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###### Department of Transportation

###### Federal Motor Carrier Safety Administration

          - [Docket No. FMCSA-2023-0141]

# AGENCY:

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

# ACTION:

Notice of application for exemption; request for comments.

# SUMMARY:

FMCSA announces receipt of an application from one individual for an exemption from the prohibition in the Federal Motor Carrier Safety Regulations (FMCSRs) against operation of a commercial motor vehicle (CMV) in interstate commerce by persons with either a clinical diagnosis of epilepsy or any other condition that is likely to cause a loss of consciousness or any loss of ability to control a CMV. If granted, the exemption would enable this individual who has been diagnosed with narcolepsy and is receiving medical treatment to operate CMVs in interstate commerce.

# DATES:

Comments must be received on or before October 27, 2023.

# ADDRESSES:

You may submit comments identified by the Federal Docket Management System Docket No. FMCSA-2023-0141 using any of the following methods:
      -  Federal eRulemaking Portal:                          Go to                          www.regulations.gov/​,                          insert the docket number (FMCSA-2023-0141) in the keyword box, and click “Search.” Next, choose the only notice listed, and click on the “Comment” button. Follow the online instructions for submitting comments.                    
      -  Mail:                          Dockets Operations; U.S. Department of Transportation, 1200 New Jersey Avenue SE, West Building Ground Floor, Washington, DC 20590-0001.                    
      -  Hand Delivery:                          West Building Ground Floor, 1200 New Jersey Avenue SE, Washington, DC, between 9 a.m. and 5 p.m. ET Monday through Friday, except Federal Holidays.                    
      - Fax: (202) 493-2251.

                        To avoid duplication, please use only one of these four methods. See the “Public Participation” portion of the                         **SUPPLEMENTARY INFORMATION**                         section for instructions on submitting comments.                    

# 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,                         *fmcsamedical@dot.gov.*                         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.                    

# SUPPLEMENTARY INFORMATION:

## I. Public Participation

### A. Submitting Comments

                    If you submit a comment, please include the docket number for this notice (Docket No. FMCSA-2023-0141), indicate the specific section of this                           ( print page 66553)                        document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online or by fax, mail, or hand delivery, but please use only one of these means. FMCSA recommends that you include your name and a mailing address, an email address, or a phone number in the body of your document so that FMCSA can contact you if there are questions regarding your submission.                

                    To submit your comment online, go to                     *https://www.regulations.gov/​docket/​FMCSA-2023-0141.*                     Next, sort the results by “Posted (Newer-Older),” choose the first notice listed, click the “Comment” button, and type your comment into the text box on the following screen. Choose whether you are submitting your comment as an individual or on behalf of a third party and then submit.                

                    If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 8                    1/2                     by 11 inches, suitable for copying and electronic filing. FMCSA will consider all comments and material received during the comment period.                

### B. Viewing Comments

                    To view comments go to                     *www.regulations.gov.*                     Insert the docket number (FMCSA-2023-0141) in the keyword box and click “Search.” Next, choose the only 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 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.                

### C. Privacy Act

                    In accordance with 49 U.S.C. 31315(b)(6), DOT solicits comments from the public on the exemption request. 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

Under 49 U.S.C. 31136(e) and 31315, 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 statute also allows the Agency to renew exemptions at the end of the 5-year period. 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 individual listed in this notice has requested an exemption from 49 CFR 391.41(b)(8). Accordingly, the Agency will evaluate the qualifications of the applicant to determine whether granting the exemption will achieve the required level of safety mandated by statute.

The physical qualification standard for drivers found in § 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 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.                

The criteria states that if an individual has had a sudden episode of a non-epileptic seizure or loss of consciousness of unknown cause that 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 CMV should be made on an individual basis by the ME in consultation with the treating physician. The criteria also state that a variety of functional disorders can cause drowsiness, dizziness, confusion, weakness, or paralysis that may lead to incoordination, inattention, loss of functional control, and susceptibility to accidents while driving.

                    In those individual cases where a driver had an epileptic medical event 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.                

## III. Qualifications of Applicant

### Kevin Cunningham

Kevin Cunningham is a commercial driver's license holder in Tennessee. In a statement dated July 25, 2023, Kevin Cunningham's sleep medicine provider reported that they were diagnosed with obstructive sleep apnea and narcolepsy without cataplexy. Their sleep medicine provider also reported they are treated with a stimulant, compliant with continuous positive airway pressure treatment, and have no concern for risk of sleepiness while driving.

## IV. Request for Comments

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

Larry W. Minor,

Associate Administrator for Policy.

# Footnotes

1.                             These criteria may be found in Appendix A to part 391—Medical Advisory Criteria, section H. Epilepsy: § 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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[FR Doc. 2023-20965 Filed 9-26-23; 8:45 am]

BILLING CODE 4910-EX-P