# DATES:

Comments must be received on or before May 5, 2011.

# ADDRESSES:

You may submit comments bearing the Federal Docket Management System (FDMS) Docket ID FMCSA-2011-0089 using any of the following methods:
      -  Federal eRulemaking Portal:                          Go to                          http://www.regulations.gov.                          Follow the on-line instructions for submitting comments.                    
      -  Mail:                          Docket Management Facility; U.S. Department of Transportation, 1200 New Jersey Avenue, SE., West Building Ground Floor, Room W12-140, Washington, DC 20590-0001.                    
      -  Hand Delivery:                          West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.                    
      -  Fax:                          1-202-493-2251.                    

                        Each submission must include the Agency name and the docket ID for this Notice. Note that DOT posts all comments received without change to                         *http://www.regulations.gov,*                         including any personal information included in a comment. Please see the Privacy Act heading below.                    

*Docket:*                         For access to the docket to read background documents or comments, go to                         *http://www.regulations.gov*                         at any time or Room W12-140 on the ground level of the West Building, 1200 New Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The FDMS is available 24 hours each day, 365 days each year. If you want acknowledgment that we received your comments, please include a self-addressed, stamped envelope or postcard or print the acknowledgement page that appears after submitting comments on-line.                    

*Privacy Act:*                         Anyone may search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or of the person signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review the DOT's complete Privacy Act Statement in the                         **Federal Register**                         published on April 11, 2000 (65 FR 19477-78; Apr. 11, 2000). This information is also available at                         *http://Docketinfo.dot.gov.*

# FOR FURTHER INFORMATION CONTACT:

                        Dr. Mary D. Gunnels, Director, Medical Programs, (202) 366-4001,                         *fmcsamedical@dot.gov,*                         FMCSA, Room W64-224, Department of Transportation, 1200 New Jersey Avenue, SE., Washington, DC 20590-0001. Office hours are from 8:30 a.m. to 5 p.m., Monday through Friday, except Federal holidays.                    

# SUPPLEMENTARY INFORMATION:

 

## Background

                    Under 49 U.S.C. 31315 and 31136(e), FMCSA may grant an exemption 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 statutes also allow the Agency to renew exemptions at the end of the 2-year period. The 8 individuals listed in this notice have recently requested an exemption from the epilepsy prohibition in 49 CFR 391.41(b)(8), which applies to drivers who operate CMVs as defined in 49 CFR 390.5, in interstate commerce. Section 391.41(b)(8) states that a person is physically qualified to drive a commercial motor vehicle 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 commercial motor vehicle.                          ( print page 18823)    

FMCSA provides medical advisory criteria for use by medical examiners in determining whether drivers with certain medical conditions should be certified to operate commercial motor vehicles in intrastate commerce. The advisory criteria indicates that if an individual has had a sudden episode of a non-epileptic seizure or loss of consciousness of unknown cause which did not require anti-seizure medication, the decision whether that person's condition is likely to cause the loss of consciousness or loss of ability to control a commercial motor vehicle should be made on an individual basis by the medical examiner in consultation with the treating physician. Before certification is considered, it is suggested that a 6-month waiting period elapse from the time of the episode. Following the waiting period, it is suggested that the individual have a complete neurological examination. If the results of the examination are negative and anti-seizure medication is not required, then the driver may be qualified.

In those individual cases where a driver had a seizure or an episode of loss of consciousness that resulted from a known medical condition (e.g., drug reaction, high temperature, acute infectious disease, dehydration, or acute metabolic disturbance), certification should be deferred until the driver has fully recovered from that condition, has no existing residual complications, and is not taking anti-seizure medication. Drivers with a history of epilepsy/seizures off anti-seizure medication and seizure-free for 10 years may be qualified to operate 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.

## Summary of Applications

### Brian Sessions

Mr. Sessions is a CMV driver in the state of Maine. He was diagnosed with seizure disorder in 1985 and placed on medication with good control until 1989 when his doctor recommended stopping the medicine. Mr. Sessions suffered a relapse seizure due to improper withdrawal advice in 1989 and resumed his medication. He was withdrawn successfully from his anti-seizure medication in 2007 and has remained medication free since that time. Mr. Sessions believes that he would achieve a level of safety that is equivalent to the level of safety obtained by complying with the regulation because he has remained seizure-free for 22 years and off anti-seizure medication for 4 years.

### Donald Schutz

Mr. Schutz is a CMV driver in the state of Ohio. He states that he was diagnosed with a brain tumor in 2002 and that he suffered a seizure due to the tumor in July of that year. He had brain surgery in November 2002 and the tumor was successfully removed. Mr. Schutz has been taking the anti-seizure medication Dilantin since that time and has no further seizures. He has his medication levels checked often by blood tests and remains compliant with his regimen. Mr. Schutz believes that he would achieve a level of safety that is equivalent to the level of safety obtained by complying with the regulation because he has remained seizure-free for 9 years and has been on anti-seizure medication since 2002.

### Robin L. Sherwood

Mr. Sherwood is a CMV driver in the state of Idaho. He states that he had a seizure caused by a brain tumor in 1997 and that the tumor was successfully removed during the same year. Mr. Sherwood has taken anti-seizure medication (Carbotrol) since 1997 with no further seizure activity. His doctor supports Mr. Sherwood's application for exemption because of his successful surgery and medication compliance. Mr. Sherwood believes that he would achieve a level of safety that is equivalent to the level of safety obtained by complying with the regulation because he has remained seizure-free since 1997, has an excellent driving record, and is compliant with his medication regimen for seizures.

### Frank Eveland

Mr. Eveland is a CMV driver in the state of Wisconsin. He was diagnosed with one unprovoked seizure in 2003 and placed on the anti-seizure medication Keppra at that time. His physician states that Mr. Eveland has had no further seizures and that his medication level is checked regularly by blood tests. The doctor states that Mr. Eveland is safe to operate a motor vehicle and that he is compliant with his medication. Mr. Eveland believes that he would achieve a level of safety that is equivalent to the level of safety obtained by complying with the regulation because he has maintained good medication control and has remained seizure-free for 8 years.

### Frank Cekovic

Mr. Cekovic is a CMV driver in the state of Pennsylvania. He was diagnosed with a seizure disorder in January 2009 and placed on the anti-seizure medication Keppra at that time. His treating physician states that he is compliant with his medication regimen and that his risk of a recurrent seizure is very low. The CMV that he operates is a “bucket truck” for a power and light company and Mr. Cekovic states that the maximum distance he drives between job sites is no more than 20 miles per day.

### Paul G. Kane

Mr. Kane is a CMV operator in the state of Massachusetts and he had a seizure in 2006. He had one other seizure in December 2009 and was placed on Keppra by his treating physician. Both seizures were listed as being from “unknown causes”. His diagnosis is seizure disorder and he has done well on his medication with no further seizures according to his treating physician. Mr. Kane states that his maximum daily average CMV mileage would be between 5-20 miles per day.

### Darren Keith

Mr. Keith is a CMV driver from Missouri and suffered a seizure in October 2009. He was placed on the anti-seizure medication Dilantin at that time. Mr. Keith also reported that he had two childhood episodes of febrile seizures. Mr. Keith was able to discontinue his medication with no ill effects in March 2010 and diagnostic testing revealed that he does not exhibit epilepsy symptoms.

### Richard Laqua

Mr. Laqua is a CMV driver from Minnesota and was diagnosed with a partial seizure in March 2009. He was placed on the anti-seizure medication Trileptal at that time and has had no further seizure episodes. Mr. Laqua operates a milk truck.

## Request for Comments

In accordance with 49 U.S.C. 31315 and 31136(e), FMCSA requests public comment from all interested persons on the exemption applications described in this notice. We will consider all comments received before the close of business on the closing date indicated earlier in the notice.

Issued on: March 29, 2011.

Larry W. Minor,

Associate Administrator for Policy. 

[FR Doc. 2011-7955 Filed 4-4-11; 8:45 am]

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